Inquest into the death of Scott Simpson
Legal
In the Coroner's Court of New South Wales
FILE NO. 988/04
WRITTEN SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
1. INTRODUCTION
1.1 This is an inquest into the death in custody of Mr Scott Simpson in Long Bay Goal on 7 June 2004.
1.2 These written submissions are made by the Human Rights and Equal Opportunity Commission (‘the Commission’) pursuant to its functions relating to human rights under section 11(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’).[1] In these submissions, the Commission sets out the human rights issues surrounding the incarceration and death of Mr Simpson, including principally the treatment of mentally ill people within the criminal justice system.
1.3 These human rights issues are relevant to the recommendations that the Coroner may make under section 22A of the Coroners Act 1980 (NSW) (‘Coroner’s Act’), as they relate to public health and safety, and ways to prevent deaths from happening in similar circumstances in the future.[2]
1.4 In these submissions, the Commission deals in turn with the following matters:
(a) The relevant human rights instruments and principles (Part 2).
(b) The breaches of the rights to humane treatment (articles 7 and 10(1) of the ICCPR) during Mr Simpson’s incarceration as follows:
- the prolonged detention of Mr Simpson in segregation (Part 4A);
- the failure to transfer Mr Simpson to hospital (Part 4B); and
- the failure to provide adequate psychiatric care to Mr Simpson in the correctional environment (Part 4C
(c) The obligations imposed by the right to life (article 6 of the ICCPR), including that further steps should be taken toward the elimination of obvious hanging points in cells (Part 5).
(d) The recommendations the Coroner may make under section 22A of the Coroner’s Act (Part 6).
2. RELEVANT HUMAN RIGHTS INSTRUMENTS AND PRINCIPLES
2.1 Mentally ill people in the criminal justice system have rights prescribed in international treaties and other human rights instruments.[3] These include the International Covenant on Civil and Political Rights (ҵʸ’),[4] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (‘Principles for the Protection of Persons in Imprisonment’),[5] the Standard Minimum Rules for the Treatment of Prisoners (‘Standard Minimum Rules’),[6] and the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (‘Principles for the Protection of Persons with Mental Illness’).[7]
Right to life
2.2 Article 6 of the ICCPR provides, relevantly, that ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’
2.3 It is well accepted that article 6 of the ICCPR requires the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.[8] The Human Rights Committee has stated:[9]
The right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.
2.4 In particular, States have a positive duty to protect the life of people in custody. In Lantsov v Russian Federation,[10] the Human Rights Committee stated:
The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection.
...the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility.
Rights to humane treatment
2.5 In addition to the right to life, the human rights instruments (above) require humane treatment and the provision of adequate and appropriate medical care.
2.6 Article 7 of the ICCPR provides that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’[11] The aim of article 7 is to protect the dignity and the physical and mental integrity of the individual.[12]
2.7 The prohibition in article 7 is complemented in the ICCPR by the positive requirements of article 10. Article 10(1) provides that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’[13] Article 10(1) imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty. The Human Rights Committee has stated that respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. That is, persons deprived of their liberty enjoy all the rights prescribed in the ICCPR, subject to the restrictions that are unavoidable in a closed environment.[14]
2.8 The Human Rights Committee has held that the assessment of whether the treatment of a person is inconsistent with article 7 or 10 depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim. Accordingly, the assessment of whether the treatment is inconsistent with article 7 or 10 of the ICCPR is in part a subjective evaluation. Factors such as the victim’s age and mental health have been found to aggravate the effect of certain treatment so as to bring that treatment within article 7 or 10.[15]
2.9 The Human Rights Committee and the European Court of Human Rights[16] have considered the content of the rights prescribed in articles 7 and 10(1) of the ICCPR in circumstances relevant to the present proceedings.
Access to appropriate medical care
2.10 Governments are under a particular duty to protect the health of persons deprived of their liberty. Further, the Commission submits that a lack of appropriate medical care may amount to ‘inhuman and degrading treatment and punishment’ within the meaning of article 7 of the ICCPR.[17]
2.11 The obligation to protect the health of persons deprived of their liberty is explicitly recognised in the Principles for the Protection of Persons in Imprisonment and the Principles for the Protection of Persons with Mental Illness. The Principles for the Protection of Persons in Imprisonment provide (at Principle 24) as follows:
A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary.
Further, the Principles for the Protection of Persons with Mental Illness provide that persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings, and who are determined to have a mental illness, have the right to the best available mental health care.[18]
2.12 The Standard Minimum Rules make particular provision for the treatment of mentally ill persons within the criminal justice system as follows:
82(1) Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible.
(2) Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialised institutions under medical management.
(3) During their stay in prison, such prisoners shall be placed under the special supervision of a medical officer.
(4) The medical or psychiatric service of the penal institution shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
2.13 The Human Rights Committee has indicated that the norms found in the Standard Minimum Rules are incorporated into the article 10 guarantee.[19] The Committee has also implicitly endorsed the other United Nations codes.[20] These codes are the product of agreement between States and as such are an indication and expression of States’ consensus on a particular issue.[21]
Detention in segregated custody
2.14 The Human Rights Committee has expressed concern about the use of solitary confinement, especially for those detained prior to trial and conviction. The Committee has stated:[22]
The Committee is of the view that solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1, of the Covenant. [Emphasis added]
2.15 Relevantly, the Human Rights Committee has held that the use of confinement was inconsistent with article 10(1), in circumstances where the prisoner’s confinement to a cell ‘was intended to maintain prison order or to protect him from further self-harm, as well as other prisoners.’[23]
2.16 The Human Rights Committee has also indicated that prolonged solitary confinement may amount to acts prohibited by article 7.[24] As set out above, the assessment of whether the treatment is incompatible with the standards of article 7 depends on all the circumstances of the case. Relevantly, factors including mental health have been found to aggravate the effect of solitary confinement so as to bring that treatment within article 7.[25]
3. BREACHES OF RIGHTS TO HUMANE TREATMENT
3.1 The Commission submits that the treatment of Mr Simpson during his incarceration from 30 March 2002 to 7 June 2004 was inconsistent with both article 10(1) of the ICCPR and the prohibition on inhuman and degrading treatment or punishment in article 7 of the ICCPR in the following respects:
(a) the prolonged detention of Mr Simpson in segregated custody, particularly in light of his serious mental illness;
(b) the failure to transfer Mr Simpson to ‘D ward’, contrary to the recommendations of numerous psychiatrists that Mr Simpson required treatment in hospital; and
(c) the failure to provide adequate medical care, including psychiatric care, to Mr Simpson while he remained in the correctional environment.
3.2 The Commission submits that the treatment outlined above was also inconsistent with the Standard Minimum Rules,[26] the Principles for the Protection of Persons in Imprisonment[27] and the Principles for the Protection of Persons with Mental Illness.[28]
3.3 Further, the Commission refers to the fact that Mr Simpson’s death, apparently by hanging, occurred in a cell with obvious hanging points. As set out above, the right to life in article 6 of the ICCPR enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.[29] The Commission submits that further steps should be taken toward the elimination of obvious hanging points in cells to ensure Australia’s compliance with article 6.
4. MR SIMPSON’S INCARCERATION: MARCH 2002 TO JUNE 2004
4.1 It is common ground that Mr Simpson suffered from paranoid schizophrenia. Mr Simpson was most likely suffering from this serious mental illness when he was received into custody in March 2002.[30] His illness continued in various stages of remission until his death on 7 June 2004. He was prescribed anti-psychotic medication and his compliance with this medication was variable. Mr Simpson was described as having a lack of insight into his mental illness.[31]
4.2 Mr Simpson was received into custody on 30 March 2002 as a remand prisoner. He was detained on remand for various offences until 31 March 2004. From 31 March 2004 to 7 June 2004 he was detained both as a remand prisoner and as a forensic patient under the Mental Health Act 1990 (NSW) (‘Mental Health Act’).[32] The Commission observes that Mr Simpson was not, during the relevant period, detained as a result of conviction for an offence.
