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.
Overview:
Unaccountability
Contrary to the findings of his own Report, Greg James presides over an MHRT that was and continues to be almost entirely unaccountable for its decisions. The provisions of section 77A(1) are 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 review process is only meaningful if the Supreme Court grants leave to appeal. In the case of ‘A’, 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. His Honour found that there was 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).
Public Interest
The issues raised in the case of ‘A’ are directly related to issues of public interest. They concern institutionalised injustice in practice and policy. Despite this, Justice Johnson refused to address these issues by suggesting that courts cannot grant leave to appeal for the purpose of facilitating wide ranging enquiries.
In ignoring these concerns, Justice Johnson is failing to uphold the judiciary’s role as a check on the powers of government. As a result of his refusal, he has affectively undermined the notion of accountable government. This has affectively protected the institutionalised abuse and infringement of civil liberties for mental health patients. Justice Johnson’s decision has established that forcible medication, education and social support regarding mental health consumers are not issues of public interest. This decision establishes institutionalised mistreatment and abuse as the norm, entrenching the belief that the pleas of mental health consumers are of no concern and have no valid reason to be acted upon.
Costs
Justice Johnson’s refusal to recognise the facts of A’s case as a matter of public interest was reaffirmed by his decision regarding the cost order made against A and Brett Collins. In making the decision, His Honour stated that there was “no good reason” why the cost order should not be made. This is despite the rule that allows for a departure from costs following court procedures where the matter is one of public interest.
Additionally, the cost order made against ‘A’ and Brett Collins was based on a factual mistake. Justice Johnson’s order was made on the understanding that Brett Collins had withdrawn instructions to the solicitors; however, this was not true. The evidence is as follows:
1.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.’
2.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.’
3.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 Saeed’s case.
The departure of each of the three solicitors for their corresponding reasons left A’s case in want of legal support. Brett Collins’ ongoing support for the case was based on his belief that it raised issues of public interest and needed to be addressed by the courts. As such, Brett acted out of goodwill in Saeed’s best interests.
In allowing the Crown Solicitors to pursue a costs order against Brett Collins, future not for profit organisations, community helpers and supporters who offer help to forensic patients may be dissuaded from progressing to the trial stage for fear of financial orders made against them. This finding will erode the means of establishing foundations for adequate treatment of the mentally ill. More broadly, advocacy groups may become less active in supporting disadvantaged or underrepresented individuals for fear of financial repercussions. This is a dangerous precedent to establish, as it may discourage advocacy groups from pursuing hearings in areas that may benefit from reform.
Conclusion
Brett Collins’ position has found support from the Greens MP David Shoebridge, who has publicly backed the actions of Brett Collins and Justice Action in a media briefing ‘Attorney General Pursuing Costs Order Against Public Interest Advocate in Mental Health Review Case’, which was 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’
Mr. Shoebridge made these statements in relation to the unjust treatment and orders against Brett Collins and Justice Action in the act of protecting an innocent person’s civil rights.
Neither the interests of ‘A’ himself nor those of the public were given proper consideration in this judgment. The review process contained in s 77A(1) is demonstrably a façade.
Justice Action Publications:
Mad in Australia: This publication exposes the history of abuse of mental health patients in historical and cultural context. It identifies how the culture of doctors forcing medication on mental health patients began, in breach of their ethical obligations, and against the evidence of its effectiveness. It also offers solutions.
The Our Pick Report: This report written by Justice Action concerning the state of mental health in Australia. Justice Action decided to focus on the mental health area after it had become apparent that a new strategy was required to defend community interest and prisoners’ rights against the law and the added effects of tension, boredom, powerlessness and isolation occurring in imprisonment. Many prisoners become forensic patients or remain in prison under medication: the rates of major mental illness in prisons have been found to be three times higher than that of the general population. This report confronts the abuse of ‘care’ in mental health and prisons.
Media Releases:
- Attorney-General bloodied from mental health case (28th March 2013)
- Crisis Confrontation (6th December 2012)
- Cost penalty against Tribunal Appeal (23rd December, 2011)
- Mental Tribunal attempts to stop Supreme Court exposure (6th September, 2010)
- Launch report on Mental Health abuse and proposal (1st July, 2010)
- Long Bay Patients Lockdown (28th November, 2008)