Some people will try anything

I thought I’d seen all the pathetic excuses possible for trying to get out of legal proceedings (including seceding from Australia, declaring the Court to be a hotbed of Freemasons and/or claiming that the Constitution is invalid for spurious reasons). But this is one of the best:

Richard James Howarth was remanded to appear in the Ipswich Magistrate’s Court to answer a string of traffic offences, including four counts of driving with a blood alcohol content more than three times the legal limit.

However, his lawyers said he failed to appear after having earlier informed them he would not talk to them because he is was [sic] the almighty and above answering to Queensland laws.

Early this month, Aboriginal and Torres Strait Islander Legal Service solicitor Kevin Rose, for Howarth, told the court his client refused his office’s attempts to talk to them.

A court and a mental health expert have already deemed Howarth was mentally fit for trial, but Mr Rose maintained he has obvious mental health issues.

Mr Rose said he did not doubt Howarth genuinely believed he was God.

The Magistrate issued a warrant for Howarth’s arrest. Now if Howarth can turn the handcuffs into loaves and fishes, he might have some possibility of being believed…

Incidentally, if he is God, I have a number of questions for Him:

• Why do bad things happen to good people?
• Whose God are you? It would sure help if You mediated some religious conflicts waged in Your name.
• What is your point of view about homosexuality? (a la Southpark)
• If you are God, why couldn’t you just magic the alcohol away from your bloodstream before you got into the car? (I’m thinking here of Aziraphale and Crowley in Good Omens) 

(Via Iain Hall)

Update:

A friend has asked that I recount one of my own craziest litigant in person stories. I came across this litigant in person who had exhibited the Magna Carta to his affidavit. Now that’s pretty stock standard with these guys. But the extraordinary thing was that his primary source for the Magna Carta seemed to be a novelty tea towel. I’m guessing it was a tea towel because of the fabric weave visible in the photocopy. Also there was kitschy gothic script. None of the judges commented on it, and I’m not sure that anyone else noticed.

Stolen Generation Success

I was interested to read the recent case of Trevorrow v State of South Australia (No. 5) (2007) SASC 285. Put briefly, the plaintiff was taken from his parents as an infant, and consequently had a troubled childhood and adolescence. He succeeded in his efforts to sue the South Australian government. I think that this was a just result.

It’s a sad story. The plaintiff was cared for by his mother and his father. His mother separated from his father, and left three of the children with the father over Christmas. When he was a little over a year old, the plaintiff contracted gastroenteritis and his father did not have transport by which to get him to hospital. The police could not help. So the father got the local garage proprietors to take the boy to hospital.  The plaintiff was cured, but instead of being returned to either parent, he was then fostered out with a non-indigenous family. Neither parent knew what had happened to the boy. The mother tried to get the boy returned to her, but was told that there was nothing she could do. Meanwhile, the plaintiff was fostered out to a non-indigenous household and brought up as a child of the house. Once the plaintiff found out that he was not related to his family, he began to act up and steal things. He was returned to his mother when he was 10 years old, but found it extremely difficult as he did not know his family and did not know Ngarrindjerri language or customs. He then got into trouble with the law, and became an alcoholic. In comparison, his brothers and sisters who were not taken from their parents seem to have overcome childhood difficulties and poverty. One brother of the plaintiff is a respected Ngarrindjerri elder.

The Court was prepared to extend the limitation of actions period in the circumstances.  Gray J found that the plaintiff was not removed from his parents in accordance with prescribed statutory processes. There was a foreseeable risk of harm to the plaintiff. Accordingly, the South Australian government was liable for a number of claims:

• tort of misfeasance in the public office;
• tort of false imprisonment;
• tort of negligence
• possible breach of fiduciary duty (for which damages would be the same as for common law actions;

The plaintiff was awarded $450,000 damages for the breaches of the duties above, and $75,000 in exemplary damages.

It seems to me that this case is a fair one. As I’ve outlined in a past post, I don’t take a hard and fast attitude towards the Stolen Generation. There are at least two conflicting motives at play. I’m sure that some probably did have the best interests of children at heart. But there was also an explicit desire to “Westernise” indigenous children and a racist aim of “wiping out” indigenous culture. Both motives were often combined.

