Cases

Commentary on Lindsay J’s Judgment Power of MHRT

The power of the Mental Health Review Tribunal (MHRT) to control the treatment of patients by the hospital was considered for the first time at the hearing about Saeed Dezfouli held on the 20th September 2013. Judicial member Helen Morgan asked Saeed’s lawyer:

“You say the Tribunal has that power?”^{^[1]} After hearing all arguments the Tribunal stated it would only “intervene in exceptional circumstances”.^{^[2]}

That decision was challenged by the NSW Supreme Court. The recent judgment of Lindsay J in Saeed Dezfouli’s case [2014] NSWSC 31 establishes the Tribunal’s power over the mental health system.

The Mental Health Consumer Information Sheet was created after consultation with the Tribunal and Justice Health. Download here

Now that the injunction protecting Saeed has been lifted, he is vulnerable to the threatened forced injection by the Forensic Hospital psychiatrists. In losing the injunction in the Supreme Court, Justice Action asked the Court to determine the extent of the Tribunal’s powers and responsibilities to control the hospital. A link to Lindsay J’s judgment on the case can be found here. [2014] NSWSC 31. Additionally, here is a commentary on Lindsay’s judgment.

Lindsay J established “in aid of early preparations for a forthcoming review”, the Tribunal’s power over the mental health system, clearly endorsing that the best interests of the patient is the paramount consideration for the MHRT.

It is noteworthy that for the past two years, the hospital has not utilised their authority until now, and there is a gap before Saeed's next Review in March.

SAEED TO BE FORCIBLY INJECTED ON TUESDAY 18TH FEBRUARY

Despite the comments from Lindsay J, Dr. Rafe Pulley, the Justice Health psychiatrist at Long Bay Forensic Hospital called Brett (Saeed’s primary carer and legal tutor), telling him that forced injection of Saeed would happen on Tuesday February 18. He said that it was necessary before Saeed could be transferred to lower security.

Saeed has said that he will refuse all food, water and his heart medication if the authorities insist on forcibly injecting him with Zuclopenthixol, an antipsychotic drug that makes him feel sick and unable to think clearly amongst other side effects.

Justice Action has found this turn of events to be quite shocking. The best interests and rights of Saeed, as a person not disturbing anyone, are not being considered. They want to force him into submission by medication, as that is the NSW Health Department culture. He has become a symbol of resistance, and still the Tribunal and Supreme Court haven't been effective to stop it.

PLAN TO HELP SAEED:

Justice Action has secured an undertaking from Tim Heffernan, Chair of the NSW Mental Health Consumer Worker Committee (CWC) to assist Saeed by providing two of their workers for support to de-escalate the tension. That approach is a basic principle of mental health treatment, but has been lost in the power play.

On 29th January 2014, Brett corresponded with Adrian Keller, Clinical Director at the Forensic and Long Bay Hospitals, urging that this undertaking secured by Justice Action be accepted. This proposal is now being discussed.

₁ A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [2].

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

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

Update Saeed High Court of Australia Appeal

Saeed's case is now before the High Court of Australia, in the latest thrust to expose the structural abuse of people in mental hospitals, and the lack of accountability to standards of respect.

The High Court has to consider whether there is a valid Public Interest to protect individuals like Saeed who come under the jurisdiction of the NSW Mental Health Act, and whether the UN Convention of the Rights of People with Disabilities should be considered. Additionally whether the NSW Attorney General should be permitted to claim court costs based upon an exposed lie.

Justice Action has a case around "A", before the Mental Health Review Tribunal. It will define the rights of people and their carers to challenge their treatment in mental hospitals.

Although the language of government responses to mental health support is changing rapidly to the “person-centred approach of recovery”, the reality on the ground is still authoritarian with coercion and forced medication the standard treatment. It is easy, cheap, and certain.

Justice Action has been asking the Tribunal to assert its power over the hospital since 2009. JA appealed to the Supreme Court over its refusal, and is arguing before the High Court of Australia the Public Interest to protect people in mental hospitals and support the UN Convention of the Rights of People with Disabilities. Now the Tribunal has squarely before it psychiatric evidence that the hospital has damaged A’s health by its forced treatment.

