The Future of Mental Health, Disability and Criminal Law
Essays in Honour of Emeritus Professor
Bernadette McSherry
Edited by Kay Wilson, Yvette Maker, Piers Gooding and Jamie Walvisch
First published 2024 by Routledge
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data
Names: Wilson, Kay (Legal researcher), editor. | Maker, Yvette, editor. | Gooding, Piers, editor. | Walvisch, Jamie, editor. | McSherry, Bernadette. hounoree.
Title: The future of mental health, disability and criminal law : essays in honour of Emeritus Professor Bernadette McSherry / edited by Kay Wilson, Yvette Maker, Piers Gooding and Jamie Walvisch.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2024. | Includes bibliographical references and index.
Identifiers: LCCN 2023015087 | ISBN 9781032396071 (hardback) | ISBN 9781032396323 (paperback) | ISBN 9781003350644 (ebook)
Subjects: LCSH: Mental health laws—English-speaking countries. | Mental health laws—Australia. | LCGFT: Festschriften.
Classification: LCC K3608 .F88 2024 | DDC 344.04/4—dc23/ eng/20230720
LC record available at https://lccn.loc.gov/2023015087
ISBN: 978-1-032-39607-1 (hbk)
ISBN: 978-1-032-39632-3 (pbk)
ISBN: 978-1-003-35064-4 (ebk)
DOI: 10.4324/9781003350644
The Open Access version of chapter 9 was funded by University of Melbourne Early Career Researcher Grant 503454. The Open Access version of chapter 13 was funded by Australian Research Council.
KAY WILSON, YVETTE MAKER, PIERS GOODING AND JAMIE WALVISCH
2
MARY DONNELLY
3
PENELOPE WELLER
4
PETER BARTLETT
Table of Cases
A, B and C v Y and Z [2012] EWHC 2400 (COP) .................................. 56
A Clinical Commissioning Group v N [2017] UKSC 22 ............................ 64
AH [2021] EWCA Civ 1768 .................................................................... 57
Alexopoulos v R [2022] VSCA 145 .......................................................... 180
An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC (Fam) 91–2
Arthars v R (2013) 39 VR 613 165
B v Forsey 1988 SLT................................................................................ 143
Barefoot v Estelle, 463 US 880 (1983) ..................................................... 192
Beasley v Australia, Communication No 11/2013, UN Doc CRPD/C/15/D/11/2013 .................................................... 203, 215–6
Bonnington Castings v Wardlaw [1956] 1 All ER 615 177
Bowen v R [2011] VSCA 67 171
Carroll v R [2011] VSCA 150 ................................................................ 168
CC v KK and STCC [2012] EWCOP 2136 .............................................. 57
College of Nurses of Ontario v Theodossiou, 2020 CanLII 456 (ON CNO) ... 92
Conway v Jaques (2005) 250 DLR (4th) 178 ............................................ 92
Croke v Ireland [2000] ECHR 680 14
Daubert v Dow Chemical Co, 509 US 579 (1993) 192
Department of Health v D (1999) 18 FRNZ 233 149
Devers v Kindilan Society (2010) 116 ALD 23 ........................................ 214
Director of Proceedings v Oceania Care Co Ltd [2022] NZHRRT 8 ......... 118
Director of Proceedings v The Ultimate Care Group Ltd [2022] NZHRRT 17 .............................................................................. 118, 119
Director of Public Prosecutions v Brown [2020] VCC 196 177
Director of Public Prosecutions v Missen [2019] VSC 32 177
Director of Public Prosecutions v O’Neill (2015) 47 VR 395 ..................... 180
Director of Public Prosecutions v Patterson [2009] VSCA 222 ................... 171
Director of Public Prosecutions v UA [2018] VSC 423.............................. 178
Director of Public Prosecutions v Weidlich [2008] VSCA 203 .................... 167
Entick v Carrington (1765) 19 Howell’s State Trials 1029; 95 ER 807 (KB) 148
Estelle v Smith, 451 US 454 (1981) 192
Table of Cases ix
Fox v Percy (2003) 214 CLR 118 ............................................................ 206
Gagnon v Scarpelli, 411 US 778 (1973) .................................................. 199
Gardner v Florida, 430 US 360 (1977)................................................... 198
HL v United Kingdom [2004] 40 ECHR 761 14, 15, 59, 143, 151, 154
HYY (Guardianship) [2022] VCAT 97 82–3
Jackson v Indiana, 406 US 715 (1972) 191
Johnson v Cockrell, 306 F 3d 249 (5th Cir, 2002) .................................... 193
Johnson v United Kingdom, 2250/93, judgment of 24 October 1997 (ECHR) ......................................................................... 64
Johnson v United States, 576 US 591 (2015) ........................................... 190
Johnston v R [2013] VSCA 362 171
Jurek v Texas, 428 US 262 (1976) 189, 190
Kansas v Hendricks, 521 US 346 (1997) ................................................. 191
Kioa v West (1985) 159 CLR 550 ............................................................. 36
Kolanis v United Kingdom, 517/02, judgment of 21 June 2005 (ECHR) ... 64
LB (Re), 2010 CanLII 21401 (ON CCB) ................................................ 92
LB v AJ, 2021 CanLII 5858 (ON HPARB) 92
Lockrey v Australia, Communication No 13/2013, UN Doc CRPD/ C/15/D/13/2013 203, 215–6
Loli v MWY, FAM 2009–004–1877, Auckland Family Court, 14 January 2011 .................................................................................. 148
London Borough of Brent v SL [2017] EWCOP 5 ....................................... 60
Long v State, 2009 WL 960598 (Tex Crim Ct App, 2009) ...................... 190
MM v Secretary of State for Justice [2018] UKSC 60 149–50
Nenno v State, 970 SW 2d 549 (Tex Crim Ct App, 2009) 193
O’Connor v R [2014] VSCA 108 ............................................................ 165
Opinion 17HDC00352 (2020), Case 17HDC0035, 30 June 2020 ...118–119
Opinion 18HDC01049 (2021), Case 18HDC01049, 19 February 2021................................................................................ 118
P v Cheshire West and Chester Council [2014] UKSC 19 ............................ 14
Paparone v R [2000] WASCA 127 168
PBU and NJE v Mental Health Tribunal (2018) 56 VR 141 36, 41
R v Bournewood and Community Mental Health NHS Trust; Ex parte L [1999] 1 AC 458 ........................................................ 141, 142
R v Dolheguy [2020] VSC 704 ................................................................ 170
R v Hayes [2010] QCA 96.................................................................. 176–7
R v M’Naghten (1843) 8 ER 718 182
R v Peta (2007) 2 NZLR 627 194
R v Pritchard (1836) 7 C&P 303 ........................................................... 183
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 ........................................................................ 146, 150
R v Special Commissioner; Ex parte Morgan Grenfell and Co Ltd [2002] UKHL 21 .................................................................... 146
R v Surtees [2022] VSC 124 171
R v Verdins (2007) 16 VR 269 163
R v Vuadreu [2009] VSCA 262 .............................................................. 171
R (Barry) v Gloucestershire (1997) 2 All ER 1 ........................................... 64
R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308 ............. 64
R (Rose) v Thanet Commissioning Group [2014] EWHC 1182 64
R (Ross) v West Sussex PCT [2008] EWHC 2252 (Admin) 64
Re ADP [2003] WASAT 131 93
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338 .... 92
Re BTO, Guardianship and Administration Board (WA), 14 October 2004 ................................................................................... 93
Re LB, 2010 CanLII 21401 (ON CCB) ................................................... 92
Re JP [2004] WASAT 3 93
Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) ............................................................................. 57
Ross v R [2015] VSCA 302 ..................................................................... 165
Seling v Young, 531 US 250 (2001) ........................................................ 191
Shtukaturov v Russia, 44009/05, judgment of 27 March 2008 (ECHR)... 57
State v Guise, 921 NW 2d 26 (Iowa, 2018) 198 Taylor v Louisiana, 419 US 522 (1975) 208
TC and UB v Komisia za zashtita of diskriminatsia and VA (2021) (C-824/19 ECLI:EU:C:2021:862 ........................................ 203, 217–18
United States v Dempsey, 830 F 2d 1084 (10th Cir, 1987) ....................... 207
United States v Field, 483 F 3d 313 (5th Cir, 2007) ................................ 192