4.3 Upon reception into the Metropolitan Remand and Reception Centre (‘MRRC’) on 30 March 2002, Mr Simpson informed the Justice Health[33] nurse conducting his medical assessment that he had made three previous suicide attempts, by hanging, whilst in prison. He also indicated that he had previously been admitted to psychiatric facilities for drug induced psychosis.[34] Mr Simpson’s medical history was recorded by Justice Health as follows: general impulsive behaviour, impulsive suicide attempts, violence to others, illicit drug use, intentional drug overdose, unintentional illicit drug overdose, serious mental illness[35] and suicide attempt when seriously mentally ill.[36]
4.4 By reason of his previous suicide attempts and his presentation as ‘slightly depressed’, Justice Health recommended a two-out cell placement.[37] Mr Simpson was placed in a cell with Mr Parfitt. He caused the death of Mr Parfitt shortly after being placed in the cell.[38] It was the evidence of Dr Greenberg, Dr Westmore and Dr Lucas that it was most likely that Mr Simpson was acutely mentally ill at the time that he killed Mr Parfitt.[39]
(A) MR SIMPSON’S PROLONGED DETENTION IN SEGREGATION
4.5 Following the death of Mr Parfitt, Mr Simpson was placed on a segregation order.[40] The Governor of a correctional centre may direct that an inmate be held in segregated custody if of the opinion that their association with other inmates constitutes, or is likely to constitute, a threat to the security of a correctional centre, or good order and discipline within the centre.[41] It is a decision taken by Corrective Services for security reasons.[42]
4.6 The segregation order required Mr Simpson to be held in isolation from all other inmates. Mr Simpson remained in segregation for almost the entire period of his incarceration, from March 2002 until his death on 7 June 2004.[43]
4.7 The Commission submits that the prolonged detention of Mr Simpson in segregated custody was inconsistent with articles 7 and 10(1) of the ICCPR. The Commission notes that inhuman treatment must attain a minimum level of severity to come within the scope of articles 7 and 10. The assessment of this minimum is in part a subjective evaluation that depends on all the circumstances of the case, such as the nature of the treatment, its duration, its physical or mental effects as well as the state of health of the victim.
4.8 The Commission sets out below a brief outline of Mr Simpson’s incarceration during the relevant period, 31 March 2002 to 7 June 2004.
4.9 In April 2002, Mr Simpson was transferred from the MRRC to the Goulburn correctional centre. He was initially housed in the Multi Purpose Unit (‘MPU’) at Goulburn where he was placed on consecutive segregation orders.[44]
4.10 In April 2003, he was transferred to the High Risk Management Unit (‘HRMU’) where, for the most part, he remained on a segregation order. The HRMU houses inmates who require a higher level of security and management than can be provided by mainstream maximum security institutions.[45] During the periods 17 June 2003 to 21 September 2003 and 11 October 2003 to 6 November 2003, Mr Simpson was allowed to associate with one other inmate. However, in the later of those two periods, the association took place through a secure barrier. The decision to terminate all associations in November 2003 was made for security reasons, as the Deputy Governor of the HRMU considered that Mr Simpson posed a risk to other inmates.[46]
4.11 On 22 March 2004, Mr Simpson was transferred from the HRMU to the Long Bay Hospital Area 2[47] because of a pending court trial.[48] He was placed on a segregation order upon reception at Long Bay Hospital to accord with standard operating procedures for inmates temporarily absent from HRMU.[49] Thereafter, Mr Simpson remained in segregation until his death on 7 June 2004. The segregated custody order was open to review on 21 June 2004.[50]
4.12 During this time in segregation, Mr Simpson was confined to his cell for extended periods. At the Long Bay Hospital, Mr Simpson was confined to his cell for about 22 hours each day. He was allowed access to the ‘day yard’ for about 2 hours each day. The ‘day yard’ at Long Bay Hospital is an open air caged in area (about 20 feet by 6 feet). It has a shower but no facilities for exercise. The Deputy Superintendent described the area as follows: ‘...there was no exercise equipment in there, you couldn’t go for a run or a jog ... you could pace up and down and that’s all. It was open air, that’s all.’[51]
4.13 At the HRMU, Mr Simpson was allowed out of his cell into the ‘day yard’ for 2.5 hours each day and on occasion from 9am to 2.30pm. Again, the ‘day yard’ is an open air caged in area at the rear of the inmate’s cell. It is a little larger than a cell, and contains only a concrete bench. Certain cells have access to a larger ‘day yard’ (three to four times the size of a cell). Inmates are moved every 28 days to allow them occasional access to these larger yards.[52]
4.14 The Commission submits that the effects of this prolonged isolation and confinement on Mr Simpson were most likely aggravated by his serious mental illness and, in turn, aggravated his serious mental illness.
4.15 The medical evidence before the inquest was, overwhelmingly, that placing prisoners with a mental illness in segregation was likely to exacerbate their illness and represent harm to them.[53] Relevantly, Dr Lewin gave evidence that Mr Simpson’s detention in segregation ‘was one of the significant factors making [Mr Simpson] worse rather than better.’[54] He stated as follows:[55]
Dr Lewin: Solitary confinement is not a medical treatment. There is no circumstance in which that is appropriate in the care of a mentally ill person....I regard it as fundamentally inappropriate for someone as disturbed as this man [Mr Simpson] to be in solitary confinement outside hospital.
Mr Breeze: Why is that Sir?
Dr Lewin: It’s inhumane, there’s no indication that it improves the situation, there’s no scientific evidence that it is any benefit and there’s a tremendous amount of scientific evidence that it makes mental symptoms, such as paranoia, significantly worse. It is grossly inhumane and in my opinion a contravention of all principles of humane management. The fact that it is used in the prison system in my opinion is an absolute abomination.
And further, Dr Lewin stated in evidence:[56]
...if you put someone who is paranoid and agitated and greatly distressed in a solitary confinement setting for 23 hours a day you cannot expect that to have a calming effect. These people behave as if petrol has been poured on a fire. In many, many, many cases it is absolutely contra-indicated [sic] from a medical point of view. It cannot be constructive. Now it does stop them from killing someone else but it certainly makes them personally more, more vulnerable and more frightened and more agitated...
4.16 The Commission submits that Mr Simpson’s detention in isolation from all other inmates, for almost two years, was not compatible with the standard of treatment required in respect of a seriously mentally ill person detained on remand, and later as a forensic patient. In all the circumstances, the Commission submits that Mr Simpson’s protracted detention in isolation from all other inmates was inconsistent with the right to be treated with humanity and dignity within article 10(1) and the prohibition on inhuman and degrading treatment and punishment within article 7 of the ICCPR.
(B) THE FAILURE TO TRANSFER MR SIMPSON TO HOSPITAL
4.17 The Commission submits that Mr Simpson should have received care and treatment in ‘D ward’ during his incarceration, rather than remaining in segregation in the correctional environment. ‘D ward’ is the acute psychiatric unit at Long Bay Hospital. It is gazetted as a prison and a hospital.[57] Justice Health is responsible for deciding which prisoners are admitted to ‘D ward’.[58]
4.18 The Commission submits that the failure to transfer Mr Simpson to D ward was inconsistent with the Standard Minimum Rules, which provide that seriously mentally ill prisoners should receive treatment in hospital, and with articles 7 and 10(1) of the ICCPR. Again, the Commission notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of article 7 or 10, and that the assessment of this minimum is in part subjective, it depends on all the circumstances of the case. The Commission provides the following outline of the circumstances of Mr Simpson’s case.
