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Cases

Cost Penalty Against Tribunal Appeal

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.

 

Media release December 23, 2011

Attorney-General relents in attack on patient    

“Justice Action welcomes the Attorney General’s statement yesterday that he will reconsider his demand for $36,000 in court costs from a mental health patient and his primary carer who challenged his treatment,” said JA Coordinator Brett Collins.

The Greens MP David Shoebridge said in his media briefing it is a “case of genuine public interest, testing the Supreme Court’s ability to review a decision of the mental health tribunal that was allowing a detainee to be forcibly injected against his will.”  

If enforced, it would send a “chilling message to other public interest advocates” said Mr Shoebridge.

“This first appeal under the new law raises many significant questions about human rights and respect for patients. This patient is also awaiting a Supreme Court decision on whether he can use his own name to criticise his treatment. He says it is dehumanising to refuse him his identity. This follows another case where the Health Department had a Supreme Court declaration against it and had to pay $5000 for refusing to distribute electoral material,” said Mr Collins.

“The original decision to demand the $36,000 is totally consistent with the Government’s bullying of the mentally ill and vulnerable,” said Mr Collins.

“With all the hype about the number of new beds and the need for improved community mental health services, we seem to have forgotten that forensic patients are very much part of the mental health community. They need to have the same opportunities afforded to other groups to receive a level of care at least equal to other citizens in our society,” said Douglas Holmes spokesperson for the NSW Flames Group.

 

 

 

In November 2010, Saeed Dezfouli brought proceedings against the Mental Health Review Tribunal in the Supreme Court regarding a review of A's treatment.  The appeal was dismissed and Justice Action as his primary carer was ordered to pay more than $36000 in costs.

 

CHALLENGE TO THE NSW SUPREME COURT’S COST JUDGMENT

Judgment Date: 26 November 2010

The application

 

At the end of last year, 'A', through his tutor Brett Collins, brought proceedings against the Mental Health Review Tribunal (hereafter “MHRT”).

 

In his claim for relief, 'A' sought the following orders from the Supreme Court:

 

  1. Leave to appeal from the whole of the MHRT’s decision made after a review hearing on the 10th of February 2010.

The decision was a refusal to change A’s then-current arrangements for his care, treatment and detention at the Long Bay Prison Hospital.

It was submitted that the Tribunal had erred in its decision in that it:

    • Failed to exercise its jurisdiction under s 36 of the Mental Health Act 2007;
    • Erred in its ruling that the changes sought by 'A' were outside its ambit of care, detention and treatment as provided for in s 47 of the Mental Health (Forensic Provisions Act) 1990.
    • Erred in that it failed to afford to 'A's' procedural fairness in refusing to grant an adjournment of the proceedings pursuant to s 36 of the Mental Health Act 2007 to allow time for documents to be furnished to it.
    • Erred in that it failed to exercise its discretion by failing to consider at all relevant documents furnished by 'A'.
  1. That the following changes be made to the current arrangements for his care, treatment and detention:
    • That his detention at Long Bay Prison Hospital be terminated and he be transferred for detention in a less restrictive facility.
    • That he be allowed escorted day and weekend leave in the care of his Primary Carer.
    • That psychiatric treatment from his then-current psychiatrist be replaced with treatment from another elected psychiatrist.
    • That his compulsory medication by injection cease.
    • That he be given access for educational purposes to a computer donated to the Hospital for his use by the students of the University of NSW.
    • That he be allowed visitors including support workers from Justice Action.

 

 

The determination

On the 23rd of November 2010, Justice Johnson of the Supreme Court of NSW refused A’s application for leave to appeal under s 77A(1) Mental Health (Forensic Provisions) Act 1990 (hereafter “MHFP Act”). 

Seeing as 'A' brought the proceedings through his tutor, Brett Collins, an order of costs was made against Mr. Collins for a sum of $36,148.17.

The reasons for the determination are as follows:

  1. There was no “practical utility” in the Supreme Court granting leave for an appeal.
  2. There was “ no live legal issue” present in the case.
  3. There was “no good reason” why a costs order against Mr. Collins should not be made.

No practical utility

 

Justice Johnson submitted that there was no practical utility in the Supreme Court entertaining grounds of appeal concerning the non-adjournment of a review hearing that took place in February 2010, when a further review hearing may (and must) proceed before the MHRT without any order of the Court. 

His Honour stated that the Court should act cautiously in considering whether leave to appeal ought to be granted where the appeal seeks to challenge practical and clinical aspects of the care, treatment and detention of a forensic patient. As a specialist tribunal with its own medical knowledge, Justice Johnson stated that the MHRT was best qualified to decide on the issues put forward by 'A'.

Furthermore, Justice Johnson deemed it unnecessary to form a view as to the merits of the complaints concerning the Tribunal proceeding in February 2010. His Honour submitted that there would be a chance for 'A' to put forward any material he sees fit before the Tribunal at a review hearing, which was confirmed to take place in September 2010.

His Honour also asserted that Mr. Collins’ submission that the leave to appeal should be granted to allow issues and questions of general interest to be ventilated in court was not an appropriate purpose for the avenue of appeal to be taken under s 77(1) MHFP Act.  This was based on the grounds that a granting of leave in such circumstances could open the floodgates to future appeals that aim to conduct a “type of wide-ranging inquiry” into a particular patient’s case and complaints.  Rather, s 77(1) is only available to a forensic patient who seeks leave to appeal from any determination of the MHRT in a proceeding to which he or she is a party.

Indeed, his Honour was of the opinion that 'A' was attempting to bypass the MHRT altogether by seeking orders from the Court of the type set out above.

No live legal issue

 

Justice Johnson agreed with the MHRT that there was no live legal issue in the proceeding. His Honour submitted that it was open to the Tribunal to make orders under s 47(1) MHFP Act of the type sought by 'A' in relation to his continued care, treatment or detention in a mental health facility.  Thus, this was a matter for the Tribunal (and not for the Supreme Court) to determine.

Our response:

Justice Action strongly contests these submissions made by the Court. We assert that the Tribunal denied 'A' procedural fairness given the fact that at his previous 14 review hearings, his request for an independent assessment by a qualified psychiatrist was repeatedly refused and his submissions of viable evidence continually disregarded.

Furthermore, we argue that the application for leave to the Supreme Court was a necessary step in achieving justice for 'A' because of MHRT’s mistreatment of his case. This is evidenced by the Tribunal’s refusal to supply 'A' with reasons for its decision following the review hearing in February 2010.  It was for this reason that Mr. Collins’ application for legal aid failed, which in turn led to the consecutive withdrawals of A’s legal representation (the impact of which is discussed below).

 

No good reason against a costs order

Justice Johnson agreed with the MHRT and made an order costs against A’s tutor, Brett Collins for the amount of $36,148.17. These costs were incurred by MHRT over the course of the proceedings and covered the fees of three solicitors and one paralegal. These persons charged an hourly rate ranging from $181 to $361.80 per hour.

Distinguishing these proceedings from the case of Adams By Her Next Friend O’Grady v State of New South Wales, his Honour believed it not to be a “travesty of justice if the State of New South Wales were to pursue the tutor for costs separately and distinctly from the Plaintiff.”

This belief was justified on the basis that three different solicitors had represented 'A' during the course of the proceedings, with instructions to the last solicitor being withdrawn by Mr. Collins.  It was asserted that Mr. Collins erred in pressing on with the proceedings, in circumstances where 'A' has “no reasonable prospect of obtaining leave to appeal this case.”

Our response:

Firstly, we argue that Justice Johnson made a factual mistake in his reasons for making an order of costs. Mr. Collins has evidence that to no fault of his own, A’s last solicitor voluntarily withdrew his representation. In fact, all three A’s last solicitor voluntarily withdrew his representation. In fact, all three firms failed the provide substantial assistance to the case and their eventual departures left Mr. Dezfouli and Mr. Collins in want of strong legal support.

