The Strange Case of Magistrate Maloney


He stands alone amid the plum red seats of an institution almost as old as the country. He is there to plead for his job, for his right to perform as a magistrate, a role he has practised for nearly 15 years.

In that time he has heard many thousands of cases. It is a stressful role but he has conducted himself well, until 2009 when three complaints are laid before the Conduct Division of the Judicial Commission of NSW.

After an investigation the commission recommends to Parliament his "removal from office on the ground of proved incapacity".

Magistrate Brian Maloney, 58, apologises to those he offended, whose complaints began this process. He asks for understanding from the Legislative Council, its 42 honourable members now turned judges, in judgment on his life, his career, his future.

Even without raising the issue for which Maloney was summoned to Parliament — that he has been diagnosed with bipolar — the process sends a chill down the spine of those of us, and that’s all of us, who respect an individual’s right to dignity.

That anyone, let alone one facing up to his mental ill health, should be forced to appear before a public assembly of politicians is an affront to basic human rights. That it should happen in 2011 is an indictment on this country, particularly since the Federal Government has made mental health and mental health education such a priority.

In fact, Maloney is being denied the basic provisions as set out in the UN Declaration of 1991 — the Principles for the Protection of Persons with Mental Illness. It is well to state just one paragraph from that Declaration: "All persons with a mental illness, or who have are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person".

If that is not enough, then both the Judicial Commission and the Legislative Council should pause to read the Charter for Mental Health Care in NSW, published by NSW Health. "Every person in NSW," it affirms, "has the right in mental health services that: respect human rights; are compassionate and sensitive to the needs of the individuals they serve…". And so it goes on.

But having read through the 134 pages of the Commission’s report (written by The Honourable Michael Campbell QC, Her Honour Deputy Chief Magistrate Mottley and Ms M Jabour) I find little evidence of the compassion or sensitivity that are so needed in this case.

Three medical experts, all highly experienced psychiatrists, were called to give opinion to the Commission. All three diagnosed Magistrate Maloney with bipolar II disorder and all three stated that this was treatable and controllable. One of them noted quite clearly, "I would remain optimistic that with structured and successful treatment of his condition, Magistrate Maloney should be able to continue to perform his judicial functions and official duties".

Another psychiatrist put to the Commission that bipolar II, the condition diagnosed for Magistrate Maloney, and a less severe type than bipolar I, "is probably one of the most treatable psychiatric conditions … and is very responsive to treatment".

Though the Commission members accept that the Magistrate Maloney has, and will continue to have, bipolar II, they are yet unable to consider the possibility that being treated and supervised will allow him to continue in his role.

In effect, they are stigmatising Magistrate Maloney for being, what they consider mentally unfit.

Throughout the final pages of the report, in which they summarise the psychiatrists’ reports, nowhere do they accentuate the positive or note the strengths that Magistrate Maloney has clearly demonstrated by facing up to bipolar, accepting treatment and responding to counselling.

Far from it. The report, at paragraph 388, states: "… the doctors agreed in their joint report that Magistrate Maloney’s mood state is currently stable and that he is fit currently to perform the duties of a judicial officer … The emphasis is ours".

In other words, a person with mental ill-health will always be labelled as such, regardless of whatever actions they take to seek treatment, whether or not a medical specialist says they are making good progress, that those in other professions continue to work well despite being diagnosed with depression, or anxiety or any other label.

Come on commissioners and parliamentarians, you honourable people. This is exactly the attitude that kept mental health in the darkness for decades. And, to be fair, it is regrettably an attitude that persists despite the billions being at mental health by the Commonwealth.

As put by Sane, "most often stigma against people with a mental illness involves inaccurate and hurtful representations of them as violent, comical or incompetent – dehumanising and making people an object of fear or ridicule."

Listen to Magistrate Maloney quoted in the Commission report: "I had to punch through it [depression]. It’s like fighting pain, punch through it, get through it, meet the adversity; and, in the course of doing so, you lose sight of — you get into an elevated mood and you lose sight."

You lose sight of yourself as an individual and as a human being. When others lose sight of you as well, as has the Commission, then what follows can be very black indeed.

The matter before the Legislative Council has been adjourned until August following further complaints being made.

For help with mental illness visit Beyond Blue. If you need to speak with someone call Lifeline on 13 11 14.

To report stigma visit Sane.


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