4.19 Relevantly, for present purposes, there are a number of processes pursuant to which Mr Simpson could have been transferred to D ward:[59]
(a) pursuant to a schedule issued under the Mental Health Act; and
(b) on or after 31 March 2004, when Mr Simpson was found not guilty of the murder of Mr Parfitt by reason of his mental illness.[60]
4.20 Mr Simpson was assessed by psychiatrists on a number of occasions during his incarceration, at various intervals in time, as being acutely mentally ill and schedulable within the meaning of the Mental Health Act. These psychiatrists recommended that Mr Simpson receive treatment in hospital.[61]
4.21 On 27 May 2002, Dr McGrath, the Consultant Psychiatrist at Goulburn Correctional Centre, assessed Mr Simpson as follows:[62]
Clearly patient is grossly deluded and hallucinated. He appears to have no insight whatsoever.
P.D. Paranoid psychosis ... patient should be further assessed in a psychiatric unit such as Wd D Long Bay.
4.22 The same day a Registered Nurse placed Mr Simpson on the wait list for admission to D ward. The nurse described Mr Simpson as ‘extremely delusional/paranoid – high risk potential for violence due to same’. The nurse stated ‘current situation not conducive to any improvement in mental health.’[63]
4.23 On 22 June 2002, Mr Simpson was assessed by Dr Greenberg, Forensic Psychiatrist, for the purposes of a medico-legal report. Dr Greenberg diagnosed Mr Simpson as suffering from paranoid schizophrenia and stated:[64]
Mr Simpson is suffering from a mental illness as defined in the New South Wales Mental Health Act 1990. In the writer’s opinion, he is certifiable under the Mental Health Act and requires treatment in a psychiatric hospital.
4.24 On 1 March 2003, Mr Simpson was referred to Dr Korbel, Psychiatrist, for assessment as he was refusing his anti-psychotic medication. Dr Korbel assessed Mr Simpson as ‘currently acutely unwell and mentally ill under the MHA ...to be transferred to D ward as soon as is practicable.’[65] Dr Korbel completed a D Ward Bed Demand List form that day.[66]
4.25 On 1 May 2003, Mr Simpson was again assessed by Dr McGrath. Dr McGrath was informed by correctional officers that Mr Simpson was on a hunger strike and had been refusing medication for some months. Dr McGrath stated:[67]
Once more it was my opinion little could be achieved in the setting (prisoner was now in the HRMU) and he should be transferred to D Ward at Long Bay as a matter of urgency especially as his life may now be in danger.
4.26 This recommendation was supported by Ms Peta Mead, Intern Psychologist. Ms Mead stated in a report of 7 May 2003:[68]
Psychiatrist Dr McGrath recommended on the 1 May 2003, that Mr Simpson be admitted to D-Ward as soon as possible. I concur with this assessment, due to the fact that Mr Simpson has deteriorated markedly since his reception into the High Risk Management Unit on the 10 April 2003. During this time his presentation has been labile, including frustration, confusion and lethargy. Examples of confused behaviours are: a short hunger strike to alleviate the reported “mental torture of the voices”, current reporting of suicide ideation...
It is imperative for staff safety, Mr Simpson’s safety and well being, and the safe operation of this Unit, that the transfer occur immediately.
4.27 In June 2003, Mr Simpson was assessed by Dr Samuels, a Senior Visiting Psychiatrist employed by Justice Health. Dr Samuels was asked to assess Mr Simpson to determine whether he required admission to D ward.[69] Dr Samuels formed the opinion that Mr Simpson’s psychotic symptoms were settling and that he was not, at that time, ill within the meaning of the Mental Health Act.[70] Dr Samuels accepted in evidence that Mr Simpson had a serious mental disorder and that such disorders fluctuate as do clinical needs.[71] He stated ‘my opinion was that he didn’t need to be [in D ward] on the day I saw him’.[72] In accordance with Dr Samuels’ recommendation, Mr Simpson was taken off the wait list for admission to D ward and remained in the HRMU.[73]
4.28 In August and September 2003, Mr Simpson was assessed by Dr Westmore, Dr Lucas and Dr Greenberg for the purposes of determining his fitness to stand trial for the murder of Mr Parfitt. They each confirmed his diagnosis of paranoid schizophrenia, although differed in their views as to the extent to which the illness was in remission.[74] Dr Westmore assessed Mr Simpson as acutely mentally unwell and schedulable under the Mental Health Act.[75] Dr Lucas also assessed Mr Simpson as requiring treatment in a hospital.[76] However, Dr Greenberg considered Mr Simpson’s illness to be in remission, provided he remained on his anti-psychotic medication.[77]
4.29 On 29 April 2004, Mr Simpson was assessed by Dr Lewin, the Consultant Psychiatrist at Long Bay Hospital. He was refusing his medication. Dr Lewin assessed Mr Simpson as having a paranoid schizophrenic illness (in partial remission) and recommended hospitalisation. Dr Lewin next assessed Mr Simpson on 6 May 2004. He again recommended hospitalisation and indicated that his present detention in solitary confinement was inappropriate.[78]
4.30 Mr Simpson was on the wait list for admission to D ward at this time. He was placed on the list on 5 April 2004, by reason of his status as a forensic patient following the verdict of not guilty by reason of mental illness in the Parfitt murder trial.[79] As at 10 May 2004, he was number one on the list for D ward.[80]
4.31 Mr Simpson was expected to attend a further appointment with Dr Lewin on 3 June 2004. Dr Lewin was not permitted to see him for security reasons, but was informed that Mr Simpson had been refusing medication. Dr Lewin telephoned Dr White and notified him of his high level of concern about Mr Simpson. He expressed his concerns about the risk of self harm and harm to others and again highlighted the need for hospitalisation.[81] This was the third occasion that Dr Lewin had telephoned Dr White to express his concerns in relation to Mr Simpson.[82] Dr Lewin gave the following evidence:[83]
Dr Lewin: I rang Dr White for the third time and I said “If you don’t do something about it I will ring the Minister” I have never done that before.
...
Her Honour: Your opinion about Mr Simpson you say that you were almost moved to contact the Minister for Health?
Dr Lewin: I have never had a higher index of concern about a patient. I felt powerless because it was absolutely apparent that he needed to be cared for in hospital and this was not happening.
...
Her Honour: What did he tell you?Dr Lewin: He said that of course what I understood to be the case, that there are many people who need hospital beds, that he’d been at the top of the list for a number of days, that the next bed that became available would be for Mr Simpson’s care and I said that’s not good enough, he needs to be moved immediately and I explained my view as to why that was the case. I cannot put to your Honour clearly enough how strongly I felt about that...
Mr Breeze: Did you express to Dr White your concerns about the risk of, in particular, self harm?
Dr Lewin: My concern was two fold...my concern was that someone was going to get killed. And given the circumstances of this case, which I’m happy to elaborate upon, my concern was that a member of staff might have been harmed and I had almost as intense a concern with regard to Mr Simpson himself.
