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The tax office, ‘hired assassins’ and how to gag dissent

The nation’s tax office has been accused of hiring psychiatrists to diagnose and even coerce complainants during legal disputes. Crikey’s freedom of information requests and interviews reveal a worrying culture.

The Australian Taxation Office has been accused of sending employees to “hired assassin” psychiatrists to silence dissent, discredit whistleblowers and terminate their employment. Taxation professionals say the ATO has not only ignored calls for tighter regulation of these powers but appears to have intensified its use of psychiatry to label taxpayers they are in legal dispute with as “high conflict people”.

Crikey has obtained information under freedom of information about psychiatric seminars rolled out last month to ATO legal and HR managers by psychiatrist Dr Kipling Walker from the National Health Group. An email exchange between Dom Sheil — a senior principal lawyer in the ATO, who oversees compensation for taxpayers — and Dr Walker reveals the arrangement. Sheil writes:

Here is a link to the website I mentioned on dealing with personality disorders in legal disputes — the High Conflict Institute

http://www.highconflictinstitute.com

I have five of their books on high conflict people (HCPs for those of us in the know). I reckon the best is It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything.

I think you would like the first part of the book that identifies the 4 personality disorders at issue:

  • Borderline
  • Narcissistic
  • Histrionic
  • Anti Social

Somewhere in the material they also talk about the corpus callosum, amygdala and motor neurons of HCP’s. That’s very cerebral stuff (pardon the pun) might be of interest to you as a brain specialist!

Tony Greco, the senior tax advisor for the Institute of Public Accountants, tells Crikey it’s wrong to label taxpayers who challenge ATO decisions. “Under the self-assessment system the ATO have rights to challenge an assessment but so do taxpayers. The tax office doesn’t like losing but they should not label taxpayers who are merely exercising their rights under the law,” he said.

Steve Davies, the founder of OZloop who is active in the open government sphere, says the actions of the ATO lawyer mirror the adversarial nature of the legal profession. “[It] provides a mechanism to label employees who object to the bullying as ‘high conflict people’ with personality disorders,” he told Crikey.

The perspective being advocated medicalises conflict and in doing so provides a mechanism for ATO lawyers and HR staff to mandate psychiatric intervention where they lack the medical qualifications to make such judgments. This gives rise to a direct conflict of interest.”

In November 2012 the House Standing Committee on Education and Employment tabled a report into bullying, finding the reports of public sector cases “particularly concerning”. The committee accepted submissions from aggrieved public servants that the fitness for duty test or the mental health referral powers that enable the Commonwealth and its agencies to compel/direct employees to attend a medical examination with a psychiatrist is being used “against workers who are allegedly not performing their duties” and to “intimidate or further bully workers who made complaints about workplace bullying or other working conditions”.

The Committee was not persuaded by the claims of Annwyn Godwin, the Public Service Commission’s merit protection commissioner, that the review powers available to public servants provide “sufficient safeguards” and that the referral powers have been “exercised responsibly” or “in good faith”. And the committee was not convinced by the justifications of Stephen Sedgwick, the Australian Public Service commissioner, that the “referral powers provide agencies with a flexible tool that allows them to manage genuine cases of illness, including mental illness”.

Law and public policy expert JA James from APSbullying.com was the first to publicly articulate the Commonwealth’s use of compulsory psychiatric referrals against employees in 2011. She examined the literature behind “pathologising” determined litigants in the paper The Commonwealth’s Cry of ‘Vexatious Litigant’.

There is a trend in the Commonwealth in misusing labels such as ‘vexatious’ or ‘querulous paranoia’ against genuine litigants and complainants to devalue and dismiss their claims with the intent of preventing the legitimate exercise of their legal and policy rights,” she told Crikey. “In some cases, such pathologising by Commonwealth lawyers is based on discredited literature from the late 1800s.”

Stephen Strelecky is a former Jewish ATO officer who won a very public compensation case last year against the ATO over anti-Semitic remarks made by a colleague in the ATO’s Box Hill branch. He complained to management about the abuse and requested a transfer out but managers refused. One day Strelecky told his manager the abuse was continuing and he was feeling stressed because they would not transfer him or the offender out of the area. The ATO responded by referring Strelecky to eight psychiatric assessments over a two-year period.

