Wednesday, December 11, 2002

At the Minister's Pleasure The case of Michael Kelly

In 1996, Michael Kelly, husband and father of two, shot a stranger on the stairwell in his block of units. Michael was terrified the stranger would harm his wife and children.

He was in the grip of a serious mental psychosis when he pulled the trigger. A court found him not guilty of grievous bodily harm on the grounds of mental illness.

That was six years ago, and Michael is still in gaol.

If he had been found guilty, he would probably have served his sentence and been released by now.

Instead, Michael is still struggling with the frustration of prison routine in the mental ward inside Long Bay Gaol. His wife visits him as often as she can, taking along the kids, who are growing up without him.

Michael is caught up in a particularly cruel version of the game of Cat and Mouse. Because he is classified as a forensic patient under the Mental Heath Act of NSW, the Minister for Health is his master, not the Minister for Corrective Services. And the Minister for health will not let him go.

The Act requires a Mental Health Tribunal to review Michael's case every six months.The legal requirements of the Tribunal under the Mental Health Act is to determine if a forensic patient poses a risk to the community if they don't they should not be held in prison

The Tribunal, who themselves are experts in psychiatry, must call expert witnesses, the treating psychiatrist and psychiatric nurses who have observed him for years, his family and others.

For the past two years the Tribunal has found Michael ready to be placed in the community for treatment and rehabilitation. The expert forensic psychiatric team managing him say he poses no risk to the community. The community psychiatric team has repeatedly reported they are ready to take him into care.

His community placement would be subject to a stringent set of conditions. He would be assessed regularly by a psychiatrist, and case managed by staff expert in forensic case management. He would undergo regular drug/alcohol testing, because he will not be permitted to use mood-changing drugs.

Should he show any signs of mental illness or fail to cooperate with treatment, he can be returned to prison under the restraints of the Mental Health Act. Michael has agreed to all these conditions.

Why then is he still in prison? That is the question we put to Craig Knowles, Minister for Health NSW. The Minister sent us an evasive letter but gave us a clue to his thinking.

"I take very seriously decisions with respect to forensic patients. While the Mental Heath Tribunal is responsible for making recommendations the decision to approve or reject those recommendations rests with me.

I must be certain their mental illness is controlled and they no longer pose a risk."

I point to the Canadian experience of concentration of discretionary powers in the hands of government ministers in the name of the so-called War on Terror.

Knowle's use of power is another example of the same trend.The deliberate undermining of professional psychiatric teams by the Minister's refusal to release mentally ill people under his control must end. Craig Knowles must go and his power to decide these matters must be taken away from him.

By Tony York 11 December 2002

ED: How did we give one man, one key, to the roll of abnormality without any qualifications to diagnose one single persons's integrity,above specialists in the field of psychiatry?


Name removed by request served time in prison decades ago. Shes still being punished today. According to commonwealth and state legislation, ex-prisoners applying for jobs must declare any conviction that fits into the following categories: less than 10 years old, more than 10 years old but served more than 30 months in prison.

The Australian Law Reform Commission had recommended that the Innocence Panel be independent and have the power to investigate alleged miscarriages of justice.

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