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INQUEST INTO THE DEATH OF SCOTT SIMPSON

Legal Legal
Friday 14 December, 2012

IN THE CORONER’S COURT OF NEW SOUTH WALES

INQUEST
INTO THE DEATH OF SCOTT SIMPSON

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 (‘ICCPR’),[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 23Statement 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 23Statement 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

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