United States of America v Archie W Brawner, 471 F 2d 969 (DC Cir, 1972) 183
Varga v State, 2003 WL 21466926 (Tex Crim Ct App, 2003) 190
Welsh Ministers v PJ [2018] UKSC .................................................... 149–50
Winterwerp v Netherlands 6301/73 [1979] ECHR 4 ............................... 151 Woods v New Zealand Police [2020] NZSC 141 ....................................... 150
Wright v R [2015] VSCA 88 .................................................................. 166
Youngberg v Romeo, 457 US 307 (1982) ................................................. 191
Table of Statutes
Australia
Aged Care Act 1997 (Cth) .................................................... 79, 80, 83, 100
s 54.10(1)(f) ........................................................................................ 80
Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth)
sch 9 83
Aged Care and Other Legislation Amendment (Royal Commission Response No 1) Act 2021 (Cth)
s 3 ........................................................................................................ 80
Aged Care and Other Legislation Amendment (Royal Commission Response No 2) Bill 2021 (Cth)
s 1 83
Charter of Human Rights and Responsibilities
Act 2006 (Vic) 22, 36, 83, 220, 270
s 10(c) .................................................................................................. 40
Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 (Vic) ............................................................................. 182, 289
s 6(1) ................................................................................................. 183
Criminal Code 1995 (Qld)
s 52 182
Disability Act 2006 (Vic)
pt 6A ....................................................................................... 74, 75, 84
pt 6B ....................................................................................... 74, 75, 84
pt 7 ......................................................................................... 74, 75, 84
s 3 ...................................................................................................... 100
Disability Services Act 2006 (Qld)
s 145(2) ...............................................................................................
Equal Opportunity Act 2010 (Vic)
8 ....................................................................................................
10
(Cth)
Table of Statutes xv
Convention on the Rights of Persons with Disabilities .................... 3, 6, 11, 13, 15, 22, 36, 38–42, 45, 47, 59–62, 65–7, 105, 125–6, 132, 191, 203, 210, 211–12, 216, 218, 231, 239, 258, 260, 319
art 2 56, 214
art 3 39
art 4(2) 64
art 4(3) ................................................................................................ 17
art 5 ................................................................................................... 211
art 5(1) ........................................................................................ 211–12
art 5(3) .............................................................................................. 218
art 9 210, 211 art 9(1) 210
art 9(2)(h) .......................................................................................... 214 art 10 ................................................................................................... 39
art 12 ................................... 11, 39, 40, 48, 54, 57, 231, 232–4, 236–40 art 12(5) .............................................................................................. 63 art 13 216, 219
art 14 11, 39, 42, 63, 138, 231, 234–5, 236–40, 258
art 14(1)(b) 235
art 15 ........................................................................................... 39, 232 art 16 ............................................................................................. 39, 56 art 17 ................................................................................................. 232 art 19 ........................................................................................... 63, 232 art 21 210, 211 art 21(a) 210 art 21(b) ............................................................................................ 211 art 22 ................................................................................................. 258 art 23 ................................................................................................. 232 art 25 ........................................................................................... 39, 259 art 25(a) ............................................................................................... 39 art 25(b) 39 art 25(c) 39 art 25(d) .............................................................................................. 39
25(e) ............................................................................................... 39 art 25(f) ............................................................................................... 39 art 27 ................................................................................................. 218 art 27(1)(g)–(h) 215 art 27(1)(i) 214 art 29(b) ...................................................................................... 213–14
Convention on the Rights of the Child art 32 ................................................................................................. 214 European Convention on Human Rights .................................................... 14 art 5 ..................................................................................... 14, 138, 143 art 5(1) 138 art 5(2)–(4) 140
xvi Table of Statutes
art 5(4) ...................................................................................... 138, 152 art 6 ................................................................................................... 208
European Social Charter (Revised) 1996 art 1 214
Employment Equality Directive 2000/78/EC 210, 217, 219 art 2(2)(a) 218 art 4(1) .............................................................................................. 218 art 5 ................................................................................................... 218
International Convention on the Elimination of All Forms of Racial Discrimination
International Covenant on Civil and Political Rights ............... 139, 140, 258 art 4 ........................................................................................... 210, 211
6 ...................................................................................................
8(3)(a) .......................................................................................... 214
9(1) 138
9(4) 138, 152
14 ......................................................................................... 208, 258
17 .................................................................................................
International
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ................. 123, 125, 132 Treaty on the European Union ................................................................. 216 Treaty on the Functioning
Contributors
Anna Arstein-Kerslake is a Professor in Human Rights at the Irish Centre for Human Rights at the University of Galway, Ireland. She is also an Associate Professor at Melbourne Law School where she founded the Disability Human Rights Clinic and has led multiple large scale research projects on legal personhood. She is an internationally recognised socio-legal academic in the fields of human rights, disability rights and gender justice. She has published widely in these areas.
Peter Bartlett is Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law in the School of Law and Institute of Mental Health at the University of Nottingham.
Andrew Carroll has worked as a forensic psychiatrist in both treatment and assessment roles in Australia for over two decades. He currently carries out treatment work in a prison clinic and medicolegal assessment work in both criminal and civil fields. He also is an adjunct associate professor at the Centre for Forensic Behavioural Science (Swinburne University of Technology). He is also Co-Director at ‘Our Curious Minds’, a mental health training enterprise. He has published on a range of topics including the interface between mental disorder and sentencing in the criminal courts. He has published papers in conjunction with Bernadette McSherry on topics including drug-associated psychoses and recovery-oriented risk management.
