Supreme Court New South Wales Medium Neutral Citation: A v Mental Health Review Tribunal [2012] NSWSC 293 Hearing dates: 4 August 2011 Decision date: 02 April 2012 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed. 2. Each party to pay its own costs. Catchwords: PUBLICATION OF NAME - consent of Tribunal - mode of application - relevance of medical condition of applicant Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 Category: Principal judgment Parties: A (Applicant) Mental Health Review Tribunal (First Respondent) Justice Health (Second Respondent) Attorney General of New South Wales (Intervenor) Representation: O'Brien Solicitors (Applicant) Crown Solicitor's Office (Respondents and Intervenor) File Number(s): 2010/408528 Judgment Introduction 1The plaintiff had been employed as an Iranian interpreter by the Ethnic Affairs Commission in Ashfield. On 18 January 2002 he set fire to the office of the Community Relations Commission, where numerous employees has been working. Some employees managed to escape, save for three who were found unconscious. One of them later died in hospital. On 1 May 2003 the Supreme Court of New South Wales found that the plaintiff was unfit to be tried for murder and on 8 July 2003 that Attorney General directed that a Special Hearing be conducted in respect of the offences. On 19 March 2004, on the limited evidence available, the jury returned a verdict of not guilty of murder and not guilty of the offence of maliciously damaging property intending by doing so to endanger the life of another. In relation, however, to the charges of manslaughter and maliciously damaging property, the jury found, on the limited evidence, that the plaintiff was not guilty by reason of mental illness of either of these charges. Accordingly, he was ordered to be "detained at D ward Long Bay Hospital until released by due process of law." On 12 April 2007 the Court of Criminal Appeal dismissed the plaintiff's appeal in respect of the charges of manslaughter and maliciously damaging property by fire. 2 Since February 2002 he has been a forensic patient at the Long Bay Prison Hospital. On 23 March 2009 an order pursuant to s 76D and 76E of the Mental Health (Forensic Provisions) Act 1990 was made to transfer the plaintiff to Long Bay Prison Hospital to the Forensic Hospital. 3In accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990 the mental health tribunal must review the case of each forensic patient every six months but may review the case of any forensic patient at any time. It appears that sixteen reviews have been conducted in respect of the plaintiff. The last of these took place on 24 March 2011. 4Mr Brett Collins, who is the tutor of the plaintiff in these proceedings, is a coordinator of an organisation called Justice Action, the objective of which is to raise awareness of contentious issues in the legal system including, in particular, those that concern prisons, prisoners, and mental health. Through campaigns and the Justice newspaper its aim is to rally support for its causes and the promotion of human rights in Australian legal institutions. It appears that around late 2005 or early 2006 Mr Collins began to correspond with the plaintiff and at the plaintiff's request, he became his primary carer in 2009. In this role, Mr Collins has been involved in the plaintiff's Mental Health Review Tribunal reviews as a support and a representative. 5In September 2010 the plaintiff sought the consent of the Tribunal to publish articles about the way in which forensic and correctional patients were treated in the prison system which mentioned his own name and, inferentially, the names of other patients or material which would have enabled them to be identified. Without the consent of the Tribunal, the disclosure of names or identifying material is prohibited by s 162 of the Mental Health Act 2007. 6Consent was not given and the plaintiff has commenced proceedings in this Court to obtain that consent. The proceedings in this Court 7The Summons states that it is an appeal and gives the following details - 1A The plaintiff appeals from the refusal of the Tribunal to make a determination in respect of an application made on behalf of [the plaintiff] under section 162 of the Mental Health Act. 2 Leave to appeal is sought because the Tribunal has refused to make a determination. The orders sought are - 1A Leave to appeal against the refusal of the Mental Health Review Tribunal to make a determination in respect of an application made on behalf of [the plaintiff] under section 162 of the Mental Health Act. 2A A determination pursuant to section 162 of the Mental Health Act giving consent for [the plaintiff] to publish or broadcast his own name. The grounds of appeal relied on are - 1. The Mental Health Tribunal has a statutory duty to make a determination in respect of an application made under section 162 of the Mental Health Act 2007. 2. The Tribunal refused to make a determination in respect of an application made on behalf of [the plaintiff] under section 162 of the Mental Health Act. 3. The Tribunal's refusal to make a determination involved a breach of the rules of natural justice: the refusal was infected by apprehended bias. 4. The Tribunal's refusal to make a determination was the result of an error of law: the Tribunal took into account irrelevant considerations, namely: a. the reputation of the Tribunal; b. the protection of Justice Health staff and patients other than [the plaintiff]; c. the fact that it had not been provided with details of the publication for which approval was sought. 