 

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 of 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 the Supreme Court action.”
  • Lastly, on Tuesday 16th of 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.

 

Additionally, while it is true that Mr. Collins pressed the proceedings to their finality, there was a valid reason behind this: he was simply acting in the best interests of 'A', a person who has been continually mistreated and ignored by the institutions of this State. To allow the Crown Solicitors to recover costs against Mr. Collins, who offered unwavering support to 'A' when others deserted him, grossly compromises the integrity of the criminal justice system.

 

Furthermore, rewarding costs against Mr. Collins, and indirectly Justice Action, sends an alarming message to other Primary Carers and supporters of forensic patients. It suggests that community-minded people who act out of their own goodwill can be held liable for supporting a patient’s fight for their rights to be recognized. Moreover, it would be unrealistic and unfair to expect a not-for-profit organization to cover the significant costs that are being demanded here.

 

Our submission

 

We ask that this unfair and unjust order for costs against Mr. Collins be overturned and that the real issue, being A's mistreatment in our forensic hospitals, be addressed.

Right to a Name

Under s162 of the Mental Health Act 2007 (NSW), Justice Health is attempting to prevent Saeed from using his own name in his fight to gain rights and his freedom.

Section 162 Of The Mental Health Act 2007

Tribunal Hearing 30/09/2010

Transcript

Reasons

Media Releases: Mental Tribunal Attempt Stop Supreme Court E

Saeed Dezfouli: Media Release

Reports: First Visit to Saeed/MHRT hearing

Breakthrough – First Visit for Saeed’s Friends 29/09/11

Visiting Saeed – An Outsiders Perspective

Rosie – JA worker

When Dani, Adriana and myself first arrived at the forensic hospital within the Long Bay Correctional facility we approached the security staff who seemed reasonably helpful as they cleared us through the initial security measures. We were asked to show photo identification, had our photo taken and had our fingerprints and retina scans taken. As we arrived early we had time to wait before going through to see Saeed and a security staff member even took us through to the staff-only area to get a coffee while we waited.

Read more

History of Attempts to Visit Saeed

History of Attempts to Visit Saeed Dezfouli

20th April 2009

Report provided to mental health legal representative, who was told to wait three weeks to gain approval to visit:

We've followed this up and contacted the Forensic Hospital.

 

The position is:

The 3 week period you mentioned can be substantially shortened if requested.  In particular, anyone who has been permitted by DCS to visit a patient in the old prison hospital will automatically be permitted to visit the patient in the Forensic Hospital.  Although it is not relevant to you because you have been previously approved, the sole criteria they use to assess whether someone should visit is whether the visit is 'in the clinical best interests of the patient'.  To determine that, amongst other things they will ask the patient whether they want to see the visitor.

Visits take place from Monday to Sunday. Allotted times are:

                  9.30 - 10.30

                  11 - 12

                  1.30 - 2.30

                  3 -4

There are 5 wards and one person is permitted to visit in each ward during each allotment of time.

Once you are approved as a visitor you need to book a time the day before to enable the guards on the front gate to be aware of your intended visit;”

1st June 2009

Email to the Clinical Director of the Forensic Hospital, from concerned Mental Health consumer representative:

I am having some resistance getting into see Saeed Dezfouli.

 

I made the initial request to the new hospital for an access visit back in early April and have called Saeed's ward weekly for an update on 9700 3386.

 

Each time [the ward clerk] has answered the phone with a similar response - As late as this morning I was once again told that security is still waiting on something before they will allow me access

 

Can you help?”

29th July 2009

In an email from JA intern, Lucy, to Brett:

The ward clerk, Sylvia, returned my call this afternoon and I haven't been given authorisation to visit Saeed tomorrow. She said that they're opening a new ward tomorrow and so security is flat out and the paperwork wasn't done in time. She said your still booked in for tomorrow, but I can't come with you.

 

Disappointing, but maybe next time.”

 

Lucy was never granted permission for a regular visit to Saeed, gaining access to a MHRT hearing only.

 


 

Log of Attempts to Visit Saeed Dezfouli by JA intern, Chaz:

3rd March 2010

Chaz phoned the General Hospital and spoke with Angela (Nurse Coordinator), who forwarded him to Security in order to “be provided with adequate first time visitation steps.” She also had another staff member call back regarding visiting Saeed, but said staff also forwarded the request to the Security Office.

4th March 2010

Chaz called again, after getting no return call or answers. This time, he spoke with Steve in Security, who provided Chaz basic visitation information for first-time visits. Chaz was unable to get in contact with Silvia in the Clovelly Ward in order to obtain specific information in regards to visiting Saeed.

The information that Steve provided is summarised as:

            1. All visitors must go through security check: retina scan and fingerprint;

            2. Must bring proper (100 points) of legal identification: passport, drivers license, and one

          additional photo identification or birth certificate;

            3. Security check can be done on the same day as visit (even for first time visitors).

5th March 2010

Chaz contacted the Clovelly Ward Main line and finally got a hold of Silvia. The Ward Clerk Silvia is one of the staff in charge of processing visitation requests. She took his name, date of birth, and visitation information (i.e. proposed times to visit), and submitted it for approval. She told Chaz it would only take 1-2 days before she would contact him to confirm.

10th March 2010

At 3:30pm, Chaz called Silvia again in the Clovelly Ward to follow up on the request to visit (5th March 2010). At the time, the only information she was able to provide was that she submitted Chaz's request to the Security Manager (name unknown) and that she had informed him to please contact Chaz on the 10th March 2010 with an answer.

Chaz waited until 5:30pm. He received no call back.

11th March 2010

After no call back on the 10th of March, Chaz called Silvia again at 12:35pm on the 11th of March. After calling over eight times over a period of one week, she finally informed him that, though she is not the final decision-maker, she had submitted my requests along with eight other names and three came back with no answer. Chaz's name was included in that list.

Most of the requests were not approved, and so she assumed that Chaz's would not be accepted either. Silvia told Chaz that she would call the Security Manager again.

12th March 2010

*Final Day of Process*

At 12:51pm, Chaz received clear confirmation regarding his previously lodged request to visit Saeed: Roman, one of the Head Officers in Security, called on the 12th March to speak to Chaz about his visitation request.

Roman had contacted Chaz to confirm that his request to visit Saeed had been denied as a professional visit for Saeed because there was no reason for his visit.

Chaz told Roman that he considered himself as a friend of Saeed, and that Silvia, the ward clerk, had told him that she would process it as a “professional visit” because it would go through the process “quicker.”

Roman did not seem interested in anything Chaz had to say, and he asked Chaz a few questions:

1. How did Chaz know Saeed? 

2. What did Chaz do with Justice Action? 

3. Why would Chaz like to visit Saeed?

Chaz told Roman that, since he had been with Justice Action, he'd been in contact with Saeed. Roman said that, since Chaz was accompanying Brett Collins (Justice Action coordinator), the visit would be correctly classified as a professional visit. He reminded Chaz that Saeed was located in a maximum-security mental facility, and that they do not just allow any individual to visit. He said that, since Chaz was not a physical friend of Saeed as he had not physically met him, Chaz would therefore be rejected as a Friend.

* However, the friend is defined (Dictionary.com) as:

   Friend - A person attached to another by feelings of affection or personal regard, a person who gives assistance.

After that, Chaz contacted Silvia to ask why she had misinformed him by telling him that she would process it as a “professional visit” knowing that it would be rejected:

Silvia informed Chaz that, because his contact information concerns Justice Action and he is working with Brett Collins (and would be visiting with him), it does classify as a professional visit.

In asking her why it couldn’t be processed as a "friend visit," and Silvia informed Chaz that friend visits were usually only approved for relatives and close friends who had known Saeed before he was incarcerated.