John Chesterman is the Queensland Public Advocate. A lawyer and historian by training, John has expertise in the fields of human rights, guardianship, supported decision making, powers of attorney and elder abuse. Prior to taking up his current position, John was Victoria’s Deputy Public Advocate. He has previously undertaken a Churchill Fellowship on the topic of adult safeguarding.
John Dawson is Professor of Law at the University of Otago, in New Zealand. Since the 1980s, he has published extensively on mental health law, especially law governing community treatment orders. He has an LLD for publications in this field. He was a member of the OCTET team that
conducted a randomised controlled trial of the English community treatment order scheme. With George Szmukler he has proposed the ‘fusion’ of mental health and adult guardianship legislation into a single legal scheme. He conducts evaluation research, consults to law reform bodies, is a qualified barrister and solicitor, and has published previously in the field.
Kate Diesfeld is Professor of Law at Auckland University of Technology in New Zealand. Professor Diesfeld was a court investigator for the State of Alaska and then graduated from University of San Diego School of Law. In Los Angeles, she advocated for people with developmental disabilities as a staff attorney with Protection and Advocacy, Inc. She held academic roles at Kent Law School (England), the University of Waikato (NZ) and Auckland University of Technology (NZ). She was AUT’s Director of the National Centre for Health Law and Ethics and Chair of AUT’s Ethics Committee. In England, she represented clients before the Mental Health Review Tribunal.
Mary Donnelly is Professor of Law at University College Cork, Ireland. She publishes widely in mental health and capacity law and is co-editor of the Routledge Handbook of Mental Health Law (forthcoming, 2023). She is Associate Editor of the International Journal of Law and Psychiatry and is a member of the Editorial Board of the Medical Law Review and Medical Law International. She is Joint-Chair of the HSE National Consent Policy Advisory Group. She was Chair of the Expert Group to develop Codes of Practice for the Assisted Decision-Making (Capacity) Act 2015 (Ireland) and was a member of the Expert Group to Review the Mental Health Act 2001 (Ireland). She is a member of the Mental Health Commission Legislation; the HSE Assisted Decision-Making Implementation Group and is Vice Chair of the National Research Ethics Committee (CT-A).
Ian Freckelton AO KC is a King’s Counsel in full-time practice as a barrister throughout Australia. He is Professor of Law and a Professorial Fellow in Psychiatry at the University of Melbourne; Adjunct Professor of Forensic Medicine at Monash University; a judge of the Supreme Court of Nauru; and a member of Victoria’s Coronial Council. He is Past President of the Australian and New Zealand Association of Psychiatry, Psychology and Law; a 25-year member of the Mental Health Tribunal of Victoria; and an elected Fellow of the Australian Academy of Health and Medical Sciences, the Australian Academy of Social Sciences and the Australian Academy of Law. Ian is the Editor of the Journal of Law and Medicine and the Founding Editor of Psychiatry, Psychology and Law. In 2021, he was made an Officer of the Order of Australia (AO) for distinguished service to law and the legal profession across fields including health, medicine and technology.
Sharon Friel is an ARC Laureate Fellow, Professor of Health Equity and Director of the Planetary Health Equity Hothouse and Menzies Centre for Health Governance at the School of Regulation and Global Governance
Contributors xxi
(RegNet), Australian National University. Her research focuses on the political economy of health; governance and the planetary, social and commercial determinants of health inequities. She has previously published in these areas highlighting the importance of addressing the global consumptogenic system.
Piers Gooding is a Research Fellow at Melbourne Law School and Associate of the Melbourne Social Equity Institute. He is a socio-legal researcher whose work concerns the law and politics of disability and mental health. He is the author of A New Era for Mental Health Law and Policy (CUP, 2017) and serves on the editorial board of the International Journal for Mental Health and Capacity Law. Dr Piers Gooding has received several awards for his research, including an Australian Research Council Discovery Early Career Research Award (2020) and a Menzies Australian Bicentennial Fellowship (2011).
Paul Harpur is an Associate Professor at the TC Beirne School of Law, the University of Queensland, Australia. Associate Professor Harpur’s principal area of interest lies in international and comparative disability law, the UN Convention on the Rights of Persons with Disabilities, and comparative anti-discrimination and disability laws. He is funded on an Australian Research Council Future Fellowship (FT210100335). Additionally, he is an International Distinguished Fellow at the Burton Blatt Institute, Syracuse University, an Academic Fellow at the Harvard Law School Project on Disability and chairs the University of Queensland Disability Inclusion Group. Associate Professor Harpur has visited at the Burton Blatt Institute, Harvard Law School, the National University Ireland, Galway, and is a former Fulbright Future Scholar and dual Paralympian.
Erandathie Jayakody draws on her personal experience of living with a mental health condition and peer support to promote the consumer perspective. Coming across a peer support network and finding her ‘people’ was a life changing experience and one that changed the narrative of her recovery. Erandathie is a member of the Independent Panel to review Victoria’s Compulsory Treatment Criteria and Decision-making Laws and a tribunal member at the Mental Health Tribunal, Victoria. She developed the ‘Consumers Leading in Governance’ pilot programme – the first specialist governance programme developed by and for mental health consumers in Australia. She was a member of the Expert Advisory Committee to the Royal Commission into Victoria’s Mental Health System.
Simon Katterl is a consultant on mental health, human rights and regulation. Simon’s work is grounded in his lived experience of mental health issues, as well as his studies in law, politics, psychology and regulation. Simon previously worked for the Victorian Equal Opportunity and Human Rights Commission, the Mental Health Complaints Commissioner, Victoria Legal Aid and provides consultancy to several agencies, including the Royal Commission
into Victoria’s Mental Health System. Simon’s research has focused on mental health-related vilification, human rights breaches within mental health systems and the shortcomings of regulatory oversight processes and was co-author on Not Before Time: Lived Experience-Led Justice and Repair.
Yvette Maker is a senior lecturer at the University of Tasmania, Australia and an Honorary Senior Fellow at Melbourne Law School. She has a background in law and social policy and her current work focuses on the disability- and gender-related dimensions of law, policy and practice. She edited Restrictive Practices in Health Care and Disability Settings with Bernadette McSherry (Routledge, 2021) and is the author of Care and Support Rights After Neoliberalism (CUP, 2022).
