Due to a request from the Mental Health Review Tribunal, the Justice Action team was forced to remove the names of persons related to the proceedings. Our plaintiff’s name has been replaced with ‘A’. This occurs despite the clear wishes of A to have his name publicised and the basic entitlement to freely and publicly criticise the abuses of justice done to him.
On Thursday, 27 July 2013, the Mental Health Review Tribunal chaired by an ex-Supreme Court Justice conducted a hearing for the case of A with A’s psychiatrists. Representing for the hospital was the head of the treating team, a nurse, a registrar and others. Solicitor Peter O’Brien and 2 members of Justice Action were also there to support A. Justice Action’s publication of Mad in Australia was distributed to the hearing’s attendees.
A’s battle represents a determined struggle against threats to the integrity of the human person. It concerns the right to not be assaulted, the right to education, and the right to health care – all of which are being breached in A’s case. The forensic hospital is assaulting 'A' by medicating him against his will; it is denying him access to a computer that was donated to the hospital for A's educational use, and refusing to allow A’s psychiatric treatment to be conducted by the psychiatrist of A’s choice.
'A' is a forensic patient who has been in detention since 19 January 2002. During this time, his rights have constantly been abused. He is still being held in the highest security facilities, despite being a non-violent patient.
'A' brought proceedings against the Mental Health Review Tribunal (MHRT) in the Supreme Court, regarding an MHRT review of his treatment. MHRT President Greg James conducted the review in February 2010. In his claim for relief, 'A' sought the following orders that:
- His compulsory medication by injection cease.
- He is given access for education purposes to a computer donated to the hospital for his use by the students of the University of NSW.
- Psychiatric treatment from his then-current psychiatrist to be replaced with treatment from another elected psychiatrist.
Initially, an application for leave to appeal was denied because 'A' allegedly did not ask for the changes. But he did. The audio record of the Tribunal hearing proves that he did. It was deceitful of the MHRT to claim that he didn’t.
Once the application was made, Justice Johnson refused 'A' leave to appeal under s 77A(1) of the Mental Health (Forensic Provisions) Act 1990 (the MHFP Act). Justice Johnson ordered that $36,148.17 in costs be paid by A’s primary carer, Brett Collins. The reasons for the decision are that was ‘no practical utility’ in granting leave to appeal, ‘no live legal issue’ in the case, and ‘no good reason’ for why the order should not be made.
Justice Johnson decided that ‘allow[ing] issues and questions of general interest to be ventilated’ was not a ground of appeal under s 77A(1). In effect, this denies that the public interest is a ground of appeal. It is a curious decision. In formulating s 77A(1) of the MHFP Act, the Review of the New South Wales Forensic Mental Health Legislation, August 2007 (the Report) was influential. The Report was authored by Greg James himself and cited by Justice Johnson. The Report considered it ‘an important safeguard on [executive] decision-making’ that the Supreme Court have ‘the capacity to review decisions to ensure that matters such as the interests of the forensic patient, the safety of the community, and public interest has been given proper consideration’. It would be strange, as well as troubling, if the public interest were not a ground of appeal. Neither the interests of the forensic patient nor the public interest has been given proper consideration.
Contrary to the words of his own Report, Greg James presided over an MHRT that was and still is almost entirely unaccountable for its decisions. The s 77A(1) review process is ineffective. Section 77A(1) of the MHFP Act provides that:
‘A forensic patient … may appeal to the Supreme Court … by leave of the Supreme Court: (a) on any question of law; or (b) on any other question …’
This provision is only meaningful if the Supreme Court grants leave to appeal. It would not for 'A' because Justice Johnson decided that there was no practical utility in granting leave to appeal and no live legal issue in the case. His Honour’s reasoning highlights the immunity of the MHRT to scrutiny. There was deemed to be no practical utility in granting leave to appeal because the MHRT is required to conduct its own review of a forensic patient every six months. There was deemed to be no live legal issue as the MHRT could decide the relevant issues for itself.
Furthermore, MHRT strongly abused its position of power in refusing to supply the 'A' with reasons for its decision following the review hearing in February 2010. It was for this reason that Brett Collins’ application for legal aid failed, which in turn led to the consecutive withdrawals of A’s legal representation (further discussed under Costs).
The issues that relate to A's concern unjust practices and policies and therefore relate to the public interest. Justice Johnson ignored these issues by suggesting that the Court cannot grant leave to appeal for the purpose of conducting a type of wide-ranging inquiry. By ignoring these concerns, Justice Johnsons is undermining notions of accountable government and allows the continued abuse of human and civil rights; specifically, Justice Johnson established that forcible medication, education and social support regarding mental health consumers are not issues of public interest.
By refusing to acknowledge the public interest issues presented in A’s case, the Court has effectively established such mistreatments as the norm, condemning mental health consumers to a system where their voices and pleas will never be acted upon.
Justice Johnson’s disinterest in these issues was reaffirmed through His Honour’s cost order against 'A' and Brett Collins, as there was “no good reason” why it should not be made. This is despite the rule that allows a departure from costs following court procedures where the matter is one of public interest.
Additionally, the cost order made against Brett was also based on a factual mistake. It was believed that Brett had withdrawn instructions to the solicitors; however, in fact it was the reverse that was true. The evidence is as follows:
- Due to the failure of the MHRT to release its decision and reasons following the review hearing in February 2010, the first set of solicitors chose to withdraw their legal representation. They stated on Friday 28th May 2010 that: ‘we cannot and will not be appearing on Monday at the court to enter into hearing proceedings without counsel’s opinion and funding for counsel.’
- The second set of solicitors withdrew their legal representation in an email dated Thursday 2nd September 2010, stating ‘… we have no alternative than to cease acting if his [A’s] instructions are that he wishes to proceed with Supreme Court action.’
- Lastly, on Tuesday 16th September 2010, A’s barrister, Paul Bodisco, withdrew his legal support on the basis that he was ‘double booked’ and thus, unable to work on A’s case.
Their eventual departures left 'A' and Brett in want of strong legal support. As such, Brett acted out of goodwill and in the best interests of 'A'.
Allowing the Crown Solicitors to recover costs against Brett insinuates that anyone who offers help and support in acting for the best interests of a mistreated person might risk facing strong financial repercussions. Enforcing such an order would be a huge disincentive for future community helpers and supporters of forensic patients to fight for the rights of the disadvantaged, eroding the foundations for adequate treatment of the mentally ill.
Our position was strongly supported by the Greens MP David Shoebridge, who publicly backed the actions of Brett and Justice Action in a media briefing ‘Attorney General Pursing Costs Order against Public Interest Advocate in Mental Health Review Case’ released in December 2011.
‘The decision to chase the tutor for costs in this case has sent a chilling message to other public interest advocates … Mr. Collins was acting in what he perceived as the best interests of a vulnerable inmate with no legal right to run his own case, the Attorney General should immediately review the position and stop pursuing these costs’
These were statements echoed by Mr. Shoebridge in relation to the unjust treatment slapped upon Brett Collins and Justice Action in the act of protecting an innocent person’s civil rights.
Neither the interests of Mr. Dezfouli himself nor those of the public were given proper consideration in this judgment. The s 77A(1) review process is demonstrably a façade.