Coroner’s Report is Perfect – It’s the System That is Rotten

The WA Coroner recently released a Report that doesn't guarantee Justice at all for Ms Dhu, who died in Police Custody on 4th August 2014, but it's a perfect case study of how systemic racism works.

 

The recently published report of the WA Coroner, Ros Fogliani, of her investigation into the death in custody of Ms Dhu, does not provide any kind of closure for Ms Dhu’s family. Ms Dhu died in tragic and despicable circumstances, but the report does not make any clear calls for anyone to lose their jobs.

Far from losing their jobs, many of the people involved in Ms Dhu’s shameful treatment have since been promoted. There has been one resignation [circumstances unknown].

As an outsider I can only guess that New Australian law remains, at times like this, a particularly bitter pill for Indigenous Australians. My impressions are that traditional people are more respectful listeners than non-Indigenous people generally, have a keen sense of justice, are puzzled when obvious wrongs go unpunished, and mourn traditional forms of justice that were swift and certain.

This does not mean the Coroner has failed in terms of New Australian law. The Coroner has, in fact, done an excellent job in speaking not only on behalf of Ms Dhu, but on behalf of Indigenous Australia. She has sought the truth, acknowledging and seeking to address, within the limits of her position, white privilege and systemic racism.

 

There is a TRIAGE system for assessing people in hospital emergency departments; it includes forms with tick boxes for temperature and pulse rates. It’s a system that in 2014 gave people wiggle room to treat Ms Dhu carefully, or to judge her as not worth a lot of effort.

There is another system for deciding how WA Police respond to domestic violence calls.
In 2014 it included checking to see whether there are warrants outstanding for the address the call was made from before attending at the address, because warrants matter more to the powers that be than the welfare of the people calling.

And there is a system, in each Australian State or Territory, for determining the cause of death when somebody dies in Police Custody. In Western Australia, this is governed primarily by The Coroners Act 1996.

Life in Australia today is governed by one big macro-system made up of millions of interlocking, smaller micro-systems; by a multitude of forms and procedures reflecting systems as big and formal as legislation or as small and informal as the mood of someone having a bad day.
At every level from registering a company to buying a carton of milk, our lives are subject to "ways of doing things"; our lives are subject to "systemic forces".

On the surface, most systems are the same for all Australians: In a hospital, the same forms are used for both Indigenous and non-Indigenous patients. In theory, the same procedure applies when there is a domestic violence call to the WA Police regardless of who calls, and the same Coroners Act governs the way a death in custody is investigated, regardless of who has died. But statistically speaking, measured on a basis of racial identity, the same systems still provide different outcomes for Indigenous and non-Indigenous Australians.

If the systems are the same for Indigenous and non-Indigenous people, why are the outcomes so different?
How can systemic racism exist? The coroner, in her report into her investigation into the death of Ms Dhu, provides some excellent clues.

 

In the real world, a macro system is never simply the sum of its micro parts. The whole is always other than the sum of its parts because there are always factors missing from the equation.

Systemic racism flourishes because most formal systems assume racism does not exist.

Nobody consciously decides “we had better make temperature readings compulsory in case one of our nurses or doctors thinks Indigenous people, or people with drug problems, are worth less than other humans.”

A major error contributing to the death of Ms Dhu was that none of the three people who treated her on August 3rd 2014 used a thermometer to take her temperature. That was the crucial day doctors had a chance to discover she had a bone infection, and treat her with antibiotics. Knowing her temperature would have been a major clue. After her death, one of the treating nurses went straight out and bought her own personal heat thermometer for taking temperatures, and now always has one available. I don’t think she was a racist; her failure on that day was prompted by typically poor hospital management of resources, then compounded by the poor character of lots of other people. The rot set in long before Ms Dhu was seen by Nurse Hall, and kept on growing.

Lots and lots of things happened to Ms Dhu in her final 48 hours. Are Indigenous Australians cursed with a gene that causes them bad luck, or did Ms Dhu's exceptionally poor treatment have some other cause? Everyone suffers sometimes from human error or bad luck or bad moods, but white people do not also suffer repeatedly from the consequences of racism as well.

So much of what did happen to Ms Dhu was unforgivably inhumane, and had nothing to do with human error. Her death was allowed by a system that does not assume racism or inhumanity exists – or at the very least dismisses it as unimportant.

Her death was allowed by a system that believes other things are more important than inhumane treatment; a system that fined and then locked Ms Dhu up for, amongst other things:
"...swearing in a public place... waving her right finger in a police officer's face and not moving away from him when warned to do so..." [784] but did not see inhumane behaviour by police officers as offensive enough to justify someone being charged.
 