Tim Marsh completed a law and a science degree at Melbourne University. After working as a solicitor at the Office of Public Prosecutions, Tim went to the Bar in 2003, reading with Mark Rochford QC. In 2011 Tim joined Victoria Legal Aid as a senior public defender. In 2013 he was appointed as Chief Counsel, and for the next seven years led VLA Chambers, before deciding to return to the Bar in November 2020. Tim was counsel in the landmark case of DPP v Walters, which saw the controversial ‘baseline sentencing’ reforms declared ‘incapable of practical application’ by the Court of Appeal. While Tim practices in all areas of crime, he has a strong practice in mental impairment and disability law. His work at first instance and on appeal in this area has helped clarify and reshape how the Victorian Courts treat offenders with mental illnesses.
Frances Matthews qualified in medicine in 1982 in England and has worked in hospitals and community settings in the UK, Ireland, Canada and New Zealand. She was called to the Bar in Ireland in 2012, and has worked as a legal researcher and human rights advocate for older people’s charities. Dr Matthews holds a Master of Laws and a Master of Bioethics and Health Law degree from the University of Otago. Her special interest is the human rights of older people and those with disabilities. She currently works as a GP and medicolegal advisor in New Zealand. Her PhD in law concerns detention in dementia care in New Zealand.
Bernadette McSherry is Emeritus Professor of Law at Melbourne Law School and was the Foundation Director of the Melbourne Social Equity Institute from 2013 to July 2020. She is an elected Fellow of the Academy of the Social Sciences Australia and the Australian Academy of Law. She is a Commissioner with the Victorian Law Reform Commission and previously served as a Commissioner on the Royal Commission into Victoria’s Mental Health System.
Malitha Perera is an occupational therapist and a financial counsellor who has worked in various operational, clinical and strategic leadership roles in mental health. He is passionate about addressing inequities that impact
Contributors xxiii on our collective health and wellbeing. He holds a Diploma of Financial Counselling, Bachelor of Occupational Therapy, Bachelor of Psychological Science and Master of Public Health.
Jaydip Sarkar is a consultant forensic psychiatrist and personality disorder specialist at Forensicare, Melbourne. He was previously Adjunct Assistant Professor and a clinical lecturer in Singapore. Dr Sarkar trained in the UK and provides expert testimony in multiple jurisdictions. His active interest and testimony in capital punishment cases led to a precedential judgment in Singapore. He has particular clinical and therapeutic skills with victims of trauma, family violence and offenders with personality disorder who commit serious offences. He has received awards for ‘outstanding service contribution’, major ‘clinical process improvements’ and ‘public healthcare clinician’, in the UK and in Singapore. He has published widely, contributed to and co-edited an award-winning British Medical Association book.
Christopher Slobogin occupies the Milton Underwood Chair at Vanderbilt University Law School. He has published several books, and over 200 articles and chapters, primarily on criminal justice topics. He is one of the five most cited criminal law and procedure scholars in the United States over the past five years, according to the Leiter Report. He has received both the American Board of Forensic Psychology’s Distinguished Contribution Award and the American Psychology-Law Society’s Distinguished Contribution of Psychology and Law Award, the only law professor to receive both awards. He has appeared on Good Morning America, Nightline, the Today Show, National Public Radio, and many other media outlets, and has been cited in over 5,000 law review articles and treatises and more than 200 judicial opinions, including five US Supreme Court decisions. Slobogin holds a secondary appointment as a professor in the Vanderbilt School of Medicine’s Department of Psychiatry.
Lisa Waddington is the European Disability Forum Professor of European Disability Law at the Faculty of Law, Maastricht University, the Netherlands. Professor Waddington’s principal area of interest lies in European and comparative disability law, the UN Convention on the Rights of Persons with Disabilities, and European and comparative equality law in general. She is a senior expert for a number of networks and organisations, including the European Network of Legal Experts in the Non-discrimination Field and the European Disability Expertise network. She is a member of the Maastricht Centre for European Law, the Netherlands Network for Human Rights Research, the Maastricht Centre for European Law and the Berkeley Center on Comparative Equality and Anti-Discrimination Law. Professor Waddington has been a visiting professor at the University of British Columbia, Vancouver, the University of Melbourne and Leeds University.
Jamie Walvisch is a senior lecturer at Melbourne Law School and the University of Western Australia. He is a criminal law scholar with a strong
law reform background. He has previously worked as a research and policy officer at the Victorian Law Reform Commission, where he co-authored reports on defences to homicide, disputes between co-owners and workplace privacy; a research analyst for the Australian Institute of Criminology, where he co-authored reports on road rage and fraud; and Senior Research Officer at the Judicial College of Victoria, where he developed the Victorian Criminal Charge Book (the main judicial reference book used by judges and legal practitioners in Victorian criminal jury trials). His current research focuses on the intersection between law, psychiatry and psychology, especially in the sentencing context. His work and advocacy in this area have resulted in significant changes to Victorian law.
Penelope Weller is a professor of law in the Graduate School of Business and Law at RMIT University in Melbourne. She has published over 50 articles and chapters concerned with human rights and mental health law. From 2008–2013 Penelope Weller worked closely with Professor McSherry at Monash University as a Postdoctoral Research Fellow and later Deputy Director of the Centre for the Advancement of Law and Mental Health (CALMH). She has previously co-authored a volume with Professor McSherry.
Kay Wilson is a Melbourne Post-Doctoral Research Fellow at Melbourne Law School, a lawyer, scholar and writer with an interest in mental health, disability and human rights law. She has a Bachelor of Arts and Laws and an Honours degree in psychology from Monash University and a PhD in law from the University of Melbourne. She is the author of Mental Health Law: Abolish or Reform (Oxford University Press, 2021) and is published in Australian and international peer-reviewed journals. She was also a researcher on Professor McSherry’s Rethinking Mental Health Laws and Seclusion and Restraint Projects and has published papers in Australian and international journals. In 2015, she won the Dontas Travelling Fellowship to Greece to give a paper on seclusion and restraint.
Foreword
For over a century and a half, in Victoria, Australia, there have been two kinds of ‘mentally ill’ people: those who are free citizens and those who are subject to state-sanctioned psychiatric treatment. This is the case, in Victoria and elsewhere, courtesy of mental health laws which create haves and have-nots of persons with freedom of choice in psychiatric treatment.
Free citizens I’ll call ‘Class 1’ and the others ‘Class 2’.
Class 2 exists because it is widely accepted that some people are unaware they have this thing called mental illness. And for that reason, they don’t seek treatment. Or perhaps they had treatment and didn’t like it. Or perhaps they prefer alternatives to the conventional psychiatric treatment served up by the state.
The cohort of people in Class 2 make up the supply side that creates the demand for stand-alone mental health laws with provision for compulsory treatment. The compulsory component is deemed a clinical and legal necessity. Most people are unaware these laws even exist until they are touched by it personally.
Under these laws a segment of those considered mentally ill are siphoned off into Class 2 by the state’s psychiatric assessment and treatment apparatus. Those in Class 2 are then given psychiatric treatment whether they want it or not. The streaming of mentally ill persons with its Class 2 limitations on rights and freedoms is justified by a line of thought which says that in a civilised state, we strive to protect our most marginalised and would like everyone with mental illness to get the treatment they need.
