CORONERS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: AN INQUEST INTO THE DEATH OF STEVEN CLAUDE FREEMAN Citation: [2018] ACTCD 7 Court Attendance Dates: 26 July 2016; 19 September 2016; 16 November 2016; 12 December 2016; 20 January 2017; 27-28 February 2017; 1-3 and 20 March 2017; 10 – 11 August 2017; and 21 December 2017. Date of Findings: 11 April 2018 Before: Coroner Cook Legislation and Authorities Cited: Coroners Act 1997 (ACT) ss 3C(1)(d), ss13(1)(k), s52, s74 Anderson v Blashki [1993] 2 VR 89 Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319 Harmsworth v State Coroner[1989] VicRp 87; [1989] VR 989 March v E & M H Stramare Pty Ltd [ 1991] HCA 12; (1991) 171 CLR 506 Onuma v The Coroner's Court Of South Australia [2011] SASC 218 R v Doogan; Ex parte Lucas-Smith[2005] ACTSC 74; (2005) 193 FLR 239 Re State Coroner; Ex parte Minister for Health[2009] WASCA 165 WRB Transport v Chivell [1998] SASC 7002 X v Deputy State Coroner for New South Wales [2001] NSWSC 46; 51 NSWLR 312 Appearances and Representation: James Lawton as Counsel Assisting Coroner Cook

with Ms Baker-Goldsmith Mr Ken Archer for the Territory Mr Phillip Walker SC for Dr Luke Streitberg Mr Bernard Collaery for the Freeman Family Mr James Sabharwal for ADON Tasha Lutz File Number(s): CD 125 of 2016 Publication Restriction: Revealing security arrangements and daily routines of detainee or Custodial Officers at the Alexander Maconochie Centre unless release is authorised by the ACT Government.

Part A

FINDINGS

An Inquest having been held by me, Robert Cook, a Coroner for the Territory, including a hearing conducted at the Coroner’s Court at Canberra in the Australian Capital Territory into the death of:

steven claude freeman

I find that:

The deceased was Steven Claude Freeman, an Aboriginal Bundjalung man born 13 February 1991 and aged 25 years at the time of death. Narelle King, a Bundjalung woman originally from Lismore, is his mother and his father was Steven James Freeman. Steven Freeman was the fifth child of six siblings and one of three boys. Steven passed away in the early hours of the morning of 27 May 2017, while sleeping on his bed, inside cell 13 as a prisoner within the Alexander Maconochie Centre (AMC). The AMC is an ACT Government owned and operated correctional facility, located at Symonston, in the Australian Capital Territory. Dr Graeme Thompson declared Steven Freeman deceased at 11:11 AM on 27 May 2016 and a formal certificate of life extinct was made by Dr Jane Van Diemen at 3:15 PM that day. On my direction, pathologist, Professor Dr Johan Duflou conducted a post-mortem examination of Steven on 30 May 2016. The post-mortem report dated 2 July 2016 and the Professor’s supplementary report of 9 August 2016 declared the cause of death to be Aspiration Pneumonia secondary to Methadone Toxicity. Aspiration Pneumonia is an inflammation of the lungs and bronchial tubes which occurs after the inhalation of oral or gastric contents. A person given Methadone who is opioid or Methadone naïve may experience an adverse reaction, in that Methadone may cause the consumer to experience respiratory depression, cough suppression and obtundation (less than full alertness). It is these respiratory consequences following the consumption of Methadone that enable the movement of gastric contents up and into the oesophagus and then into that person’s lungs. Steven made an application to be placed on the ACT Health Methadone Maintenance Program (MMP) at the AMC on 5 April 2016. Steven had opioid history while at the AMC, the extent of which is unknown but it appears to have been minor. The first recorded evidence of Steven having used an opioid substance occurred on 12 December 2015 when he was found to have Buprenorphine, an opioid, in his possession. Steven further tested positive to Buprenorphine following urinalysis of the sample taken on 12 December 2015. Further, there is the AMC medical officer Dr Luke Streitberg’s Patient Progress Note said to record Steven’s representation to the Doctor that Steven was smoking heroin while he was at the AMC in the months prior to his medical assessment to enter the MMP; that Steven represented to the Doctor that Steven had used heroin two days prior to the assessment; Steven is further recorded as having conveyed to Dr Streitberg he was considering using heroin intravenously and further that he was incurring ‘debt’ as a consequence. There is also limited evidence of Steven having non authorised access to Methadone referred to as ‘drinks’ provided by other detainees. A ‘drink’ is the regurgitation of a prisoner’s oral Methadone dose after it has been administered and supervised by the dispensing medical staff. It is regurgitated into a container by the detainee, where it is mixed with water or disguised with orange juice for re-consumption by another detainee. Methadone received in this manner is diluted, although as to what extent is not known, as it will all largely depend on what is in the stomach of person giving up the ‘drink’, on any particular day. Ordinarily, Methadone is not absorbed by the body until 20 minutes after it has been consumed. While I acknowledge there is some history of opioid use I am satisfied Steven had an extremely low use of opioids. As I accept the findings set out in both the post-mortem report and the supplementary report provided by Prof Dr Duflou that Steven was likely to have been a low user of opioid substances even to the extent that he may have been opioid naive. Based on the evidence from the pathologist, the toxicologist, Steven’s personal history and other sources identified in my reasons, I am satisfied that Steven was also more likely than not to have been a low consumer of ‘Spit Methadone’ at the time of entering the MMP given that it is diluted both being a product of regurgitation then being mixed subsequently with either water or orange juice. Dr Streitberg, notwithstanding the absence of any independent evidence before the Doctor at the time of the consultation that Steven was opioid dependent, accepted Steven’s representations that he was a heroin user while within the AMC, had previously been smoking heroin and was considering using it intravenously having last used two days before the assessment. In doing so it was recorded by the Doctor that Steven was incurring debt as result of Steven’s heroin use. While there is evidence of Steven taking a ‘drink’ and an instance of having used Buprenorphine in December 2015[i] while in custody. At the time of making his application to the AMC’s Hume Health Centre to be placed onto the MMP, Steven had 15 days earlier received the results of a urinalysis which showed no presence of illicit substance in his system. The Dr Luke Streitberg following his medically assessed Steven for placement onto the MMP at the Hume Health Centre. Following that assessment Steven was placed onto the MMP. Methadone is a Schedule 8 Drug. Steven required a prescription to legally obtain it. Dr Luke Streitberg, the assessing Doctor at the Hume Health Centre, issued a prescription for Steven Freeman to receive 30mg of Biodone (Methadone) daily. The first dose was given to Steven following the medical assessment at 10:40 AM on the morning of 25 May 2016. Notwithstanding there was no authorisation for the prescription from ACT Health until the next day. Although the relevant guideline allows for a first dose to occur without receipt of the authorisation. This may create an inconsistency in the Schedule 8 prescription and dispensing laws. Steven received a second dose on the morning of 26 May 2016 at 8:50 AM. On that day the ACT Health provided its authorisation approving dosing for Steven of up to 120 mg of Methadone daily. The amount of 30 mg of Methadone fell within the therapeutic, toxic and lethal range. Steven received no further prescribed methadone from the Hume Health Centre. I am satisfied, pursuant to section 13 of the ACT Coroners Act 1997 (the Act), that the circumstances of Steven’s death constituted a death in custody. As a consequence, I am required by the operation of section 34A(2) to hold a hearing as part of the inquest into Steven’s death. I find that, pursuant to section 74 of the Act, the steps undertaken by the supervising medical officer Dr Luke Streitberg at the Hume Health Centre for the placement of Steven onto the MMP did not affect the quality of care, treatment and supervision of Steven Freeman to the extent that it could be said to have contributed to his cause of death. I am satisfied that Dr Streitberg, notwithstanding the absence of any independent evidence at the time before the Doctor, other than the representations of Steven Freeman and the Doctors own observations, that Steven Freeman was experiencing opioid withdrawal. Dr Streitberg accepted Steven Freeman’s representations that he in fact was a heroin user while within the AMC, had previously been smoking heroin and was considering using it intravenously having last used two days before the assessment. In doing it was recorded by the Doctor that Steven was incurring debt as result of Steven’s representation as to heroin use. Further, Steven had been recorded by corrections officers on 12 December 2015 is having used the opioid Buprenorphine when he tested positive on urinalysis and he also had more of a substance concealed in a tobacco papers packet. I am satisfied Dr Streitberg, explained the rights and responsibilities of Methadone use, and the risks associated with Methadone use. Steven’s signature on the Rights and Responsibilities form acknowledges the same. Dr Streitberg having formed the belief that Steven Freeman was in mild withdrawal at the time of the assessment, authorised Steven’s placement onto the MMP and subsequently prescribed the amount of 30 mg of Methadone daily. The Patient Progress Note made by the Doctor revealed that Steven had never been on a Methadone maintenance program before. There was no indication that Steven Freeman had relayed to the Doctor that he had consumed ‘Spit Methadone’ or any other opioid like Buprenorphine in the past. Further, pursuant to section 74 of the Act, I find that the dispensing of Methadone in accordance with the prescription and policies in place at the time by Hume Health Centre Nurses on 25 and 26 May 2016, did not affect the quality of care, treatment and supervision of the deceased to the extent that it could be said to have contributed to the cause of death. Further, pursuant to section 74 of the Act, I recognise deficiencies and inconsistencies within the MMP administrative frameworks applied by ACT Health focusing on the ACT’s Standard Operating Procedures (SOPs), the National Guidelines and a range of supporting literature in determining placement on to a Methadone maintenance program and the appropriate commencement doses. I am however, unable to conclude in this particular circumstance those deficiencies and inconsistencies affected the quality of care, treatment and supervision of Steven Freeman to the extent that it could be said to have contributed to his cause of death.