Chaz reminded Sylvia that Saeed had been incarcerated for 8 years, so how could they really make that clear distinction? Sylvia told Chaz that she does not make the rules and had tried her best to help me.

 

3rd June 2010
*Follow-up call*

At 3:30pm, Chaz called Sylvia in the Clovelly Ward, to ask a few questions:

1. What is the process of appealing the visitation decision that was made by Roman in the security office?

2. Who does the appeal application go to and how can I resubmit my application to visit Saeed?

3. How long will the appeal process take and what is the contact email address to send/receive updated information

    of my report?

In the first conversation that Chaz had with Sylvia on the 3rd June 2010, she mentioned that during this process of appeal, she would “re-submit” Chaz's visitation application and this time note that he is a student (Criminal Justice major), requesting to visit in to observe the facility and speak with Saeed since he works with the organisation (Justice Action) who supports him.

Sylvia then gave him an address to forward to Brett and an “Appeal Letter” was sent, but Chaz was not given the email address or contact number of the person who will review this document.

The only information Sylvia provided Chaz with was that Roman (the Security Manager) would view his re-submitted application to visit Saeed.

Chaz reported this to Brett (Justice Action coordinator), who then spoke to Sylvia himself.

During Chaz's second conversation with Sylvia on the 3rd of June 2010, she told Chaz that she would be in contact with Brett regarding this process, since he is the designated primary carer of Saeed, and the person with whom Chaz will be visiting with.

The conversation concluded there.

8th June 2010

Chaz had yet to hear from Sylvia regarding the re-submission or application of the appeal for visitation rights to Saeed Dezfouli.

In a meeting at the Justice Health Administration offices between Brett Collins, the Statewide Director of Forensic Mental Health, and the Clinical Director of Forensic and Long Bay Hospitals:

that Saeed got the benefit from his social support, had been isolated, and that… it had been useful for communication.”

9th June 2010

In response to an email sent by Brett Collins (8th June 2010) addressing issues in permission for visitation for JA interns, Chaz and Helen, Adrian Keller replied:

In relation to your specific request that Chaz and Helen be approved for visiting Saeed this Friday, that is not going to be possible within the timeframe available. If approval has not previously been granted for these persons, the factors that determine whether visits from specific persons can proceed are complex, and relate to factors in the patient as well as the prospective visitors. The treating team will consider all requests for visits…”

Brett replied with a request to:

“direct us to the NSW Health Policy Directive that governs the issue of community access and visist to mental health patients please?”

Keller responded:

“In terms of policy, I am not aware of a NSW Health policy that deals with community access and visits for mental health patients”

JA intern Helen called Clovelly ward that afternoon to submit her details and request for visiting rights.

Neither Chaz, nor Helen, ever visited Saeed.

9th August 2010 

Dr Bruce Westmore, forensic psychiatrist and former Director of Forensic Psychiatry for Queensland, requested permission to visit Saeed to provide an external examination and, although known to the hospital, having been there in the past, approval was not granted.

Further requests were made on the 10th and 11th of August 2010.

24th August 2010

Adrian Keller contacted the JA solicitor in response to emails from JA, the JA solicitor, in addition to four phone messages left for him over a period of two weeks.

25th August 2010

*Follow-up email*

In a follow-up email from Brett to Dr Keller:

“You told us that one of your procedures is to check registration of all attending practitioners and that Dr Westmore did not appear on the digital version of the medical registration list. You said that confirmation was requested but not received in time for the visit, and in fact has not still been received.

 

That explanation is totally inconsistent with the facts. Dr Westmore wrote to our solicitor and the Crown Solicitor on the same day as he was not permitted to enter. He detailed his attempts to get your permission and contacts on Monday 9/8, the Tuesday 10/8 and Wednesday 11/8 in the letter attached again, that I sent you again early last week. In fact no reason for blocking the visit was provided until a week after the arranged visit. And then it was spurious.

 

Dr Westmore’s office assures us that no discussion about entitlement to enter occurred until Dr Keller rang questioning Dr Westmore’s registration last Wednesday 18/8, a week after the visit was intended. They received a call from Dr Keller on Wednesday last week about this matter. He said there is a new procedure regarding national registration and accreditation for medical practitioners and that is why Dr Westmore was not able to see Saeed on 11 August.  

 

Your digital enquiry also was wrong. We have attached Westmore’s registration here, downloadable from the website, referred to below. It just rolled over from the previous arrangement as is shown by the other attachment from the website. He has been into the prisons constantly as an examining psychiatrist without any question before.

 

We are most concerned at your blocking this professional visit which is necessary for Saeed’s Supreme Court appeal currently pending. We ask for an immediate explanation for how this most serious breach of your obligations has occurred, why you haven’t dealt with this expeditiously when you first became aware of it, and why you haven’t documented your justification and ignored the emails which have been asking you for an explanation.”

Response from Dr Keller:

“My information suggests that the initial request for Dr Westmore to attend the Forensic Hospital was received by one of our ward clerks on the morning of Tuesday 10/8, the day prior to the proposed visit. Within a few hours, I was made aware of this request and explained to the ward clerk that I would need to verify that Dr Westmore is currently a registered medical practitioner and ascertain whether there are any conditions attached to the registration.

 

I proceeded immediately to check for details of Dr Westmore's registration on the AHPRA website. I could find no evidence from my search. At no stage did I make the assumption that Dr Westmore is not a currently registered medical practitioner, nor did I express that view to anyone. Indeed, I made the comment to all parties concerned throughout this exchange that I feel certain that Dr Westmore is currently registered, and would be glad to receive confirmation of the same…

 

… I have email confirmation that the ward clerk spoke to Dr Westmore's secretary on more than one occasion, explained our procedure and the fact that we had been unable to verify his current registration based on our search of the APHRA database. The secretary replied, on August 11, with words to the effect of "not to worry about chasing this up as Bruce probably couldn't get involved in this case as he was going away."

 

I heard no more of the matter, but because I was anxious to ensure that the matter was being followed up, I rang Dr Westmore's office on August 18, and left a voice message reiterating our position - that we were waiting for the supply of evidence to verify current medical registration, and once that had been received there would be no impediment to his attending the Forensic Hospital…

 

…Until your email this evening, I had received no correspondence that addressed the key issue - the verification of Dr Westmore's medical registration. Having reviewed the material you sent me, and having subsequently returned to the AHPRA website, I now understand how this piece of information eluded my search….

 

…I trust that you can now see how I was, legitimately, not able to verify Dr Westmore's registration.

 

I am now able to confirm, having verified the information required, that Dr Westmore is approved by Justice Health to attend the Forensic Hospital to assess Mr Dezfouli.

 

I acknowledge that the delay in approving Dr Westmore's access has been regrettable…"

26th August 2010

A summary email from Brett to JA solicitors:

“Hi Saeed’s lawyers,

 

We now have it clearly. Judith’s email is underneath and Westmore’s letter is attached.

 

* Not only did Keller wrongly check the register although he did the job all the time, yet one of our workers got it right first time,

 

* he accepted his mistake as excluding a highly esteemed psychiatrist,

 

* contrary to the fact that the psychiatrist was regularly visiting and

 

* involving the patient who is challenging their treatment before the Supreme Court in the first challenge to their powers

 

* Delegated to an unnamed ward clerk the followup to the doctor’s secretary despite he was refusing the visit

 

* Refused to supply the reason for the refusal for permission until Keller spoke with Rob Byrd 24/8, despite the Westmore letter to the Crown Solicitor on 11/8, three voicemail messages from Rob and me, as well as emails to him and Dr Basson asking why Westmore was refused.

 

* Lied about the timing of the initial enquiry for the visit by Westmore’s secretary, what was said to her, and the followup – see her statement underneath.

 

Can we have that discussion with Graham Turnbull now please? I am available at any time and am happy to talk with him myself if it isn’t convenient for others.

