Biometrics refers to the automatic identification or identity verification of living persons using their enduring physical or behavioural characteristics. Many body parts, personal characteristics and imaging methods have been suggested and used for biometric systems: fingers, hands, feet, faces, eyes, ears, teeth, veins, voices, signatures, typing styles, gaits and odours. By far the most significant negative aspect of biometric ID systems is their potential to locate and track people physically.
The severe chilling effect biometrics would have if adopted as a technique to track individuals is unconscionable. Justice Action believes that the ability to identify and track someone to this regard counters basic freedoms and human rights and should be avoided at all costs. Of particular concern is the extent to which this would affect the criminal realm. The methods by which authorities collect evidence against an accused would be questionable at best, and likely result in numerous wrongful convictions - something our justice system cannot afford.
At 30 June 2005 there were 25,353 prisoners (sentenced and unsentenced) in Australian prisons, an increase of 5% (1,182 prisoners) since 30 June 2004.
This represented an imprisonment rate of 163 prisoners per 100,000 of the adult population. Unsentenced prisoners comprised 20% (5,133) of the total prisoner population. Most (60% or 15,308) prisoners had served a sentence in an adult prison prior to the current episode.
“Make Orders!” says Saeed.
Saeed Dezfouli is locked in a mental health system with no oversight. The Mental Health Review Tribunal (MHRT) refuses to defend the people whom it was designed to protect. It is less than a rubber stamp.
The Mental Health Review Tribunal is a dysfunctional and corrupt organisation and a waste of the taxpayer’s money. This disgraceful Tribunal hides behind the NSW Mental Health Department. Make orders as you are required!” – Saeed Dezfouli (9 March 2015)
As outlined in the Mental Health (Forensic Provisions) Act s 40 (a-c), the MHRT exists to “adopt the perspective of the protected person and his or her best interests” with primary regard to the protection of the individual and the community. In addition to this, Lindsay J notes that the MHRT possesses the “implied authority to uphold, protect and fulfil the functions conferred on it by statute”: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315.
Hence, the MHRT wields a clear degree of responsibility and influence as a body that guides the treatment, care and control of a forensic patient. Whether or not the MHRT is able to adequately fulfil its protective obligations is another question altogether.
Of pressing concern is the limited employment of binding orders, which are necessary to enforce the recommendations provided by the MHRT. Such a lack of legal enforcement has the alarming potential to result in abrupt changes of treatment running contrary to the recommendations given. This has been the case in the most recent update on Saaed Dezfouli, who on the 8th of December, 2014, was forcibly injected with medication for which he had a known sensitivity to, that had been changed without consultation or clinical justification.
Tribunal fails to interfere
The Mental Health Review Tribunal sat on the 26th March 2015 in light of the change in Saeed Dezfouli’s medication, from paliperidone to forcibly injecting clopixol.
The Tribunal asserted it would not intervene in the actions and decisions of the psychiatrist and the treating team, rationalised on the grounds of the overwhelming number of cases that could be presented before the Tribunal if every medication change required their authorisation. The scope of the Tribunal’s intervention to review and authorise clinical practices could be limited, as suggested by solicitor Peter O’Brien, to where changes in medication involves forcefully medicating without consent. The Tribunal asserts it is not its practice to intervene.
Despite refusing to intervene, the Tribunal inquired into the reasonableness of the treatment. This issue was superficially dealt with as the psychiatrist merely informed the court that such a change in medication would have been administered by other psychiatrists in the reasonable course of clinical action. The psychiatrist also stated that there was no “peer reviewed evidence” of the negative side effects of clopixol. The Tribunal President believed the drug had not been prescribed to Saeed for a long enough period to observe the effectiveness.
In 2014 the Tribunal made an order to provide Saeed with access to a consumer worker and a computer. At the 26th March 2015 hearing the Tribunal clarified that they were mere recommendations and still stand. When questioned on why a consumer worker was not yet allocated to Saeed, despite the recommendation being a made a year ago, slow processing was blamed. The psychiatrist also stated there were objections to providing Saeed with an advocate by the NSW Consumer Advocacy Group. Brett Collins clarified that a consumer worker was sought from NSW Health, not an advocate.
Only four days prior to the assault on Saeed, Justice Action, on Saeed’s behalf, had sent an email to the hospital administrators stating that they had “run out of patience” due to Justice Health’s disregard of the MHRT’s recommendations for Saeed’s access to a computer and a consumer worker. The email read:
“Your treatment of him is clearly unfair and wrong. It is clear that you don’t respect the Mental Health Review Tribunal, Saeed or me. We demand the answers to which we are entitled, to the questions presented carefully underneath.”
“It is Saeed’s fifty sixth birthday today. We are pleased not to listen to your false excuses for further disrespect.”
Saeed was attacked on Monday the 8th of December 2014 at 2:15pm. Memory (a nurse) informed Saeed that the psychiatrist, Dr Barbara Sinclair, wished to talk with him for a minute. Saeed said that he did not wish to talk unless Brett Collins (his primary carer) was present. At 3:15pm, nine nurses approached Saeed and stated that they wanted him to go to the treatment room.
It was expected that Saeed would accompany the nurses to receive his first dosage of the changed prescription from paliperidone to 200mg of Clopixol, to be administered fortnightly. Saeed refused because of problems that Clopixol had caused him between May 2009 and May 2012; he had been on a 150mg dose but had been taken off the drug for the past two and a half years due to negative side effects.