Strelecky’s case also draws parallels with the Serene Teffaha case, the whistleblower that blew the lid off the ATO’s “tick and flick” culture of determining taxpayer objections. Teffaha, a senior lawyer engaged as a tax technical specialist, was also not granted a transfer out of her work area where she was being bullied. ATO officers referred her to a psychiatrist  —  as revealed by documents obtained by Crikey —  within two weeks of lodging her complaint, without her knowledge. Both Strelecky and Teffaha complained to Assistant Treasurer David Bradbury, who has parliamentary responsibility for ATO administrative matters. Bradbury has never responded to them.

Strelecky would not respond to Crikey questions due to a confidentiality clause in his settlement agreement with the ATO. But a source who witnessed the ATO abuse of Strelecky told Crikey: “He was referred to five different psychiatrists who were nothing more than hired assassins.

The system could work properly if the referral is done in good faith and a plan to get the employee back to work is negotiated successfully. But it doesn’t work like this and in reality there is collusion between the psychiatrist and the ATO. One of his original psychiatric assessments recommended he return to work. It was subsequently altered to suit the ATO view that he not return to work. This could only have been done after verbal communication between the parties.”Last year Strelecky finally received an apology from Shane Reardon, first assistant ATO commissioner. The letter obtained by Crikey states:

Personally, I am very sorry that your employment with us got to this point.  Let me be very clear in saying that anti-Semitism is never acceptable and I understand you as a Jewish person would be particularly sensitive to such behaviour.”

In a bizarre twist, the worker that abused Strelecky was provided with a generous taxpayer-funded redundancy package to exit his employment.

Three other senior ATO staff have spoken with Crikey but only on the condition of anonymity. Two of them described an experience of being referred to an ATO psychiatrist where they were verballed to make “confessions” that they are adulterous when, in fact, both are happily married. And despite not giving their informed consent, the psychiatrist still went ahead and did the intrusive assessment. One other is refusing to attend a psychiatric assessment and will be taking legal action against the ATO.

Teffaha is now using her legal skills to help others in her predicament. “A number of public servants have reached out for my help,” she said. “The mental health referral powers are being used against professionals such as auditors, economists and IT specialists to distort their reactions and drive them out of the organisation. Taxpayers would not be reassured to know the ATO is being run like a mental health facility, with its lawyers as its resident doctors and its employees as its admitted patients.”

Dr William Wilkie, a prominent psychiatrist and author, believes there are corrupt psychiatrists plying their trade with government agencies. “Enforced referral to a psychiatrist or psychologist may be used to intimidate and discredit whistleblowers by assigning negative diagnostic labels,” he said in a statement.

A whistleblower may be wrongly described as someone with a personality disorder whose unwillingness to tolerate corruption originates in an intolerance for ambiguity. Or perhaps a whistleblower is said to have a form of paranoia. I advise whistleblowers wrongly labeled as paranoid not to tolerate this. Paranoia cannot be diagnosed unless delusions have been demonstrated.”

Dr Wilkie’s assessment is supported by Susie Rotch, a psychologist and psychotherapist with extensive experience in clinical practice and research. She told Crikey: “Whistleblowers are placed in a pernicious double bind. If they attend the psychiatric appointment they are likely to be diagnosed as mad; if they don’t attend then they are non-compliant and may be disciplined for being bad.

The person who does have genuine psychological problems will often welcome a referral (through appropriate channels) to a helping professional. Of course the whilstleblower will not. The whistleblower knows that a referral under these circumstances to a psychiatrist is a double bind and a gross abuse of organisational and medical power.”

Garth Eaton, chairman of the Australian Justice Tribunal, says as long as the practice of paying expert witnesses for reports remains in force, government agencies like the ATO “will continue to foster miscarriages of justice that destroy innocent lives”. The AJT wants to incorporate a “public fund” to engage consultants to furnish genuinely independent expert reports which “would counter the reports emanating from highly paid government appointees”.

Steve Davies added: “The misuse of psychiatry and the willing participation of these ‘experts’ in the abuse reveals severe cultural and systemic issues not just within the Australian Public Service but in the bodies that regulate the conduct of medical practitioners and the silence of the Australian Human Right Commission on this issue. These practices strike at the heart of open government and decency in public administration.”