4.32 In addition to the psychiatric evidence, it was the evidence of staff employed by both the Department of Corrective Services and Justice Health working at Long Bay Hospital at the relevant time, that Mr Simpson presented as agitated, distressed and delusional during the period May and early June 2004.[84]
4.33 Mr Simpson was found dead in his cell on 7 June 2004. A noose had been made from a sheet and tied around the grill of the cell window.[85] Justice Health gave evidence that a bed in D ward became available for Mr Simpson on 7 June 2004 and Corrective Services were scheduled to conduct the transfer the following morning.[86] The toxicology report indicated that the only drug present in Mr Simpson’s system at the time of death was paracetamol.[87]
4.34 The Commission submits that the failure to transfer Mr Simpson to D ward, contrary to the recommendations of the consultant psychiatrists at Goulburn and Long Bay Hospital that Mr Simpson was seriously mentally ill and required treatment in hospital was inconsistent with the standards required by articles 7 and 10(1) of the ICCPR.[88] Although the Commission acknowledges the evidence that Mr Simpson’s illness was, at times, in remission, the Commission submits that the weight of the evidence was that, for most of the relevant period, Mr Simpson required admission to hospital. Relevantly, this was the evidence of the two psychiatrists (Dr McGrath and Dr Lewin) that played some role in Mr Simpson’s ongoing care. Indeed, both these doctors gave evidence that it was not possible to provide appropriate medical care to Mr Simpson in the correctional environment.[89]
4.35 The Commission acknowledges the evidence of Justice Health that Mr Simpson’s transfer to D ward was subject to the availability of a bed. There were 29 beds available and admission was on the basis of clinical acuity.[90] There were, at times, up to 20 people on the waiting list.[91] Dr White, Psychiatric Registrar, had responsibility for prioritising admissions.[92] He described the system for prioritisation as follows:[93]
Many factors are taken into account in prioritising the bed demand list. The main ones are compliance with medication and levels of risk to self or others...
Other factors considered include food and fluid intake, level of vulnerability and distress in current environment, the need for specific treatments that are only available in hospital ...Generally admissions were available only when someone was discharged from either A, C or D ward of Long Bay Hospital. There were, at times, patients who required urgent admission [to] D ward. On these occasions a patient was moved from D ward to B ward to make room for the new, urgent admission to D ward.
4.36 The Commission acknowledges the tremendous resource scarcity faced by Justice Health, in terms of the number of beds available for high security seriously mentally ill prisoners, during the time that Mr Simpson was incarcerated. However, article 7 of the ICCPR is expressed in absolute terms and allows no exceptions. The Human Rights Committee has observed ‘that no justification or extenuating circumstances may be invoked to excuse a violation of article 7.’[94] Further, in the context of article 10(1) of the ICCPR, the Committee has stated:[95]
Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. [Emphasis added]
4.37 Accordingly, the Commission submits that the restricted availability of beds does not justify these digressions from the ICCPR norms in relation to the care and treatment of Mr Simpson.
The discharge of forensic patients from D ward
4.38 For the purposes of its recommendations (see Part 6 below), the Commission wishes to draw attention to the evidence that part of the reason for the scarcity of available beds in D ward was the difficulty in discharging patients from D ward. Dr White gave the following evidence:[96]
The idea of D ward when it was set up was that people would move through C ward and A ward and out into the community or into medium secure forensic beds but in the last few years that system has slowed to a trickle... In some months the only patients that we can get into D ward are when we can discharge someone from D ward back to the prison, whereas we’re meant to be creating beds in D ward by people moving out to medium secure hospitals and on through the ward system, but the system ... has been very, very slow. People are spending many years in the acute wards and in the hospital.
4.39 Dr Lewin also gave evidence as follows: ‘My belief is that the average chap on the waiting list is significantly more unwell than the average chap who is in hospital...There are several barriers to leaving the hospital.’[97]
4.40 Part of the reason for the delays in this process was attributed to the fact that it is the Minister for Health and the Governor, acting on the advice of the Executive Council, who make the decisions about the conditions of detention and the release of forensic patients in New South Wales.[98] Forensic patients include (i) persons found not guilty by reason of mental illness;[99] (ii) persons found unfit to stand trial;[100] (iii) persons transferred from prison to hospital for involuntary treatment;[101] and (iv) persons found guilty on a qualified basis following a limited hearing and set a finite period of detention.[102]
4.41 The Commission submits that this process of executive decision making for forensic patients is inconsistent with the Principles for the Protection of Persons with Mental Illness. The Principles set out the expected standards for care and treatment, for patients’ rights, and for decision making in relation to persons with a mental illness. Principle 17 establishes decision making by review bodies as follows:
The review body shall be judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.
4.42 The Commission notes that independent and judicial decision making processes for forensic patients has been adopted in varying ways in most Australian jurisdictions. New South Wales remains an obvious exception.[103]
4.43 Further, the Commission submits that the process of executive decision making in New South Wales may limit the extent to which the new hospital facilities proposed for Long Bay provide a solution to the problem of bed shortages. Justice Health gave evidence that a new 135 bed forensic hospital is proposed for Long Bay. It is to be on the site of the current hospital on land which will be de-gazetted as a prison and run exclusively by New South Wales Health through Justice Health.[104] However, as Dr Lewin warned ‘[u]nless there is a political will to actually take difficult decisions to move these people on and to allow them humane care in a community setting a larger hospital will very, very quickly be busy with a very small population of those who are in need.’[105]
(C) FAILURE TO PROVIDE ADEQUATE PSYCHIATRIC CARE TO MR SIMPSON IN THE CORRECTIONAL ENVIRONMENT
4.44 The Commission also submits that the psychiatric care provided to Mr Simpson whilst he remained in the correctional environment was inadequate.
4.45 As set out above, Mr Simpson was housed at Goulburn (in the MPU and the HRMU) for almost two years, from April 2002 to March 2004. Dr McGrath attended at Goulburn once a fortnight, for six hours. It appears from the evidence that Dr McGrath was the only psychiatrist attending to the prison population at Goulburn. He gave evidence as to the limits on the psychiatric care he could provide to the inmates occasioned by these time constraints.[106] In relation to Mr Simpson, he stated:[107]
Her Honour: From your perspective did you see yourself ...being responsible for the care and treatment of Mr Simpson while he was at the HRMU?
Dr McGrath: Well, with the clinical pressure, clinical pressure from other inmates, I wasn’t seeing him in any regular sense of the word so there was no therapeutic contract between Scott Simpson and myself, either implicit or explicit...
Her Honour: So from your perspective in terms of anything other than medication were you engaged in any therapeutic relationship other than medication?
Dr McGrath: Not really...
And later, Dr McGrath stated, ‘I didn’t even see him once a fortnight.’[108]
4.46 Mr Chris Ricardo, a Registered Nurse at Goulburn, also gave evidence as to the level of demand for the psychiatric services at Goulburn. He stated:[109]
Mr Ricardo: I mean it was simply not possible for the psychiatrists to see Scott once a fortnight ... because of all the other inmates that had to be seen by the psychiatrist so there was simply not time.
Mr Breeze: Do you remember how many other inmates had to be seen by the psychiatrist?
Mr Ricardo: Our list is usually around 20 names long for a visit of six hours...
4.47 Relevantly, in March 2003, Mr Ricardo sent a letter to Ms Anne Doherty, Director of Mental Health at Justice Health stating:[110]
Scott Simpson has refused psychiatric medication for several months. He cannot be given the psychiatric attention he requires at Goulburn. The psychiatrist visits for only 6 hours each fortnight...
I am concerned about the legal implications under duty of care if this man is not given the recommended psychiatric attention.
