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The following presentation discusses the legal and ethical issues pertinent to the cases of Cornelia Rau and Roni Levi – two individuals suffering serious mental health problems, who were both tragically let down by the legal system and health care system.
Their cases have received significant media attention, and have led to numerous legislative changes in response to the stark failure of either system to provide them with the care they so desperately required.
Cornelia Rau THE CASE Cornelia Rau was an Australian permanent resident who had resided in Australia from 18 months old. Beginning in 1998, Rau disappearedmany times, and was diagnosed with bipolar disorder. In 2002, she lodged an application for a false passport, at which point she was diagnosed with schizophrenia. She had frequent hospital admissions as a result of her mental illnesses, culminating in her absconding from the Manly Hospital Psychiatric Ward on the 17th of May 2004. Later that month she was seen at a Queensland pub by locals, who called the police due to significant concerns for welfare. When questioned by police, Rau told them she was a German woman named Anna Brotmeyer, and that she had lost her passport. (Freckelton, 2005, pp. 2-4)
Cornelia Rau THE CASE Rau was detained by police under the Migration Act from March 31st until April 5th at which point she was transferred to Brisbane Women’s Correctional Centre, where she was held for another 6 months. Staff and other prisoners frequently expressed concerns about her behaviour, culminating in her transfer to Brisbane’s Princess Alexandra Hospital for psychiatric assessment in August. Despite the fact that Rau “attract[ed] the diagnosis of having a personality disorder” (Freckelton, 2005, p. 2) she was not classified as mentally ill. On the 6th of October Rau was transferred under sedation, to South Australia’s Baxter Detention Centre, where her behaviour continued to disturb staff and fellow detainees. (Freckelton, 2005, pp. 2-4)
Cornelia Rau THE CASE On the 6th of November, a further psychiatric assessment found Rau was suffering from either schizophrenia or a personality disorder. It was recommended that she should be hospitalised for further observation and treatment. This was however ignored. It was not until the Sydney Morning Herald publicised Rau’s case that her sister was able to correctly identify her and she was removed from immigration detention and transferred to Glenside Psychiatric Hospital. (Freckelton, 2005, pp. 2-4)
Legal issues in the case of Cornelia Rau THE LEGISLATION Migration Act 1958 The Migration Act 1958 has specifications regarding the type and length of permissible detention of unlawful non-citizens, specifically:
“If an officer… reasonably suspects that a person… is an unlawful non- citizen” they may detain the person (Migration Act 1958, Section 189, ).
“An unlawful non-citizen detained under Section 189 must be kept in immigration detention until he or she is: removed from Australia under Section 198 or 199, or deported under Section 200, or granted a visa” (Migration Act 1958, Section 196, ).
Any treatment that is punitive in nature during immigration detention is “in breach of the Constitution” (Parliament of Australia, 2005, p. 18).
Legal issues in the case of Cornelia Rau THE LEGAL ISSUES Migration Act 1958 Rau was not in fact an unlawful non-citizen, however even if she had have been, as was suspected, her ongoing detention was not justified by the legislation for 2 reasons: An officer must “reasonably suspect” the person is an unlawful non-citizen. Rau’s claims that she was who she said she was were never verified (Parliament of Australia, 2005, p. 9). and An unlawful non-citizen can only be detained whilst one of three arrangements are being made: removal from Australia, deportation, or the granting of a visa. Rau was detained indefinitely with no plans for any of these arrangements, whilst officers were still trying to establish her identity (Parliament of Australia, 2005, p. 7). Furthermore, Rau was twice subjected to “confinement, isolation and punishment” (Parliament of Australia, 200, p. 20) to control her behaviour, despite the fact that immigration detention is not meant to be punitive.
Legal issues in the case of Cornelia Rau THE LEGISLATION Migration Series Instruction 371 Specifies that any employees or agents of the Commonwealth have a duty of care to ensure all health related necessities of any detainee are met whilst in immigration detention, which is enforceable by common law (Freckelton, 2005, p. 5).