The Coroner’s Report into Ms Dhu's death makes for sickening, at times harrowing, reading. The Coroner has highlighted the personal failures of many of the people who dealt with Ms Dhu in the final two days of her life, and used a systems-approach to identify system defects.

The system in WA requires that, in the first instance, when someone dies in Police Custody, the matter will be handled through a Police Internal Affairs investigation.

Unless a police officer is caught on CCTV clearly using a racist expression, it is difficult to “prove” that they were motivated to act, or not act, by racism. What the coroner has done instead in some cases is use every English word at her disposal but the R word to describe the appalling attitudes of some of the people responsible for Ms Dhu’s care at the time she died.

We have to decide for ourselves whether Constable Matier’s use of the word “junkie” was his idea of a safe euphemism for something racist. We have to decide for ourselves whether devaluing someone as a "junkie" is a lesser crime than devaluing them based on race. The Coroner cuts through the lies about Ms Dhu even being in withdrawal at all, and provides us plenty of context for making those decisions.

The efforts of Hospitals and Health workers in Australia are governed by certification and registration systems that are, like Police operations, self-governing to a degree, and designed to be self-correcting. The focus is not on retrospective punishment for failure, but on prevention of future mistakes. Unless someone actually breaks a statutory law, prosecution is unlikely.

I am particularly impressed that the Coroner, who had no legal choice but to conclude there was no deficiency in Dr Lang’s “medical treatment” of Ms Dhu on 2 August 2014, dedicated 42 paragraphs of her report to Lang’s treatment and testimony, because we get to meet Dr Lang as a person and doctor, despite the required “conclusion”.

If I had not read what I did about Dr Lang in a Coroner’s report I would find it hard to believe that a Doctor with so many years’ experience could treat another human with so much indifference, and remain indifferent to her death or the circumstances of her death throughout the inquest process. Dr Lang thought Ms Dhu had "behaviour issues".
Did this make Ms Dhu feel powerless? Did it influence the medical staff and police officers who had contact with Ms Dhu for the remaining hours of her life?

 

Ms Dhu had been arrested for non-payment of fines. She was not in jail, she was in a police cell - a local "lock-up". She was unwell and asked repeatedly to be taken to hospital. The report tells the story of her complaints of being unwell, of her being taken to hospital twice, the medical treatment she received, and what happened at the lock-up before Police finally, reluctantly, agreed to take her to hospital a third time. The Coroner believes she probably went into cardiac arrest while being wheeled into the emergency department the third time.

In the video footage below, she is still alive but dying when, while being handcuffed, her head falls onto the concrete floor of the cell. No ambulance is called, instead she is dragged from the cell into a corridor and then lifted into the back of a police vehicle.

Our legal system is built on two broad ideas that have, for the past 200 years, become progressively confused;

1. that governments will pass laws and regulations telling us what we must not do, and
2. a common law idea that tells us what we must do, which is show that we all owe a duty of care to each other.

It is precisely because the law cannot - indeed should not have to - spell out everything we must not do, that the idea of a duty of care is important.

We should NOT need a law saying don't let the head of an obviously ill person
fall back and hit the concrete floor of a cell.

One human being showing a reasonable level of care for another would not let that happen.

There is one system for specifying in legislation and regulations what is unacceptable behaviour, [prosecutable offences] and another back-up system for demanding people behave in a decent and caring fashion.

The Coroner did not find that anybody who had contact with Ms Dhu during those final 48 hours in custody broke any laws or statutes in a way that could be prosecuted.

She did find that lots of people made mistakes and personal errors of judgment, and that some showed a distinct lack of good character; that they failed to care.

What I get from the Coroner's Report is a clear message the police who let Ms Dhu's head hit the floor of the cell, and who dragged her around like she meant nothing human to them, did not break a prosecutable law, but they failed in their duty of care.

It is because Duty of Care operates as a back-up system that, although there have been no prosecutions to date, all might not yet be lost.

The Coroner does not use the expression “white privilege” in her report, but she was very careful to set out from the beginning just how big the duty of care was in the special circumstances of someone like Ms Dhu:

Ms Dhu did not have a choice of medical practitioner, or medical facility. She was not free to go to the HHC [Hospital] when she thought it appropriate. She was not free to seek a second opinion on her medical condition, if she had wanted one after being diagnosed with “behaviour issues”. In presenting at HHC, she was escorted by police. This heightened the power imbalance and her dependency. The clinicians were tasked with ascertaining whether she was fit to be held in custody. She was not free to present as a patient, seeking medical assistance, formulating her own questions for the doctors.

In respect of all of these matters, Ms Dhu was reliant on police from the Lock-Up and clinicians from HHC. Her reliance upon them heightened their duty of care towards her.

[261-2 emphasis mine]

The Coroner has not failed Ms Dhu; she is but the messenger of an extremely rotten system.

