On 4 September 2014 the Mental Health Review Tribunal (MHRT) convened for Saeed Dezfouli. The 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. Justice Health’s conduct during those negotiations demonstrated an absolute unwillingness to be held accountable for their actions and a cavalier approach to the implementation of MHRT recommendations. The Lindsay judgment giving power to the Tribunal had been ignored by the hospital. Here is our Media Release.
This report details the exchanges between Saeed, his primary carer and Justice Action Coordinator, Brett Collins, his treating team from Justice Health in the period between the publication of the MHRT decision on 2 May 2014 through to the most recent hearing on 4 September 2014. The first section of this report provides a background to the recent series of meetings and hearings, including an outline of media interest in Saeed and details of the meetings that occurred. Section 2 discusses the problems with with the MHRT report handed down on 26 August 2014. The third and final section details the issues with the subsequent Hearing on 4 September 2014.
1.1 ABC - Background Briefing
The ABC Radio program Background Briefing took an interest in Saeed’s case in early 2014. The program was particularly concerned with the policy reasons for the restriction under s 162 of the Mental Health Act 2007 (NSW) that prevents the publication of Saeed’s name. The program included opinions from legal experts stating that s 162 actually acts to “protect the mental health authorities who run the Forensic Hospital from public scrutiny.” The article quoted Sascha Callaghan from the Centre for Values Ethics and the Law in Medicine at Sydney University stating the policy reasons of vulnerability of patients “can actually be used to restrict someone’s ability to vindicate their rights.” The program illustrates growing public concern about the transparency of Mental Health Review Tribunal proceedings and the realisation that current procedures are not necessarily for the protection of the patient, but to deny the accountability of people working the system.
1.2 2 May 2014 MHRT Decision
The Tribunal reviewed Saeed’s case 20 March 2014 and the resulting decision was published on 2 May 2014. The decision gave two key recommendations under s 76A of the Mental Health (Forensic Provisions) Act 1990 (NSW):
i. That Saeed’s treating team facilitate access to a consumer worker to assist with his recovery and rehabilitation “as soon as practicable.”
ii. That Saeed’s treating team facilitate access to a computer for education purposes “as soon as practicable,” pursuant to Saeed’s existing educational courses.
1.3 Follow-up Meetings
After the decision and prior to the 4 September 2014 hearing, three follow-up meetings were held between Justice Health, Saeed’s treating team and Brett Collins, Saeed’s primary carer. These meetings revolved around whether progress was being made on the MHRT recommendations. The meetings took place on:
• 15 May 2014
• 30 June 2014
• 25 August 2014
Justice Health’s conducting the latter two meetings have been cause for serious concerns for Justice Action and Saeed.
1.3.1 30 June 2014 Meeting
The meeting on 30 June 2014 demonstrated the unwillingness of Saeed’s treating team to be held accountable for their failure to implement the MHRT recommendations. The treating team was aggressive and treated Saeed and Brett with contempt, hostility and rudeness throughout the meeting. The psychiatrist in charge said that the reason Brett was not kept up-to-date as Saeed’s primary carer (as he was entitled under the Mental Health Act) was because the psychiatrist in charge would not respond to emails that could be used against them. This was a flagrant example of the treating team’s aversion to being held accountable for their actions.
Justice Health’s failure to implement the two MHRT recommendations was raised at the meeting. The treatment team gave the excuse that access to a computer had not been implemented because Saeed had not directly asked for it. No reason was given as to why access to a consumer worker had not been implemented.
The non-implementation of an earlier recommendation was also discussed at this meeting. On 15 May 2014, it was agreed that the false accusations made against Saeed in his Management Plan would be removed. The treating team refused to correspond with Brett about the plan altogether because they said it was “private.” This runs contrary to an email from Dr. Mackinnon, stating that the team is “committed to engaging with consumers and their families, carers and advocates.” This is yet another demonstration of the treating team’s absolute unwillingness to take responsibility for the shortcomings in their treatment of Saeed.