Legal issues in the case of Cornelia Rau THE LEGAL ISSUES Migration Series Instruction 371 On numerous occasions staff and fellow detainees noted Rau’s behaviour was concerning. (Freckelton, 2005, p. 2). These observations included:
Rau would cry all day long (Freckelton, 2005, p. 2)
Psychiatrist’s report stating her behaviour was “very unusual… inappropriate towards male officers… laughs to herself, stands for hours staring at the wall or pacing up and down… presentation is consistent with psychotic disorder” (Freckelton, 2005, p. 2).
Rau was “stripping off her clothes and wandering in and out of the family quarters… [not] cleaning herself properly… and stealing other people’s food” (Marr, Metererell & Todd, 2005, p. 34).
Despite these observations Rau was not appropriately treated or assessed for her current mental health status. “The mental health care delivered to Cornelia Rau while she was detained at Baxter was inadequate” (Palmer, 2005, p. xii). It can be concluded that the Commonwealth failed in their common law duty of care.
Legal issues in the case of Cornelia Rau THE LEGISLATION Mental Health Act South Australia 1993 and Mental Health Act Queensland 2000 These acts have two significant differences with regards to detaining an involuntary patient: The Queensland Act makes it easier to detain because the patient must only appear to have a mental illness, whereas the South Australian act requires that the person actually has a mental illness (Palmer, 2005, p. 158). The South Australian Act makes it more difficult to detain a patient who lacks the “capacity or willingness” to consent to treatment (Palmer, 2005, p. 158).
Legal issues in the case of Cornelia Rau THE LEGAL ISSUES Mental Health Act South Australia 1993 and Mental Health Act Queensland 2000
Rau was quite easily admitted to a psychiatric facility in Queensland for involuntary assessment, due to the allowances made by the legislation (Palmer, 2005, p. 156).
In South Australia, the staff at Baxter Detention Centre tried for some time for Rau’s mental health status to be assessed, however organising this assessment was complicated due to the stipulation in the legislation that the patient must have a diagnosed mental illness in order to be detained as an involuntary patient (Palmer, 2005, p. 158).
Legal issues in the case of Cornelia Rau LEGISLATIVE CHANGES AND RECOMMENDATIONS Indefinite detention was ceased The Department of Immigration and Citizenship (DIMIA) changed their procedures so that a limit of 28 days was applied to how long people can be detained in a state prison (Parliament of Australia, 2005, p. 7). Mental Health Act 1993 (South Australia) replaced by Mental Health Act 2009 (South Australia) Requirements for detaining an involuntary patient changed so that “a person [can] be detained and receive treatment in a treatment centre… if it appears to the medical practitioner or authorised health professional, after examining the person, that… the person has a mental illness (Mental Health Act, 2009, p. 17).
Legal issues in the case of Cornelia Rau LEGISLATIVE CHANGES AND RECOMMENDATIONS Migration Act 1958 (section 189) The Palmer Inquiry (Palmer, 2005, p. xv) recommended the implementation of a legislative training package to better equip DIMIA officers to exercise their power under Section 189 of the Migration Act 1958 in a more thorough and lawful fashion, addressing all procedures relating to official identification of detainees. Migration Series Instruction 371 A Select Committee on Mental Health was established to investigate the overall provision of mental health services in Australia (Parliament of Australia, 2005, p. 6). Perhaps the “inadequacies of resources that afflict the [Australian] public mental health system” (Freckelton, 2005, pp. 10-11) contributed significantly to the delay in providing Rau with appropriate mental health care.
Ethical Issues in the case of Cornelia Rau PRINCIPLE OF BENEFICENCE “The principle of doing good and providing care for others” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
When Rau was finally assessed by a psychiatrist, numerous possible diagnoses were given, with a recommendation for Rau to be transferred to Glenside Psychiatric Hospital for further assessment and treatment. The recommendation was ignored, and clearly breaches the principle of beneficence. The care Rau so desperately needed was not provided.