In 2008, I became an agent of the state, working as a member of what is now called the Mental Health Tribunal for the state of Victoria. I was tasked with deciding whether a person provisionally in Class 2 would remain there or be cut loose to Class 1 and beyond. A state hospital psychiatrist had already made a preliminary decision about who went where. Those who ended up in Class 2 presented before members of the tribunal a short time later for independent scrutiny and we had the right of veto.
I made these decisions as a layperson (‘community member’) on a panel of three, sitting alongside a lawyer and a medico. I took this work very seriously for a number of reasons: (1) because it’s serious; (2) I’d experienced a
short stint in Class 2 myself; (3) I often wondered how an instrumental music teacher like me ended up a as member of the tribunal; and (4) I was getting paid an obscene amount of money for this work.
This is where I met Bernadette McSherry, a lawyer. My colleagues and I saw Bernadette only rarely due to her limited availability, but we always looked forward to working with her. Bernadette was a good operator who also took this work seriously – mental health law is her thing and she’s good at it. I also thought it was cool when people who’d helped design the content of the law stuck around to apply it.
Bernadette had a natural affinity for engaging with Class 2 people even when they were unhinged. And she was equally adept at talking to the clinicians who provided their treatment. Speaking to all present in exactly the same manner, language and tone of voice, Bernadette was able to create what I call an ‘atmosphere of equal engagement’. In tribunal hearings, for that hour at least, a person in Class 2 could instinctively feel that they were being listened to and accorded equal consideration to others in the room. This may not seem like such a big deal, but for many people it’s not an easy thing to do without sounding forced.
In these hearings Bernadette as the Chair initiated a discussion which, in addition to being legally on point, also revealed the full impact of Class 2 treatment arrangements beyond just the clinical benefits they were intended to deliver. This was important for me because I was becoming aware of cases, both at work and on the consumer beat, where the single-minded pursuit of optimum clinical outcomes had had a broad detrimental effect. In some Class 2 cases, the protracted and unrelenting feeling of loss of autonomy had inadvertently extinguished all hope. (This is not intended as a criticism of the clinicians working in the system. These individuals are doing their very best in a crisis-driven environment with the tools they have available.) The hopelessness phenomenon is best understood as an occasional by-product of prolonged compulsory treatment.
Following widespread consternation about the high per capita rate of people on Community Treatment Orders in Victoria, a new law was constructed and became operational in 2015. The mental health infrastructure got a cash injection to cope with the increased demands of the new law. And then a funny thing happened.
Nothing.
The rate of compulsory treatment (the outpatient variety in particular) dipped and then climbed again. We found ourselves with non-binding Advance Statements, a Second Psychiatric Opinion Scheme which doesn’t challenge diagnoses and a Mental Health Complaints Commissioner who won’t issue compliance notices. We wanted to believe in things like supported decisionmaking and the dignity of risk but, for Class 2 citizens, the song remained the same. What they say, you do.
Not that long afterwards, in 2019, Bernadette was appointed a commissioner of the Royal Commission into Victoria’s Mental Health System. She
and her fellow commissioners confirmed an open secret – the mental health system was ‘broken’ (for people in both the 1st and 2nd classes) and the mental health law, not long in operation, was no longer fit for purpose.
So a new law is again on the horizon and what shall we put in it this time?
To be honest, I don’t think it really matters. Having lived through the most recent change I’ve come to the conclusion that it’s not what’s in the law that counts. It’s more about people and the attitudes of those who administer the law. If various provisions of the Act are routinely ignored with no consequences, then those provisions may as well not be there. If we are to say ‘but those provisions are aspirational’ then around we go again – the same parts of the mental health infrastructure comply while the rogue element goes up the river.
In the modern era, any efforts to redesign the law should include what is currently known as the ‘lived experience’ perspective. It makes sense that end users of public mental health services, Class 1 and 2 citizens, should get a seat at the table during the law’s consultation and design phase and also in the various points of its administration thereafter. Likewise, people with lived experience should be involved in reform of other parts of the mental health infrastructure.
Lived experience input is not just a shopfront to make us feel good about ourselves. Nor will lived experience input achieve much if others around the table are fearful of people with mental illness. Class 2 citizens make up a sizeable chunk of the group of end users, and so they should be made to feel welcome at the table too.
Class 1 end users are sometimes chosen exclusively for lived experience input for ease of operation and the comfort and satisfaction of others. But when end users are from Class 1 alone, lived experience is of mental health treatment devoid of limitations on rights and freedoms. For as long as the state avails itself of a Class 2 compulsory treatment mechanism, it has a moral obligation to seek out and engage with Class 2 lived experience.
The Royal Commission into Victoria’s Mental Health System exposed way too many shocking instances of dysfunction throughout the mental health infrastructure and not all of them can be attributed to a lack of resources. This book, put together as a tribute to Bernadette’s work, with its many and varied contributors, I hope will help turbocharge the implementation of the Royal Commission’s recommendations and assist in reform of the law, of the system, of its people and their attitudes.
Bernadette and I don’t work together on the Mental Health Tribunal anymore. After many years she decided it was time to finish up. It feels like some legal rigour and an element of compassion departed with her that day.
Duncan Cameron
Community Member – Mental Health Tribunal
Preface
This collection is a Festschrift in honour of Emeritus Professor Bernadette McSherry on the occasion of her retirement, following an esteemed academic career spanning over 30 years. The author and editor of ten books and more than 160 book chapters and peer reviewed journal articles, she has published key texts in the mental health, disability and criminal law fields, including the highly regarded Managing Risk: The Law and Ethics of Risk Assessment and Preventive Detention (Routledge, 2014); Rethinking Rights-Based Mental Health Laws (co-edited with Penelope Weller, Hart, 2010) and Principles of Criminal Law (co-authored with Simon Bronitt, Thomson Reuters, 2017, 4th ed). She has obtained numerous awards and grants, including a prestigious Australian Research Council Federation Fellowship for the project Rethinking Mental Health Laws: An Integrated Approach. She has also led large research projects on the impact of the United Nations Convention on the Rights of Persons with Disabilities on mental health law, and on the minimisation, with a view to elimination, of the use of seclusion and restraint in mental health, disability and aged care settings.
Prior to entering academia, Bernadette McSherry was a practising lawyer and Associate to Mr Justice Gobbo of the Supreme Court of Victoria, Australia (1987–1990). After completing a PhD at Osgoode Hall Law School, York University in Canada in 1996, she held positions including Louis Waller Chair of Law and Professor of Law at Monash University, Adjunct Professor of Law at Melbourne Law School and Foundation Director of the University of Melbourne’s Melbourne Social Equity Institute. She was appointed a Fellow of the Academy of Social Sciences in Australia and a Fellow of the Australian Academy of Law in 2011.