As I have also explained, I have known indigenous people who were taken from their parents or had relatives who were taken from their parents. Their stories lead me to believe that great pain has been visited on these people, but that in some cases there were valid reasons for them being taken from their parents. The scenarios are complicated and not well suited to the adversarial arena of the court room.  In one instance, a student’s mother was taken from her tribe because the majority of the tribe wanted to kill the baby (a “half-caste” child who was the product of a rape). The mother of the child did not want her to die, and so she relinquished the child to authorities after it transpired that she could not protect the girl. Another friend was taken from her mother because her mother was physically abusive. Her mother lacked parenting skills, in part presumably because she herself had been taken from her parents. However, unfortunately, my friend was also abused in the foster homes in which she was subsequently placed. She has suffered lasting psychological damage.

I agree with Julian Burnside QC that there can be no blanket response to this issue: it all depends on the facts of each case. For example, in the Cubillo case, the plaintiffs failed in large part because their factual allegations could not be made out.  In comparison, in this case, the plaintiff succeeded because he could point to the fact that his removal was not authorised, and he could also establish that his psychiatric problems arose because of his placement in a foster home. I presume that it was highly relevant that his siblings seem not to have had these kind of problems, even though they also had a difficult upbringing.

“Team building” exercises

I enjoy working in a team with intelligent and motivated people where communication is clear and there is respect between the members of the team. But I think I may have mentioned before on this blog that, in some respects, I’m not a team player (at least insofar as the concept is conceived of by HR departments). I hate work retreats. My attitude has always been: I spend all week with these people, and while I like most of ’em well enough, I can’t wait to spend the weekend with my family. But what I really hate are “team building” exercises.

This dislike has gone back many years, but I think it was exacerbated by a particular event. Once, longer away now than I care to remember, I was a little articled clerk, full of enthusiasm and naivety. On our first or second week, our group of articled clerks was sent on some kind of “leadership” or “team building” exercise. I don’t know what exactly the point of the exercise was, but the end result was appalling. By the end of the week, we had gone from being a friendly bunch to a group with massive schisms, full of suspicion and dislike. It certainly didn’t build a “team” mentality; in fact the very opposite. Luckily, I was a bit older, and I’d already been working full-time for over a year before then, so I didn’t take the whole thing very seriously. I have always just wanted to do my job well and go home.

One can get help from some exercises – for example, I found it helpful to do the Meyers-Briggs test, which disclosed that I was an extrovert – and almost everyone else in my family was an introvert. This helped me understand why everyone had been saying, “Why do you talk so much all the time?” since I was knee-high to a grasshopper. I feel the need to talk to work stuff out, whereas almost everyone else in my family feels the need to go away and mull over things to work stuff out. I’ve even married an introvert. Fortunately, my daughter is an extrovert from what I can see so far, so I have a fellow extrovert with whom I can talk until the cows come home. At the moment the main things she says to me are “Cat! Meow! Jump!” (her new game is pretending to be a cat, and I have made her a “tail” out of an old stocking and some newspaper). But I’m sure we’ll have more to talk about soon.

Team building exercises worry me where they are supposed to help you resolve “issues” with colleagues. I’m happy to talk with friends whom I trust about my personal problems and issues, but work colleagues? If I ever raised problems I had with a colleague, I’d prefer to keep that very, very private, strictly professional, and definitely one-on-one. I think it can be very confronting to talk about personal issues in a group of colleagues. I had a friend who did some kind of weird life skills course or something like that. He described to me how participants in a group exercise were talking about occasions where they had been physically and sexually abused, and crying. He said that he thought it was very positive and cathartic for them to talk about this in a group situation. On the contrary, the very idea appalled me. I think that for some people it can be a profoundly negative experience, and indeed, if not well handled, it can exacerbate any latent mental problems. A psychologist friend of mine once said, “It’s easy to take people’s heads apart and find out what’s bugging them, it’s far more difficult to put their heads back together. If you’re not careful and clever, you might unleash some stuff and be unable to resolve it and fix it.” You have to be so careful.