Ethical Issues in the case of Cornelia Rau PRINCIPLE OF NON-MALIFICENCE “The principle of not harming others, and of minimizing harm to them” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
Dr. Newman, chair person of the Royal Australian and New Zealand College of Psychiatrists asked to examine Cornelia in 2005. His request was refused as Cornelia was unable to give written consent for him to see her.
Cornelia was watched by male guards whilst she used the toilet and the shower. The guards would laugh at her behavior shamelessly, not once considering it may be indicative of a serious mental illness, or that they may be exacerbating her already fragile state.
Cornelia was detained in Red One, where she was the only female despite the fact that one of the reasons she was sent there was for constant and inappropriate undressing.
Ethical Issues in the case of Cornelia Rau PRINCIPLE OF AUTONOMY “The principle of allowing and promoting self-rule, of people making decisions about their lives” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
The harsh reality of the case of Cornelia Rau – that an ordinary, yet mentally ill Australian resident could be lost in the detention system for months, resonated significantly in the community. The government knew the danger of the Rau case spurring the wider argument over detention policy; it tried to limit the debate. It couldn’t.
The governments attempt to silence what had transpired in this case is a clear breach of the principle of autonomy. The public have a right to know about system failures of any kind.
Ethical Issues in the case of Cornelia Rau PRINCIPLE OF JUSTICE “The principle of fair allocation of community resources and burdens” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
“Immigration detainees appear to have lesser rights and are held in an environment which appears to involve a weaker accountability framework”
Commonwealth Ombudsman 2001.
Detainees are disadvantaged with the rights to medical support and psychiatric treatment.
Despite the high levels of disturbed behavior amongst the detainees at Baxter, there would be only be a visit every six to eight weeks by the psychiatrist, Dr. Frucasz.
On 27 June 1997, 33 year old Roni Levi voluntarily admitted himself to St Vincent’s hospital. He was suffering from delusional thought processes.
Around 4.30am on the 28th, hospital staff noticed he was missing.
In the cold winter morning he walked 7km from hospital to his flat in Bondi, wearing only light clothing.
At 6.30am he took a knife from his flat despite his flatmate’s attempts to dissuade him.
His flatmate followed him for about half an hour; he then ran to the Bondi Police station to report the situation.
At 7.00am, the police received reports that there was a man with a knife in the water at Bondi Beach.
By the time police arrived, he was heading up the beach, but when he saw them he turned and ran back into the water. The police pursued him, and in the chase Levi lost his glasses. He was almost blind without them.
For half an hour Levi walked up and down the beach, while police attempted to persuade him to drop the knife.
At 7.31am 2 police officers shot Levi after he suddenly lurched towards them.
Constable Rodney Podesta and Senior Constable Anthony Dilorenzo fired two shots each, three of the four shots hit Levi in the chest; the fourth hit him in the lower back.
Although paramedics were attending to Levi within seconds, he quickly had no pulse. He was pronounced dead on arrival at St Vincent’s hospital.
Legal issues in the case of Roni Levi BEFORE THE SHOOTING
May 1996 the Internal Affairs Branch of the NSW Police began to investigate an allegation that Senior Constable Anthony Dilorenzo had an improper association with known drug dealers. This investigation had the code name Operation Addlestone.
May 1997 the Internal Affairs Branch of the NSW Police began to investigate an allegation that Constable Rodney Podestra used and supplied prohibited drugs. This investigation had the code name Operation Borden.
May 1997 Operations Addlestone and Borden were combined.
Legal issues in the case of Roni Levi Senior Constable Anthony Dilorenzo and Constable Rodney Podesta (Picture from Goodsir, 2001)
Legal issues in the case of Roni Levi LEGAL ISSUES
Were the police officers justified in taking the action they did?
Were the officers affected by drugs or alcohol?
Did Roni Levi get appropriate care from the hospital staff?