8There are three potential paths by which the plaintiff might be able to appeal from the determination of, or refusal to make a determination by the, Tribunal. The first is under the Mental Health (Forensic Provisions) Act 1990 (the Forensic Provisions Act), which provides, so far as is relevant - 77A Appeals against Tribunal decisions (1) A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (4). ... (8) An appeal under this section is to be made subject to and in accordance with the rules of the Court. (9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal. (10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal. (11) If a party has appealed under this section to the Court against a determination of the Tribunal on a question of law, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings. ... (13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing. (14) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. 9The second mode of appeal is provided by the Mental Health Act 2007 (the Act) which provides, so far as is relevant - 163 Appeals to the Court (cf 1990 Act, s 281) (1) A person may appeal to the Court against: (a) a determination of the Tribunal made with respect to the person, or (b) the failure or refusal of the Tribunal to make a determination with respect to the person in accordance with the provisions of this Act. (2) An appeal is to be made subject to and in accordance with the rules of the Court. 164 Power of the Court on appeals (cf 1990 Act, ss 283, 284) (1) The Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions of the Tribunal in respect of the subject-matter of the appeal, in addition to any other functions and discretions it has. [Emphasis added.] (2) An appeal is to be by way of a new hearing and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which the appeal is made may be given on the appeal. [Emphasis added.] (3) The Court is to have regard to the provisions of this Act and any other matters it considers to be relevant in determining an appeal. (4) The decision of the Court on an appeal is, for the purposes of this or any other Act or instrument, taken to be, where appropriate, the final determination of the Tribunal and is to be given effect to accordingly. (5) In hearing and deciding an appeal, the Court may be assisted by 2 assessors selected by the Court from the panel nominated for the purposes of this Chapter, if the Court considers it appropriate to do so. (6) An assessor is to sit with the Court in the hearing of an appeal and has power to advise, but not to adjudicate, on any matter relating to the appeal. The third mode of appeal, though not strictly an appeal of course, is this Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970. 10Except for specifying that the proceeding is an appeal, the Summons does not state the jurisdiction that the plaintiff is seeking this Court to exercise. On the face of it, he is a forensic patient and (as will be seen) the determination (or failure to make a determination) occurred in the course of a review under s 46 of the Forensic Provisions Act. If so, s 75A(1) applies, since the plaintiff is a "forensic patient ... who is a party to a proceeding before the Tribunal under this Act ... [which made a] determination ... in that proceeding". 11It will be seen that the Summons seeks leave to appeal and the grounds relied on are questions of law. However, during the submissions in this Court, when counsel for the plaintiff sought to introduce evidence and change the nature of the consent being sought, in effect, to exclude reference to other patients, he contended (when the nature of the hearing was raised) that the appeal was under s 163 of the Act. Counsel for the Attorney General (intervening) agreed with this submission. No reference was made to s 69 of the Supreme Court Act 1970. 12It seems to me that, if the determination is of the type covered by s 77A(1), the jurisdiction under s 163 of the Act is excluded by necessary implication. However, although (as will be seen) the question of consent was discussed in the course of a review under s 46 of the Forensic Provisions Act, this was a mere accident of chronology. An application for consent under s 162 of the Act must be determined, of course, by the Tribunal and it may do so following a hearing, but that is not essential, providing procedural fairness is accorded to the person seeking the consent. A review under s 46 of the Forensic Provisions Act is for the purpose of considering the content of the orders required to be made under s 44 (2), namely "as to the person's care, detention or treatment, or ...as to the person's release (either unconditionally or subject to conditions)". It was no doubt convenient to consider the plaintiff's application for consent at the same time but it did not, in my view form part of that review. 13Accordingly, I accept the submissions of both parties that I should deal with the Summons on the basis that it is an appeal under s 163 of the Act. 14A fundamental difficulty, however, with treating the proceedings as such an appeal is that, being a new hearing, any error of fact or law made by the Tribunal is immaterial. The sole question is what determination this Court should make on the evidence tendered before it in respect "of the subject-matter of the appeal". Before discussing this question, it is useful to narrate the events which led to the Tribunal's refusal to consent to the request of the plaintiff. The proceedings in the Tribunal 15The requirement for consent arises by virtue of the provisions of s 162 of the Act, which provides as follows - 162 Publication of names (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, or (b) who appears as a witness before the Tribunal in any proceedings, or (c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990, whether before or after the hearing is completed. Maximum penalty: (a) in the case of an individual-50 penalty units or imprisonment for 12 months, or both, or (b) in the case of a corporation-100 penalty units. