Judging Judges Judgement

SYDNEY Magistrate, Brian Maloney, has attracted widespread community support following a judicial commission report which deemed him permanently incapacitated due to his recent diagnosis of a bipolar II disorder.

The community’s response to this issue is in line with the growing awareness of the widespread nature of mental illnesses and disorders; and the need for a collective, cooperative approach towards mental health issues in the community and the workforce.  Collaboration between mental health and other support services aims at increasing the transparency and effectiveness of services by addressing the needs of the person holistically. In spite of much recent progress however it is clear that there is still much to do to dissipate some of the ignorance, hypocrisy and inequality experienced by those that suffer from a mental illness, such as Mr. Brian Maloney.

Mr Frank Walker, president of the Schizophrenic Fellowship of NSW, stated it in the Sydney Morning Herald that it would be an “act of gross hypocrisy,” if the Parliament removed magistrates who had the same medical conditions as many of the MP’s in Parliament.

Jessica Rowe, media personality and an advocate for the beyondblue organisation that deals with depression, is quoted as being “mad as hell,” on her blog.  Jessica Rowe talks about how this issue is reminiscent of the sort of stigma that she and her mother faced surrounding her mother’s illness.

Premier Barry O’Farrell provided support for Brian Maloney, stating in the Sydney Morning Herald that he was “concerned … about someone being penalised for a disability''.

Support from fellow sufferers and prominent supporters of those with mental illness in the community, such as these; also reveals the stigma of mental illness and mental disorders in the wider community.  It also shows the level of support that is available for those living with a mental illness. However, it needs to be remembered that some aspects of this case are unusual due to the nature of the position help by Mr Maloney.

Mr Maloney had three “hypo manic” episodes between September 2008 and December 2009. These episodes led to complaints to the Judicial Commission about his inappropriate behaviour.  One June 2, 2011, Attorney General Greg Smith tabled a report from the Conduct Division of the Judicial Commission of NSW (as only the Parliament has the power to discipline or remove a magistrate).  Despite the findings of the Conduct Commission that, “the breeches were substantially caused by his bipolar II disorder,” the Commission’s findings in summary included:

• The Conduct Division finds that the Magistrate Maloney is and will remain incapacitated for the performance of judicial duties by his bipolar II disorder.
• The Conduct Division is of the opinion that the matters referred to in the report could justify Parliamentary consideration of the removal of Magistrate Maloney from office on the grounds of proved incapacity.

Despite the fact that the Conduct Committee acknowledged in its report that Mr. Maloney’s specialists were in agreement that he was fit to work, the Commission disagreed with their opinion.

The Commission’s decision was based on their view that the Judiciary does not have the power to help Mr. Maloney as medically recommended, (and as would be possible in most other workplaces); specifically by providing some supervision to ensure that his illness did not interfere with his work, saying that “to do so would constitute interference in the judicial system” (due to the need to preserve the ‘independence of the judiciary’).  The Commission appeared to be indifferent to the fact that their own assessment found Mr Maloney to be fully compliant with treatment and therefore to be able to work.  The Committee further advised that it does not have the power to apply conditions to Mr Maloney’s employment relating to his illness, as recommended by Dr. Phillips, a consulting psychiatrist.  This confirms the lack of tools available to the Committee in this area, once again mainly due to the perceived need to preserve the independence of judicial officers in the discharge of their duties. (This is because judges make decisions based on evidence etc and to have another constantly review these decisions would naturally limit the independence of the person being supervised).

Mr. Gormly, the prosecutor, stated in the contents of the “Report of the Conduct Division to the Governor regarding complaints against his Honour, the Magistrate Brian Maloney” that “compulsory future supervision is not available for judicial officers unlike the medical system,” confirming that the Judicial System does not have a form of compulsory supervision for officers in medical need.  The Conduct Division has already established it has no due process to supervise, therefore it has predetermined that the outcome of their decision will be not to assist Brian Maloney retain his job.  This reveals a level of prejudice within the legal framework and processes of the Conduct Commission regarding the complaint being assessed.

Mr. Gormly re-iterated his statement that the risk of missing a period of sickness in Mr. Maloney is exacerbated by the Judiciaries inability to follow up compulsory supervision.  This highlights again the risk of deterioration in Mr. Maloney would be high due to the lack of available supervision, to which the psychiatrist Dr. Nielssen agreed.

These statements confirm that the Judicial System does not have any form of supervision available and therefore is far more restricted than most other workplaces in its ability to help members who may be living with mental illness that could impact upon their work.  The Conduct Commission report in the ‘Discussion’ section notes that the imposition of monitoring is not available for a judicial officer and furthermore supports this view on the basis of judicial independence.  It is not mentioned if that view is held depending on the judicial officer’s health status.  Supporting a ‘lack of monitoring’ of an unwell Judiciary Officer is a health risk to the individual and could have negative consequences for those with whom the Judiciary officer is dealing with.

The case of Mr. Brian Maloney starkly highlights the gaps in policy relating to mental illness and treatment of public servants, particularly at senior levels where it requires them to have a level of authoritative independence.  It would be literally incredible to suggest Mr Maloney’s was the first ever such case of a judicial officer with a mental illness; and yet our system has nothing in place to help such people deal with their situation in an open and honest way; other than automatic dismissal from their post. This must mean that at least some other people in his position are likely to try to conceal their condition to avoid removal from their post, with unknown consequences for people who come before them while their judgement is impaired by illness; or indeed for the community (if this results in the guilty being freed without punishment for example). Worse, it may stop people who have no diagnosis but who are suffering from even seeking medical advice or treatment. Hardly a good outcome for the judiciary or the people who must rely upon their skill and judgement.

There are no simple answers to this conundrum. However, at least other people living with mental illness and their carers can take comfort from the widespread support expressed for Mr Maloney; and should understand that the peculiar limitations on the ability to support and supervise judges and magistrates do not apply to the vast majority of jobs in the Australian workforce, where such help should normally be forthcoming.