The crazy way we treat psychosocial disorders

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Australia has long recognised mental illness and intellectual impairment as disabilities for which substantial allowances need to be made by our justice system as well as in the way in which we accommodate the disabled, impaired, and disadvantaged. There is legislation in place, federally and at the state level, intended to ensure these protections. Legislation is one thing, but practice is another.

Under Section 4 of the Disability Discrimination Act 1992 (C’th), “disability” is defined to include the total or partial loss of a person’s bodily or mental functions; the presence of disease or illness and separately, a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment, or that results in disturbed behavior.

Australia has ratified the New York Convention on the Rights of Persons with Disabilities (2007).

If a witness has a spinal problem that affects her ability to sit for long periods or an impairment to her hearing or vision, the Court will be notified and allowance will be made. However, I am aware of a recent case where a Plaintiff in proceedings and a key witness, was afflicted with Asperger’s Syndrome, even though he had impressive academic attainments. Asperger’s Syndrome is a condition on the Autism Spectrum, affecting the ability effectively to socialise and communicate. The Plaintiff’s manner of giving evidence was combative and often non-responsive and the presiding judge held this against him, impacting on his credit – as if, the witness were avoiding answering the questions posed to him rather than responding dysfunctionally.

The Court had not been notified of the witness’ condition and the judge, in delivering his verdict, did not take into account the witness’ impairment, of which his Honour had not been informed. Was it negligent for his Counsel not to have informed the Court that the Plaintiff was suffering from a special disability?

Over the past few months, I have appeared in a Coronial Inquest and in another criminal matter. In each case, concerned family members had called “OOO”, because a close relative was “acting up”, in the sense of threatening suicide or violence, for reasons attributable to mental illness. The police then attended either instead of or as well as, the ambulance service.

On both occasions, the police assumed “management” of the “crisis” and instead of displaying an appropriate level of sensitivity and concern towards someone who was displaying obvious signs of mental illness and with a relevant history, the police relied on the obviously disturbed person’s aberrant behavior, as a pretext for effecting a forceful, even violent arrest, with a view to preferring criminal charges of assault police, resist police, resist arrest, and hinder police, the usual staple of perfunctory charges which police are wont to bring, when there is no evidence of real offending.

Instead of receiving treatment, the psychologically impaired person is punished, enmeshed in the criminal justice system, consequently becoming a prime candidate for suicide, either outside of the penal system or whilst in custody.

The criminalisation of mental illness does not just end with the police.

Since the 1840s, M’Naghten’s Rules have influenced both the Common Law and the statutory approach to mental illness. Back on 20 June 1843, Daniel M’Naghten shot Edward Drummond dead – the private secretary to the British Prime Minister, Sir Robert Peel. Under the Law of England as it then stood, M’Naghten was acquitted of murder because he was found to be insane, only to be consigned to an asylum, at Her Majesty’s pleasure. He was found to be “Not guilty on the ground of insanity”, because he could not have formed the requisite intent to kill.

However, in several states of Australia and also, most notably and egregiously, in the Northern Territory, people are found unfit to stand trial or incapable of formulating the necessary intent to commit a crime but held in custody; not in a therapeutic environment but in an ordinary gaol and often, in solitary confinement.

I am aware of up to thirteen (13) such prisoners in the Northern Territory today, who have been in gaol for periods ranging for up to a decade. They were found not capable of committing the offences with which they had been initially charged or else, unfit to stand trial. In most instances, the crimes which they were alleged to have committed would have carried sentences on conviction, far short of the time they have served.

The majority of prisoners in indefinite detention in the Northern Territory are Indigenous, without any prospect of being able to marshal the resources actively to vindicate themselves or extricate themselves from their dire, soul-destroying predicament.

Yet, it is not only with respect to what we might term “Common Crime”, that this problem presents itself. Under the Corporations Act, company directors are required to indemnify the Commissioner of Taxation for unpaid GST and PAYG Tax, when it is found that a company was at the material time, involved in insolvent trading. There is an exception for a director when the payment fell due to be made, (“the payment time”) who had reasonable grounds to expect and did, in fact expect, that the company was solvent at that time and would remain solvent.

There is also a defence for a director if it is proved that because of illness or some other good reason, the person did not take part in the management of the company deemed to have been insolvent at the payment time (Section 588FGB (5)).

Despite our having obtained a report from an eminent neurologist that a particular director currently being pursued for over $1.3 million by the Commissioner of Taxation was likely suffering from Lewy Body Dementia, a complication of Parkinson’s Disease, debilitating but undiagnosed at the payment time, the way in which the statutory defence is currently framed, the defendant director still needs to establish that he did not take part in the management of the company at the payment time because of illness or for some other good reason.

However, the defendant director did not know at the payment time that he was suffering from Lewy Body Dementia because he had not been diagnosed. The later diagnosis postulates that he would have been affected by the disease at payment time, based on contemporary observer reports of his conduct, as well as from other medical records from that period and also, the current presentation of his disease. Furthermore, the demented director is not now in a position to defend himself.

Not everybody who is sick knows he is sick; not everybody who has an intellectual or cognitive impairment is aware of that impairment until it is diagnosed and the diagnosis effectively communicated to the sufferer. Nevertheless, the Commissioner of Taxation has been incalcitrant and unreceptive, in the face of clear and uncontested evidence.

The Commonwealth should desist from prosecuting the demented director because of the way in which he was performing or failing to perform any function or to exercise his director’s powers under the Corporations Act or under any taxation legislation of the Commonwealth. Otherwise, it would be discriminating against him on the ground of his total or partial loss of mental function, caused by a disease or illness affecting his mental function or a disorder, illness or disease, affecting his emotions or judgment.

Commonwealth, State and Territory law enforcement agencies must recognise that mental illness, cognitive impairment and psychological disorders require special consideration for the afflicted and that there is double punishment involved in having to live with such conditions and then, also to be subjected to legal sanctions and harsh treatment on account of them, is contrary to the intent of Federal and State protective legislation.

In a liberal democracy, laws must be enacted and enforced in the public interest and in ways which recognise the social evolution which has occurred since the dark days when mental illness was considered to be the Devil’s work. As a society, we should be able to differentiate between intentional wrongdoing and conduct which is neither deliberate, careless or malign. That involves making allowances for individual’s disabilities and deficits in the interests of fairness and equity.

I am writing this as a 66-year-old. According to the Australian Institute of Health and Welfare publication, “Australia’s Health, 2016”: “Dementia is not the name of a specific disease, rather, it describes a syndrome characterized by the gradual impairment of brain function. Skills commonly affected include memory, cognition, and personality… Dementia presents a significant challenge to health and aged care in Australia and affects about one in ten (8.8%) of people aged 65 and over”.1

Bear in mind, we do have legislation to protect the aged, namely the Age Discrimination Act, 2004 (Commonwealth), but even though most Australians are not demented, they do tend to forget.

Stewart Levitt is Senior Partner with Levitt Robinson Solicitors, specialising in corporate law, banking & finance, and class action law,

1 op.cit [3.12], Australian Government publications.


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