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person. 16On 8 September 2010 the plaintiff sent Mr Collins a request that s 162 of the Act not apply to him. He informed Mr Collins that he wished to write letters and disseminate materials to organisations, the media, politicians and others concerning his treatment as a mental health patient and the treatment of those around him. He stated that he wished to put his name on such letters and materials. On 16 September 2010 Mr Collins sent an email to the Tribunal outlining the plaintiff's requests and attaching his letter. He asked that the matter be raised at the plaintiff's next review hearing. On 20 September 2010 the President of the Tribunal, Mr Greg James QC, replied indicating that the application under s 162 would be listed at the next review hearing and asking to be provided with "the detail of what publication you wish approved and all the material on which you rely as soon as possible". This request was not complied with. 17On 30 September 2010 the Tribunal, comprising the President, a psychiatrist and another member, convened for the purpose of the review. Also present were Ms Johnson, a solicitor advocate from the Crown Solicitors office, Ms Nash, instructed for the plaintiff by Mr Andrew Dikha, Mr Michael Sterry forensic legal advisor for Justice Health, Dr Adrian Keller the Medical Superintendent of the Forensic Hospital, Mr Collins, and a number of other persons not necessary to be named. In accordance with the statutory injunction, the matter proceeded with a degree of informality. 18Reference was made to a volume of written material and reports, including of course from medical staff. Following discussion, the Tribunal made the following decision - Since the tribunal must make a recommendation under s 47(4) [of the Forensic Provisions Act] it recommends that [the plaintiff's] fitness to be tried for the offence be further investigated and otherwise will conclude that the appropriate course to take is that the current arrangements for his care, detention and treatment should continue subject to the Tribunal reconvening a hearing to examine those matters as soon as the evidence is forthcoming to warrant a further hearing." 19The Tribunal then moved to the foreshadowed request under s 162 of the Act. A wide ranging and somewhat informal discussion ensued about the function of s 162 and its interaction with s 151 of the Act. (That provision, which is not presently material) concerns the procedure at meetings of the Tribunal and provides, amongst other things, that its proceedings are to be open to the public but, if the Tribunal is satisfied that it is desirable to do so, it can order that the hearing be conducted wholly or partly in private, and prohibit or restrict the publication or broadcast of any evidence given before the Tribunal or report of proceedings before the Tribunal.) 20The President identified the issue as - The issue is capacity to be able to determine whether he should publish and run press campaigns or whether that is a manifestation of his particular illness. And I understand that the clinical position as put by some of the Justice Health doctors that such a campaign and some of the attitudes that [the plaintiff] evinces indicates or are symptomatic of his illness so that to pander to it, is simply to produce a situation not to his benefit but adverse to him. Is that right Dr Keller? Dr Keller: That summarises it well President: Yep, and putting the staff and other patients of the hospital at risk. 21After some further discussion Mr James QC said - President: But look, having raised this, I don't want all this stuff to go off on a false premise. [The plaintiff], his array of lawyers and assistants, may wish, notwithstanding the volume of paper we have already got, to focus on the big issue here, which is - what is it that he wants to publish? Where does he want to do it? Because at the moment what we are being asked for is carte blanche and we simply can't give it. Nash: I accept that. President: But if we know the nature, the general nature at least. For instance [in the case of another inmate] we did not get to see the program before hand, but we were given sufficient to know that there was a documentary on a particular TV channel and it would have this general content. Nash: Right. President: We have to have a minimum of that to know the forum in which we are working. That will enable Justice Health to put in some submission concerning the issues we've identified under sections 162 and 151(4). That will enable, with a little bit of luck, a regularisation of what's been going on so far. That will enable the Attorney General to advise or enable the Attorney General to get advice and enable us to get proper submissions. Nash: I appreciate you've asked the staff of Justice Health to actually give a little bit more detail of what they would like excluded. This may or may not assist... President: It is wanted both ways. [After some discussion about the Justice Action website, the conversation continued.] Nash: Alright I think that we will wait in that case to see... President: You can feel free. But what I suggest you do is put your written submission in. exchange them amongst yourselves. If we need to reconvene a hearing for the benefit of anybody, one side or the other we will... Nash: I have just been asked to clarify that the written submissions are to show what is going to be published, where it is going to be published, and the purpose of the publication. President: Yep. I don't think I care particularly about the purpose. No, we are