JA James has argued the mental health referral powers are incompatible with the common law requirement of ‘informed consent’, human rights standards and numerous legislative and regulatory requirements, including the Fair Work framework, whistleblower protections under the Public Service Act and privacy and administrative law benchmarks.

Comment was sought from the ATO on all aspects of this story. They declined the offer.

14
  • 1
    Dogs breakfast
    Posted Tuesday, 5 February 2013 at 2:52 pm | Permalink

    In a bizarre twist, the worker that abused Strelecky was provided with a generous taxpayer-funded redundancy package to exit his employment.”

    I would be surprised if this wasn’t also pushed through as a ‘bona fide’ redundancy which also then attracts highly advantageous tax breaks. The problem is that this would not be a bona fide redundancy under the, gulp, tax office legislation.

    But what the hey, employers are doing this all over the place. The easiest way to get rid of someone is often to pay them a redundancy, and call it a ‘bona fide’ redundancy regardless of circumstances.

    The most laughable thing is the idea of HR practitioners and lawyers making judgements about others mental fitness, and subsequent need for psychiatric attention. As a former HR practitioner of 32 years, I could hardly think of 2 professions more likely to be filled by narcissistic and borderline personalities.

    But I’m just a trouble maker.

  • 2
    ianjohnno
    Posted Tuesday, 5 February 2013 at 3:09 pm | Permalink

    How very Stalinist.
    This is the way modern management is going and I think the ATO is only one of many.

  • 3
    Andrew McMillen
    Posted Tuesday, 5 February 2013 at 3:10 pm | Permalink

    Excellent story, Chris.

  • 4
    bluepoppy
    Posted Tuesday, 5 February 2013 at 3:54 pm | Permalink

    This is common in many departments. The golden handshake payout to get rid of ‘controversial’ senior managers. I once asked what KPIs were met for one departing manager to receive his performance bonus (under FOI) and no information was forthcoming. Didn’t even ask how much just what the KPIs were. The SES network looks after it’s own similar to the largesse and pig swilling at the corporate trough.

  • 5
    Dr Dagg
    Posted Tuesday, 5 February 2013 at 4:05 pm | Permalink

    It sounds like the ATO has a shocking case of projective identification. It is engaging in the behaviour that it is accusing its employees.

    It’s not the referral powers that are at issue. Every systems is only as good as the people inside of it. You could change the powers and they would only find another way. The people need to be changed.

    There is the irony that as someone who works for an organisation similar in culture to the ATO, if you decide to become a whistleblower, you probably are a bit crazy.

  • 6
    duncan stephens
    Posted Tuesday, 5 February 2013 at 4:48 pm | Permalink

    Excellent - but depressing article. The same toxic behaviour of large corporates well and truly present in our public service. I hope Mr Bradbury takes time out from boring us on Qanda to read this !

  • 7
    sparky
    Posted Tuesday, 5 February 2013 at 5:42 pm | Permalink

    I’m always interested at the motivation of health professionals to become involved in the Stalinist( thank you ianjohnno) machinations of powerful organisations. There have been countless books/ movies/ cultural artifacts on the subject. Is it a sociopathy of the weak who want to be aligned with the powerful or just to be liked, or just greed?

  • 8
    Moira Smith
    Posted Tuesday, 5 February 2013 at 5:55 pm | Permalink

    I believe the use of ‘hired asassin’ psychiatrists is also common with employers seeking to win Comcare cases (or is it Comcare that has them all lined up).

  • 9
    Madonna
    Posted Tuesday, 5 February 2013 at 6:39 pm | Permalink

    Definition of Irony - ATO management sending staff to get their head read!

  • 10
    iPinque
    Posted Tuesday, 5 February 2013 at 7:03 pm | Permalink

    No surprises, unfortunately - the ATO is a poorly-run outfit, with management practices mired in the worst excesses of 80s Harvard-style corporatism, and a forest of deadwood in middle-management.

    Technologically crippled by incompetent ICT leadership (they still use Windows XP fer chrissakes, with no chance of moving wholly to Win 7 [never mind 8!] until 2014) they are floundering. Don’t expect a Mac-friendly version of eTax any time soon, either.

