Tag Archives: mental health

‘Right speech’, media law and mindful journalism – a work in progress

By MARK PEARSON

Media law is much more than a set of edicts in the form of cases and legislation as presented in many texts and as taught in many courses.

Professional communicators and students can gain insights into the law as it stands – and into how it might be reformed – by tracing it to its origins, revisiting it in its modern context, and by applying fresh perspectives to its analysis. It can also inform their newsroom decision-making on legal and ethical matters.

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Gunaratne’s seminal text – The Dao of the Press. A Humanocentric Theory

Defamation is a good example. Historically, people’s reputations were seen as part of their spiritual beings. As such, defamation proceedings were often brought in the ecclesiastical courts of the Church of England before the Reformation (Rolph, 2008, pp. 39-48.

A stab at someone’s reputation was viewed as an attack on their soul – to be judged only by God’s earthly adjudicators, the clergy. From the 16th century, defamation actions were increasingly brought in the common law courts, with the courts developing a list of allegations with which they would deal, without needing proof of actual damage being caused by the defamation (Morison & Sappideen 1989, p. 173). Yet even today the Catechism of the Catholic Church lists ‘detraction’ (essentially gossip – or disclosing ‘another’s faults and failings to persons who did not know them’) as a sin – or an ‘offense against truth’.

Modern defences to defamation – like truth and qualified privilege – have been shaped by changing cultural, philosophical and political values, with truth as a defence heavily influenced by libertarians like Locke, Mill and Jefferson.

My recent work has involved the investigation of the ways Buddhist ethics might offer a useful framework for both journalism and media law. You can find an excerpt on my paper on ‘mindful journalism’ I presented to last year’s IAMCR convention in Dublin here.

I am not a Buddhist but I have seen the value of its application to modern phenomena and clinical situations like ‘Mindfulness Based Cognitive Therapy’ where meditation techniques have assisted with the treatment of anxiety and depression (Segal et. al, 2013).

Back in 2005 I attempted to use the Tibetan Buddhist mandala as a device to explain the complex competing interests involved when weighing up an issue involving privacy in the newsroom. (Pearson, 2005, see here.)

I have recently attempted to apply a Buddhist framework to the contexts of political blogging and election reportage. Colleague Tom Morton from UTS and I are using mindful journalism as a framework for examining a case study of an individual who wants a ban on his identity overturned by the Mental Health Review Tribunal in NSW.

My interest has come to the attention of a pioneer in the application of Buddhist systems theories to journalism – Professor Shelton Gunaratne – who wrote the seminal work in the field – The Dao of the Press – A Humanocentric Theory – in 2005.

He has compared his designated goals of Buddhist journalism with many of the traits of modern Western journalism in his insightful article in Javnost – The Public in 2009: ‘Buddhist goals of journalism and the news paradigm’.

Prof. Gunaratne has generously asked me to collaborate in a new project on mindful journalism also involving Dr Sugath Senarath from the University of Colombo.

Meanwhile, I will be attempting to articulate some of these principles – particularly the relationship between Buddhist notions of ‘right speech’ to defamation and celebrity journalism – in a paper I’ll be delivering to the Media Talk Symposium to be hosted by Associate Professor Jacqui Ewart in Brisbane on April 23-24 (schedule TBA).

That paper will be titled “Mindful media talk: exploring a Buddhist ‘right speech’ ethic in journalism and social media”. Its abstract reads:

Defamation and privacy laws – and journalism ethics codes – are problematic as guidance tools for news communication in the globalised, multi-cultural and multi-jurisdictional Web 2.0 era. This paper draws upon systems methodology (Gunaratne, 2005) to foreshadow an application of the Buddhist ethic of ‘right speech’ to journalistic and social media communication. The path of ‘right speech’ (samma vaca) was one step in Buddha’s Eightfold Path to enlightenment. However, taken at a secular level, it offers a useful theoretical framework by which to analyse media talk and guidance for those engaging in reportage and citizen journalism. Right speech invokes the avoidance of falsehood, divisive and abusive speech and gossip mongering. This paper explains its elements, distinguishes them from media laws and professional ethical codes, and uses examples to examine the extent to which it might accommodate ‘public interest’ / Fourth Estate journalism and celebrity news.