Bernadette McSherry’s contribution has extended well beyond the Academy. She served as a member of the Victorian Mental Health Tribunal from 2001 to 2018, as a Victorian Law Reform Commissioner from 2018 and most recently as a commissioner on the Royal Commission into Victoria’s Mental Health System. She was President of the Australian and New Zealand Association of Psychiatry, Psychology and Law from 2016 to 2018. She has also conducted consultancies to Australian government agencies, United Nations bodies and civil society organisations.
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dig, dig, dig--plod, plod, plod. I wish I could catch a cargo of them for my place; it would be an economy. Yes, for years, you see. They never give up. Patience, hope, faith, perseverance; it is the way of all the breed. Columbus and the rest. In radium this lady has added a new world to the planet’s possessions, and matched--Columbus--and his peer. She has set herself the task of divorcing polonium and bismuth; when she succeeds she will have done--what, should you say?”
“Pray name it, Majesty.”
“It’s another new world added--a gigantic one. I will explain; for you would never divine the size of it, and she herself does not suspect it.”
“Do, Majesty, I beg of you.”
“Polonium, freed from bismuth and made independent, is the one and only power that can control radium, restrain its destructive forces, tame them, reduce them to obedience, and make them do useful and profitable work for your race. Examine my skin. What do you think of it?”
“It is delicate, silky, transparent, thin as a gelatine film-exquisite, beautiful, Majesty!”
“It is made of polonium. All the rest of me is radium. If I should strip off my skin the world would vanish away in a flash of flame and a puff of smoke, and the remnants of the extinguished moon would sift down through space a mere snow-shower of gray ashes!”
I made no comment, I only trembled.
“You understand, now,” he continued. “I burn, I suffer within, my pains are measureless and eternal, but my skin protects you and the globe from harm. Heat is power, energy, but is only useful to man when he can control it and graduate its application to his needs. You cannot do that with radium, now; it will not be prodigiously useful to you until polonium shall put the slave whip in your hand. I can release from my body the radium force in any measure I please, great or small; at my will I can set in motion the works of a lady’s watch or destroy a world. You saw me light that unholy cigar with my finger?”
I remembered it.
“Try to imagine how minute was the fraction of energy released to do that small thing! You are aware that everything is made up of restless and revolving molecules?--everything-furniture, rocks, water, iron, horses, men--everything that exists.”
“Yes.”
“Molecules of scores of different sizes and weights, but none of them big enough to be seen by help of any microscope?”
“Yes.”
“And that each molecule is made up of thousands of separate and never-resting little particles called atoms?”
“Yes.”
“And that up to recent times the smallest atom known to science was the hydrogen atom, which was a thousand times smaller than the atom that went to the building of any other molecule?”
“Yes.”
“Well, the radium atom from the positive pole is 5,000 times smaller than that atom! This unspeakably minute atom is called an electron. Now then, out of my long affection for you and for your lineage, I will reveal to you a secret--a secret known to no scientist as yet--the secret of the firefly’s light and the glowworm’s; it is produced by a single electron imprisoned in a polonium atom.”
“Sire, it is a wonderful thing, and the scientific world would be grateful to know this secret, which has baffled and defeated all its searchings for more than two centuries. To think!--a single electron, 5,000 times smaller than the invisible hydrogen atom, to produce that explosion of vivid light which makes the summer night so beautiful!”
“And consider,” said Satan; “it is the only instance in all nature where radium exists in a pure state unencumbered by fettering alliances; where polonium enjoys the like emancipation; and where the pair are enabled to labor together in a gracious and beneficent and effective partnership. Suppose the protecting polonium envelope were removed; the radium spark would flash but once and the firefly would be consumed to vapor! Do you value this old iron letterpress?”
“No, Majesty, for it is not mine.”
“Then I will destroy it and let you see. I lit the ostensible cigar with the heat energy of a single electron, the equipment of a single lightning bug. I will turn on twenty thousand electrons now.”
He touched the massive thing and it exploded with a cannon crash, leaving nothing but vacancy where it had stood. For three minutes the air was a dense pink fog of sparks, through which Satan loomed dim and vague, then the place cleared and his soft rich moonlight pervaded it again. He said:
“You see? The radium in 20,000 lightning bugs would run a racing-mobile forever. There’s no waste, no diminution of it.” Then he remarked in a quite casual way, “We use nothing but radium at home.”
I was astonished. And interested, too, for I have friends there, and relatives. I had always believed--in accordance with my early teachings--that the fuel was soft coal and brimstone. He noticed the thought, and answered it.
“Soft coal and brimstone is the tradition, yes, but it is an error. We could use it; at least we could make out with it after a fashion, but it has several defects: it is not cleanly, it ordinarily makes but a temperate fire, and it would be exceedingly difficult, if even possible, to heat it up to standard, Sundays; and as for the supply, all the worlds and systems could not furnish enough to keep us going halfway through eternity. Without radium there could be no hell; certainly not a satisfactory one.”
“Why?”
“Because if we hadn’t radium we should have to dress the souls in some other material; then, of course, they would burn up and get out of trouble. They would not last an hour. You know that?”
“Why--yes, now that you mention it. But I supposed they were dressed in their natural flesh; they look so in the pictures--in the Sistine Chapel and in the illustrated books, you know.”
“Yes, our damned look as they looked in the world, but it isn’t flesh; flesh could not survive any longer than that copying press survived--it would explode and turn to a fog of sparks, and the
result desired in sending it there would be defeated. Believe me, radium is the only wear.”
“I see it now,” I said, with prophetic discomfort, “I know that you are right, Majesty.”
“I am. I speak from experience. You shall see, when you get there.”
He said this as if he thought I was eaten up with curiosity, but it was because he did not know me. He sat reflecting a minute, then he said:
“I will make your fortune.”
It cheered me up and I felt better. I thanked him and was all eagerness and attention.
“Do you know,” he continued, “where they find the bones of the extinct moa, in New Zealand? All in a pile--thousands and thousands of them banked together in a mass twenty feet deep. And do you know where they find the tusks of the extinct mastodon of the Pleistocene? Banked together in acres off the mouth of the Lena--an ivory mine which has furnished freight for Chinese caravans for five hundred years. Do you know the phosphate beds of our South? They are miles in extent, a limitless mass and jumble of bones of vast animals whose like exists no longer in the earth--a cemetery, a mighty cemetery, that is what it is. All over the earth there are such cemeteries. Whence came the instinct that made those families of creatures go to a chosen and particular spot to die when sickness came upon them and they perceived that their end was near? It is a mystery; not even science has been able to uncover the secret of it. But there stands the fact. Listen, then. For a million years there has been a firefly cemetery.”
