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Update – 20/12/2013: Supreme Court & High Court Appeals

 

Two cases on consecutive days about Saeed! The Supreme Court looked at the legal power over the hospital, and the High Court looked at the same issue from an identical challenge almost exactly 3 years before.

In the Supreme Court, Justice Lindsay listened to arguments all day, with four lawyers in attendance, and has reserved his decision. In the High Court, intervention was refused for the $52 000 costs against us in the same challenge. Amazing stuff! Yet all those in the mental health industry agree that force against mental health patients, whether seclusion or restraint, is not therapeutic. The court will have to resolve this.

Supreme Court

Appearing before the Supreme Court via video link, Saeed appealed against the Mental Health Review Tribunal’s decision to leave the treating doctors power over his medication. The hospital had wanted to change Saeed’s medication from oral to injected form. This was strongly opposed by Saeed. This case is particularly influential, as it will serve as a precedent for future cases involving equity and the functionality of the Tribunal.

Saeed was represented in the hearing by barrister Scott Fraser, who argued that the Tribunal had not fulfilled its role to consider issues of personal liberty and the rights of individuals. Thus, medication against the patients’ wishes should remain a Tribunal responsibility, rather than being delegated to the treating doctors.

However, barrister Perry Herzfeld, who represented the Tribunal and Justice Health, argued that s 41 of the Mental health (Forensic Provisions) Act 1990 was deliberately broad, to allow for greater discretionary powers by the Tribunal so it could do what it wanted or do nothing to intervene.

Justice Lindsay has reserved his decision.

High Court Appeal

The High Court of Australia has dismissed our appeal against the $52,000 court costs made against us.

This saga began in November 2010 when Justice Johnson in the Supreme Court dismissed our appeal against the Mental Health Review Tribunal’s treatment of Saeed. This led to our hearing at the Court of Appeal on 9 July 2013, which was also dismissed.

The decision by the High Court, being the final and highest court in Australia, means the issue once again falls into the Attorney General Greg Smith’s lap. Mr Smith would need to decide whether or not to enforce an order based upon a lie, regarding an issue which is clearly extremely important: the use of force against mentally ill persons.

The High Court decision can be found at www.austlii.edu.au/au/cases/cth/HCASL/2013/202.html

 

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