Watch this space for more posts on ‘mindful journalism’ as we explore its value as an analytical device and – perhaps more importantly – as a newsroom tool for ethical decision-making.

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Key references

Gunaratne, S. A. (2005). The Dao of the Press: A humanocentric theory. Cresskill, NJ: Hampton Press.

Gunaratne, S. A. (2007). A Buddhist view of Journalism: Emphasis on mutual causality. Communication for Development and Social Change 1 (3): 17-38. (Paper originally presented at the University of Queensland on March 8, 2006.)

Gunaratne, S. A. (Feb. 15, 2009). Buddhist principles can revolutionize news and journalism. The Buddhist Channel.  Available at <http://www.buddhistchannel.tv/index.php?id=70,7781,0,0,1,0#.UuMttWTnb-k&gt;

Morison, W.L. & Sappideen, C. (1989) Torts: Commentary and Materials, 7th edn.

Sydney: Law Book Company.

Pearson, M. (2005) The privacy mandala: Towards a newsroom checklist for ethical decisions. Refereed paper presented to the Journalism Education Conference, Griffith University, Tuesday 29th November – Friday 2nd December, 2005, Gold Coast International Hotel, Surfers Paradise, QLD Australia. Available: http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1263&context=hss_pubs

Rolph, D. (2008). Reputation, Celebrity and Defamation Law. Ashgate: Aldershot. Available: http://books.google.com.au/books?id=d7YO44MvD8QC&source=gbs_navlinks_s

Segal, Z., Williams, M., Teasdale, J. and Kabat-Zinn, J. (2013). Mindfulness-Based Cognitive Therapy for Depression, Second Edition. Guilford Publications: NY.

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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 2014

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

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

By MARK PEARSON

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.”

MORTON

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

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

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

By MARK PEARSON

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

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Canadian CJ headlines ‘Courts and the Media: Challenges in the Era of Digital and Social Media’

By MARK PEARSON

Our book – Courts and the Media: Challenges in the Era of Digital and Social Media – edited by Patrick Keyzer, Jane Johnston and me – has been published by Halstead Press. Order details are here. The book was launched by Queensland Chief Justice Paul de Jersey (below) on March 29.

It stems from our symposium Courts and the Media in the Digital Era held on February 12, 2011, keynoting the Chief Justice of Queensland Paul de Jersey, News Limited chief executive John Hartigan (who has since retired) and shadow attorney-general Senator George Brandis.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered in Brisbane on September 15, 2011. We thank Her Honour for agreeing to make it available to us as our opening chapter.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!) You can get a sneak preview from my earlier blog.

The convergence of media and technologies have had resounding implications for the justice system, particularly with the advent of blogging and social media such as Facebook and Twitter. This, combined with broader, faster and more portable access to websites with Web 2.0 devices, has challenged traditional conceptions of jurisdiction, open justice and transparency while raising serious definitional questions about journalism and journalists. The release of tranches of documents by Wikileaks and subsequent legal action in recent months served to highlight many of those issues as pundits debated issues of confidentiality, espionage, whistleblowers, freedom of information, international relations, secret hearings, suppression, journalism, public interest and social media in the courtroom.

The papers presented at the Courts and the Media in the Digital Era Symposium and the chapters of this book address those questions from a range of perspectives – judicial, political,  administrative, journalistic, academic, and corporate – with some offering insightful hybrid views of each.

You will find a variety of voices in the chapters, reflecting the background of the authors and the circumstances of their contributions. Some bear the rhetorical hallmarks of keynote addresses, others reflect the meticulous research and documentation of academic scholarship, while some reflect a more conversational tone of a contribution to a conference panel. Such variation happens in such edited volumes, and in many ways it adds to their flavour and appeal.

While all chapters acknowledge the intersection of justice, journalism and new technologies as the focal point of the ‘Courts and the Media in the Digital Era’ theme, some are focussed less on the new media elements. All pay strong attention to the issue of open justice and its interpretations in laws and policy in the 21st century.