Upon refusing to enter the treatment room, Saeed was dragged to his own room instead. His face was pushed down onto the floor and someone sat on him to hold him down, resulting in Saeed feeling as though he “couldn’t breathe”. His protests and screaming went ignored, and his pants were forcibly removed so he could be injected in the buttocks. At 3:45pm the same day, Saeed phoned Brett about the assault: “Brett, I am shocked; they just attacked me.”
The Crown Solicitor’s office sent a letter to Justice Action on the 2nd of March 2015 informing them that two cost orders previously issued against Brett Collins, coordinator of Justice Action and Saeed’s primary carer, had been waivered. These costs were initially issued by the Attorney General of NSW for the hearing of Saeed’s case in court.
This was a huge relief for Justice Action, which had dedicated years of work towards the case for Saeed and hopes to improve the position of those subject to forced medication by ensuring that there is a proper review authority. We intend to hold the MHRT responsible for its functions as set out in the Mental Health Act 2007 and the common law. An action brought about by Justice Action (A vs Mental Health Review Tribunal  NSWSC 31) and two prior supreme court cases all established that the MHRT has the responsibility to look out for a patients’ best interests lies.
The nature of the MHRT’s obligations
The Tribunal delivers official reviews, determinations, provides reasons for decisions concerning mental health patients and is presented with agreed management plans. According to common law and the Mental Health Act 2007 (NSW), all of these functions must be performed in while keeping in mind the best interests of the patient.
The most current order for Saeed was made on the 27th of August 2009, which authorised his detention at the Forensic Hospital at Long Bay for care and treatment. This order has not changed since it was issued. It is the Tribunal’s practice to not issue fresh orders following a hearing unless a decision has been reached to change the order.
On the 31st of October 2014, Saeed’s bi-annual report was released. While not legally binding, this included summaries of responses to proposed treatment plans. Within the section titled ‘Reasons for Decision’, Tribunal President Howard SC made it clear in his conclusion that treatment with “the paliperidone (not clopixol) will continue.”
Unfortunately, when no authoritative direction is given by the MHRT, the hospital is not bound to follow the recommendations provided. To not issue orders runs counter to the MHRT’s agreement with Justice Action on the 20th of January 2014. This inaction from the Tribunal, and consequent lack of binding order resulted in leaving the treating team unrestricted from making an abrupt change in treatment plan if they “believe such a change is clinically appropriate” – even despite knowing Saaed’s sensitivity to the changed medication, clopixol.
In the aforementioned agreement, the Tribunal said it would abide by the recovery principles that seek to promote ‘self-management’ and ‘self-determination’. Additionally, the agreed statement said that ‘choice is one of the key features of the legislation [Mental Health Act] [to] ...facilitate the involvement of affected persons in decisions involving care, treatment and control.’ By disregarding the obligations in the provisions of the Mental Health Acts, the Tribunal may be contravening the United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, as well as the Commonwealth government’s National Mental Health Service Standards.
Saeed’s case is an opportunity to expose the alarming disconnect between MHRT’s recommendations and primary purpose, and the actual enforcement and results of the treatment provided to its forensic patients. It is the belief of the NSW government that forced medication is only administered when authorised by the MHRT. This has clearly not been the case. It has only become more evident that the role of the Tribunal must be clarified and its recommendations must be enforced.
Justice Action held a Pre-Election Forum on the 17th of February 2015. In the Forum, the Attorney General and Minister for Justice, Brad Hazzard stated, “where medication is prescribed by professional clinicians and authorised by the Mental Health Review Tribunal, Justice Health reserves the right to enforce medication.”
That statement was in response to the question: “Will you commit to supporting and reinforcing the principles of recovery and consultation with mental health consumers including the right to refuse medication, in order to foster more therapeutic treatment for prisoners suffering with a mental health disorder?” The full response can be found at http://www.communityjusticecoalition.org/events/2015-party-responses-to-questionnaire
Through the examination of relevant mental health legislation, Lindsay J’s judgement in A v Mental Health Review Tribunal and the Tribunal’s express reasoning for changing Saeed’s treatment to Paliperidone, it is evident that there has been a breach of duty by Dr Sinclair and her medical team.
Furthermore, the Tribunal has not complied with its role to work “within the framework of a protective concern for the benefit and best interests of each forensic patient as an individual”. On the 13th of January 2015, the Tribunal denied any responsibility in ensuring that Dr Sinclair complies with its directives. Saeed’s case was directly addressed with the statement: “[Saeed’s] Paliperidone depot will continue and side effects will be monitored and the dose will be titrated appropriately.” Their unwillingness to intervene on the 26th March is further disappointing evidence of the Tribunal’s self-imposed impotency.
If Dr Sinclair wished to deviate from the Tribunal’s decision, she should have applied to change Saeed’s treatment plan at the next Tribunal Review. The Tribunal has both the authority and obligation to intervene in Saeed’s case following such a blatant disregard for both Saeed’s rights and the October 2014 Tribunal Determination.
The MHRT’s failure to intervene constitutes a blatant disregard for Saeed’s rights. Justice Action has asked the MHRT to exercise their power and hold Saeed’s doctors accountable for their actions. In response, they have claimed that they did not have authority to make orders relating to Saeed’s medication. Justice Action believes that these actions do not satisfy the MHRT’s supervisory obligations. We have been working tirelessly to make the MHRT properly define their role and effectively exercise their jurisdiction to hold Justice Health doctors accountable. The MHRT’s complete lack of action is in contradiction with their clearly stated objectives.