not too much interested in the purpose. We are interested in - the important thing to look at is what might be the effects on [the plaintiff] and on other people. Nash: Yes. President: Now if [the plaintiff] decides that he wants to publish some sort of attack on the operation of the Mental Health Review Tribunal in the Norfolk Island Daily Examiner, we wont care a hoot. On the other hand, he is concerned to publish things that might impinge on any of the staff out here, it's a different thing entirely. Nash: Yes, Mr Bodisco [barrister who was present] reminds me that although you have stated that if it is on Norfolk Island that it doesn't matter, but if AAP gets hold of the website then you can't control where it goes. President: Precisely. It may go all over the world. But the concern is that it might do harm to him or others. Nash: Yes. President: Or affect the welfare to be putting in wider terms. Nash: No I can appreciate that. I think probably the best thing is for me to confirm with [the plaintiff] --- President: I think you'd better add something else to it. Of course when you look at [sections] 154 and 162 its not just [the plaintiff's] publications [semble, of his name], it's the publication of anybody. 22The President required the submissions to be provided within two weeks. 23Further discussion ensued as to the course of proceedings that were then current in this court concerning an application for leave to appeal by Mr Collins from an earlier determination of the tribunal on 11 February 2010. The exchange then continued - Nash: Should there be an exchange of submissions. President: Well, you are all adults --- Nash: Yes, I just wanted to know --- President: You wont be able to do anything until Dr Keller and his legal advisors, including Mr Sterry and the Crown Solicitors Office who act for Justice Health in another capacity involving [the plaintiff], all put their heads together and work out what is the focus and what the evidence should be and what restrictions if anything they want... 24The following points should be made as to the proceedings thus far - * The plaintiff was seeking carte blanche consent to whatever he wished to publish, including identifying other patients and members of staff and that the Tribunal could not give such consent. Ms Nash, on the plaintiff's behalf, implicitly accepted both the characterisation of the plaintiff's request and the correctness of the President's view about it. * The President had indicated that one of the relevant issues was whether the plaintiff's psychiatric condition would be adversely affected if was able to publish the material he wished to. * Ms Nash agreed that the plaintiff should indicate, at least in general terms what, how and where he proposed to publish and that discussions would take place with Justice Health as to the submissions to be made when the matter was to return to the Tribunal. * The matter was then adjourned for submissions and, presumably, medical evidence. 25At this stage, then, the matter was by consent adjourned to enable agreed further steps to be taken. It is true that the President had indicated that the plaintiff should not be able to publish the names of other patients. He made the general observation (not set out above) that the general position was "that s 162 was enacted with a view to protecting the identity of patients, to preserve patients from the effect of the stigma that might otherwise be associated with suggestions that they may have mental health problems ..." he made some general observations about the relevant test and highlighted the importance of the plaintiff's civil right of free speech. He indicated a concern about the publication of the names of staff. All these matters were merely arguendo and formed no part of any determination or failure to determine the request. 26On 15 October 2010 Mr Sterry, informed the Tribunal that Justice Health had decided not to continue as a party in the proceedings. However, he said that, should the plaintiff make an application to the Tribunal for a specific proposal, Justice Health might apply to provide a further submission. 27On 24 November 2010 Mr Collins sent an email to Tribunal as follows - Dear Mental Health Review Tribunal, [The plaintiff] has asked that his Primary carer to make this application on his behalf to the MHRT. I have attached his letter regarding the matter. He requests that the provision of s.162 of the Mental Health Act for his privacy be waived and for him to be allowed to use his name in his campaign for his release and to highlight the unfairness of his treatment and that of others by the Health Department. He says that the section 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 the system and allow abuses of the human rights of nameless, faceless, dehumanised mental health patients. As his Primary Carer I support his application, as do his other friends working with Justice Action. We believe he has a right to his name, to be recognised as a unique person, distinguished from others in the same way as are other citizens. He wants to make a personal expression of how he feels and has taken a course involving political and public policy, which he wants to influence using his particular experiences within the mental health system. [The plaintiff] wishes to publish his material and generally make observations about his life and concerns, and propose better ways to deal with mental health issues. In short he wants his right to having his own name returned to him, and for the provision intended for his benefit not to be yet another abuse of power against him as a human being. We ask that you urgently give him your consent as he has a public statement to make. Yours faithfully, Brett 28On 