I couldn’t help thinking of all of this when I read a recent post by Marcellous, entitled A sad case. The case, MacKinnon v Bluescope Steel Limited [2007] NSWSC 774 is indeed very sad. To quote from Marcellous:

…[I]n extreme summary form, in 1996, Dr McKinnon, then aged 35 and a doctor employed by BHP (now called Bluescope Steel), attended a residential leadership course run for employees of BHP. The course was a fairly intense experience. At some stage during the course, McKinnon suffered something which in lay terms might be described as a nervous breakdown, from which he has never recovered. The case concerned whether BHP, or possibly the people who ran the course breached some duty towards Dr McKinnon and so caused this breakdown so that they should be required to compensate him for the consequences of this breakdown.

The amount at stake was substantial. The lost earning capacity for the rest of his working life of a doctor aged 35 is a considerable amount of money. Altogether there were 93 hearing days: 89 in which evidence was heard and a further 4 days for closing submissions.

Poor old Dr MacKinnon lost the case. He could not prove that BHP or the organisation which ran the course had breached their duty of care, and in any event, the trial judge formed the view that even if there had been a breach, he would have been unable to prove that the breach caused the injury. It seemed he had already been stressed before he attended the course, and had had some clashes with his then-boss. A number of incidents during the course exacerbated the tension between him and his boss, such that the plaintiff became mentally ill. But he was not forced to attend the course, or to continue attending it. There had been various measures put in place to try and monitor the mental health of the employees by both BHP and the organisation which ran the course. Dr MacKinnon had shown signs of increasing distress as the course went on, but the defendants had tried to alleviate and manage this.

I wonder whether companies will reconsider these kind of “team building” exercises in light of cases such as these? Even though BHP won, it must have been expensive to defend a claim like this. Personally, I won’t shed too many tears if courses like these go the way of the dodo!

Care in the Community

A friend of mine is anorexic, and over the last few years, she has become very unwell. I was so concerned that I spoke with her parents a while back. “There’s nothing we can do,” they said with despair. “She’s an adult. We can’t force her to seek treatment. We have tried everything we can and exhausted every avenue.” I have also tried to help my friend, but with limited success. The desire to help oneself must come from within; otherwise, no matter how much help and support you give, your efforts are fruitless. All I can do is make it clear that I am there for her when she decides that she needs me and wants to do something about it. I had other anorexic friends during high school who came out the other side, and now live happy, healthy lives, so all I can do is hope that she will also be able to do so too.

What do you do with people who are so mentally ill that they harm themselves and others? In the last few decades, there has been a tendency towards deinstitutionalisation and “care in the community”. “Care in the community” has two motivators. On the one hand, people with psychiatric problems are encouraged to live normal lives within the community, instead of being incarcerated in an asylum. The other (less noble) motivation is to enable government to save the costs of having to staff and fund mental institutions by keeping people in the community instead.

While I support the idea that people should be able to live a normal life where possible, all too often “care in the community” becomes “out of sight, out of mind”. Although it is hard to get statistics, it appears that a very high proportion of homeless people have psychiatric problems: far more than in the general population. This study suggests that 75% of homeless people in Sydney have a mental illness, as opposed to 20% in the general population, and that this is in some ways linked to deinstitutionalisation. It is a “chicken and egg” situation: homelessness and poverty can cause mental illness, but by the same token, mental illness can cause homelessness.

There is also a natural concern that people’s psychiatric records should be private. A 1996 study by the British Mental Health Charity, MIND, found that many people with psychiatric problems had suffered from significant discrimination in the workplace, in parenting and in the community generally once their psychiatric problems became common knowledge. This doesn’t surprise me. As I have discussed in this blog before, depression is a big unspoken problem in the legal industry (more than in almost any other industry). Statistics show that lawyers are 3.6 times more likely than non-lawyers to suffer from depression and other mental illnesses. But does anyone ever talk about it openly? No way. If you raise the issue in the workplace, then people start to doubt your ability to cope, and suspect that you might “go mad” again at any moment. One woman I know mentioned her mental health problems to her workmates, and was then discriminated against in a most appalling manner…which, ironically and terribly, caused her to fall into a deep depression.

