1. Cases of Rau and Levi NRS 190 Paramedic Law and Ethics Group 4 Presentation Debby Foster Eva Rosenbaum Emily George Kelly Hastie

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)

5. 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)

7. “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, [1]).

9. 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).

11. 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).

12. 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.

13. 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).

16. 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.

19. 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.

20. 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. (Freckelton, 2005)

22. 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.(Freckelton, 2005)

24. 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.(Freckelton, 2005)

26. Around 4.30am on the 28th, hospital staff noticed he was missing.

27. In the cold winter morning he walked 7km from hospital to his flat in Bondi, wearing only light clothing.

28. At 6.30am he took a knife from his flat despite his flatmate’s attempts to dissuade him.

29. His flatmate followed him for about half an hour; he then ran to the Bondi Police station to report the situation.

30. At 7.00am, the police received reports that there was a man with a knife in the water at Bondi Beach.

31. 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.

32. For half an hour Levi walked up and down the beach, while police attempted to persuade him to drop the knife. (Goodsir, Urquhart, 2001)

34. 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.

35. Although paramedics were attending to Levi within seconds, he quickly had no pulse. He was pronounced dead on arrival at St Vincent’s hospital.(Goodsir, 2001)

37. 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.

38. May 1997 Operations Addlestone and Borden were combined. (Urquhart, 2001)

39. Legal issues in the case of Roni Levi Senior Constable Anthony Dilorenzo and Constable Rodney Podesta (Picture from Goodsir, 2001)

41. Were the officers affected by drugs or alcohol?

43. Drug Misuse and Trafficking Act 1985

44. The Coroners Act 1980

45. Police Integrity Commission Act 1996

47. “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

48. A critical point is the distance between Levi and the officers who shot him.

49. Another critical point is whether or not the use of firearms was in accordance with police procedures. (Four Corners interview)

53. Section 7 – Each officer is to act in a manner which: a) places integrity above all, B) upholds the rule of law

55. “A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.”

56. 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.”

58. The investigation heard conflicting evidence from witnesses; some said that Levi lunged at the officers, others claimed he did not.

59. 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)

61. He frequented a bar in Bondi The Liberty Lunch” despite all police being instructed by a senior officer not to go there.

62. He used cannabis, cocaine and ecstasy before he joined the police.

63. He attended nightclubs where drug use was prevalent, and had a group of friends who were known to police as drug users.

64. He continued to use cocaine and ecstasy after the shooting.

65. In February 1998 he purchased a large quantity of cocaine with the intention of supplying it to others.

66. 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.(Urquhart, 2001)

68. An anonymous witness gave evidence that Dilorenzo used cocaine and ecstasy while he was a member of the police.

69. 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.

70. He did not face criminal charges over the shooting of Roni Levi(Urquhart, 2001)

72. 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.”

73. 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.”(Goodsir, 2001)

75. The coroner also recommended updated training for police officers to assist them with dealing with mentally ill people.

76. Another recommendation was that all hospitals have a protocol to notify family and police when mentally unwell patients leave the hospital.

77. 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)

81. 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.

82. 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.

84. 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.

85. 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.

86. 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.(Rawls, 2001)

89. 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

90. 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