4.48 Mr Simpson remained in the HRMU for 12 months after this letter was sent.
4.49 Mr Simpson was housed at Long Bay Hospital during the period March 2004 to 7 June 2004. At the relevant time, Long Bay Hospital had a concentration of people with psychiatric issues and acute psychiatric problems. It had consultant psychiatrists four days out of five, for half a day.[111] Dr Lewin was the consultant psychiatrist at Long Bay Hospital on Thursday mornings.[112]
4.50 Despite the apparent availability of services, Dr Lewin saw Mr Simpson only twice in the 11 week period that Mr Simpson was at Long Bay Hospital.[113] The clinical records indicate that Mr Simpson was not seen by any other psychiatrist (with the exception of the Registrar, Dr White[114]) during this time. Dr Lewin gave evidence that ‘on each occasion when I saw him I asked him to be brought back to the next clinic but you can see from the spacing between the various appointments that that did not happen.’[115] Dr Lewin was of the view that there were at times security issues and concerns about his behaviour that prevented the Correctional Officers bringing Mr Simpson to the clinic.[116]
4.51 Dr Lewin gave evidence that the care provided to Mr Simpson at Long Bay Hospital fell short of what was necessary and appropriate. He stated ‘...even within the limited parameters of what is available he was not treated as he should have been treated. And not afforded the care that he should have been afforded.’[117] The evidence before the inquest was that Mr Simpson was seriously mentally ill during the period immediately preceding his death, in May and early June 2004.[118] Yet, the only occasions on which Mr Simpson saw Dr Lewin for treatment were on 29 April and 6 May 2004. The Commission acknowledges that Mr Simpson was seen by mental health nurses during this time, and indeed during the time he was at Goulburn.
4.52 The Commission submits that the psychiatric care and treatment provided to Mr Simpson both at Goulburn and at Long Bay Hospital was inadequate to address his serious mental health needs. The Commission submits that the failure to provide adequate medical care was inconsistent with the Standard Minimum Rules,[119] the Principles for the Protection of Persons in Imprisonment,[120] and the Principles for the Protection of Persons with Mental Illness.[121]
4.53 Further, the Commission submits that the psychiatric services available at Goulburn appear to be inadequate to meet the level of demand. In addition to Dr McGrath’s fortnightly clinic, a fortnightly video-link to a psychiatrist in Sydney has been introduced, such that there is now access to a psychiatrist on a weekly basis.[122] However, when asked in evidence whether increased psychiatric services would be beneficial to the Goulburn prison population, Dr McGrath responded ‘oh undoubtedly.’[123]
5. THE RIGHT TO LIFE: PRESENCE OF OBVIOUS HANGING POINTS
5.1 As stated above, Mr Simpson was found dead in his cell on 7 June 2004. A noose had been made from a piece of sheet and tied around the grill of the cell window.[124] The grill of the cell window was an obvious hanging point.[125]
5.2 All the cells in Long Bay Hospital Area 2 (with the exception of the safe cell) were of the same design and, accordingly, had at least one obvious hanging point.[126]
5.3 As set out above, article 6 of the ICCPR enjoins States to take appropriate steps to safeguard the lives of people within its jurisdiction, including those who are detained in custody.[127] The Commission submits that in accordance with this obligation to take ‘positive steps’, further action should be taken toward the elimination of obvious hanging points in cells in correctional centres within New South Wales. In taking steps to remove obvious hanging points from cells, the Commission stresses that consideration should be given to the necessary balancing process of ensuring humane cell design.
5.4 A Working Party for the Reduction of Hanging Points was established in New South Wales in early 2004. Part of the reason for its establishment was to develop a prototype cell with furniture and fittings modified to reduce obvious hanging points.[128] A prototype cell has been developed by the Working Party and installed at certain identified ‘high risk’ locations including the reception centres at Goulburn and Parklea. The Working Party is continuing work on the installation of these prototype cells at identified reception centres.[129] Reception centres were prioritised as the first seven days when a person is incarcerated are the most critical in terms of self harm and suicide.[130]
5.5 The Chairman of the Working Party, Mr Roy McNair, gave evidence that by reason of his appointment as Manager Security at Mannus correctional centre in August 2005, he is no longer able to devote the necessary time to the Working Party. He stated that the Working Party requires the appointment of a part-time manager (15 to 20 hours each week) to complete the project.[131] Mr McNair also stated that there are other ‘high risk’ locations that the Working Party has indicated should be included as part of the project, for example, older correctional centres with a multitude of hanging points.[132] Addressing these additional locations would appear to be dependent on funding.[133]
6. RECOMMENDATIONS
6.1 The Commission submits that the Coroner should make the following recommendations as they relate to public health and safety, and ways to prevent deaths from happening in similar circumstances in the future:
Segregated Custody
(a) The Department of Corrective Services amend their policies to explicitly state that prisoners should not be placed in segregated custody other than in exceptional circumstances and for limited periods.
(b) If the Department of Corrective Services detains a mentally ill prisoner in segregated custody for more than 48 hours, they should be required to certify that segregated custody is the least restrictive means of addressing the security concern. In providing this certification, the Department must be required to consider the following:
(1) any less restrictive means of addressing the security concerns;
(2) the particular mental health needs of the prisoner as identified by Justice Health (in accordance with recommendation (c) below); and
(3) any recommendations from Justice Health (in accordance with recommendation (c) below).
(c) An appropriately qualified medical practitioner employed by Justice Health should be required to assess all mentally ill prisoners detained in segregated custody within 48 hours of placement, and to report, in writing, to the Department of Corrective Services. Justice Health should identify in this report:
(1) the particular mental health needs of the prisoner;
(2) any therapeutic concerns with the prisoner’s detention in segregated custody;
(3) any recommendations as to a more appropriate placement, for example, if the prisoner would be more appropriately detained in segregation within a hospital setting, such as, ‘D ward’; and
(4) any recommendations as to more appropriate conditions of imprisonment in light of the prisoner’s mental health needs, for example, allowing interaction with another inmate through a secure barrier.
(d) An appropriately qualified medical practitioner employed by Justice Health should be required to assess the health, including the mental health, of all prisoners held in segregated custody on a weekly basis, [134] and to report in writing to the Department of Corrective Services. Justice Health should identify in this report:
(1) any negative (physical or mental) effects on the prisoner arising from their detention in segregated custody;
(2) any recommendations as to a more appropriate placement, for example, if the prisoner would be more appropriately detained in segregation within a hospital setting; and
(3) any recommendations as to more appropriate conditions of imprisonment in light of the prisoner’s mental or physical health needs.
Access to adequate medical care
(e) Prisoners who are found to be mentally ill within the meaning of the Mental Health Act 1990 (NSW) should be transferred to hospital.
(f) Prisoners with mental illnesses who remain in the correctional environment should be placed under the special supervision of an appropriately qualified medical practitioner, who will assume responsibility for their treatment. The medical practitioner must be allowed access to their patient as is required, in order to provide the necessary care and treatment.
(g) Justice Health review the mental health services available at Goulburn correctional centre to ensure they are adequate to address the mental health needs of the prison population (and to ensure they are adequate to comply with recommendations (c), (d) and (f) above).
(h) Decisions about the conditions of imprisonment and release of forensic patients should be made by a judicial or other independent body established by law. The executive branch of government should not continue to have the ultimate responsibility for these decisions.[135]
Hanging Points
(i) Further steps be taken toward the elimination of obvious hanging points in New South Wales correctional centres. In taking steps to remove obvious hanging points from cells, consideration should be given to the necessary balancing process of ensuring humane cell design.
(j) In relation to the Working Party for the Reduction of Hanging Points, appropriate resources be allocated to enable:
(i) a part-time manager to be appointed; and
(ii) the charter to be extended to address all cells in New South Wales correctional centres (according to an order of priority).
7. ATTACHMENTS
7.1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993.