McLachlin CJ’s opening chapter explores the relationship between the courts and the media in the modern age by drawing upon the historical and philosophical traditions of open justice and itemising the shared interests of journalism and justice. Her conclusion foreshadowing the challenges posed by the communications revolution lays a suitable foundation for the subsequent articles to explore them in depth.

The keynote address by the Chief Justice of Queensland, the Hon Paul de Jersey, grapples with the competing interests at stake when the news media cover courts and explains several initiatives in his own jurisdiction to balance those interests in the digital era, including establishing free wi-fi in court houses, permission for journalists to tweet proceedings and the uploading of civil judgments and criminal sentencing remarks to the court webpage.

News Limited chief executive John Hartigan (who recently retired) proposed the following four reforms to enhance open justice: allowing cameras in courts for openings and sentencings; real time access to transcripts and court documents; rejection of the current suppression model and removal of take-down orders.

Co-editor Jane Johnston from Bond University surveys the international field to offer examples of the impact of social media on the courts and focuses on some recent Australian examples where tweeting from court has prompted differing judicial outcomes. She also reports on the attitudes of court information officers to social media.

Griffith University’s Jacqui Ewart draws upon her expertise as journalist, researcher and author of Haneef: A Question of Character, to analyse the implications of national security laws for coverage of anti-terror trials and to assess the new dynamic of social media in the mix.

Law academic Daniel Stepniak from the University of Western Australia traces the use of cameras in courtrooms and offers insights into the attitudes of the judiciary to audio-visual technologies in their various forms.

University of Technology, Sydney, law lecturer Geoff Holland illustrates the complex research issues at play when considering the influence of prejudicial publicity upon jurors, offering a comprehensive review of theories and cases.

Bond University legal scholars Elizabeth Greene and Jodie O’Leary apply this in the Web 2.0 environment and call for the introduction of the option of judge alone trials in jurisdictions that do not yet permit them to deal with extreme cases of prejudicial publicity.

Bond University journalism academic and leading ethics text author Roger Patching has kept abreast of the News of the World scandal and assesses the extent to which it has fuelled calls for a new tort of privacy invasion in Australia.

Federal Court director of public information Bruce Phillips traces that court’s use of technology through live broadcasts in the 1990s through live Internet streaming and more recently the use of social media for reportage from some cases.

Criminologists Alyce McGovern and Murray Lee examine the ways Australian police media units have embraced social media and conclude it has offered them a direct channel of communication with the public on a par with their more traditional media liaison.

Former court media officer, journalist and member of the Australian Press Council Prue Innes reviews courts’ use of suppression orders two years after her authorship of Report of the Review of Suppression Orders and the Media Access to Court Documents for Australia’s Right to Know Coalition and makes some other insightful observations about media access to court information.

Finally, academics Geraldine Mackenzie, Caroline Siranovic and Kate Warner from Bond University and the University of Tasmania share findings from their ARC Discovery project researching the association between Australian citizens’ media consumption habits and their level of confidence in the courts and the sentencing process.

Such a work, particularly in print format, could never provide a comprehensive account of the state of the courts-media-technology nexus as it stands today. And neither should it. That relationship is a dynamic, attempting to balance a range of rights and interests of all stakeholders against the important and historic notion of open justice.

While the technologies might change and fresh cases might test the boundaries, this book will have served its purpose if it helps us understand the core principles at stake and if it aids judges, policymakers and journalists as they try to adapt to each innovation and news scenario.

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* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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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

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Mental illness, journalism and court reporting – balancing the interests

By MARK PEARSON

Our book – Courts and the Media in the Digital Era – edited by Patrick Keyzer, Jane Johnston and me – will be published by Halstead Press early next year. We are in the final stages of production.

It stems from our symposium by that name we held on February 12, keynoting the Chief Justice of Queensland Paul de Jersey and News Limited chief executive John Hartigan.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered on September 15.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!)