Matters of Public Safety

Methadone maintenance programs have their place both within the broader ACT community and the prison community, all being administered by ACT Health. I provide recommendations for the Government’s consideration following my findings that matters of public safety are identified as a result of Steven’s placement on to ACT Health’s MMP. Such considerations apply to the broader community as much as they do to the AMC detainee community given that ACT Health is responsible for both communities and the authorised dispensing of Methadone within the ACT. These recommendations highlight potential inconsistencies or uncertainties across ACT Health’s SOPs, the National Guidelines and matters raised in evidence during the course of the hearing. In regard to the Territory’s submissions and the evidence of Mr Bruno Aloisi and Registered Nurse Lutz at hearing, the ACT Government has sought to respond quickly to matters which were identified as the hearing unfolded. It has done this through other jurisdictional visits and at the consequence of other recommendations arising from the Government’s self-initiated reviews prior to and following the commencement of this inquest such as the Moss Review and the Health Services Commissioner’s Review. It was not appropriate for me to have considered the content of those self-initiated reviews or their recommendations given they came into existence as a consequence of Steven Freeman’s death and not prior to it. It should be noted however the Government’s position to date appears to have been responsive to the Freeman family’s underlying concerns to avoid, so far as systemically and humanly possible, a similar based death in the future. I hope the following recommendations provide Government with the opportunity to address specific issues identified in the course of the hearing. Although not directly contributing to the cause of death, they were identified as part of the examination of circumstances underlying the manner of Steven’s death. Recommendations

Security and Wellbeing Checks

As an observation, life within a custodial environment appears amongst other things, to be one of repetition, rules, anger, frustration, observation and structure affecting both detainee and corrective officers equally, albeit differently, as they go about their daily routines.

From a Correctional Officer’s perspective, complacency through routine can be an adverse consequence of such an operating environment. The procedures in place for the daily muster or headcount requires a Correctional Officer to be fully satisfied as to detainee health and well-being.

This recommendation is not a criticism of Corrections Officers. It is aimed at the complacency derived potentially from inconsistent policies they are required to operate within.

The fact the AMC’s own review found it acceptable that ‘a foot movement from a detainee was a typical and acceptable response to the morning headcount as most detainees are in bed’, should no longer be deemed to be satisfactory compliance for establishing a detainee’s health and well-being.

The morning welfare check on Steven Freeman, while not probably affecting his the quality of his care, treatment or supervision so as to have contributed to the cause of death, did not meet the AMC’s then existing procedures.

Further, there is an inconsistency through the internal management review conducted by the AMC at 3.3.3 on page 50 which says that checks do not require a detainee response.