7.2 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
Human Rights and Equal Opportunity Commission
19 June 2006
[1] The functions of the Commission as set out in section 11(1) of Part II Division 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) include, relevantly:
- (i) to promote an understanding and acceptance, and public discussion, of human rights in Australia: section 11(1)(g);
- (ii) to intervene in proceedings that involve human rights issues, where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court: section 11(1)(o);
- (iii) to do anything incidental or conducive to the performance of any of the preceding functions: section 11(1)(p).
The expression ‘human rights’, relevant for the present matter, includes the rights recognised in the International Covenant on Civil and Political Rights: section 3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
[2] See the Second Reading Speech to the Coroners (Amendment) Bill 1993 at page 1383.
[3] These instruments (with the exception of the Principles for the Protection of Persons with Mental Illness) extend rights to all people detained within the criminal justice system, not only prisoners with a mental illness.
[4] Opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993.
[5] Exhibit 21B - Adopted by General Assembly resolution 43/173 of 9 December 1988.
[6] Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
[7] Exhibit 21A - Adopted by General Assembly resolution 46/119 of 17 December 1991.
[8] Osman v United Kingdom (1998) 29 European Human Rights Reporter 2452 at [115]; Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), within the meaning of the equivalent provision in the Convention for the Protection of Human Rights and Fundamental Freedoms.
[9] Human Rights Committee, General Comment No.6: The right to life (Art 6): 30/04/82, CCPR General Comment No.6 at [5].
[10] Human Rights Committee, Communication No. 763/1997: CCPR/C/74/D/763/1997 at [9.2].
[11] See also Principle 7 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment : ‘No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
[12] Human Rights Committee, General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art 7): 10/03/92, CCPR General Comment No. 20 at [2] and [5].
[13] See also Principle 1 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: ‘All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.’ And, Principle 1(2) of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care: ‘All persons with a mental illness...shall be treated with humanity and respect for the inherent dignity of the human person.’
[14] Human Rights Committee, General Comment No.21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Art 10): 10/04/92, CCPR General Comment No.21 at [3]-[4].
[15] Vuolanne v Finland, Communication No. 265/1987: CCPR/C/35/D/265/1987 at [9.2]; Brough v Australia, Communication No. 1184/2003: CCPR/C/86/D/1184/2003 at [9.4]. See also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), within the meaning of the equivalent provision in the Convention for the Protection of Human Rights and Fundamental Freedoms.
[16] The European Court has considered the content of these rights within the meaning of the equivalent provisions in the Convention for the Protection of Human Rights and Fundamental Freedoms.
[17] See, for example, Keenan v United Kingdom [2001] ECHR 242 (3 April 2001) at [111], [116].
[18] Principle 20.
[19] Mukong v Cameroon, Communication No. 458/1991: CCPR/C/51/D/458/1991 at [9.3]; Potter v New Zealand, Communication No. 632/1995: CCPR/C/60/D/632/1995 at [6.3], stating that the Standard Minimum Rules ‘constitute valuable guidance for the interpretation of the Covenant’; Concluding Observations of the Human Rights Committee: United States of America, 03/10/95 CCPR/C/79/Add.50. at [34].
[20] General Comment No.21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Art 10):10/04/92, CCPR General Comment No.21 at [5].
[21] The Commission notes that the Principles for the Protection of Persons in Imprisonment and the Principles for the Protection of Persons with Mental Illness do not have the status of a treaty and accordingly are not binding on States.
[22] Concluding Observations of the Human Rights Committee: Denmark, 31/10/2000 CCPR/CO/70/DNK at [12].
[23] Brough v Australia, Communication No. 1184/2003: CCPR/C/86/D/1184/2003 at [9.4]. In this case, the person was confined to a safe cell and a dry cell.
[24] Human Rights Committee, General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art 7): 10/03/92, CCPR General Comment No. 20 at [6].
[25] Vuolanne v Finland, Communication No. 265/1987: CCPR/C/35/D/265/1987 at [9.2]; See also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001).
[26] Standard Minimum Rule 82.
[27] Principle 24.
[28] Principle 20.
[29] Osman v United Kingdom (1998) 29 European Human Rights Reporter 2452 at [115]; Keenan v United Kingdom [2001] ECHR 242 (3 April 2001).
[30] Evidence of Dr Westmore on 21 February 2006, page 67 [45] of the transcript; Evidence of Dr Lucas on 27 February 2006, page 7 [45] of the transcript; Exhibit 5 - Report of Dr Greenberg dated 7 January 2003; Exhibit 5 - Report of Dr Greenberg of 7 September 2003 at page 4.
[31] Exhibit 2 - Report of Dr Westmore dated 25 August 2003 at page 8 at Volume 4, tab 38 of the Brief; Exhibit 7A - Report of Dr Lucas dated 2 September 2003 at page 16; Exhibit 5 - Report of Dr Greenberg dated 7 January 2003; Exhibit 5 - Report of Dr Greenberg dated 7 September 2003 at p 2.
[32] Exhibit 2 - NSW Dept of Corrective Services, ‘Conviction, Sentences and Appeals’ at page 1 at Volume 2 of the Brief; Exhibit 38 – Certificates of Orders from Central Local Court under section 178 of the Evidence Act 1995; Exhibit 39 - Certificates of Orders from Penrith Local Court under section 178 of the Evidence Act 1995; Exhibit 40 – Papers from Penrith Local Court indicating bail refused from 14 August 2002 to 7 June 2004.
[33] Justice Health, formerly Corrections Health Service, is a provider of health services to inmates and detainees within the New South Wales Criminal Justice System.
[34] Exhibit 24 - Statement of Ms Shalin Kumar dated 31 March 2002 at [8] and [10].
[35] As Mr Simpson was identified as having a ‘serious mental illness’, he was referred by the Justice Health nurse to the mental health team. This assessment was expected to take place the following day: Evidence of Ms Shalin Kumar on 3 March 2006, page 18 [20]-[30] of the transcript.
[36] Exhibit 5 - Corrections Health Service, Medical Alert Form for Mr Simpson dated 30 March 2002.
[37] Evidence of Ms Shalin Kumar on 3 March 2006, page 11 [45] of the transcript.
[38] R v Scott Ashley Simpson [2004] NSWSC 233 (31 March 2004).
[39] Evidence of Dr Westmore on 21 February 2006, page 67 [50] of the transcript; Exhibit 2 - Report of Dr Westmore dated 25 August 2003 at page 7 at Volume 4, tab 38 of the Brief; Exhibit 5 - Report of Dr Greenberg dated 7 September 2003 at page 4; Exhibit 7A – Report of Dr Lucas dated 2 September 2003 at page 19. Mr Simpson was found not guilty of the murder of Mr Parfitt on the grounds of mental illness: R v Scott Ashley Simpson [2004] NSWSC 233 (31 March 2004).
[40] Exhibit 2 - Statement of Mr Nigel Lloyd dated 31 October 2005 at [5] – [6] at Volume 4, tab 30 of the Brief.
[41] Pursuant to sections 10(1) and 10(2) of the Crimes (Administration of Sentences) Act 1999 (NSW).
[42] Exhibit 2 - Department of Corrective Services, Operating Procedures Manual, Section 14 - Segregated and Protective Custody at p 3 at Volume 4, tab 31 of the Brief: ‘Segregated custody is...to be used only when the inmate to be segregated presents a serious threat to staff or other inmates.’
[43] Exhibit 2 - Statement of Mr Nigel Lloyd dated 31 October 2005 at [5] – [6] at Volume 4, tab 30 of the Brief.
[44] Exhibit 2 - Statement of Mr Nigel Lloyd dated 31 October 2005 at [6] at Volume 4, tab 30 of the Brief.
