Mental illness, the news media and open justice: the Australian experience

By MARK PEARSON
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I’m in Chicago to present a paper tomorrow to the Association for Educators in Journalism and Mass Communication (AEJMC) convention – one of the world’s largest gatherings of journalism academics.

My paper is an extension of earlier work stemming from research grants from the Australian Government’s Mindframe National Media Initiative, published as an article in the May 2011 edition of the Pacific Journalism Review, and as a chapter in our book Courts and the Media: Challenges in the era of digital and social media (with Patrick Keyzer and Jane Johnston (eds), Halstead Press, 2012). You can find my summary of that chapter in an earlier blog.

In this paper, I canvas a complex array of public interests which compete in the contested terrain shared by people with mental illness, journalists, lawyers and policy makers.

Ancient principles of open justice are at odds with more modern notions of privacy and concerns that media attention might be counter-productive to the treatment of mental health patients. The paper looks at the intersection of those interests across Australia’s nine jurisdictions, where courts and parliaments have chosen to approach them in different ways, leading to a confusing cocktail of publication restrictions on the media’s reportage of matters involving citizens experiencing mental illness.

The paper canvasses the differences between jurisdictions and considers three case studies, including a recent landmark decision in the UK, illustrating the competing interests at stake.

It concludes by foreshadowing some key research needs so that policymakers might be better informed in an era when the news media outlets telling the stories of the mentally ill are not confined within jurisdictional borders.

The three case studies of different instances across different jurisdictions serve to highlight the spectrum of competing private and public interests involved in such cases.

On one side of the ledger there is open justice, transparency, and the public interest in the education of the community and policy makers about mental illness generally and also about the cost and processes of mental health justice and review processes. In forensic matters, open justice also implies the right of victims and the public to follow a matter through the system, even when the accused has been found not guilty on mental health grounds.

Balancing these are quite legitimate concerns about the effective treatment of mental health clients, the risks of tabloid-style sensationalising of mental illness, patient-health professional confidentiality, and the privacy of patients and those with whom they interact.

I use three case studies to illustrate different approaches to open justice in the mental health system:

• The UK case of high security patient Albert Laszlo Haines who appealed to have his discharge hearing heard in public shows that not all mental health patients value their privacy over publicity about their cases and that there are lessons to be learned from transparent public appeal processes.
• The Victorian case of the taxi driver XFJ (allowed to hold a cab licence in Victoria despite having stabbed his wife to death in 1990 and being found not guilty by reason of insanity) demonstrates that media outlets can indeed sensationalise some cases, but it also shows that important matters of legitimate public concern can be debated when proceedings are reported thoroughly using pseudonyms.
• Western Australia’s case of mentally impaired indigenous man Marlon Noble case who had been detained for almost a decade without trial on sex charges, illustrates that open media reportage can inform the public about the mental health and corrective services systems and the plight of vulnerable individuals who might be the victims of miscarriages of justice or simply lost in the red tape of intersecting bureaucracies.

The paper concludes by arguing the competing rights and interests in the cases help explain the variations in the way lawmakers have approached the issue of publicity of mental illness processes in different jurisdictions. However, while it might explain the variations, it also highlights the need for research-driven reform in the area.

Further research can be undertaken into the attitudes of policymakers and judicial officers to transparent proceedings, longitudinal studies into the impacts of publicity upon all stakeholders, analysis of the views of forensic patients’ victims and families about open proceedings, as well as content analysis of court and tribunal decisions to assess the points at which proceedings are closed or suppression orders are issued.

The advent of the Internet, Web 2.0 and its inevitable advancements render major jurisdictional differences an anachronism. Neither the news media nor social media are contained within traditional state, territory or national borders.

Mental health patients and journalists cross borders frequently – both physically and virtually.  The time is ripe for policymakers, mental health professionals, journalists and legal professionals to address these unnecessary jurisdictional differences and work towards a research-driven model allowing for reasonably open media scrutiny of mental health processes while respecting the privacy rights and treatment needs of the vulnerable.

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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 2012