25 November 2010 Mr James wrote to Mr Collins as follows - I refer to your email dated 24 November 2010 requesting notification of the Tribunal's decision in relation to [the plaintiff's] application pursuant to s 162 of the Mental Health Act 2007. You will recall that following receipt of [the plaintiff's] application, I informed you by email on 20 September 2010 that the Tribunal would require the detail of what publication you wished to have approved. At the hearing held on 30 September 2010 the Tribunal pointed out to you that your submission did not include the details of the publication for which approval was sought and that it could not make an order unless it was informed of what it was sought to approve. The matter was adjourned not only to allow Justice Health to consider any further submission in relation to s162 and s151 of the Mental Health Act 2007, but also for [the plaintiff's] representative to provide the Tribunal with details of the nature and content of the publication for which approval was sought. The Tribunal has still not been provided with the required information. Consequently, the matter was struck out on 24 November 2010. Any further applications pursuant to s162 of the Mental Health Act 2007 will need to be accompanied by the specific details of the context, content, and mode of the relevant publication or broadcast for which permissions is being sought. 29I mention for completeness that on 24 March 2011 the Tribunal conducted its sixteenth review pursuant to s 46(1) of the Forensic Provisions Act. Its determination, made for May 2011 was in the following terms - On the material presently before the Tribunal the only appropriate course to take having regard to section 74 and the other statutory criteria, is to determine that the current arrangements for [the plaintiffs] care treatment and detention should continue but that if evidence can be presented that warrants an examination of whether there should be changes [the plaintiffs'] regime an early enquiry can be convened to deal with that evidence. 30Accordingly, the position as at the time of commencing proceedings in this Court was that the previous proceedings for the application were "struck out" because the plaintiff had not provided the agreed material. Whether striking out could be regarded as "a failure or refusal ... to make a determination within the meaning of s 163 (1)(b) of the Act was not the subject of submissions before me. What is clear, however, is both that Mr Collins' email of 25 November was an altogether different application in the sense that it sought consent only for the publication of the plaintiff's name and that the President's refusal to consider the application without the material he specified was a "failure or refusal" within the meaning of s 163(1)(b). Discussion 31It follows from the above that the Court's jurisdiction is enlivened by s 163(1)(b) of the Act to consider the plaintiff's appeal. However, for reasons that I have already given, whether the proceedings in the Tribunal were affected by procedural unfairness, or for that matter by the alleged apprehended bias of the President, or any error of law is immaterial. I must determine the question on such evidence as is tendered before me. 32It seems to me that, amongst the matters that are necessarily relevant to deciding whether consent to the plaintiff's application to publish his own name are the principles specified in s 68 of the Act which are "as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder". These include the receiving "the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given", providing "care and treatment ... designed to assist people with a mental illness or mental disorder, wherever possible, to ... participate in the community, and keeping "to the minimum necessary in the circumstances...any restriction on the liberty of patients ... and any interference with their rights, dignity and self-respect." 33Also relevant is the psychiatric health of the plaintiff. Thus, does he have the capacity to determine for himself whether he should use his name in the way he envisages? Is there a real (as distinct from merely speculative) risk that his mental health will be adversely affected by his doing so. The material before me in the form of the transcript of proceedings before the Tribunal certainly suggests that there is a medical opinion that this could be a significant issue. Plainly enough, it cannot be answered without a consideration of the plaintiff's medical history and a understanding of his present state of mental health. Whether a sensible medical opinion could be given without information that indicates what the plaintiff wishes to publish is a live question, but I am minded to think that it could not. 34Were such a case sought to be made in this Court, it seems obvious that Assessors would need to be appointed as envisaged by s 164(5). However, because the parties mistakenly approached the proceedings as if the Summons could be disposed of, one way or another, by applying administrative law principles to the proceedings before the Tribunal, no such application was made, let alone any relevant evidence at all sought to be adduced. Conclusion 35It seems to me that, the plaintiff having failed to adduce any evidence that could enable determination of the substantive order seeking consent under s 162 to the publication of his name, the Summons must be dismissed. 36The Attorney General seeks costs in that event. Since the submissions made on his behalf were, like those made on behalf of the plaintiff, were almost completely misdirected, it seems to me that the appropriate order is that each party is to pay its own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2012