This does not appear to be correct. The first headcount for morning muster as observed on the CCTV recording conducted on Steven Freeman cell on the morning of 27 May 2016 is inconsistent to the AMC’s established procedures set out within the Corrections Management (AMC Muster and Headcount) Policy for an account of detainee location, health and well-being.

I acknowledge while not requiring a detainee to formally respond, the policy suggests something more is required to be done then the movement of a foot, given the requirement is that a face to name positive identification is to be undertaken as set out within the AMC policy.

Further, the entry into the cell at 10:02 AM by a Corrections Officer did not appear to meet the requirements of a security and well-being check.

My recommendation: The ACT Government should review the then existing practices and to remove inconsistencies in policies and procedures relied upon by correctional services officers so as to ensure prisoner safety and welfare checks through musters and headcounts which require eye contact and facial recognition to be complied with. The extent of compliance with those procedures, given their purpose is to ensure the safety and well-being of a detainee, should be evaluated and tested periodically to ensure they are effective and practical and minimise complacency through their routine application.

Physical Education and Training

In the course of the inquest there was anecdotal evidence that there was no effective physical education awareness or daily training offered to detainees other than what they might generate or engage in themselves.

That there is a third of AMC detainee population on the MMP is perhaps unsurprising and is perhaps reflective of the pervasive role drugs are playing within the ACT community.

The fact there is no structured compulsory physical education or training sessions run by ACT Health for detainees was nonetheless startling.

The fact that a prisoner could remain in bed or at least be in their cell from approximately 6:30 PM on the evening before through the morning headcount at 7:45 AM until 11 AM is concerning.

My recommendation: The ACT Government should consider the viability or effectiveness that a daily structured compulsory physical education and training session might have on a prisoner focusing on the prisoner’s well-being and rehabilitation coupled with drug rehabilitation counselling. Any consideration of such a course would need, I acknowledge, to be factored into current alcohol and drug support programs within the AMC and the various sentencing periods for detainees.

Access to Illicit Substances in Custody

Dr Streitberg on 25 May 2016 makes an entry on ACT Health Progress Note that Steven Freeman reported ongoing heroin use for the ‘last few months’ and also consumed two days prior to the assessment. This is a concern given Steven Freeman, for at least the ‘last few months’, had been a detainee at the AMC. It is a further concern given there was no evidence confirming a prior history of opioid-based substance use by Steven Freeman, prior to being remanded in custody.

My recommendation : The ACT Government should ensure that minimising the infiltration of illicit substances into custodial facilities remains at the forefront of screening technology.

Cross Agency Referral of Court Alcohol and Drug Assessment Reports

Steven Freeman’s multiple prior contacts with the criminal justice and corrections systems suggests that he was well known to ACT Corrective Services.

It would therefore be reasonable to assume that ACT Corrective Services and other government and non-government entities involved in the preparation of sentencing reports were likely to hold significant information about Steven and his personal circumstances and use of illicit substances.

I am unable to ascertain from the evidence presented to me that the sharing of such reports and documents with the Hume Health Centre occurred or was even available. The fact that they existed may have been helpful to the treating doctor at the time of Steven’s MMP assessment.

From a privacy perspective personal information may be used or disclosed where that use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual as permitted by section 16A of the Commonwealth privacy legislation.

Section 12 of the Human Rights Act 2004 (ACT) provides that people within the Territory have the right to not have their privacy, family, home, or correspondence interfered with arbitrarily or unlawfully.

However, these are not unfettered rights. These rights can be impinged upon in order to ensure that appropriate action is taken in order to lessen or prevent a serious threat to the life, health or safety of an individual.

Court Alcohol and Drug Assessment Service (CADAS) reports made on Steven Freeman outlined his representations as to his use of illicit substances. The content of that report referred to in my reasons was significantly different to that of the AMC Hume Health Centre induction record, which was also based on Steven Freeman’s revelations during that induction.

Had Dr Streitberg had access to that CADAS information it may have assisted in his assessment of Steven Freeman given the inconsistencies in information and his experience concerning the truth of claims made by detainees seeking access to drugs within the correctional facilities.