 

It clearly is urgent and we must ensure they don’t think that it isn’t acceptable to us for them to assault people, exploit the patient’s legal status for their own benefit and power, consider themselves unanswerable to the law, reject health support to which the patient is entitled, make mistakes and then lie to cover them up.

4th May 2011

In an email from JA to Adrian Keller:

“Saeed and I have asked Doctor Yola Lucire to examine Saeed in the next few days.

 

Would you please notify  the Forensic Hospital to expect her approach and that she has your approval for entry.

 

Please acknowledge this on receipt.”

10th May 2011

The response from Dr Adrian Keller:

“Upon receiving the request, I consulted with Mr Dezfouli's treating team, who knew nothing of this request.

 

Further to this, Mr Dezfouli was asked about whether he had made this request himself, or even knew about the request. It is a Justice Health requirement that patients must consent to having an independent psychiatric assessment conducted by an external medical practitioner, where that request has not originated from the treating team.

 

Mr Dezfouli indicated to his treating team that, in his opinion, this assessment occurred a year ago, and he was no longer seeking an independent psychiatric assessment.

 

I would suggest that you discuss the matter further with Mr Dezfouli, prior to approaching the treating team with any request for an independent psychiatric assessment. The request will then be forwarded to me for consideration. Please note that Mr Dezfouli has already, or will be shortly, transferring from Clovelly to Dee Why and will thus be under the care of a different treating team.”

In an email from Brett:

"I have just spoken with Saeed and he assures that at no time has he said that he is no longer seeking an independent psychiatric assessment. To the contrary. He is very unhappy with his treatment as he has said many times, and wants a proper reassessment. Of course I consulted with Saeed and he asked me to make the approaches on his behalf.

 

You will have noticed that I said that "Saeed and I have asked Dr Lucire to examine him" in my email last Wednesday. I would have been misleading you if that were not true. I don't behave in that way. Please institute an inquiry and let me know how this mistake has occurred. It is important for the credibility of your staff.

 

We remember the problem you had with Dr Westmore's access to Saeed, and the access problem you had with lawyers from the Public Interest Advocacy Centre to visit and take a brief just before the election. These are essential health and legal services and it doesn't reflect well on the care and respect for your patients when these things occur.

 

Please urgently notify the Forensic Hospital to expect Doctor Lucire's approach and that she has your approval for entry, just as was Doctor Westmore."

The response from Keller:

"The information I relayed to you was conveyed directly from Mr Dezfouli's treating team and accurately reflects the response he gave at that time. I am not disputing that he may have later today provided a different response to you. However, I am required to be satisfied that any patient receiving an assessment from an external psychiatrist, that has not been authorised by the treating team, has properly consented to this process.

 

I have been informed that Mr Dezfouli's transfer to Dee Why has now taken place, and he is under the care of a different team. I have asked that senior members of that team speak with him tomorrow to ascertain whether he is consenting to being assessed by Dr Lucire, and that he understands the purpose and limits of this assessment.

 

I must reiterate that the usual process for requesting such assessments is for the patient to notify the treating team of an intention to seek an opinion from an external medical practitioner. It is appropriate for the patient's primary carer to assist in this process. Without such notification, it is not possible to verify that the patient him/herself has properly consented to such an assessment. That is the reason that I am required to send this request back to the treating team for further clarification.

 

Once I am in a position to properly consider the request, it will be processed according to our procedures.

 

Dr Lucire would be advised to not attend the Forensic Hospital for this purpose until such time as I have confirmed with you, as Mr Dezfouli's primary carer, that this request has been approved by Justice Health."

In an email from Brett:

"We think that your Inquiry and assessment of the withdrawal of Saeed's request for an independent assessment is done too lightly.

 

Mr Dezfouli has been disputing the correctness of the assessment of the treating team and its recommendations that he should remain in the highest security for many years. He has consistently wanted that to be reassessed and instructed me accordingly late last week. He denies having changed that desire or expressed a change. He said it would be entirely contrary to what he sees as his best interest, which is to challenge his treatment as being wrong and to bring publicity to that wrong treatment, not just for himself but also for others. He utterly denies having said that he doesn't want an independent assessment, as that would be against his interests and that of others.

 

The treating team said he told them he doesn't want an independent assessment. So the team that is to be challenged says that the subject no longer wants to challenge them. That alleged statement serves its interest. It is also contrary to the consistent position he has taken and has presented before the Supreme Court and is currently presenting to the public, as well as to his instructions given to the Primary Carer. If true it would undermine his credibility and give support to the treating team. Surely such a significant change in his position was independently witnessed or signed otherwise it wouldn't be believable?

 

It is easy to accuse a mental health consumer of delusions and of having no credibility. We think it is an important issue to examine and consider carefully.

 

To whom was the statement made and under what conditions?"

11th May2011 

In an email from Brett to Adrian Keller:

"Saeed has just told me again that he assured your staff today that he wants to be externally examined, and there was nothing he had said previously that could have been misinterpreted.

 

This matter has now been waiting a week. Please notify your staff that Dr Lucire is welcome to visit and let me know so we can make arrangements."

Emails were sent to Dr Keller asking for a response and explanation on the 13th and 17th May 2011, and phone messages were also left during this period.

17th May 2011 

Adrian Keller responded:

"As soon as I was informed by the treating team of Mr Dezfouli's intention to seek the external opinion from Dr Lucire, I set in motion the process to enable this to occur.

 

There are a set of procedures within Justice Health that need to be followed in these circumstances.

 

I can confirm that, as of today, these processes have been completed and Dr Lucire is authorised to attend the hospital to assess Mr Dezfouli. The relevant parties that can enable access for Dr Lucire have been notified.

 

Please let me know the specific date that Dr Lucire intends to attend the hospital and I will ensure that the security clearance remains valid."

 

Brett Collins requested to visit with Dr Lucire on the morning of 24th May 2011. A request was made for Saeed’s medical records to be made available.

18th May 2011
In an email sent to Adrian Keller, regarding the reported rejection by Saeed Dezfouli of an independent examination:

 

"In my email May 10 I said: 

 

"It is easy to accuse a mental health consumer of delusions and of having no credibility. We think it is an important issue to examine and consider carefully. To whom was the statement made and under what conditions?"

 

We ask the question again as it is a significant matter to retain standards and trust for your staff. It also held up the examination of Saeed's independent psychiatric examination. 

 

The alleged report that Saeed was no longer wanting an independent psychiatric examination is clearly self serving, and against the stated interest of the patient. Saeed utterly denies saying it or anything that could be misconstrued to mean it. We are sure you would wish also to clear the matter up, and put your staff's standards beyond question."

 

18th May 2011 

The response from Adrian Keller, refusing an investigation into the issue surrounding Saeed’s request for an independent examination:

"I have considered your request and have determined that no further investigation or explanation is warranted.

 

With respect, the issue you refer to involves the expression of differing views about what was communicated during a conversation between Mr Dezfouli and a member of staff. We are very unlikely to resolve this difference of opinion. This matter no longer retains its former salience as the original request, made by yourself, has been granted."

 

27th July 2011

Dani called Elouera Ward on 9700 3397 at 2:44pm, regarding a proposed visit on Friday, 29th July 2011. Dani spoke to Lynn, a causal staff member (name stated on answering the phone), who stated she would have one of the permanent staff members to call back. Lynn was very friendly and promptly took details and volunteered a return phone call.

28th July 2011

Dani called Elouera Ward at 1:11pm and spoke to Robyn, who identified herself as the Ward Clark who took details including name, address, phone number, DOB, and relationship to Saeed.

She stated that she would put Dani's details through to be processed, and to ring back around Wednesday next week once the details had been processed.

3rd August 2011

Dani called Elouera Ward at 1:20pm and spoke to Robyn, who remembered the purpose of Dani's call. She was then  transferred through to Steve (title unknown) and informed that her security process was still being completed. Further, there was no indication of when this would be complete.