The chapter stretches to about 8000 words (pending editor’s cuts) but I offer a summary here to whet your appetite …

The chapter considers the complex array of public interests competing in the contested terrain occupied by people with mental illness, journalists, lawyers and policy makers and illustrates via an examination of the legislation and three case studies that the ancient principle of open justice is at odds with more modern notions of privacy and a concern that media attention might be counter-productive in mental health cases.

It examines 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 three case studies, including a recent historic UK decision, highlight potential pitfalls that may operate to the detriment of both the media and those with mental illnesses.

The chapter concludes by foreshadowing some key areas requiring further research so that policymakers might be better informed in deciding how to minimise jurisdictional differences in an era when media outlets telling the stories of the mentally ill defy state and territory borders.

The intersection of mental health, the law and the media has had scant attention. The Mindframe project last year led to the development of a guide to the varied legislation for court reporters, hosted on the Mindframe site.

It is complicated further by varying guardianship and prisons laws and confidentiality restrictions. In summary, legislators in the various jurisdictions have found differing points of balance between the public interest in open, transparent and accountable proceedings for the involuntary treatment of psychiatric and forensic patients and their competing right to privacy. Conversely, the rights of their victims and the general community to be informed of the result of any such proceedings are also balanced differently. Of course it is not just a case of the patient’s privacy rights versus the public’s right to know.

Patients also have the important issue of their liberty at stake in such proceedings, which might well be compromised by a secret, unreportable tribunal or court process. These matters were at issue in three recent cases.

Haines case

Albert Laszlo Haines (identified in earlier proceedings as ‘AH’), now aged 52, was convicted of two counts of attempted wounding in 1986 when he tried to attack a doctor and a nurse with a machete and a knife. He had been held in high security institutions for almost a quarter of a century after being diagnosed at first with both a mental illness and a psychopathic disorder, which was later revised to a personality disorder alone. His antisocial behaviour included an incident where he armed himself with a fire extinguisher as a weapon and climbed into a roof space.

In 2009 he applied for discharge and for his appeal to be heard in public, “… so that the public could be aware of what he sees as failings in the system, especially in relation to his diagnosis”. The hospital opposed his application for a public hearing on the grounds it would adversely affect his health. In February 2011, after an initial ruling against a public hearing followed by two years of appeals, the Upper Tribunal (Administrative Appeals Chamber) upheld AH’s request for a public hearing of his appeal [AH v West London MHT [2011] UKUT 74 (AAC).].

Both judgments by the Upper Tribunal shed considerable light on the competing interests at stake in such matters. The earlier hearing had canvassed the potential adverse impact on the patient’s health from the process, with expert medical opinions varying on whether the public hearing might create ‘adverse or no publicity’ to the detriment of AH’s progress and on whether a refusal of the public hearing might be just as damaging [AH v West London MHT [2010] UKUT 264 (AAC), 46].

The appeals tribunal had first commissioned further data on the ‘practicalities and potential cost of providing a public hearing’, previous examples of applications for public hearings and their management, and practices elsewhere throughout Europe and common law nations. The default position under the tribunal’s rules was that all hearings should be held in private unless it considered ‘it is in the interest of justice for the hearing to be held in public’.

The tribunal said the ‘special factors for or against a public hearing’ were that the case was ‘out of the ordinary’, the patient had been detained in high security at public expense for more than 23 years, there had been a recent change in diagnosis and there was potentially ‘heightened public significance’.

The judgment reported that, of around 100,000 hearings over the seven years prior there had only been 10 applications for public hearings of the tribunal, of which only one had been allowed and that single opportunity had not been pursued.

The tribunal also considered the costs of a public hearing, both for Haines and future appellants.

The Mental Health Tribunal’s hearing on September 27-28, 2011 was historic because it became the first time the tribunal had sat in public and a month later it became the first time that one of its determinations had been published. Several media organisations attended and reported upon the hearing because of its unusualness and their coverage could be described as reasonably balanced and measured. The decision and its reasons attracted wide coverage on their release a week later. Family members said Haines planned to appeal the decision.

The case is instructive in that it involves a rare and comprehensive insight into the arguments for and against the publicity of such mental health proceedings and the reasons for decisions in a comparable jurisdiction to Australia’s.

