The man without a name to get one – a small victory for open justice

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.

**Update: Tom Morton’s radio documentary ‘The man without a name’ was aired on Radio National Background Briefing on April 20, 2014 and can be heard (and transcript read) here.

We later applied to the Mental Health Review Tribunal for permission to name the patient in our scholarly publications, including this research blog. The Tribunal granted that permission on May 9, 2014 after a hearing to consider our application on 20 March 2014.

We can now reveal that the patient is Mr Saeed Sayaf Dezfouli.

This publication is conditional upon this publication carrying this notice:

“Notice: It is an offence under the Mental Health Act 2007 (NSW) section 162 to publish or broadcast the name of any person to whom a matter before the Mental Health Review Tribunal relates or who appears as a witness before the Tribunal in any proceedings or who is mentioned or otherwise involved in any proceedings under the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, unless consent has first been obtained from the Tribunal. The author has obtained such consent to publish Mr Dezfouli’s name.”

Dr Tom Morton

[Earlier blog continued … ] 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.

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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 2013