Tag Archives: ABC

Reporting upon forensic mental health cases and identifying patients

By MARK PEARSON

What are the key policy factors influencing courts and tribunals attempting to balance open justice against other rights and interests in newsworthy cases involving forensic mental health patients? 

Associate Professor Tom Morton from UTS, ABC lawyer Hugh Bennett and I examined this question – and the related issue of whether the media could report upon such cases and identify the patients involved – in our recent article in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our conclusion:

Open justice in mental health proceedings need not be viewed in a vacuum. There are strong parallels with numerous other situations where the legislature and the courts find and apply exceptions to the open justice principle. There is much scope for consistency across Australian jurisdictions and across the many situations where the restrictions are in place because of different vulnerabilities faced by key participants in the court process – mental health patients, children, sexual crime victims, family law parties, protected witnesses and, in two Australian states, even those accused of sexual offences until after the committal stage of proceedings.

There is a strong argument that the courts should be most transparent when the public gaze is so sharply focussed upon them, and that public education about the workings of the justice system in the important area of mental health will be most effective when citizens are intrigued by a particular story and know its background. The courts might acknowledge that in some circumstances a story can be both “interesting to the public” and “in the public interest” – and that perhaps the two notions might not have to be mutually exclusive as Lord Wilberforce so famously suggested.

Full contents of the edition and subscription details can be seen here.

We compared four forensic mental health cases in Australia and the UK and highlighted some of the key competing rights and interests at stake when the news media or other parties seek to have mental health proceedings opened and to identify the patients involved. The approaches of the tribunals and courts we  studied showed the competing policy considerations in such applications were by no means clear-cut. They varied markedly from case to case with regards to the potential impact on the patient and other stakeholders and in their respective public interest value in the stories being told to broader communities. Policies around publicity are complicated when expert psychiatric opinion varies on the potential impact on the mental health and treatment regime for the patient.

The weighing of such important rights and interests is not a precise science where a pre-set formula will apply. Of course, important differences between Australian and UK jurisdictions inform such decisions, including different statutory frameworks for the particular tribunals, together with the lack of a formal human rights framework in Australia, comparable with the European Convention on Human Rights, which affords privacy and free expression rights. In Australia, these considerations draw upon the common law, because there is as yet no actionable tort of privacy invasion and free expression is limited to a High Court-designed implied constitutional freedom of communication with respect to “discussion of government and political matters”. Further, the various mental health tribunals dealing with applications from or regarding forensic patients operate within their own statutory frameworks, rules and practice directions which sometimes bind, and in other circumstances guide, their decisions on whether hearings can be held in public and, if so, whether parties and other participants might be identified.

In Australia alone, the nine jurisdictions have taken a variety of approaches to whether such hearings are held in public and whether parties must be anonymised in any reporting permitted. Open justice can be viewed as a policy continuum, ranging from closed hearings and a total ban on reporting at one end through to open hearings with full identification of parties allowed as part of a fair and accurate report of proceedings at the other. Somewhere in between are attempts to strike a balance between open justice and competing rights and interests with partial permissions; where the public or the media might be admitted to proceedings with a range of conditions placed upon the extent of identification of parties or witnesses allowed.

We developed  this list of key policy factors elicited from the cases reviewed, influencing whether a forensic patient or former patient might be given a public hearing or be identified in proceedings:

  1. Specific legislation, regulations, rules and practice directions relating to privacy and anonymity in hearings involving forensic patients or former patients;

  2. Whether there is informed consent from the patient to identification and publicity of his or her case;

  3. The extent to which a public trial and/or identification impacts upon on the life (ECHR Article 2), ill-treatment (ECHR Article 3), liberty (ECHR Article 5), and other rights, dignity and self respect of patients; including the impact of publicity and identification on their mental health and well being, ongoing treatment, safety and ease of re-entry to the community after treatment/rehabilitation;

  4. The impact of a public hearing or identification upon the right to privacy (ECHR Article 8) of the patient and other participants, and the confidentiality of personal medical details;

  5. The historic principle of open justice (ECHR Article 6): fundamental principles of transparency and justice ‘being seen to be done’, as espoused in Scott v. Scott; the public interest in transparency of mental health processes and proceedings;

  6. Freedom of expression and communication (ECHR Article 10); including the freedom of expression of the media, patients and other participants like hospital and prison personnel;

  7. The public’s right to know: public understanding of the mental health system and its treatment of patients; the public interest in knowing the outcome of highly publicised or emblematic cases; the public interest in knowing of wrongdoing in the mental health system; and the public interest in the safety and security of their communities;  

  8. Impact of identification and publicity upon other parties, including hospital staff, other patients, victims and their families;

  9. Public administration costs (economic and organisational) associated with implementing effective systems of publicity and identification. (For example, hospitals’ and courts’ management of media inquiries, extra costs of security for patient, special accommodation for public hearings, expense of installing video links etc);

  10. Stage of the process – for example, publicity and identification might be allowed on early applications related to conditions while institutionalised, but perhaps refused when re-entry to society is imminent or has already passed;

  11. The track record of the applicant media organisation/s in prior coverage and ethical management of privacy and consent issues, in this and perhaps in other comparable cases; the nature of the proposed program or publication and whether it is likely to be of a professional standard, balanced, accurate, reflective of a range of stakeholder views and sensitive to the patient’s experiences; and the context and focus of the identification of the patient in the media output;

  12. Whether a public hearing and/or identification of a patient might risk stigmatising mental illness.

Full contents of the edition and subscription details can be seen here.


