By MARK PEARSON Follow @Journlaw
We have won a small victory for open justice by persuading the NSW Mental Health Tribunal to allow the Australian Broadcasting Corporation to use the name of a forensic patient in a Background Briefing program on Radio National next year.
Colleague Associate Professor Tom Morton from the University of Technology Sydney and I have been conducting an applied research project about publicity of mental health proceedings – centred upon the case of a Sydney patient who wishes to be identified in reportage on his situation.
We are presenting a progress report on our study at the Journalism Education Association of Australia annual conference in Mooloolaba, Queensland today (December 4, 2013).
Dr Morton is an accomplished radio journalist and has started work on the documentary to be aired in coming months. We are collaborating on the academic side of the project – using my research into mental health reporting and logging our ethical decision-making to create a documented mindful reflection on the project.
Dr Morton briefed ABC lawyer Hugh Bennett who presented our case for the identification of Patient A when we appeared before the Mental Health Tribunal in September.
Section 162 Mental Health Act (NSW) bans ID of anyone involved in either tribunal or forensic proceedings, with further requirements under the Mental Health (Forensic Provisions) Act. A breach can incur a fine of $5500 or a 12 month jail term.
A Supreme Court application for the identification of Patient A had failed in 2012 on technical grounds (A v Mental Health Review Tribunal (2012) NSWSC293).
The Tribunal’s consent to the identification of Patient A appears to be limited to the broadcast, so I am not naming him here.
Patient A is an Iranian refugee who until 2002 was employed at a government office in Sydney.
In 2002 he set fire to that building and a co-worker died of smoke inhalation.
In 2003 the Supreme Court of NSW found that Patient A was unfit to be tried for murder, and a jury subsequently found him not guilty of manslaughter by reason of mental illness. He is thus deemed a ‘forensic patient’ – a person whose health condition has led them to commit, or be suspected of, a criminal offence’ (AIHW, 2010, p. 140).
I have previously published compared the complex array of mental health reporting restrictions in Australia and New Zealand. (See here.)
Last year I compared three cases in WA, Victoria and the UK involving the identification of mental health patients. The case of Patient A has strong parallels with the Albert Lazlo Haines [pdf] case in the UK where a patient won an appeal to be named in reportage of his review proceedings.
This Australian case adds to that body of literature and is interesting from that media law perspective. It also interests us from an ethical perspective, and we will be using it as the focus for an exploration of the application of the principles of ‘mindful journalism’ I have described previously.
We plan to write an academic article on this process to date (the events leading to this Tribunal decision), followed by a research journalism output including an exegesis on mindful journalism ethics after Dr Morton’s Background Briefing documentary has been broadcast. Stay tuned.
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
© Mark Pearson 2013