10th August 2011

Dani called Elouera Ward at 10:25am and spoke to Robyn, who took her information again and remembered Dani's application, expressing surprise that it hadn’t been completed yet. Took Dani's phone number and promised to speak to Security about it and get them to give me a call back on her personal mobile.

No call back that day.

Dani was overseas for two weeks, beginning on 11th August 2011.

27th July 2011

Rosie, calling on behalf of Dani, called Elouera Ward at 10:52am. She spoke to Robyn, who said to call back again that time next week (2nd September 2011) and ask for Robyn, and she would sort out the applications.

Robyn remembered Dani’s application, and said Dani should call back when she returns to work. Robyn said she believed the visitation pass has gone though.

Brett called back at 1:35pm on the same day and spoke to someone at the “Ward Desk” who would not give their name regarding booking a time to visit Saeed. He was informed that up to four visitors are allowed at one time. He was then told that Dani’s request had been put through to Justice Health, who is in charge of security, and that the process should take about three weeks.

Brett also emailed Adrian Keller regarding the hold up in the processing of Dani’s application:

We are concerned that one of Saeed's friends has been waiting for over four weeks to be approved for visiting him.

The Ward Clerk told us this afternoon that "it is with senior management".

 

What is the reason for the holdup please? The matter of helping you with your patients by giving them social support with access to community friends has been raised with you a number of times.

 

Saeed also has a MHRT hearing on September 15. As you are aware they are a public hearing and we want to ensure Saeed's friends can attend.

 

Would you ensure permissions are complete urgently, and indicate when that will happen?”

29th August 2011

A Project Officer from the Forensic Mental Health Network forwarded Brett’s email to the Service Director of the Forensic Hospital, as he “should be able to assist you with your request.”

The Service Director never made contact.

My name is Dani and I am a friend of Saeed Dezfouli. I have been waiting for over four weeks to receive approval to visit him. 

Brett Collins, Saeed's primary carer, has taken up my enquiry with Justice Health and was informed that his email would be passed on to you as you are best able to deal with our request.

I write to you to ensure that this email was passed on to you and to enquire as to the process involved in gaining approval as no one has been able to inform us of this and to ascertain a time period that this will be achieved in.”

2nd September 2011

The above email (modified slightly) was emailed to This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. with no response:

I write to enquire as to the process involved in gaining approval as no one has been able to inform us of this and to ascertain a time period that this will be achieved in.”

In response to Brett’s email (sent on teh 26th August 2011), Dr Adrian Keller promised a response early in the next week regarding visitors for Saeed’s MHRT hearing scheduled for the 15th September 2011:

“I will discuss arrangements for their participation in Mr Dezfouli's hearing with our Security Manager first thing next week, and provide you with a response”

8th September 2011

The response from Keller:

“Dear Mr Collins

 

I can confirm that each of the persons listed in your email, including Dani, has been approved as a registered visitor to the Forensic Hospital for Mr Dezfouli.

 

As discussed, for the purposes of MHRT hearings, a maximum of 2 visitors (excluding legal representatives but including yourself as primary carer) will be permitted to attend the FH for the hearing.

 

yours sincerely

 

Dr Adrian Keller”

9th September 2011

Email from Dani to Brett, summarising phone call to Robyn at Elouera Ward on the morning of 9th September 2011:

Brett,

 

Just spoke to Robyn at Elouera ward - she has the list of six names (that does not include me) and was told by 'senior management' that the names will be discussed today for approval. That is they are not officially approved yet despite what Keller told you.

 

She advised that you contact 'senior management' again to make sure my details will be approved as well and that it’s all on track. She couldn’t book in a visit yet as the names are not yet approved but asked me to call back Monday.

 

She was really apologetic about this whole process and told me she doesn't understand what the holdup is. I think maintaining a positive relationship with Robyn is very important, as she could be a massive thorn in our side if we get on the wrong side of her.

 

Dani

13th September 2011

As Dani was not in the office to return Robyn’s call on Monday, Robyn rang Dani on her mobile (listed as a contact number) at 8:42am on the 13th of September 2011.

Dani provided Robyn with her information required to gain visitation rights again, and was informed that all visitation requests are going for review (but was not informed where this review would be conducted, or whom was reviewing them) on Friday, and that all requests would be approved.

Dani was instructed to call back next Tuesday (20th September 2011) to organize visits.

There were still no visit(s) permitted.

 


 

 

As of September 16th, 2011 – two years and three months after the first request was made – Justice Action has received no official policy for visitation approval, and has had no workers or interns (with the exception of Brett, who is Saeed’s primary carer) approved to visit Saeed within the Long bay Forensic Hospital facility.

 

 


 

 

Denial of Visiting

Community Access to Mental Health Patients (read as pdf)

 

Denial of Visiting

 

From April 2009 until September 13, 2011, several dozen citizens of good character including psychiatrists, lawyers and other people of goodwill were blocked access to visit and help Saeed Dezfouli after nine and a half years locked in a closed hospital. This is one of many issues dealt with by Saeed. An issue, which is so significant, that it was raised before the NSW supreme court. The Mental Health Review Tribunal was also asked to intervene. Nobody responded.

 

Varying reasons for not allowing Saeed to have visitors have been offered by the Health Department. For example,

 

  • The ward clerk returned my call this afternoon and I haven't been given authorisation to visit Saeed tomorrow. She said that they're opening a new ward tomorrow and so security is flat out and the paperwork wasn't done in time.

             Justice Action worker, 29th July 2009.

  • You are not a physical friend of Saeed as you have not physically met him, and therefore your application will be rejected.” Head Officer of Security at Clovelly Forensic Hospital, 12th March 2010.

  • I acknowledge that the delay in approving Dr Westmore’s access has been regrettable

Adrian Keller, 25th August 2010.

  • I have considered your request and have determined that no further investigation or explanation is warranted.”

             Adrian Keller, 18th May 2011.

  • I can confirm that each of the persons listed in your email, including Dani, has been approved as a registered visitor to the Forensic Hospital for Mr Dezfouli.

             Adrian Keller, 8th September 2011.

  • Upon calling the forensic hospital on 9th of September 2011, Dani was informed by the ward clerk that she has not been approved for visitation

  • From 2009 until now all friends to Saeed have been blocked.

 

As well as many others that give more reasons, or excuses, for lack of visiting rights.

 

The Principles of Visiting

Maintaining adequate connections with the outside world is an essential right for any patient isolated with limited human contact. Mental health patients are legally entitled to rehabilitative care and support, not punishment based treatment. Therefore to withhold visitation rights of a patient, which is an essential aspect of their social devolvement during the rehabilitative process, is an unethical infringement upon patient’s rights. It is not only important for the patient, but also their family and the individuals of the community impacted by their disorder.

 

Patient’s Interests

  • Monitoring government behaviour and accessing human rights within prisons.
  • Promotion of mental stability of the patient.
  • Physiological improvement - for patient and loved ones.

 

One of the major interests of Saeed is to ensure that he gains visiting rights. This support would promote his rehabilitation process, which would in turn give him the correct abilities to re-enter society.

 

“Receiving visits is the only way for me to feel connected to the outside world, the only way I feel that I have rights in here”.

Saeed Dezfouli

 

 Visitor’s Interests

Visitation from loved ones who support the wellbeing of the offender provides a priority level of emotional care, family bond, and maintains relationships throughout the absence. It is well within the interests of the visitors that they are able to visit loved ones as it…

  • Reinforces the importance of family, friends, and loved ones.
  • Satisfies emotional needs and establish the tools for coping mechanisms.
  • Breaks down the barriers associated and gives time for rebuilding relationships.

 

Community Benefits

  • Community support towards the transitions that occur upon release.
  • Gives incentive towards good behaviour, rehabilitation and release, supplying a “safety net” of support.
  • Provides a social reassurance and makes the reintegration process easier if contact with the community and friends is maintained.