Legal issues in the case of Roni Levi WERE THE OFFICERS JUSTIFIED IN SHOOTING?
“It was justifiable shooting. He was coming faster and faster and more aggressive with the knife until he actually lunged at me. And when he lunged I was probably about four foot away and I fired off two rounds which struck him in the chest.” Tony Dilorenzo
“There were 39 civilian witnesses, and only two of those said Roni lunged. The police's own crime scene examiner did a measurement of the distance of Roni from the police officers when they discharged their firearms and he measured that distance to be 5.2 metres - that's a long way.”Ray Watterson, professor, school of Law, Latrobe University
A critical point is the distance between Levi and the officers who shot him.
Another critical point is whether or not the use of firearms was in accordance with police procedures.
(Four Corners interview)
Legal issues in the case of Roni Levi THE CORONER’S ACT 1980
The coroner suspended the inquest into the death of Roni Levi because:
“In my opinion the evidence establishes a prima facie case against known persons [Podestra and Dilorenzo] with regard to the death of Roni Levi. Accordingly I am required to terminate the inquest and refer the matter to the director of Public Prosecutions.”
This was because the Police’s internal investigation had evidence that Podestra and Dilorenzo may have taken drugs on the night before the shooting. Under the Coroner's Act, if known people may be charged with a criminal offence, he must stop the inquest and not reconvene until after the trial; or reconvene once it is clear that no charges will be laid.
Legal issues in the case of Roni Levi THE MENTAL HEALTH ACT 1990
The Mental Health Act provides for the treatment and care of people with mental illness. The care should place as little restriction on the rights and liberty of the patients as possible.
- This means the hospital did not have to ensure Levi stayed for treatment, as he was a voluntary patient and it was his right to leave.
Section 4 requires the protection of the civil rights of mentally ill or disordered people, and states that they are to be given an opportunity to access appropriate care.
- Witnesses said the police were shouting “drop the knife, you f*&king dickhead” - Other witnesses heard Levi being warned to drop the knife or they would shoot to kill him. (Royal Commission into the NSW Police Force, 1997)
Legal issues in the case of Roni Levi THE POLICE ACT 1990
Despite the 2 officers being under active investigation for possible drug involvement, neither was tested for drug or alcohol impairment after the shooting. (At that time, there was no legal requirement for officers to be tested after critical events.)
Section 7 – Each officer is to act in a manner which: a) places integrity above all, B) upholds the rule of law
Section 5 – Examples of police misconduct can include “the commission of a criminal offence by a police officer” and it is misconduct “whether or not it occurs while the police officer is officially on duty”
Legal issues in the case of Roni Levi DRUG MISUSE AND TRAFFICKING ACT 1985
“A person who has a prohibited drug in their possession is guilty of an offence”
“A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.”
Offences of entering, or being on, drug premises:
“A person who is found on, or who is found entering or leaving, drug premises is guilty of an offence.”
Legal issues in the case of Roni Levi POLICE INTERNAL INVESTIGATION INTO THE SHOOTING Police procedure states that officers involved in an incident where a firearm is discharged will be interviewed by police from other stations. This did not happen, Podestra and Dilorenzo were interviewed by colleagues from their own station. The other 4 police involved in the incident were not interviewed at all; they wrote their own statements.
This situation led to Levi’s family alleging there was a cover up.
The investigation heard conflicting evidence from witnesses; some said that Levi lunged at the officers, others claimed he did not.
The investigation found that it was unable to determine if the allegation that the officers were affected by drugs was true.
(Goodsir, 2001, Urquhart, 2001)
Legal issues in the case of Roni Levi THE INTERNAL AFFAIRS CASE AGAINST CONSTABLE RODNEY PODESTA Podestra admitted the following:
He did not always enforce the law in relation to drugs
He frequented a bar in Bondi The Liberty Lunch” despite all police being instructed by a senior officer not to go there.
He used cannabis, cocaine and ecstasy before he joined the police.
