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Saeed Dezfouli

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

 

 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.

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

Due to a request from the Mental Health Review Tribunal, the Justice Action team was forced to remove the names of persons related to the proceedings. Our plaintiff’s name has been replaced with ‘A’. This occurs despite the clear wishes of A to have his name publicised and the basic entitlement to freely and publicly criticise the abuses of justice done to him.

On Thursday, 27 July 2013, the Mental Health Review Tribunal chaired by an ex-Supreme Court Justice conducted a hearing for the case of A with A’s psychiatrists. Representing for the hospital was the head of the treating team, a nurse, a registrar and others. Solicitor Peter O’Brien and 2 members of Justice Action were also there to support A. Justice Action’s publication of Mad in Australia was distributed to the hearing’s attendees.

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'Immoral' treatment of Saeed Dezfouli

Untitled-2Brett, 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.

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Why Saeed's Battle Must Be Won

 

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.

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 28th May 2010 that: ‘we cannot and will not be appearing on Monday at the court to enter into hearing proceedings without counsel’s opinion and funding for counsel.’
  • The second set of solicitors withdrew their legal representation in an email dated Thursday 2nd September 2010, stating ‘… we have no alternative than to cease acting if his [A’s] instructions are that he wishes to proceed with Supreme Court action.’
  • Lastly, on Tuesday 16th September 2010, A’s barrister, Paul Bodisco, withdrew his legal support on the basis that he was ‘double booked’ and thus, unable to work on 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

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

 

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