 

 Community Access and Deinstitutionalisation

 

It is widely accepted that deinstitutionalized practices are the most appropriate form of treatment for mental health patients. This model involves an accumulation of community-based programs that provide the patient with individualised, recovery and rehabilitative services allowing them to enhance their wellbeing.

This is clearly demonstrated through the lengthy and unsuccessful process of gaining visiting access to Saeed Dezfouli.

Visiting an incarcerated patient is the first step to improving their wellbeing. It breaks down any form of social isolation, allowing them to maintain a bond with their family and friends as well as providing them with both emotional and physical support. How this is relevant to their wellbeing is self evident; it reassures them that they are a part of the community and are no different to any other member. By having a strong support system, re-offending and recidivism is unlikely.

On June 8 2011, Brett Collins met with Adrian Keller and John Basson (Statewide Director of Forensic Mental Health) to discuss Saeed’s situation. When confronted on why there was such a strict definition of friendship, Keller replied saying there was no such policy. Interesting, as Justice Action have a clear report of their refusal to visit Saeed on the basis of that definition.

Keller’s resistance to the deinstitutionalisation model is a basic contradiction to improving the lives and wellbeing of mental health patients. As stated previously, it is proven that community support; programs and services evidently enhance the lives of mentally ill people. Community access to insitutitionalised systems such as Forensic Hospitals serve as an intermediate step in this model and are therefore imperative. If that is the case, why has Keller not adopted this step yet?

Refusing access to Saeed only further isolates him. Saeed himself has stated that “receiving visits is the only way for me to feel connected to the outside world, the only way I feel that I have rights in here”, reiterating the satisfaction he gains from community support. He adds that visits should be available to everyone as they are “healthy and therapeutic”. This information, combined with our deinstitutionalisation report, only further emphasises how the community plays a significant and key role in improving the lives of mentally ill patients. The fact Saeed is never informed when someone requests to visit him only suggests that the institution is intentionally blocking him from access to the community. Is this punishment for being critical to the type of care that he has received? If so, does that not breach section 69 of the NSW Mental Health Act 2007?

By refusing access to Saeed for over 2 years, deferring the subject, misinforming us and providing no legitimate responses, Adrian Keller and his team clearly reject community living and support as a form of mental health treatment. They are enigmatic in their responses, causing confusion and misunderstanding. Their lack of sufficient justification to their practices only reinforces the idea that they are hiding something, especially with the case of Saeed. They have demonstrated a whole level of preparedness to reject accountability through their refusal to disclose important information such as their code of conduct.

Timeline of Saeed’s Case

1958

  • Saeed Dezfouli born in Iran. 

1983

  • Migrated to Australia. Immediately began studying a Bachelor of Arts, majoring in political sciences. 
 1986
  • Saeed became a citizen of Australia, and began working as a court interpreter for the Ethnic Affairs Commission NSW,

2001

  • Throughout 2001, Saeed received death threats. Decided to take action, and thus warned authorities on his concerns prior to committing the crime. He was accused of setting fire to the foyer of the Community Relations Commission (formerly the Ethnic Affairs Commission) at Ashfield by using a container of petrol. He was taken to Burwood police station where he was insulted, assaulted and unlawfully interrogated by the NSW Police. He was subsequently charged with several offences.

2002

  • 9th of January, Saeed was arrested and detained in the forensic hospital.
  • Douglas Holmes makes first contact with Justice Action on behalf of mental health consumers concerning mistreatment in Long Bay Correctional Centre.
2007
  • Saeed lodged a complaint to the Administrative Decisions Tribunal (ADT) on grounds of discrimination that he could not undertake any educational courses and was denied access to educational resource

2008

  • 16th of March, Long Bay lockdown. Saeed created petition- signed by 32 patients. Victory for mental health patients.
2009
  • Anti administration complaint dealt with. Preliminary hearings were held during this period.
  • 18th of June, Brett Collins makes first visit to become primary carer of Saeed Dezfouli.
  • 20th of August, Letter sent to the Mental Health Review Tribunal following a hearing regarding issues of forced medication, choice of psychiatrist, transfer to different ward, access to escorted leave and education and recognition of rights.
  • The Administrative Decisions Tribunal found that Saeed was unfit to represent himself due to the fact that he was a forensic patient. The court referred Saeed to PILCH (Public Interest Law Clearing House) training in which a lawyer was allocated to represent Saeed (Robert White).
2010
  • 16th of September, name challenge began with Saeed writing to Justice Action asking to make an application under section 162 of the Mental Health Act (2007) allowing him the right to publish his own name.
  • Lawyers, Paul Bodisco, Christine Nash and Andrew Dikha helped argue Saeed’s case.
  • 23rd of November, there was the appeal hearing at the Supreme Court held on the 11 of February 2010.
  • Case heard on the 26th of November, in the Supreme Court. Justice Peter Johnson handed down his decision. Case was lost and $36,000 in costs was awarded against Saeed and Brett Collins (primary carer).

2011

  • 24th of March, 16th hearing. The application made for adjournment was not given the ‘treating team report’ before the hearing. Courts refused discussion about legal representation and permission to publish his name in the Herald (regarding the refusal to adjourn).
  • Legal aid funding was approved and granted to Saeed’s lawyers (Robert White) in May.
  • 4th of August, the Hearing of appeal to use his name to the Supreme Court- against Tribunals rejection.
  • 29th of September, 17th hearing. Victory! Justice Action workers allowed in the forensic visit Saeed after two years, click here for a report on the visit.

2012

  • 13th of December, attorney general relents in attack on patient. Justice Action welcomes the Attorney Generals statements that he will reconsider his demand for $36,00 in court costs from a mental health patient and his primary carer who challenged his treatment.
  • Mr. Collins held a media conference on the steps of the Local Court Downing centre at 1pm today to deliver his response to the arrest threat from the crown solicitor for the attorney general.

2013

  • 11th March 2013, Mr Saeed Dezfouli filed an application in the supreme court of NSW for leave to appeal from a determination made by the mental health review on the 30th of January 2013.
  • 26th of March, the amended summons seeking leave to appeal was filed. Bret Anthony Collins acted on behalf of Saeed Dezfouli, versing the Mental Health review tribunal.
  • 15th of April, the National inclusion conference was held in Canberra, and Saeeds case was heard in a public arena.
  • 7th of June, the Affidavit of Brett Anthony Collins was filed, and contained matters to do with the case of Saeed.
  • 27th of July, the Mental Health Review Tribunal chaired by an ex-Supreme Court Justice conducted a hearing for the case of A with A’s psychiatrists.

2014

  • 20th of February, Saeed Dezfouli held face down by seven nurses and a doctor, and was injected with 150mg of Paliperidone as a new trial medicine by the Forensic Hospital, after twelve years of other forced medication, and goes on hunger strike in protest.
  • 22nd of February, Saeed Dezfouli calls off his hunger strike.  
  • 12th of March, the Mental Health Review Tribunal conducts an urgent review on Saeed's case. 
  • 16th of May, Mental Health Review Tribunal threatens indefinite imprisonment.
  • 4th of September, Mental Health Review Tribunal Hearing followed a series of meetings with the hospital that were held to address why key recommendations from the last MHRT hearing had not been implemented.
  • 8th of December Saeed Dezfouli was called into the Doctors office, restrained by seven nurses and forcibly injected  with medication that he had a known sensitivity to. This medication had been changed without any consultation or clinical justification.

2015

  • 2nd of March two cost orders previously issued against Brett Collins, coordinator of Justice Action and Saeed’s primary carer, had been waivered
  • 26th of March the Mental Health Review Tribunal reasserted its unwillingness to intervene by reviewing and authorising medication changes made by Justice Health

About Saeed

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“I am a patient with patients’ rights, an inmate with inmates’ rights and a human being with human rights. These rights have been fundamentally and severely violated by unprofessional and sadistic state government employees in the positions of psychiatrists, psychiatric nurses and prison officers. They are required to go by the law, regulations, policy and procedures, codes of conduct practice and ethics, but they don’t.”