He attended nightclubs where drug use was prevalent, and had a group of friends who were known to police as drug users.
He continued to use cocaine and ecstasy after the shooting.
In February 1998 he purchased a large quantity of cocaine with the intention of supplying it to others.
He resigned from the police in March 1998. He was convicted on 9 December 1999 and sentenced to 4 months imprisonment on a charge of supplying a prohibited drug.
Legal issues in the case of Roni Levi THE INTERNAL AFFAIRS CASE AGAINST SENIOR CONSTABLE ANTONY DILORENZO
Dilorenzo denied using drugs, but the investigation heard evidence from surveillance tapes which strongly implicated him in drug use.
An anonymous witness gave evidence that Dilorenzo used cocaine and ecstasy while he was a member of the police.
He was dismissed from the police in June 1999 on the grounds that the Commissioner of Police had no confidence in his suitability to remain as a police officer.
He did not face criminal charges over the shooting of Roni Levi
Legal issues in the case of Roni Levi THE FOLLOW UP
The issues raised by Internal Affairs and the police investigation would not go away. In June 2001 the Police Commission tabled its final report to the NSW parliament.
Its most damming finding was “that no orderly or structured control was taken of the shooting immediately after it occurred and it is clear that there was a systemic failure to comply with the then procedures, and there was a real risk that such an important investigation may have been carried out by officers who might be perceived as not being at arms length from Podestra and Dilorenzo.”
The report also stated “that the allegations that both officers were affected by drugs and/or alcohol were not adequately investigated by either Internal Affairs or the shooting investigation team.”
Legal issues in the case of Roni Levi LEGISLATIVE CHANGES AND RECOMMENDATIONS
The coroner recommended that to avoid public allegations of cover up in fatal incidents involving police, the investigation should be conducted by out of state police. That recommendation has not been accepted by the NSW police.
The coroner also recommended updated training for police officers to assist them with dealing with mentally ill people.
Another recommendation was that all hospitals have a protocol to notify family and police when mentally unwell patients leave the hospital.
There has been a change to the Police Act. Section 211A now requires police officers to undergo alcohol and drug testing after “as soon as possible after a mandatory testing incident” occurs. The coroner recommended this because he said it would “protect the community and the police from unfounded allegations.”
One definition of a mandatory testing incident is one “where a person is killed or seriously injured as a result of the result of a discharge of a firearm by a police officer.” (Hand, 2001)
Ethical Issues in the case of Roni Levi PRINCIPLE OF BENEFICENCE “The principle of doing good and providing care for others” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
Police were not beneficent. Part of beneficence is making sound judgments intended to benefit all people involved. Police who choose to use drugs and alcohol before coming on duty cannot later claim to act in the spirit of beneficence.
Most people in society probably want the government to be beneficent and fair and provide a good quality of health care for everyone.
Ethical Issues in the case of Roni Levi PRINCIPLE OF NON-MALIFICENCE “The principle of not harming others, and of minimizing harm to them” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
It could be argued that Podestra and Dilorenzo were maleficent – that is, they intended to do harm.
Sometimes non-maleficence is defined that if someone cannot do good without also causing harm, then that person should do nothing. In Levi’s situation, doing nothing was not an option for the police, as doing nothing could have endangered others.
Ethical Issues in the case of Roni Levi PRINCIPLE OF AUTONOMY “The principle of allowing and promoting self-rule, of people making decisions about their lives” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
Autonomy allows people to have control over their own lives. One police officer was quoted as saying that Levi chose “suicide by cop”, that is, he provoked the police into killing him.
Respecting an individual’s autonomy does not come at the expense of other people’s rights. Autonomy can be negated by other moral considerations. If a person’s choices endanger or potentially harm other people, then their right to autonomy is void.
The police had the right to decide that Levi’s right to autonomy was at an end, as his behaviour had the potential to endanger others.
They could have decided that he was obviously not thinking clearly, so was not able to make informed decisions. In that case a paternalistic attitude would have been appropriate.