At one point during the meeting the psychiatrist in charge threatened to double the dose of Saeed’s medication and also change to the use of Clopixol injections. Saeed’s reaction to this was mocked and accompanied by the response: “we don’t want you to kill anyone.” This statement was completely uncalled for and offensive to Saeed, who has a record of being a gentle patient for more than twelve years. This threat also adversely affected Saeed’s trust of the treating team. Brett emphasised that trust is something to be earned and not compelled by threats. To this, the psychiatrist in charge and the primary nurse laughed out loud and said Saeed “shouldn’t expect to be treated specially.” This illustrated that the treatment team believes that treating a patient with respect and decency amounts to special treatment. The lack of acknowledgement of the link between positive engagement and trust further indicates the damaging attitude of Justice Health personnel.
1.3.2 25 August 2014 Meeting
A second meeting was held on 25 August 2014 to address Brett and Saeed’s concerns over how they were treated and the frustrating non-conclusive outcome of the 30 June 2014 meeting. Brett had to write numerous emails before a follow-up meeting was finally called. Unfortunately, the 25 August 2014 meeting proved as ineffective as the preceding meeting. The meeting merely went through the motions of allowing Saeed and Brett to discuss their concerns, but the lack of cooperation from Justice Health precluded any real results. Again, Saeed and Brett were left frustrated and confused with the surprising lack of compassion and capability shown by the treating team.
2 26 August 2014 Report by The Forensic Hospital for the MHRT
On 26 August 2014 the Forensic Hospital published a Report on Saeed and distributed it to the MHRT. The report included numerous problems, both in procedure and substance.
The report indicated the date of the MHRT Hearing was to be 4 September 2014. The first problem was that Saeed, Brett and other representatives were not given reasonable time to respond to the report – a basic requirement of procedural fairness. The two-week period previously agreed to was completely disregarded, leaving Saeed and Brett unable to put together the evidence required to respond to the report. Speaking to Saeed to produce this evidence would have required an application for leave from the hospital. Despite being referred to on page 46 of the 2 May 2014 MHRT decision, the 26 August 2014 Report made no mention of this – a direct contradiction with the information in the earlier MHRT decision. An adjournment was requested because of the timing issue, but the Tribunal refused to grant one.
The Report equates Saeed’s voluntary submission to treatment with his being safe in the community. Further, on pages 2 and 16 the Report Saeed is painted as a violent person, a baseless claim that is of no substance. On page 5 the Report mentions Saeed being “highly socially isolated.” However, a long list of people have applied to visit Saeed and have had their applications denied. If he is isolated, it is because of the way the Forensic Hospital restricts his visitors. Justice Action has numerous emails to Justice Health in an attempt to have specific names cleared to visit Saeed, but no action has been taken in response.
The Report also made no mention of the psychiatrist in charge’s threat to double Saeed’s medication dosage occurred at the previous hearing. Since Saeed had put this threat in a blog entry it appears that that specific suggestion has been abandoned. This sequence of events might explain why Justice Health has objected so strongly to Saeed’s blog in the past – as an open channel of communication it allows some accountability in a system that seems to be severely lacking transparency.
The Report makes no mention of the second recommendation in the 2 May 2014 MHRT decision to provide access to consumer workers. Saeed has not seen a single consumer worker in his capacity as a consumer. With regard to the first recommendation of access to a computer for a reasonable time, Saeed had been given very limited access with no additional programs and was not even told the computer was available until Justice Action followed up to ask what was happening. Given these failings, it is clear that no genuine attempt to facilitate the recommendations of the MHRT has been made by Justice Health. The Report omits to mention any of these systemic failures, or the significant effort that has been required to engage with Justice Health on these issues. It was clear contempt for the Tribunal.
3 4 September Tribunal Hearing
3.1 JA Member Denied Visiting Access to Tribunal Hearing
Shontelle Standen, friend of Saeed and Justice Action Team Member, was arranged to attend the hearing on 4 September 2014. On the morning of the hearing, Shontelle rang the hospital to confirm that she was still cleared to attend the hearing. Shontelle was advised her visit had yet to be approved. In a follow-up call by Justice Action at 12:30 on the same day, the hospital took down Shontelle’s details but advised it would take a couple of days for approval to be granted. Hospital staff stated that internal processes such as this this take time and approval would not be given in time for the hearing later that day.