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 2017

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Mental health and the media: a comparative case study in open justice

By MARK PEARSON

Our article comparing Australian and UK restrictions on the reporting of forensic mental health cases has appeared in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our abstract:

Media reportage about forensic mental health cases raises several competing rights and interests, including the public interest in open justice; a patient’s right to privacy, treatment and recovery; the public’s right to know about mental health tribunal processes; and victims’ and citizens’ interests in learning the longer term consequences of a publicised serious unlawful act. This article details a case study of successful applications for permission to identify a forensic mental health patient in both a radio documentary and in research blogs and scholarly works in Australia. It compares the authors’ experience in this case with three other cases in Australia and the UK, and identifies and weighs the competing policy issues and principles courts or tribunals consider when attempting to balance open justice with the rights and interests of a range of stakeholders in forensic mental health cases where the news media and/or patients are seeking publicity and/or identification.

Full contents of the edition and subscription details can be seen here.

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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 2017

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Filed under blogging, citizen journalism, contempt of court, courts, free expression, journalism, media ethics, media law, Media regulation, mental health, open justice, Press freedom, social media, sub judice, suppression, Uncategorized

Drilling down on suppression orders – with a call for reform #mediaiplaw

By MARK PEARSON

Suppression orders should be precise and address imminent publications likely to prejudice the case, not be futile and should only follow a request for removal, University of Melbourne senior lecturer Jason Bosland explained to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 23).

Melbourne University's Jason Bosland calls for reform of suppression orders

Melbourne University’s Jason Bosland calls for reform of suppression orders

However, the courts continue to issue broad suppression orders that lack these qualities. Presenting a paper co-authored with Timothy Kyriakou, he explained that most suppression orders covered prior convictions and the vast majority were made against the “world at large” rather than at specific individuals or organisations.

“This indicates that orders are being made as a general precaution in a lot of cases rather than in response to an imminent publication,” he said.

He suggested reforms limiting magistrates’ court powers, giving all levels of the court system the same suppression order powers. Another anomaly was that the Supreme Court lacked power to issue a suppression order to ensure the safety of a person, a power held by the Magistrate’s Court.

His abstract explained:

In recent years, decisions in Victoria and New South Wales have considered the power of courts under the common law to restrain the publication of prejudicial material by the media, particularly in light of such material being published, or potentially published, on the internet.

This paper distills the principles established in those cases. It also considers whether and to what extent they continue to be relevant following the introduction of the Open Courts Act 2013 in Victoria and the Court Suppression and Non-publication Orders Act 2010 in New South Wales. It then examines the making of such orders in Victoria and assesses whether the courts have been complying with the relevant principles. Finally, some suggestions for reform are presented.

In his paper ‘The media’s standing to challenge departures from open justice’, Curtin Law School’s Michael Douglas argued the media was disadvantaged by suppression orders in ways most other parties were not.

Departures from open justice directly affect the legal rights and interests of media organisations. He argued that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

“Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure,” his paper stated. The paper addressed the issue of non-party media organisations’ standing to challenge departures from open justice.

In several jurisdictions, the issue is resolved by statute, but the position is not uniform around Australia.

The paper explained the position under the differing statutes and at common law. It focused on the common law position which remained in some jurisdictions, where the standing of media organisations was controversial.

“The orthodox view, expressed in older NSW authorities, is that media organisations have no absolute right to be heard at common law,” he stated, challenging that orthodoxy, following a contrary, Western Australian line of authority. The paper explored the link between principles of standing and the principles of natural justice drawn from High Court decisions.

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

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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 2015

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How startups focus on the execution of business plans, with less intent on controlling IP

By MARK PEARSON

Entrepreneurs might undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities – that is, focussing on an idea’s execution – University of Toronto Professor Joshua Gans told the 2015 IP and Media Law Conference, in his keynote address at the University of Melbourne Law School today (November 23).

JoshuaGandCMCL

Professor Joshua Gans delivering the keynote to the Media and IP Law Conference at the University of Melbourne.

He unveiled an economic model developed with colleagues Scott Stern and Kenny Ching featuring two key propositions.

“Execution allows you to maintain market leadership so control buys you only delay,” he said.

“Control only is cost in that regard. It only delays you without giving you additional benefit.

“Even aside from resource constraint issues, control and execution are substitute strategies. The whole is not greater than the sum of the parts. You want to advise firms to pursue control or execution but not both.”

He explained execution-oriented firms will hit key milestones more quickly and will be less dependent on significant venture capital investment.