[45] Exhibit 23 – Statement of Mr John Salway at [5].
[46] Evidence of Mr John Salway on 21 February 2006, pages 15 – 17 of the transcript.
[47] Long Bay Hospital Area 2 is a transit centre where people come for assessment for a range of medical reasons: Evidence of Dr Chappell on 28 November 2005, page 36 [40] of transcript. Note also the evidence of Ms Anne Doherty on 1 December 2005 at page 44 [50] of the transcript: ‘it’s named Long Bay Hospital 2 and it sort of gives the wrong impression, it’s not a hospital, it’s a prison’.
[48] Exhibit 2 - Statement of Mr Nigel Lloyd dated 31 October 2005 at [6] at Volume 4, tab 30 of the Brief; Exhibit 23 – Statement of Mr John Salway at [25]; Exhibit 2 - Letter from P.Bodel, Act/ Area Manager HRMU to M.Wilson, Superintendent, HRMU dated 19 March 2004: ‘He is listed to be transferred to a Metropolitan Gaol on 22 March 2004 for the purpose of Court’ Volume 3 of the Brief.
[49] Exhibit 2 - Statement of Mr Nigel Lloyd dated 31 October 2005 at [6] at Volume 4, tab 30 of the Brief; Exhibit 2 - Department of Corrective Services, Operating Procedures Manual, Section 14 - Segregated and Protective Custody at 14.4.13 at page 16 at Volume 4, tab 31 of the Brief; Exhibit 2 - Segregated Custody Direction dated 23 March 2004, Volume 3 of the Brief.
[50] Exhibit 2 - Segregated Custody Direction dated 23 March 2004, Volume 3 of the Brief.
[51] Evidence of Mr Nigel Lloyd on 20 February 2006, page 8 [25] of the transcript; Evidence of Mr Dino Krizman on 20 February 2006, page 60 [10] of the transcript.
[52] Evidence of Mr John Salway on 21 February 2006, pages 21-22 of the transcript.
[53] Evidence of Dr Chappell on 28 November 2005, page 43 [5] of the transcript; Evidence of Dr Lewin on 30 November 2005, page 71 [40]-[50] of the transcript; Evidence of Dr White on 22 February 2006, page 39 [30] of transcript; Evidence of Dr Lucas on 27 February 2006, page 15 [35]-[50] of transcript.
[54] Evidence of Dr Lewin on 30 November 2005, page 55 [5] of the transcript. See also Exhibit 23 – Letter from the Multi Purpose Unit to Governor, Goulburn Correctional Centre dated 4 March 2003, annexed to the Statement of Mr John Salway, where the case management team stated: ‘the extended time on segregation and the isolation from all other inmates is only exacerbating his problems.’
[55] Evidence of Dr Lewin on 30 November 2005, page 32 [30] of the transcript.
[56] Evidence of Dr Lewin on 30 November 2005, page 41 [45] of the transcript.
[57] Exhibit 15 - Statement of Dr Matthews dated 26 October 2005.
[58] Evidence of Ms Anne Doherty on 1 December 2005, page 52 [30]-[35] of the transcript; Evidence of Dr Matthews on 29 November 2005, page 19 [55] of the transcript.
[59] The Commission notes that Mr Simpson could also have been transferred to D ward as a voluntary patient. However, the evidence before the inquest was that on a number of occasions during his incarceration, Mr Simpson would not have consented to the transfer to D ward. See the evidence of Dr Samuel’s on 27 February 2006, page 29 [50] and 30 [35]-[40] of the transcript.
[60] Pursuant to section 39 of the Mental Health (Criminal Procedures) Act 1990 (NSW): R v Scott Ashley Simpson [2004] NSWSC 233 (31 March 2004).
[61] Different evidence was given by the psychiatrists as to when to write a schedule under the Mental Health Act, that is, at the time of the assessment or when a bed in D ward became available: See, for example, evidence of Dr Samuels on 27 February 2006, pages 58 [30] – 59 [10] of the transcript.
[62] Exhibit 5 - Dr McGrath’s clinical notes for Mr Simpson dated 27 May 2002.
[63] Exhibit 5 – ‘Patient information for D Ward Bed Demand List’ form completed by M. Harris dated 27 May 2002.
[64] Exhibit 5 - Report of Dr Greenberg dated 11 July 2002 at page 4, prepared at the request of the Magistrate at the Penrith Court House.
[65] Exhibit 5 - Dr Korbel’s clinical notes for Mr Simpson dated 1 March 2003.
[66] Exhibit 5 – ‘Patient information for D Ward Bed Demand List’ form dated 1 March 2003.
[67] Exhibit 2 - Statement of Dr McGrath dated 16 November 2005 at Volume 4, Tab 39 of Brief.
[68] Exhibit 6 - Report of Ms Peta Mead, Intern Psychologist, dated 7 May 2003.
[69] Evidence of Dr Samuel’s on 27 February 2006, page 27 [5] of the transcript.
[70] Exhibit 8 - Report of Dr Samuels dated 12 November 2003.
[71] Evidence of Dr Samuel’s on 27 February 2006, page 38 [15] of the transcript.
[72] Evidence of Dr Samuel’s on 27 February 2006, page 56 [20] of the transcript.
[73] Exhibit 8 - Report of Dr Samuels dated 12 November 2003; Exhibit 2 - Statement of Ms Anne Doherty dated 31 October 2005 at Volume 4, tab 40 of the Brief.
[74] Exhibit 2 - Report of Dr Westmore dated 25 August 2003 at Volume 4, tab 38 of the Brief; Exhibit 5 - Report of Dr Greenberg dated 7 September 2003. Exhibit 7A – Report of Dr Lucas dated 2 September 2003.
[75] Evidence of Dr Westmore on 21 February 2006, pages 64 [35]-[40] and 66 [45] of the transcript.
[76] Evidence of Dr Lucas on 27 February 2006, pages 9 [55], 13 [55] -14 [5], [40], [50] of the transcript.
[77] Exhibit 5 - Report of Dr Greenberg dated 7 September 2003 at page 2. Note: Dr Greenberg also formed the opinion that Mr Simpson’s illness was in partial remission when he assessed him in January 2003: Evidence of Dr Greenberg on 28 November 2005, page 57 [50] of the transcript.
[78] Exhibit 18 - Statement of Dr Lewin dated 14 March 2005 [4], [5], [7], [8].
[79] Exhibit 20 – D Ward Bed Demand List; Exhibit 5 - Patient Information for D Ward Bed Demand List, dated 5 April 2004.
[80] Exhibit 20 – D Ward Bed Demand List.
[81] Exhibit 18 - Statement of Dr Lewin dated 14 March 2005 at [10].
[82] Evidence of Dr Lewin on 30 November 2005, page 33 [15] – [25] of the transcript.
[83] Evidence of Dr Lewin on 30 November 2005, page 37 [5], [20] – 38 [5], [30] of the transcript.
[84] Evidence of Mr Dino Krizman on 20 February 2006, pages 61 [55] and 64 [35] of the transcript; Evidence of Ms Vicky Cummings on 1 December 2005, page 61 [5] of the transcript; Exhibit 2 - Statement of Ms Fay Battye dated 21 November 2005 at [11] at Volume 4, tab 35 of the Brief; Evidence of Ms Fay Battye on 21 February 2006, page 55 [10]-[15] of the transcript.
[85] Exhibit 2 - Statement of Mr Brian Brooke dated 24 August 2004 at [11] at Volume 1, tab 1 of Brief; Exhibit 2 - Statement of Ms Colleen Murray dated 21 June 2004 at [8] at Volume 1, tab 2 of Brief.