Many of the people who treated Ms Dhu so contemptibly in her final hours failed to meet their duty of care. In the absence of pre-existing laws saying things like "do not allow an obviously ill person to smash her head on a concrete cell floor", the back-up system still allows the family of Ms Dhu to investigate the possibility of suing those involved for a breach of Duty of Care, and I sincerely hope they can and do. The Coroner has tried hard to spell out those failures.

Our current system of justice does not provide reasonable timing, or certainty of justice. And I do not for a moment suggest our current system has proven itself over the last 238 years to Indigenous Australia to be anything other than a smokescreen.
Our current Federal and State legal systems are part of bigger systems that provide protection for governments that often don't even pretend to care about the vulnerable. If they cared, current representatives would be making grand announcements about changes to Police Regulations as a result of this Inquest. Their priorities remain clear: "Do not wave your finger at a Police Officer."
But the State Coroner herself on this occasion has not hidden behind the system, she has used it to full advantage to do the best she can on Ms Dhu's behalf, and to change the system where possible.

In particular, she has successfully challenged

• the assumption that the purpose of taking someone to hospital was only to justify keeping them locked up [i.e. fit for custody indefinitely];
• the notion that transport to a hospital is sufficient as opposed to attendance by paramedics [so ambulances will now be called];

She has endorsed a recommendation by Ms Dhu's family that a Custody Notification Service based on the NSW model be put in place.
[Late Edit - the Federal Govt has offered to fund this for 3 years but the WA Government has refused the offer].
At every stage of Ms Dhu's story, we have to ask, statistically, what are the odds this would have happened to her if she was a non-Indigenous woman? 
What are the odds she would have been fined for wagging her right finger at a Police Officer?
What are the odds she would not have been able to pay the fine, and would have been locked up instead?
What are the odds she would be in an unhappy relationship? Have a drug problem?
What are the odds that when she went to the hospital the first time, a Police Officer could so readily plant the idea that she was a junkie, that she was in withdrawal [not true] that she was faking illness [not true] and that this lie would be so readily accepted by so many [not all] of the medical people and so many [not all] of the police officers who dealt with her in the next 24 hours; and this would influence the way people treated her?
etc; etc; etc;


I'm not suggesting Indigenous Australians have a monopoly on unhappiness, or making mistakes in life, or being unemployed, but statistically, Indigenous Australians have a lot to deal with.
After 60 plus years of living in the wilds of white suburbia I've seen my share of white dysfunction, but I don't see white people arrested or fined for public swearing or other low level offences, I don't see the same suicide rates affecting families, and I don't see white people being so quickly devalued for drug problems unless they are actually behaving badly.

I simply cannot wrap my head around what is in that CCTV footage. At all. 

 

As a little old white lady I can be aware of racism, and sometimes see it when it is blatant, but I can never know the half of it. Lots of things make me doubt myself, but racism never does, lots of things make me hesitate sometimes, but racism never does; sometimes I get anxious about the future, but never because of racism.

Perhaps it’s too easy for me to think the majority of non-Indigenous Australians, however deluded about their privilege, are not actively racist.  I believe the best and most immediate hope for Indigenous Australia lies with systemic change.

We can help those deluded about privilege understand we are not accusing them all personally of active racism, by helping them understand the whole system is other than the sum of its parts and how systemic racism really does work.

The most urgent and useful thing we can do is change the system every chance we get, to protect people as much as possible from delusion and from active and passive racism. In system-terms, the quickest path to some success is "fix the system not the person".

The whole system is rotten, but if the Coroner had recommended all of the changes necessary to eliminate racism, for example, proposed a new Federal Constitution, the Report would have been scrapped, and perhaps the Coroner sacked. Within the constraints of the system as it currently stands, the Coroner has looked for ways to effect systemic change. This included questioning the social bias that put Ms Dhu in a lock up for non-payment of fines in the first place. The Coroner is not the problem - the system is rotten to the core.

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Weeks later I realise what I was trying to say, in more simple terms, is this:

Racist outcomes are not the result of lots of deliberate or conscious choices. We only need one or two bad choices plus a lot of indifference for the whole system to fail.

• One nurse who was ANTI-racist (but did not have her own thermometer)
• One police constable who saw Ms Dhu as a person who was sick, but had to fight really bloody hard the whole time for a chance to treat Ms Dhu with respect, was prepared to fight her boss, but could not win on her own
• One doctor who really cared but made a human error on the wrong day and is devastated by the mistake he made
• Up to 40 people who were neither racist nor anti-racist but were rather ho-hum about what they do from one day to the next
• Half a dozen people who were total scum

These are the elements that create systemic racism. We need more people to move from the ho-hum category into the really caring/prepared to fight category for something to change.

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