He argued against what he said was the common assumption of IP analysis that the strength and use of IP is exogenous.

CMCLlogoforblog19-11-15“Here I argue that is is endogenous and depends on the choices of entrepreneurs/innovators in their business strategy,” he promised in his abstract.

“I demonstrate that entrepreneurs can undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities — that is, focussing on execution.”

Joshua Gans is a Professor of Strategic Management and holder of the Jeffrey S. Skoll Chair of Technical Innovation and Entrepreneurship at the Rotman School of Management, University of Toronto (with a cross appointment in the Department of Economics). Since 2013, he has also been Area Coordinator of Strategic Management. He is also Chief Economist of the University of Toronto’s Creative Destruction Lab. In 2012, Joshua was appointed as a Research Associate of the NBER in the Productivity, Innovation and Entrepreneurship Program.

He has also co-authored (with Stephen King and Robin Stonecash) the Australasian edition of Greg Mankiw’s Principles of Economics (published by Cengage), Core Economics for Managers (Cengage), Finishing the Job (MUP) and Parentonomics (New South/MIT Press). Most recently, he has written an eBook, Information Wants to be Shared (Harvard Business Review Press).

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

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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 2015

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How to challenge a ban on naming a mental health patient

By MARK PEARSON

UTS colleague Associate Professor Tom Morton, ABC lawyer Hugh Bennett and I will deliver a paper in Melbourne next week on our experiences applying to the Mental Health Tribunal of NSW for permission to name a forensic mental health patient in an ABC documentary and in our academic works.

CMCLlogoforblog19-11-15The occasion is the 2015 IP and Media Law Conference, hosted by the Centre for Media and Communications Law at the University of Melbourne Law School, November 23-24. The full program is here. I plan to blog a few of the highlights of the sessions I attend.

Our paper is titled ‘Mental health and the media: a case study in open justice’ and we present on the first morning of the conference. Here is its abstract:

News and current affairs reportage about forensic mental health cases raises a host of competing interests, including the public’s right to know about mental health tribunal processes; a patient’s right to privacy, treatment, and recovery; and victims’ and the broader community’s interest in learning the longer term consequences of a publicised serious criminal act. This article details a case study of the legal processes involved in applications for permissions to identify a forensic mental health patient in NSW in an Australian Broadcasting Corporation Radio National Background Briefing documentary ‘The Man Without a Name’ and in subsequent research blogs and scholarly works including this article. It begins by backgrounding the restrictions on publicising mental health tribunal cases in Australia, summarising the case study, examining the specific restrictions applying to the Mental Health Review Tribunal in NSW, detailing the processes followed in the successful application by the authors to name the patient, comparing the case with Australian and British cases, and making some recommendations for further research and reform.

Tom and I recently co-authored an article on the ethics of that same experience in Pacific Journalism Review, titled ‘Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics’. Here is our abstract. Full contents of the edition and subscription details can be seen here. Reference: Morton, T. and Pearson, M. (2015). Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics. Pacific Journalism Review, 21(2), 11-32.

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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 2015

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Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics

By MARK PEARSON

Congratulations to Pacific Journalism Review editors David Robie, Annie Goldson and Barry King on their newly released special edition ‘Documentary Practice in the Asia-Pacific’.

I was honoured to be invited by research colleague Associate Professor Tom Morton from UTS to co-write an article centred upon the law and ethics behind his ABC Background Briefing documentary ‘The Man Without A Name’, broadcast in 2014. In the article we detail the story behind the documentary and the legal and ethical challenges we faced in navigating the publishing restrictions of the NSW Mental Health Act and some related legislation.

PJR Special Edition vol21(2) OP FINAL CORRECTED 685wide_0

Cover of the special Pacific Journalism Review edition Volume 21 (2)

Here is our abstract:

This article explains a collaborative and critically reflective journalism research project stemming from the wish of an incarcerated forensic mental health patient to be named in public communication about his case. The authors are academics and journalists who embarked upon a combination of journalism, legal processes and academic research to win the right to name Patient A in a radio documentary and in academic works—including this journal article and research blogs. As a case study, it explains the theoretical and ethical considerations informing the journalism and the academic research, drawing upon traditions of documentary production, the principle of open justice and the ethical framework of ‘mindful journalism’. It concludes by drawing lessons from the project that might inform future practitioners and researchers embarking upon works of journalism and research involving vulnerable people and a competing set of rights and public interests.

Full contents of the edition and subscription details can be seen here.

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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 2015

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Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media, Uncategorized

Investigative reporter and foreign correspondent Jess Hill (@jessradio) talks media law and censorship

By MARK PEARSON

We were honoured to have investigative reporter and former Middle East correspondent Jess Hill (@jessradio) visit Griffith University to talk about foreign correspondence and the use of social media in journalism.

She was obliging enough to agree to this studio interview with me on media law, censorship and freedom of the press.

Thanks to Bevan Bache and Ashil Ranpara for their camera work, production and technical support.

[Recorded 2.4.14, 11:13 mins].

© Mark Pearson 2015

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.

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