Hopefully, appealingly, I opened my mouth--he motioned me to close it, and went on:
“It is in a scooped-out bowl half as big as this room on the top of a snow summit of the Cordilleras. That bowl is level full--of what? Pure firefly radium and the glow and heat of hell? For countless ages myriads of fireflies have daily flown thither and died in that bowl and been burned to vapor in an instant, each fly leaving as its contribution its only indestructible particle, its single
electron of pure radium. There is energy enough there to light the whole world, heat the whole world’s machinery, supply the whole world’s transportation power from now till the end of eternity. The massed riches of the planet could not furnish its value in money. You are mine, it is yours; when Madame Curie isolates polonium, clothe yourself in a skin of it and go and take possession!”
Then he vanished and left me in the dark when I was just in the act of thanking him. I can find the bowl by the light it will cast upon the sky; I can get the polonium presently, when that illustrious lady in France isolates it from the bismuth. Stock is for sale. Apply to Mark Twain.
THAT DAY IN EDEN
(Passage from Satan’s Diary)
Long ago I was in the bushes near the Tree of Knowledge when the Man and the Woman came there and had a conversation. I was present, now, when they came again after all these years. They were as before--mere boy and girl--trim, rounded, slender, flexible, snow images lightly flushed with the pink of the skies, innocently unconscious of their nakedness, lovely to look upon, beautiful beyond words.
I listened again. Again as in that former time they puzzled over those words, Good, Evil, Death, and tried to reason out their meaning; but, of course, they were not able to do it. Adam said: “Come, maybe we can find Satan. He might know these things.”
Then I came forth, still gazing upon Eve and admiring, and said to her:
“You have not seen me before, sweet creature, but I have seen you. I have seen all the animals, but in beauty none of them equals you. Your hair, your eyes, your face, your flesh tints, your form, the tapering grace of your white limbs--all are beautiful, adorable, perfect.”
It gave her pleasure, and she looked herself over, putting out a foot and a hand and admiring them; then she naïvely said:
“It is a joy to be so beautiful. And Adam--he is the same.”
She turned him about, this way and that, to show him off, with such guileless pride in her blue eyes, and he--he took it all as just matter of course, and was innocently happy in it, and said, “When I have flowers on my head it is better still.”
Eve said, “It is true--you shall see,” and she flitted hither and thither like a butterfly and plucked flowers, and in a moment laced their stems together in a glowing wreath and set it upon his head; then tiptoed and gave it a pat here and there with her nimble fingers, with each pat enhancing its grace and shape, none knows how, nor why it should so result, but in it there is a law somewhere, though the delicate art and mystery of it is her secret alone, and not learnable by another; and when at last it was to her mind she clapped her hands for pleasure, then reached up and kissed him--as pretty a sight, taken altogether, as in my experience I have seen.
Presently, to the matter in hand. The meaning of those words-would I tell her?
Certainly none could be more willing, but how was I to do it? I could think of no way to make her understand, and I said so. I said:
“I will try, but it is hardly of use. For instance--what is pain?”
“Pain? I do not know.”
“Certainly. How should you? Pain is not of your world; pain is impossible to you; you have never experienced a physical pain. Reduce that to a formula, a principle, and what have we?”
“What have we?”
“This: Things which are outside of our orbit--our own particular world--things which by our constitution and equipment we are unable to see, or feel, or otherwise experience--cannot be made comprehensible to us in words. There you have the whole thing in a nutshell. It is a principle, it is axiomatic, it is a law. Now do you understand?”
The gentle creature looked dazed, and for all result she was delivered of this vacant remark:
“What is axiomatic?”
She had missed the point. Necessarily she would. Yet her effort was success for me, for it was a vivid confirmation of the truth of what I had been saying. Axiomatic was for the present a thing outside of the world of her experience, therefore it had no meaning for her. I ignored her question and continued:
“What is fear?”
“Fear? I do not know.”
“Naturally. Why should you? You have not felt it, you cannot feel it, it does not belong in your world. With a hundred thousand words I should not be able to make you understand what fear is. How then am I to explain death to you? You have never seen it, it is foreign to your world, it is impossible to make the word mean anything to you, so far as I can see. In a way, it is a sleep----”
“Oh, I know what that is!”
“But it is a sleep only in a way, as I said. It is more than a sleep.”
“Sleep is pleasant, sleep is lovely!”
“But death is a long sleep--very long.”
“Oh, all the lovelier! Therefore I think nothing could be better than death.”
I said to myself, “Poor child, some day you may know what a pathetic truth you have spoken; some day you may say, out of a broken heart, ‘Come to me, O Death the compassionate! steep me in the merciful oblivion, O refuge of the sorrowful, friend of the forsaken and the desolate!’” Then I said aloud, “But this sleep is eternal.”
The word went over her head. Necessarily it would.
“Eternal. What is eternal?”
“Ah, that also is outside of your world, as yet. There is no way to make you understand it.”
It was a hopeless case. Words referring to things outside of her experience were a foreign language to her, and meaningless. She was like a little baby whose mother says to it, “Don’t put your finger in the candle flame; it will burn you.” Burn--it is a foreign word to the baby, and will have no terrors for it until experience shall have revealed its meaning. It is not worth while for mamma to make the remark, the baby will goo-goo cheerfully, and put its finger in the pretty flame--once. After these private reflections I said again that I did not think there was any way to make her understand the meaning of the word eternal. She was silent awhile, turning these deep matters over in the unworn machinery of her mind; then she gave up the puzzle and shifted her ground, saying:
“Well, there are those other words. What is good, and what is evil?”
“It is another difficulty. They, again, are outside of your world; they have place in the moral kingdom only. You have no morals.”
“What are morals?”
“A system of law which distinguishes between right and wrong, good morals and bad. These things do not exist for you. I cannot make it clear; you would not understand.”
“But try.”
“Well, obedience to constituted authority is a moral law Suppose Adam should forbid you to put your child in the river and leave it there overnight--would you put the child there?”
She answered with a darling simplicity and guilelessness:
“Why, yes, if I wanted to.”
“There, it is just as I said--you would not know any better; you have no idea of duty, command, obedience; they have no meaning for you. In your present estate you are in no possible way responsible for anything you do or say or think. It is impossible for you to do wrong, for you have no more notion of right and wrong than the other animals have. You and they can do only right; whatever you and they do is right and innocent. It is a divine estate, the loftiest and purest attainable in heaven and in earth. It is the angel gift. The angels are wholly pure and sinless, for they do not know right from wrong, and all the acts of such are blameless. No one can do wrong without knowing how to distinguish between right and wrong.”
“Is it an advantage to know?”
“Most certainly not! That knowledge would remove all that is divine, all that is angelic, from the angels, and immeasurably degrade them.”
“Are there any persons that know right from wrong?”
“Not in--well, not in heaven.”
“What gives that knowledge?”