Steven Freeman was subject to 2 urinalysis tests conducted whilst detained in the AMC: the first on 12 December 2015, which ultimately revealed Steven’s use of Buprenorphine an opioid, and the second on 10 May 2016, which returned a negative result. The results of both tests, had they been made available to Dr Streitberg, may have affected his considerations in placing Steven on the MMP or the commencement level of Methadone.

My recommendation : ACT Health should consider obtaining either by consent from a prisoner or through reliance on legislation, a prisoner’s medical records and all relevant reports from alcohol and drug perspective created prior to incarceration for incorporating into a detainee electronic medical file for the purposes of an AMC induction or prior to any assessment for access to pharmacotherapy treatment.

Further, for detainees who are placed onto pharmacotherapy programs, such as the MMP, that in the interest of the health and safety of the detainee and his or her well-being, information of this type should be shared with ACT Corrective Services conducting prisoner headcounts and musters for the very purpose of determining a detainee’s location, safety and well-being.

Equally, any independent urinalysis results undertaken by ACTCS should be placed on the detainee’s medical record to enable medical staff to have a complete picture of the detainee’s use of illicit substances compared to those substances, if any, prescribed through the Hume Medical Centre.

Amendments to the ACT Standard Operating Procedures

The relevant policies and procedures provide that the maximum dose for Methadone was 120 mg with the minimum dose being 2.5 mg. However, the dot point following immediately in the SOP, provides that doses of less than 25 mg will only be prescribed as part of a planned reduction schedule for a maximum of two weeks.

This suggests, if it is correct, that ACT Health adopt a practice that the minimum dose of Methadone would be at least 25 mg. The prescriptive nature of the commencement dose of 25 mg has the potential to remove individualised treatment options and to direct medical staff including those making prescriptions to a ‘one fits all’ approach in the setting of the commencement of Methadone level.

My recommendation : The ACT SOP’s should be reviewed and the focus should be on prescribing individualised treatment setting out the parameters for commencement doses of Methadone for instance be anywhere from 5 to 20 mg with the ability to increase daily on medical review only.

Detainee self-prescribing each Sunday increased doses of Methadone

The current practice of allowing a detainee to increase each Sunday by up to 5 or 10 mg their existing Methadone dose without medical review is a safety concern.

My recommendation : The SOP should be reviewed to ensure that those who have only recently commenced on the Methadone program not be allowed to self-prescribe increases for a set period of time to ensure they are in a physiological sense, capable of accommodating the increased amount of Methadone. Further and in the alternative, the ACT Government should consider whether not it is even appropriate to allow such increases to occur for a Schedule 8 drug.

Clarifying inconsistences between ACT SOPs and Guidelines and the National

Guidelines

A number of documents were tendered in evidence before the court they included the National Guidelines for Medication-assisted Treatment of Opioid Dependence (April 2014), Justice Health Services Standard Operating Procedures for the Management of adult patients receiving Opioid Replacement Treatment at the AMC and the ACT Health, ACT Opioid Maintenance Treatment Guidelines (ACTOMTG). In my reasons I set out a number of provisions which highlighted a number of inconsistencies between those relevant documents.

The detail for instance of the National Guidelines provide a clear approach to induction and immediate follow-up services for a person being commenced on methadone. The use of the terms Guidelines and Standard Operating Procedures can have an effect on the person subject to them in that SOP’s set a defined course to follow were as guidelines only offer guidance.

The National Guidelines offer a very detailed approach to the assessment, induction and immediate medical services to be provided to a person commencing on methadone. The National Guidelines appear comprehensive, informative and easy to follow. Albeit recognising the discretion in commencing levels of methadone. They provide relevant forms and checklists.

While I acknowledge the work of Justice Health Services, as put into evidence through RN Lutz, in making amendments to relevant guidelines to rectify the deficiency as to the 2 to 3 hour medical follow-up after first dosing of methadone and other significant changes the review should not stop there.

My Recommendation : ACT Justice Health Services to consider whether or not adopting the National Guidelines to replace the ACTOMTG and incorporating random urinalysis or blood tests where there is no objective medical history of opioid dependence prior to placement on to the MMP.

DATED 11 April 2018 R. M. Cook

CORONER