Ethical Issues in the case of Roni Levi PRINCIPLE OF JUSTICE “The principle of fair allocation of community resources and burdens” (Berglund, 2007, p. 12). BREACHES OF THIS PRINCIPLE
What could “justice” have meant for Roni Levi?
Justice in this case would have been recognition that he was not a well person, and that he was entitled to a minimum standard of health care.
John Rawls claims that the inequalities certain people experience in their lives are as a consequence of a “social lottery”. It is not an individual’s fault if they are disadvantaged, so society should support the person with health care or other measures to help them overcome their disadvantages.
This support would mean that the police could be well trained to recognise people in need, and would have the training and resources to get the appropriate help for people in situations like Levi’s.
Cornelia Rau and Roni Levi’s stories provoked intense media coverage and in some quarters dissatisfaction with the way mentally ill people are treated by officials. Their situations led to changes to legislation; these changes were made in the hope that the mistakes made in their cases will be learnt from and not made again.
The situations they found themselves in were markedly different, yet each serves to illustrate how mental illness polarises those around them. Rau’s obvious distress was ignored, Levi’s behaviour although threatening, could have been managed in an ethical manner to ensure he received the medical attention he so obviously needed.
References References Australian Human Rights Commission. (2005). Palmer inquiry highlights immigration detention and mental health services inadequacies in Australia. Retrieved from Australian Human Rights Commission website: http://www.hreoc.gov.au/about/media/media_releases/2005/27_05.html Berglund, C. (2007). Ethics for Health Care (3 ed.). Melbourne: Oxford University Press. Coroners Act 1980, NSW. Retrieved from Australian Legal Information Institute website: http://www.austlii.edu.au/au/legis/nsw/repealed_act/ca1980120 Drug Misuse and Trafficking Act 1985, NSW. Retrieved from Australian Legal Information Institute website: http://www.austlii.edu.au/au/legis/nsw/consol_act/dmata1985256/ Freckelton, I. (2005). Madness, migration and misfortune: The challenge of the bleak tale of Corenlia Rau. Psychiatry, Psychology and Law, 12(1), 1-14. Retrieved from http://search.informit.com.au/documentSummary;dn=763578568908540;res=IELHSS Goodsir, D. (2001). Death at Bondi: Cops, cocaine, corruption and the killing of Roni Levi. Sydney: Pan McMillan Australia. Hand, D., & Fife-Yeomans, J. (2001). The Coroner: Investigating sudden death. Sydney: ABC Books
References References Marr, D., Metererell, M., & Todd, M. (2005). Odyssey of a lost soul. Sydney Morning Herald, February 12-13. Mental Health Act 2009, SA. Retrieved fromAustralian Legal Information Institute website: www.austlii.edu.au/au/legis/nsw/repealed_act/mha1990128/ Migration Act 1958, Commonwealth Consolidated Acts. Retrieved from Australian Legal Information Institute website: http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/ Palmer, M. (2005). Inquiry into the circumstances of the immigration detention of Cornelia Rau. Retrieved from Australian Government Department of Immigration and Citizenship website:ww.immi.gov.au/media/publications/ pdf/palmer-report.pdf
References References Parliament of Australia. (2005). The detention of Cornelia Rau: Legal issues. Retrieved from Parliament of Australia website: http://www.aph.gov.au/library/pubs/rb/2004-05/05rb14.pdf Police Act 1990, NSW. Retrieved from Australia Legal Information Institute website: http://www.austlii.edu.au/au/legis/nsw/consol_act/pa199075/ Rawls, J. (2001). Justice as fairness: a restatement. Cambridge: Harvard University Press Royal Commission into the NSW Police Service. (1997). Police Integrity Report: Operation Saigon Phase II. Sydney. Urquhart, P. (2001). Operation Saigon: Report to Parliament. Sydney: Police Integrity Commission. http://www.abc.net.au/4corners/content/2009/s2724526.htm http://www.policensw.com/info/gen/p3.html