“The Moral Sense.”
“What is that?”
“Well--no matter. Be thankful that you lack it.”
“Why?”
“Because it is a degradation, a disaster Without it one cannot do wrong; with it, one can. Therefore it has but one office, only one--to teach how to do wrong. It can teach no other thing--no other thing whatever. It is the creator of wrong; wrong cannot exist until the Moral Sense brings it into being.”
“How can one acquire the Moral Sense?”
“By eating of the fruit of the Tree, here. But why do you wish to know? Would you like to have the Moral Sense?”
She turned wistfully to Adam:
“Would you like to have it?”
He showed no particular interest, and only said:
“I am indifferent. I have not understood any of this talk, but if you like we will eat it, for I cannot see that there is any objection to it.”
Poor ignorant things, the command of refrain had meant nothing to them, they were but children, and could not understand untried things and verbal abstractions which stood for matters outside of their little world and their narrow experience. Eve reached for an apple!--oh, farewell, Eden and your sinless joys, come poverty and pain, hunger and cold and heartbreak, bereavement, tears and shame, envy, strife, malice and dishonor, age, weariness, remorse; then desperation and the prayer for the release of death, indifferent that the gates of hell yawn beyond it!
She tasted--the fruit fell from her hand.
It was pitiful. She was like one who wakens slow and confusedly out of a sleep. She gazed half vacantly at me, then at Adam, holding her curtaining fleece of golden hair back with her hand; then her wandering glance fell upon her naked person. The red blood mounted to her cheek, and she sprang behind a bush and stood there crying, and saying:
“Oh, my modesty is lost to me--my unoffending form is become a shame to me!” She moaned and muttered in her pain, and dropped her head, saying, “I am degraded--I have fallen, oh, so low, and I shall never rise again.”
Adam’s eyes were fixed upon her in a dreamy amazement, for he could not understand what had happened, it being outside his
world as yet, and her words having no meaning for one void of the Moral Sense. And now his wonder grew: for, unknown to Eve, her hundred years rose upon her, and faded the heaven of her eyes and the tints of her young flesh, and touched her hair with gray, and traced faint sprays of wrinkles about her mouth and eyes, and shrunk her form, and dulled the satin luster of her skin.
All this the fair boy saw: then loyally and bravely he took the apple and tasted it, saying nothing.
The change came upon him also. Then he gathered boughs for both and clothed their nakedness, and they turned and went their way, hand in hand and bent with age, and so passed from sight.
EVE SPEAKS I
They drove us from the Garden with their swords of flame, the fierce cherubim. And what had we done? We meant no harm. We were ignorant, and did as any other children might do. We could not know it was wrong to disobey the command, for the words were strange to us and we did not understand them. We did not know right from wrong--how should we know? We could not, without the Moral Sense; it was not possible. If we had been given the Moral Sense first--ah, that would have been fairer, that would have been kinder; then we should be to blame if we disobeyed. But to say to us poor ignorant children words which we could not understand, and then punish us because we did not do as we were told--ah, how can that be justified? We knew no more then than this littlest child of mine knows now, with its four years--oh, not so much, I think. Would I say to it, “If thou touchest this bread I will overwhelm thee with unimaginable disaster, even to the dissolution of thy corporeal elements,” and when it took the bread and smiled up in my face, thinking no harm, as not understanding those strange words, would I take advantage of its innocence and strike it down with the mother hand it trusted? Whoso knoweth the mother heart, let him judge if it would do that thing. Adam says my brain is turned by my troubles and that I am become wicked. I am as I am; I did not make myself. They drove us out. Drove us out into this harsh wilderness, and shut the gates against us. We that had meant no harm. It is three months. We were ignorant then; we are rich in learning, now--ah, how rich! We know hunger, thirst, and cold; we know pain, disease, and grief; we know hate, rebellion, and deceit; we
know remorse, the conscience that prosecutes guilt and innocence alike, making no distinction; we know weariness of body and spirit, the unrefreshing sleep, the rest which rests not, the dreams which restore Eden, and banish it again with the waking; we know misery; we know torture and the heartbreak; we know humiliation and insult; we know indecency, immodesty, and the soiled mind; we know the scorn that attaches to the transmitted image of God exposed unclothed to the day; we know fear; we know vanity, folly, envy, hypocrisy; we know irreverence; we know blasphemy; we know right from wrong, and how to avoid the one and do the other; we know all the rich product of the Moral Sense, and it is our possession. Would we could sell it for one hour of Eden and white purity; would we could degrade the animals with it!
We have it all--that treasure. All but death. Death.... Death. What may that be? Adam comes.
“Well?”
“He still sleeps.”
That is our second-born--our Abel.
“He has slept enough for his good, and his garden suffers for his care. Wake him.”
“I have tried and cannot.”
“Then he is very tired. Let him sleep on.”
“I think it is his hurt that makes him sleep so long.”
I answer: “It may be so. Then we will let him rest; no doubt the sleep is healing it.”
II
It is a day and a night, now, that he has slept. We found him by his altar in his field, that morning, his face and body drenched in blood. He said his eldest brother struck him down. Then he spoke no more and fell asleep. We laid him in his bed and washed the blood away, and were glad to know the hurt was light and that he had no pain; for if he had had pain he would not have slept.
It was in the early morning that we found him. All day he slept that sweet, reposeful sleep, lying always on his back, and never moving, never turning. It showed how tired he was, poor thing. He is so good and works so hard, rising with the dawn and laboring till the dark. And now he is overworked; it will be best that he tax himself less, after this, and I will ask him; he will do anything I wish.
All the day he slept. I know, for I was always near, and made dishes for him and kept them warm against his waking. Often I crept in and fed my eyes upon his gentle face, and was thankful for that blessed sleep. And still he slept on--slept with his eyes wide; a strange thing, and made me think he was awake at first, but it was not so, for I spoke and he did not answer. He always answers when I speak. Cain has moods and will not answer, but not Abel.
I have sat by him all the night, being afraid he might wake and want his food. His face was very white; and it changed, and he came to look as he had looked when he was a little child in Eden long ago, so sweet and good and dear. It carried me back over the abyss of years, and I was lost in dreams and tears--oh, hours, I think. Then I came to myself; and thinking he stirred, I kissed his cheek to wake him, but he slumbered on and I was disappointed. His cheek was cold. I brought sacks of wool and the down of birds and covered him, but he was still cold, and I brought more. Adam has come again, and says he is not yet warm. I do not understand it.
III
We cannot wake him! With my arms clinging about him I have looked into his eyes, through the veil of my tears, and begged for one little word, and he will not answer. Oh, is it that long sleep--is it death? And will he wake no more?
FROM SATAN’S DIARY
Death has entered the world, the creatures are perishing; one of The Family is fallen; the product of the Moral Sense is
complete. The Family think ill of death--they will change their minds.