[86] Exhibit 2 - Statement of Ms Anne Doherty dated 31 October 2005, Volume 4, tab 40 of the Brief.
[87] Exhibit 2 - Division of Analytical Laboratories Toxicology Report dated 26 July 2004 at Volume 1, tab 18 of the Brief; Note: evidence of Ms Judith McCreath on 29 November 2005, page 49 [50] of the transcript: Although the toxicology screens pick up most drugs, it is possible that a specific medication he was on may not have been picked up by the toxicology screen.
[88] Note the reports of Dr Westmore, Dr Lucas and Dr Greenberg were not for treatment purposes. The reports were, however, available to Justice Health on Mr Simpson’s medical file: see Exhibit 5.
[89] Evidence of Dr McGrath on 27 February 2006, page 69 [55] of the transcript. Evidence of Dr Lewin on 30 November 2005, page 44 [10] of the transcript.
[90] Evidence of Ms Anne Doherty on 1 December 2005, page 14 [25] of the transcript; Exhibit 2 - Statement of Dr White dated 6 February 2006 at Volume 4, tab 43 of the Brief; Evidence of Dr Matthews on 29 November 2005, page 5 [50] of the transcript.
[91] Evidence of Dr Matthews on 29 November 2005, page 6 [40] of the transcript; Evidence of Dr White on 22 February 2006, page 21 [5] of the transcript.
[92] Exhibit 2 - Statement of Dr White dated 6 February 2006 at Volume 4, tab 43 of the Brief.
[93] Exhibit 2 - Statement of Dr White dated 6 February 2006 at Volume 4, tab 43 of the Brief.
[94] Human Rights Committee, General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art 7): 10/03/92, CCPR General Comment No. 20 at [3].
[95] Human Rights Committee, General Comment No.21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Art 10): 10/04/92, CCPR General Comment No.21 at [9].
[96] Evidence of Dr White on 22 February 2006, page 40 [25]-[35] of the transcript.
[97] Evidence of Dr Lewin on 30 November 2005, page 48 [5] of the transcript.
[98] Evidence of Dr White on 22 February 2006, pages 40 [40] – 42 [10] of the transcript; Evidence of Dr Lewin on 30 November 2005, page 48 [10], 61 [25] and 63 [45]-[55] of the transcript. The one exception to this decision making process is the area of fitness to stand trial, in which the Mental Health Review Tribunal’s jurisdiction is determinative. In all other decisions about forensic patients, the government makes determinations about forensic patients following, although not necessarily in accordance with, recommendations of the Mental Health Review Tribunal: Exhibit 14 - T. Boyd-Caine and D. Chappell ‘The Forensic Patient Population in New South Wales’ (2005) 17(1) Current Issues in Criminal Justice 5 at 8.
[99] Section 39 of the Mental Health Act 1990 (NSW).
[100] Sections 14 and 16 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
[101] Section 97 of the Mental Health Act 1990 (NSW).
[102] Section 24 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
[103] Exhibit 14 - T. Boyd-Caine and D. Chappell ‘The Forensic Patient Population in New South Wales’ (2005) 17(1) Current Issues in Criminal Justice 5 at 7.
[104] Evidence of Dr Matthews on 29 November 2005, page 8 [10], [40]-[50] of the transcript.
[105] Evidence of Dr Lewin on 30 November 2005, page 62 [35] of the transcript.
[106] Evidence of Dr McGrath on 27 February 2006, page 68 [30], [50] and 79 [50] of the transcript; Evidence of Mr John Salway on 21 February 2006, page 23 [45] of the transcript.
[107] Evidence of Dr McGrath on 27 February 2006, page 78 [40] of the transcript.
[108] Evidence of Dr McGrath on 27 February 2006, page 79 [5] of the transcript.
[109] Evidence of Mr Chris Ricardo on 29 November 2005, page 54 [20]-[30] of the transcript.
[110] Exhibit 5 - Letter from Mr Chris Ricardo to Ms Anne Doherty dated 18 March 2003.
[111] Evidence of Dr Lewin on 30 November 2005, page 26 [10] of the transcript.
[112] Evidence of Dr Lewin on 30 November 2005, page 24 [20] – [25] of the transcript.
[113] Exhibit 18 - Statement of Dr Lewin dated 14 March 2005.
[114] Dr White gave evidence as follows: ‘I saw him in Long Bay Hospital Area 2 on a couple of occasions, not in terms so much of care but in terms of prioritising him on the bed demand list.’ Evidence on 22 February 2006, page 24 [50] of the transcript. [emphasis added].
[115] Evidence of Dr Lewin’s on 30 November 2005, page 28 [20] of the transcript.
[116] Evidence of Dr Lewin’s on 30 November 2005, page 29 [45]-[50] of the transcript.
[117] Evidence of Dr Lewin’s on 30 November 2005, page 38 [25] of the transcript.
[118] Evidence of Dr White on 22 February 2006, page 36 [55] – 36 [5] of the transcript; Evidence of Ms Vicky Cummings on 1 December 2005, page 61 [5] of the transcript; Evidence of Ms Fay Battye on 21 February 2006, page 49 [55] of the transcript; Evidence of Ms Anne Doherty on 28 February 2006, page 21 [40] of the transcript.
[119] Standard Minimum Rule 82(4).
[120] Principle 24.
[121] Principle 20.
[122] Evidence of Mr Chris Ricardo on 29 November 2005, page 54 [50] of the transcript; Exhibit 23 - Statement of Mr John Salway at [16].
[123] Evidence of Dr McGrath on 27 February 2006, page 86 [20] of the transcript.
[124] Exhibit 2 - Statement of Mr Brian Brooke dated 24 August 2004 at [11] at Volume 1, tab 1 of the Brief; Exhibit 2 - Statement of Ms Colleen Murray dated 21 June 2004 at [8] at Volume 1, tab 2 of the Brief.
[125] Evidence of Mr Roy McNair on 22 February 2006, page 9 [50] of the transcript.
[126] Evidence of Mr Nigel Lloyd on 20 February 2006, page 10 [55] of the transcript.
[127] Osman v United Kingdom (1998) 29 European Human Rights Reporter 2452 at [115]; Keenan v United Kingdom [2001] ECHR 242 (3 April 2001); Lantsov v Russian Federation Communication No. 763/1997: CCPR/C/74/D/763/1997 at [9.2].
[128] Exhibit 27 - Statement of Mr Roy McNair dated 22 February 2006 at [5]-[6].
[129] Evidence of Mr Roy McNair on 22 February 2006, page 8 [50].
[130] Evidence of Mr Roy McNair on 22 February 2006, page 4 [30].
[131] Evidence of Mr Roy McNair on 22 February 2006, page 18 [35], [55].
[132] Evidence of Mr Roy McNair on 22 February 2006, page 10 [55] -11 [5].
[133] Evidence of Mr Roy McNair on 22 February 2006, page 16 [5].
[134] The Commission notes that the Justice Health Segregated Custody Policy 1.360 at Exhibit 10 provides that all inmates subject to a Segregated Custody Direction must be seen at least once a week by a medical officer. The Commission’s submission is that the medical officer must be appropriately qualified, for example, if the prisoner has a serious mental illness they should be assessed by a psychiatrist, preferably their treating psychiatrist (see recommendation (f)).
[135] Exhibit 11 - See previous recommendation of the Human Rights and Equal Opportunity Commission in Human Rights and Mental Illness, Report of the National Inquiry into the Human Rights of People with Mental Illness, (AGPS, Canberra: 1993) at page 942.
Last updated
March 20, 2009.