Costs appeal 28 June 2013

The Justice Action team outside the Court of Appeal on Friday 28 June 2013

Report on $36,000 Costs Hearing in Court of Appeal

On Friday 28 June 2013, Justices Ruth McColl and Fabian Gleeson heard Saeed Dezfouli’s application for leave to appeal. Appeal is sought against the cost order of $36,000 made by Justice Johnson in the Supreme Court against Saeed and his primary carer. The decision has been reserved until a later date to be determined. If the court grants leave, a further hearing will be heard in front of three judges to determine the appeal itself.

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.

'Immoral' treatment of Saeed Dezfouli

Untitled-2 Brett, Saeed, Geoff and Kassia at the Mental Health Open Day 2012

LATEST NEWS ON SAEED'S CASE

Overview

Saeed Dezfouli is a forensic patient who has been in detention since 19 January 2002 and could be held indefinitely despite doing an act normally punished with a short sentence. During this time, his rights have constantly been abused, he has been forcibly medicated and is under the Health Department's total control.

He is still being held in the highest security facilities, despite being a non-violent person who never intended the harm he caused. Saeed’s battle represents the universal struggle of mental health patients against the state’s attacks on their personal integrity. It concerns the right to not be assaulted, the right to education, and the right to person-centred health care - all of which are breached in Saeed’s case. The State’s callous indifference and abuse of mental patients rather than fulfilling their duty of care is the worst expression of community responsibility in a system costing over $200,000 a person a year.

Saeed brought proceedings in the Supreme Court, regarding a review of his treatment, back in February 2010. He sought the following orders:

- That the forensic hospital cease forcibly medicating him against his will;
- That he be given access to a computer donated to the hospital by the students of the University of NSW for educational purposes
- To cease psychiatric treatment from his then-current psychiatrist to be replaced with treatment from a psychiatrist of his choice.

To this day, despite our support, Saeed has not been able to achieve any of those aims even though they are basic to publicly stated person-centred health care.

Force and the abuse of power over vulnerable people is central to the mental health culture, and the medicalisation of social problems is basic to it. Tribunal support for a consumer worker allocation and computer access has been ignored by the hospital.

He has appealed to the Supreme Court three times to force assistance from the Mental Health Review Tribunal. Justice Action incurred a $60,000 court costs order with an arrest warrant and garnishee order issued until it was withdrawn in February 2015.

Justice Action stands beside Saeed as a focus person and his primary carer in this battle for human rights.

Read more about Saeed's story here.

To view the timeline for Saeed's case, click here.

Listen to ABCs 'The Man without a Name' here.

MAJOR ISSUES

Here is a list of major issues relevant to Saeed Dezfouli's case:

INSTITUTIONALISED ABUSE

FORCED MEDICATION

EDUCATION RIGHTS

SOCIAL SUPPORT RIGHTS

IDENTITY RIGHTS

Legal Proceedings & MHRT Hearings

Attorney-General: bloodied from mental health case

“The ongoing saga of Saeed Dezfouli developed into farce yesterday when an investigator sent to interview Justice Action regarding material on its website refused to ask his questions in front of witnesses. He left saying that his right to privacy was being violated. He said that he was protecting Saeed’s rights under the Mental Health Act to not be named, although Saeed says he has the right to his name in criticising his forced treatment. It all seems unhealthy secrecy wielding immense power” said Justice Action Coordinator Brett Collins.

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.

Unaccountability

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).

Public Interest

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.

Costs

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 28^th 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 2^nd 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 16^th 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.

Conclusion

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.

Crisis Confrontation

Saeed's primary carer was refused entry at Saeed's Tribunal on Thursday December 6 2012. The Attorney General has said he will be seeking a warrant for Saeed's primary carer's arrest if he/she does not surrender all their financial documents.

To access the history of Saeed's tribunal click here

Time In Cells

The government finally recognised the right for mental health patients to stay out of cells. A victory stemming from the Long Bay Lockdown led by Saeed.

Long Bay Lockdown (25/09/2008)