    Blame-the-victim” has always been a preferred tactic, rather than shouldering the responsibility for decisions. Calling your critics crazy is just another aspect of that - Yossarian would feel right at home there.

    New Commissioner Chris Jordan has a big job ahead of him, cleaning up the mess Mike D’Ascenzo left behind.

  • 11
    Graham R
    Posted Wednesday, 6 February 2013 at 12:24 am | Permalink

    I recall that Soviet psychiatry had a mental illness that Western Psychiatry did not recognise. The characteristic of the mental illness was “a pre-occupation with human rights.”

    Thus human rights dissenters were medicalised as mentally ill.

    As soon as the Berlin Wall came down I knew that Western management and Governments would be quick to adopt the citizen control methods that were so effective in the Soviet Union.

    And so it has come to pass.

  • 12
    Davies Steve
    Posted Wednesday, 6 February 2013 at 12:54 pm | Permalink

    Very perceptive comments from everyone. The alarm bells should have rung when human resource practitioners started operating as corporate policing function and adopting a behaviour it’s and managerialist approach to the employees of government agencies.

    They have gone beyond management and now govern. As a governing function they are Stalinist in their approach. They, along with many APS managers and leaders have lost sight of the importance of liberating the talents of employees. They do not know how to inspire people to do a great job.

    Instead, they have created an administrative regime that props up bullying and institutionalised mobbing. Moral disengagement and defensive routines are the order of the day.

    What happens within the APS is a classic case of otherwise good people doing bad things. Unfortunately, this dynamic and these practices permeate many agencies.

    In my professional view this entire regime undermines decency in public administration, undermine open government, stifle innovation and hold the entire public service back. There are, of course, rays of sunshine. However, they are the exception.

    The fact the ATO refuses to engage on important public service issues speaks volumes. The same applies to the Australian Public Service Commission.

    The community and taxpayers deserve better. As do Australian Public Service employees.

    Steve Davies,
    Founder, Ozloop

  • 13
    Peter Lange
    Posted Wednesday, 6 February 2013 at 2:48 pm | Permalink

    I have an issue with this article, starting with the intro line “funny farm”. Its the ongoing stigmatisation of people with mental illness.
    If this were not an issue, then stressed employees might not mind being referred for potentially some access some help for that stress. The referral itself might not be regarded as bullying.
    Learning about personality disorders and how to successfully interact with people who might have them would be regarded as appropriate practice for any customer oriented business. The conflation of this with the internal affairs of the ATO is weak spurious.
    Mental illness exists, its common, it affects those with it and those who interact with them, and there are effective treatments. Not only should it not be used as a weapon against someone, no one should BE ABLE to use it as a weapon. The former is the fault of the accuser, the latter all of us who stigmatise it.

  • 14
    Andrew Andrews
    Posted Thursday, 7 February 2013 at 11:16 am | Permalink

    Really good work to get this into the public sphere.
    The use of “confidentiality” in dealings between employees and the agents of large bureaucracies is designed to protect the existing power structure - and so serve the interests of those who most profit from its continuation. Being able to label those with outlying thoughts and attitudes as “mentally unwell” insulates those with central control, although ultimately it destroys organisations because they lose the ability to adapt. Sooner or later the whole thing is replaced by groups who have newer, more effective ways of dealing with new circumstances in a chaotic environment (often the ideas that bring them undone have come from the “outliers” they call mentally unwell).
    I agree with Peter that mental illness needs to be treated as a day-to-day subject, although to me the use of terms like “funny-farm” is more like a small step towards that. If we can at least have words that describe these things, however misguided and unfair, then at least we have a point to start a conversation. Using terms like these simply reflects the discomfort many still have about the taboo, and serves to reveal the irrational fear that exists in the community. I am one hundred percent behind Peter’s call to avoid stigmatising people who live with a mental illness, but sometimes a silly, ignorant term serves as a getting-on point for people to begin to learn what it’s really like. Most of us will have some experience with a mental illness in our lives, and the most dangerous thing is to make it more powerful than it needs to be by perpetuating archaic myths around the subject.
    It might be we are so generally distant from the reality, and so fearful, that so-called “humour” is the best way to latch on to thinking about it. For instance, we have just put together a couple of hundred words in a joint effort to deepen the public discussion about the larger issue. That can’t be all bad.

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