A v Mental Health Review Tribunal

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 -