Having friends of Saeed attend Tribunal hearings has never a problem in the past. No one was notified that the procedure had changed and that special approval was now required. Luke the NUM for Dee Why admitted that the system had broken down for notification of visitor approval. Brett had raised the continual problems with the entry of visitors in an email to the Hospital Director Adrian Keller on 30 June 2014, without a response. None of Saeed’s friends were subsequently notified that they could visit him, and after seven phone calls and emails following up the applications, and no decision being made, Justice Action assumed that approval for normal visits was deliberately being delayed.
3.1 The Hearing
The hearing itself was telling of the treating team’s failures and general lackluster approach towards Saeed. The failure to implement the two key recommendations regarding Saeed’s access to reasonable time on a computer and access to consumer workers was raised at the Hearing. The MHRT President said he was disappointed that these recommendations were not acted upon and that “sometimes the system needs a kicking.”
3.1.1 Access to Computer Recommendation
The excuse given for the delay Saeed’s recommended right to access to a computer was that there were issues of security and safety to be addressed. The hospital’s apparent concern was that having access to cables might increase Saeed’s capacity for self-harm. Brett raised the point that the Dee Why Ward was a rehabilitation medium security ward that allows CD players among other electrical equipment. It is not a place where people will commit self-harm with electrical cords, and that electrical cords were already present regardless.
The psychiatrist present said that if Saeed made an effort to be more compliant and speak openly with her, she would assist with the computer access. However, Saeed’s solicitor was quick to dismiss this suggestion, arguing that the recommendations made by the MHRT were not to be used as inducements to force Saeed to be submissive. The MHRT President agreed, and said the issues of Saeed’s getting on with the psychiatrist and his access to a computer and education resources should be dealt with separately, and instructed Justice Health to do so, and to report back to him with any reason why computer access shouldn't happen in the ward.
3.1.2 Access to Consumer Workers
The failure to implement Saeed's access to consumer workers, as the Tribunal had recommended, was then raised at the Hearing. The hospital said that they were in the process of bringing them in, but that security protocols were delaying the process. Brett highlighted that many of the sixty consumer workers employed by the Health Department already had access to high security areas in other hospitals, so the extra protocol was not a time-consuming task. The Forensic Hospital’s tactic of hiding behind procedural excuses demonstrated that they were unwilling to obey Tribunal direction in good faith at all. The Tribunal looked ineffectual and Saeed's complaints were proved justified.
3.1.3 Saeed’s Blog
The President said that he'd received complaints from the Hospital about Saeed's blog on the JA website. It was suggested that entries might contravene s 162 of the Mental Health Act 2007 (NSW) because it included the names of people working in the hospital. Justice Action undertook to make a careful analysis of the content of Saeed’s blog after the hearing, and concluded that none of the information was in breach as it complained of staff behaviour in the hospital as Saeed was entitled to do, and nothing revealed at Tribunal hearings. It reported that to the Tribunal.
The hospital was asked to report to the Tribunal on progress with the Tribunal recommendations in its 2 May decision. Further, it was decided the MHRT would reconvene in six months instead of a proposed twelve months to monitor progress with hospital undertakings.
The hearing demonstrated Justice Health’s cavalier approach towards Saeed and others in their care. The defensiveness of the Forensic Hospital was evident throughout, from the record of their treatment of Saeed and Brett in meetings to their total failure to implement key recommendations handed down from the MHRT. The problems with the system were accurately captured by the MHRT President’s obvious frustration, and comments about how disappointed he was at the persistent failures and that “sometimes the system needs a kicking.”
Justice Action will make sure that those employed to assist in Saeed and others' treatment start to see their obligations differently, and raise their effort to a higher standard than has been demonstrated so far. Saeed is entitled to support, to be treated honestly and with respect as the law requires. At least the Tribunal got a whiff of what Saeed has endured.