What to do, then, when a friend, a colleague or an acquaintance displays signs which tend to show that he or she is mentally ill and in need of psychiatric assistance? These questions have come into prominence again with the Virginia Tech shootings, as it has become evident that Cho Seung-Hui had a documented history of mental health problems, and displayed signs that he was a risk to himself and others. University officials, students, lecturers and the police all knew that he had problems, but there was very little that they could do about it. As this New York Times article discusses, Federal privacy and antidiscrimination laws restrict the ways in which universities can deal with students who have mental health problems. The article says:

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression.

There is a difficult balance. Just because someone is suicidal, or suffers from a mental illness, does not mean that they should be prevented from attending university (or work). It is possible to overcome mental illness and psychiatric problems, and a past history of including problems should not be held against a person for life. However, there should definitely be better processes for identifying problems, for keeping tabs on vulnerable people and for treating the mentally ill.

There seems to be a serious deficiency in the way in which even highly developed countries such as Australia and America deal with mental health issues. Patrick McGorry, a Professor of Psychiatry at the University of Melbourne has said:

When a young person experiencing an acute asthma attack goes to see a doctor, they can be guaranteed an almost immediate response. When a woman notices a breast lump and seeks a diagnosis and treatment, it is readily available. When a middle-aged man experiences chest pain and calls the ambulance, he gains immediate access to high-quality care. Everyone accepts that a rapid response, early diagnosis and expert treatment can save lives and prevent disability.

What about the 22-year-old with depression who deliberately harms themselves? The Not for Service report (Mental Health Council of Australia, Brain and Mind Research Institute and Human Rights and Equal Opportunity Commission) shows the situation for mental disorders is totally different. Why? Serious funding constraints force mental health services to provide little more than palliative care. Treatment has to be rationed until it can be withheld no longer.

Despite the best efforts of many dedicated clinicians, there is a vast and unnecessary gap between the quality and coverage provided for general medical illnesses and psychiatric illnesses, which leads to Third World outcomes in a First World country

In the report cited above, Not for Service, a parent said:

Regarding ‘involuntary intervention’; although the Mental Health System espouses ‘early intervention’ and carers are encouraged to practice this, the constraints surrounding ‘involuntary intervention’ can make ‘early intervention’ impossible. From personal experience, it means that intervention will not be carried out without the consumer’s consent until that person is acutely unwell and a ‘crisis situation’ arises. Although it will then, still be without the consumer’s consent, probably even more so, and will probably mean a more forceful intervention, somehow this policy is considered more humane…As ridiculous as it sounds, it means that the behaviour of the unwell person has to disturb, alarm or frighten a member of the public enough to bring it to the attention of the police or the Mental Health Service – a carer’s word that the person is at risk is not enough…and we talk about reducing the stigma of mental illness.

(Submission No. 178)

Another parent said:

After exhibiting psychotic behaviour my son spent 21 days (detained) in Glenside Hospital in March 2002. He was counselled and medicated then turned out into the community with some medication but no follow up care. Shortly afterwards he stopped his medication, reverted to his anti-social, aggressive and irrational behaviour, a state he has been in unchecked for two years.

(Submission No. 11)

Even where a patient voluntarily seeks psychiatric help, they may be unable to get adequate help. But what if someone is so unwell that they cannot appreciate the depth of their illness? Should they be involuntarily admitted to a mental institution? The situation seems to be that involuntary admission will only be contemplated once a mentally ill person seriously harms himself or another. Such situations are rare but unfortunate, as they only increase the stigma towards the mentally ill in general.

Obviously, reopening asylums is not the answer. But there must be a better answer than letting seriously ill people go without treatment before they harm themselves or others. I think schools, universities and workplaces should have guidelines as to when it is appropriate to intervene, and some way of dealing with mentally ill people which does not stigmatise and marginalise them but allows them to be properly treated. There needs to be law reform and policy reform which makes it clear to universities, schools and workplaces what procedures should be followed.