- Saeed Dezfouli

INTRODUCTION 

 

The NSW Health Department’s mental hospital is getting exposure through the window of patient Saeed Dezfouli. His case significantly highlights the issue with government bureaucracies dealing with challenging people at the individual level, lacking compassion, concern, or rational behaviour.

 

HISTORY 

 

Saeed Dezfouli was born in Iran in 1958 and came to Australia in 1983. Upon arriving in Australia as a refugee, he earned a degree in Bachelor of Arts and majored in political sciences. In 1986 he became a citizen of Australia and was working as a court interpreter for the Ethnic Affairs Commission NSW. Throughout 2001, he became fearful of his life and safety and stated that he had been receiving death threats. He felt that he was constantly under surveillance. He said that he warned the authorities by sending them letters about his concerns for 5 months prior to the offence.


He was accused of setting fire to the foyer of the Community Relations Commission (formerly the Ethnic Affairs Commission) at Ashfield by using a container of petrol. Three female employees were trapped by the flames and were taken to hospital in an unconscious state. One of them, a 53-year-old woman from Bonnyrigg, subsequently died from her injuries. Most importantly there were other mitigating factors. Unfortunately on the day of the fire the emergency fire exit door was locked and the rubbish in the foyer hadn’t been collected and the rubbish blocked the path of the employees escaping the smoke and flames. He was taken to Burwood police station where he was insulted, assaulted and unlawfully interrogated by the NSW Police. He was subsequently charged with several offences.

 

In contrast to his treatment, Saeed presents no threat to the community. He needs support as an Iranian refugee affected by a heart condition and stress. Saeed is evidently remorseful for his actions and has regrets for what he has done.

 

However, the main issue that needs to be raised is the irresponsibility demonstrated by the authorities by ignoring his claims that subsequently triggered Saeed’s unlawful actions. Saeed did everything within his power to communicate his concerns to authorities, yet these threats were not taken seriously and Saeed followed through by setting fire to a government office. Although he clearly outlined his intentions, the threats were not deemed serious enough to warrant an investigation, highlight the failure of response mechanisms by government officials.

 

This tragedy would never have happened in the first place if proper health and police intervention frameworks were enacted.

 

DETENTION IN LONG BAY FORENSIC HOSPITAL 

 

Mr. Dezfouli has been in detention since 19 January 2002. On 13 February 2002 Saeed was transferred to Long Bay Prison Hospital and in 2004 he was found not guilty due to mental illness. Mr. Dezfouli is not a violent or aggressive man, as has been stated many times by his treating doctors and nurses. He is highly intelligent, articulate and politically aware. He presents no threat to the community and had not intended the harm that was caused more than 9 years ago.

 

If Saeed was tried through the criminal justice system he would have already served his time and been released. However, because he was tried through the mental health system, he has served a period of over 9 years to date and is now being held indefinitely, despite ongoing reviews with the Mental Health Review Tribunal.

 

Mr. Dezfouli, up until the middle of July 2011, was held in the highest security area at Long Bay Forensic Hospital, which he shared with 7 other patients who are classified in the “lowest functioning group.” He was, and is continued to be denied access to ground leave and has restricted access to a small courtyard. Saeed, along with fellow patients, are denied any access to education facilities, despite education as one of the aims of the Rehabilitation wing in which he is currently held.

 

Since his imprisonment, Saeed has been held indefinitely and subjected to continuous abuse, including:

  • Numerous periods kept naked in a solitary confinement cell for days to “break him down”.
  • Broken ribs and severe bruising and pain from forced medication.
  • Periods of incarceration in cells without basic hygiene, such as four days without toilet paper.
  • In January 2005, he was brutally assaulted by DCS officers resulting in a permanent back injury.
  • Hospitalization due to injuries inflicted by DCS officers.

Mr. Dezfouli now suffers from a heart condition, ulcers and diabetes as a result of the side effects of anti-psychotic medications combined with daily exposure to an oppressive and suppressive regimen.

 

DEFENDING HIS RIGHTS 

 

Saeed is in a unique position. He has watched the system from inside for nine years and continues to point out its hypocrisy, whilst Justice Health (an arm of the Health Department) tries to prevent his outcry and force him into submission with the rest of the patients. He is a gentle person – staff agree he is not violent, yet every two weeks he is restrained and forcibly injected with a powerful sedative, which leaves him feeling severely agitated and faceing negative side effects. He is refused a choice of psychiatrist, education and exercise and is not permitted new visitors. Justice Action became his Primary Carer when there was no one else.

 

His mistreatment is a result of Saeed protesting and fighting for his rights and the rights of his fellow inmates. Over the years he has made a number of complaints of assaults by staff, and sustained a hunger strike for his rights for 52 days. He was involved in a campaign to allow patients more time out of their cells, in which at the time they were spending a good part of the day locked inside their cells. He was also involved in the signing of a petition that stated:

 

26 of the 30 patients at Long Bay Prison Hospital in the ward have complained to the Health Care Complaints Commission and the NSW Ombudsman about notes on their psychiatric conditions that are fabricated and saying the nurses and doctors rarely bother to talk to them. Several prisoners had gone on hunger strikes. Many patients have been overdosed and medicated against their will.”

 

Although Saeed forwarded the petition to the NSW Ombudsman, it was decided that the complaint would not be pursued and as such, the issues were not addressed. Attached to the petition was Saeed’s complaint about the issues regarding the medical treatment of patients inside Long Bay Forensic Hospital, some of the issues included:

  • That the nurses do not provide adequate nursing care to patients;
  • That the nurses fabricated notes and call them nurses’ notes;
  • That the psychiatrists show up for a couple of days a week for a couple of hours a day, read the nurses’ notes and then write prescriptions without seeing patients;
  • That some patients do not speak to a doctor for months;
  • That many nurses do not speak to many patients for months.

We advise no further action occurred nor were any charges laid.

 

Justice Action believes that Mr. Dezfouli is suffering because he won’t be silenced. Justice Health has absolute power as patients have no finite sentences and are totally dependant on their treating psychiatrist. The principles of patients’ rights under section 68 of the Mental Health Act 2007 (NSW)[1] do not apply in practice. In this system of “care”, no one cares.

 

Saeed appealed to the Supreme Court against the Mental Health Review Tribunal’s refusal to order changes to his treatment. The Tribunal and the Attorney General tried to block this first real appeal against its new powers to make orders, refusing to supply its decision, until an audio record proved Saeed’s entitlement. It appears that the Tribunal sees its role as supporting Justice Health and not making a separate judgment. The lack of complaint from those around Saeed demonstrates widespread abuse and how compromised individuals participating in the health system are.

 

CHALLENGE TO TRIBUNAL'S BAN ON SAEED'S NAME

 

An interpretation of The New South Wales Mental Health Act 2007 (MHA) by Justice Health is currently preventing Saeed Dezfouli from using his own name in his fight to gain freedom. Section 162 of the MHA[2] states that:

 

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) to whom a matter before the Tribunal relates

 

Since this case involves significant matters affecting other patients, powers of Justice Health and that of the Mental Health Review Tribunal (MRHT), Saeed wants to ensure it is conducted openly in the public, which allows him to express himself in a manner that is open and honest. Justice Action agrees with him entirely as the secrecy has allowed abuses to occur in the past without adequate accountability.

 

Saeed argues that section 162 is intended to protect him from exploitation and exposure by the media, but instead it is being used to protect the Health Department from being held accountable for the treatment of citizens entitled to care and assistance. It has been used to prevent the exposure of a system that allows the abuse of the human rights of nameless, faceless, dehumanised mental health consumers.

