Report on A’s Hearing with the Mental Health Review Tribunal

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.

Three primary issues were raised by A’s solicitor Peter O’Brien:

  • An application of A’s fitness to be tried and the precursory determination of jurisdictional power for determining “fitness to be tried”;
  • The prevention of forced medication and the Tribunal’s jurisdiction to order the hospital in regards to the issue; and
  • The exposure of materials about Tribunal hearings on Justice Action’s website.

Regarding the first and second issues, the tribunal stated that they were willing to accommodate the applications, but that it would not be practicable to do so on such short notice. The Tribunal has made arrangements for a special hearing in 4 weeks to resolve the issue of its jurisdiction at this stage, and then how it will apply to A’s “fitness to be tried”. The Tribunal has requested that the Attorney-General arrange for legal representation to appear at the hearing and provide legal advice.

Additionally, Justice Action applied for the Tribunal to waive the prohibition to ventilate materials that may breach the s 162 of Mental Health Act 2007 (NSW) in regards the publication of names. In answer, the Tribunal advised that Justice Action would be notified if they have a specific complaint.

The Tribunal judge asked A regarding on his plans for the future. A’s ultimate goal is to obtain a release so that he might spend time with his ailing mother in Iran. He has spoke of his wishes to be identified as “fit to be tried” and be released after having his 11½ years spent incarcerated be taken into account. He also told Mr Sperling of his reluctance to spend another 6 years under the forensic hospital system and having to comply with that system in order to be released.

His solicitor, Peter O’Brien, raised the issue of forced medication; specifically, threats of forced injections made against A. The MHRT judge got an agreement from the head of the treating team to notify Mr O’Brien prior to any forced injection, in order to allow time for an application to be submitted to the Mental Health Review Tribunal to review the decision. For this to occur, it would be necessary to resolve the question of the Tribunal’s jurisdiction to control the hospital’s treatment, specifically section 46 and 47 of the Mental Health (Forensic Provisions) Act 1990 (NSW). So far, this issue of control over hospital has not been considered at all.

A now questions the need to wait for the possibility of forced injection before the Tribunal will intervene in his treatment. Rather, he requests that the issue of forced medication be considered as soon as possible.

The affirmation of the Tribunal’s jurisdiction over forced medication would be a major victory for patients, giving external power over the hospital for the first time.

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