 

In short, he wants his right to have his own name returned to him, and for the provision intended for his benefit, and not used to allow an abuse of power against him as a human being. We believe Saeed has the right to have his name distinguished from others and recognised as a unique individual.

 
CONCLUSION

 

While Mr. Dezfouli did commit an act that violated the criminal justice system, it does not mean he should be subjected to abuse by the mental health system. The fourteen years he has spent in custody is well above the sentencing trends for the offences he committed. However, unlike the average prisoner, Saeed faces no concrete release date and is faced with the possibility that he may spend the rest of his life within the forensic prison system as the Mental Health Review Tribunal refuses to provide him with the answers that he is entitled to. Just because Saeed Dezfouli has a mental illness, as diagnosed by the Health Department, does not mean that his rights, as a consumer of the criminal justice system and as a member of the Australian community, are no longer valid.


Read More:

Media Releases and Resources

Campaign Documents

The Treatment of Saeed Dezfouli

History of Treatment


In February 2002 Saeed was transferred to Long Bay Prison Hospital and in 2004 he was found not guilty due to mental illness. Since that time he has been held indefinitely and subjected to continuous abuse. His mistreatment by the staff of Justice Health and the department of corrective services at Long Bay hospital can be seen through the following examples.

  • A number of times they kept Saeed naked in a solitary confinement cell for days to "break him down".
  • The first time, when they forced medication into him by injection they broke two of his ribs. The second time they left him bruised all over and in severe physical pain for days.
  • Twice they left him in a cell without toilet paper for four (4) days.
  • DCS Officers broke a number of his bones in LBH-1.
  • In January of 2005 Saeed got brutally assaulted by DCS Officers and as a result got a permanent back injury. Saeed was taken to Prince of Wales Hospital Emergency Room for the injuries inflicted upon him by DCS Officers.
  • Saeed now is suffering from heart condition, ulcers and diabetes as a result of the side effects of anti-psychotic medications combined with going through a daily oppressive and suppressive regimen.

     

“What’s going on here is totally inhumane and unlawful. It is passive and active physical and mental torture, sexual harassment and sexual assault, which are severe violations of the Provisions of NSW Mental Health Act 2007 and The Universal Declaration of Human Rights including Article 5, which states, "No one shall be subjected to cruel, inhumane or degrading treatment or punishment".

Saeed Dezfouli

 

A petition from the patients was reported in The Australian Newspaper on 31 October 2005.

 
“26 of the 30 patients at Long Bay Prison Hospital in the ward have complained to the Health Care Complaints Commission and the NSW Ombudsman about notes on their psychiatric conditions that are fabricated and saying the nurses and doctors rarely bother to talk to them. Several prisoners had gone on hunger strikes. Many patients have been overdosed and medicated against their will.”

Saeed Dezfouli


Saeed wrote to the NSW Ombudsman, concerning a complaint about the conduct of medical officers. The complaint raised the following issues regarding the medical treatment of patients residing in Long Bay Hospital Area…


1. That patients are grabbed and dragged to the cells and get injected whilst being assaulted;
2. That the nurses do not provide adequate nursing care to patients;
3. That the nurses fabricated notes and call them nurses notes;
4. That the Psychiatrists show up for a couple of days a week for a couple of hours a day, read the nurses’ notes and then write prescriptions without seeing patients.
5. That some patients do not speak to a doctor for months;
6. That many nurses do not speak to many patients for months;
7. That some patients don’t speak English for their English is limited and that no doctors or nurses speak to them at all;
8. That a number of patients were kept in segregation by false and fabricated accusations and allegations lodged against them by the nurse or prison officers; and
9. That many patients are being over dosed.

Attached to the complaint were the signatures of twenty-five patients. Noted in their letter HCCC stamped 11 October 2005 by Kieran Pehm Commissioner but no charges occurred. Despite receiving the letter, as well as the many signatures, the complaints officer did not pursue the issue and nothing happened.


Current complaint details Sexual Assault (HREOC case no 081005)

On the 26th of March 2007 Saeed said that officers at Long Bay Prison Hospital in C Ward sexually assaulted him. He said that a number of times he has been insulted, assaulted, injured, sexually harassed and sexually assaulted by some DCS officers and staff of Justice Health. As a result he believes that his complaints have usually backfired on him. For instance he said that the prison officers said they would go on strike and voted to get him moved out of the C-Ward area of the prison hospital. He said he was then transferred to D Ward, which is a very violent and unpredictable ward where he was twice assaulted and injured by DCS Officers and once by an Inmate/Patient.

Saeed was placed in DCS Segregation as soon as he complained about being sexually assaulted by DCS Officers.

"I am a patient with patients rights, an inmate with inmates rights and a human being with human rights".

Saeed Dezfouli

Forced Medication For Management Purposes

Contrary to the evidence presented, we lost the latest hearing. With the support of three members of the Justice Action team, Malcolm Baker attended the Mental Review Health Tribunal hearing on the 19th of April, 2018 at 12:45pm. Justice Health brought in its heavy team of 3 psychiatrists and were committed to holding him. But they had no evidence to support them of risk of serious harm to self or others as required by the law. It was obvious that they thought they didn’t need to. Also the side effects of the medication were pitiful. Malcolm was dribbling and couldn’t hold his sentences together. The Tribunal agreed that the side effects were bad and showed sympathy.

The Tribunal gave Justice Health the Order for another 3 months, half the time normally applying, only 2 months from the last one, and clearly weren’t happy to do so.
We felt it was because the culture in prisons is that the Tribunal almost always supports Justice Health. Justice Health agreed that they couldn’t enforce the order in Silverwater prison and would need to move him back to Long Bay to forcibly inject him again.

When asked by the chair, “what would be the worst that could happen if Malcolm wasn’t forcibly medicated,” Malcolm’s leading psychiatrist said “he could become difficult to manage”. That said it all and nobody had any problem with that. It was a clear admission that Justice Health saw its responsibility to help manage the prison rather than to look after the health of its patient. The side effects of the medication were horrendous – clearly a poison to his system.

Justice Health tried to justify its desire to forcibly medicate Malcolm with a misleading 10 page statement suggesting that he had a long history of proven mental illness. Malcolm’s team dissected it and showed that not only did the two psychiatrists at his trial in 1992 say he was not psychotic they also said he would not be a danger to the community in the future. Also:

He has demonstrated successful resettlement in mainstream Nowra prison in 2014, and for long periods before and after without being forcibly medicated. This was for periods from the 13/11/2012 to 04/02/2015, 20/04/2015 to 29/06/2016 and the 14/07/2016 to 02/01/2018. He had been held for fifteen years in virtual solitary confinement in Goulburn SuperMax for no stated justification, however he survived that treatment with good humour and stoicism, remaining in contact with his family and Justice Action.

Several times, Mr Baker has been forcibly medicated on the basis that others were attacking him or he was writing letters to politicians like Senator Clive Palmer.

On the last three occasions before February 2018, when he was taken before the MHRT the Tribunal rejected the application by Justice Health for a CTO. This occurred on the 07/08/2012, 30/04/2015 and the 24/07/2016.

It was admitted before the Tribunal hearing on February 1st, 2018 by the head of the Treating Team that Malcolm hadn’t attacked anyone or harmed himself during the twenty-six years of his imprisonment. No evidence has been ever produced to suggest otherwise. He is a non-violent prisoner.

After the hearing Malcolm gave each team member a warm hug goodbye. He then turned to Brett and quietly said; “now I’m just going to go back to my cell, and they’re going to inject me”. Each member of the Justice Action’s team has felt his or her heart break for Malcolm in the wake of this disappointing result.

Justice Action sees Malcolm Baker’s case as one that is able to demonstrate the inhumane culture of health in prisons. Justice Action will certainly appeal to the Supreme Court. We began the process Friday requesting the audio transcript.

 

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