‘XFJ’ case

Over the same time period a comparable case was proceeding in Australia, with significant differences in the outcomes. ‘XFJ’ was the subject of adverse tabloid media coverage, including headlines like ‘Killer allowed to drive taxis’, ‘Wife-killer cabbie’ and ‘insane killer’ after he was allowed to hold a taxi licence in Victoria, despite having stabbed his wife to death in 1990 and found not guilty by reason of insanity.

On October 11, 2011, the Court of Appeal of the Supreme Court of Victoria dismissed an appeal by the Director of Public Transport against a decision by the Victorian Civil and Administrative Tribunal (VCAT) to accredit XFJ as a taxi driver. The Director of Public Transport had already decided in 2008 that XFJ had the skills and fitness to drive a taxi and would meet the ‘public care objective’ by being able to provide cab services ‘with safety, comfort and convenience’.

Despite this, the director had decided it inappropriate to accredit a taxi driver who had caused the death of another because of the risk to public confidence in the taxi industry. [See Director of Public Transport v XFJ [2011] VSCA 302; XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 55; Director of Public Transport v XFJ [2011] VSCA 302.]

As Appeal Court President Justice Chris Maxwell’s leading appeal judgment explained, XFJ was an Ethiopian refugee who had been persecuted in his home country and in Egypt before arriving in Australia in 1989. The following year he had suffered a serious depressive episode and killed his wife before attempting suicide.

His 1992 murder trial found him not guilty by reason of insanity. He was a model patient and his custodial supervision order was varied to non-custodial in 1998 and it was revoked entirely in 2003 after a court found he was living in a stable relationship, had friends and support, did not require medication, was coping with the stresses of daily life, and agreed to continue seeing his psychiatrists.

Over the following eight years he had several jobs including as a kitchen-hand, an aged carer and with a charity for the homeless. He had been sole carer of his 19 month old son who had leukaemia and wanted to work as a taxi driver for the flexibility of hours.

After reviewing the relevant legislation and the medical evidence, both the Supreme Court and the Court of Appeal concluded there was nothing that would render XFJ unsuitable for taxi driving and that sensationalised reporting of the case was ‘not conducive to public confidence in the industry’.

The Herald and Weekly Times had attempted unsuccessfully in 2009 to have earlier VCAT and Supreme Court orders suppressing XFJ’s identity lifted [XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96, 5-9]. Counsel for the newspaper group, Justin Quill, cited the leading cases supporting the principle of open justice as a ‘fundamental and defining principle of our legal system’ and argued the suppression orders did not fulfil the ‘hurdle of necessity’ required in the case law. But Deputy President Michael Macnamara held ‘society’s interest in rehabilitating him as a useful citizen’ overrode any rights of potential passengers to know his identity.

He concluded with the statement that the express powers given to the Supreme Court to make suppression orders demonstrated that both Parliament and the Court accepted that rehabilitation of those acquitted on grounds of mental impairment ‘is an area which may properly be exempted from the Open Justice principle’.

So here it was determined that concerns over the ongoing mental health of the patient outweighed arguments for open justice and public safety.

Marlon Noble case

A case with some parallels to the above examples, but with important differences, came to public attention in Western Australia during 2011. Indigenous man Marlon James Noble had suffered irreversible cognitive difficulties since contracting meningitis during infancy. In 2001, at the age of 19, he had been charged with sexually assaulting two minors but was found unfit to stand trial’ due to his mental impairment. While ‘mental impairment’ is not ‘mental illness’, Western Australian law handles such cases and their review under the same legislation and processes, thus offering relevance to this study. Reviews of forensic cases of both types are handled by the Mentally Impaired Accused Review Board under the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) Part 6, with that body’s reports and recommendations going to the Attorney-General. Where mental impairment is not treatable and hospitalisation is not appropriate, the alleged offender is kept in prison. This is what happened to Marlon Noble. In 2003, he was remanded in custody indefinitely and detained at Greenough Regional Prison where he remained ten years later, aged 29, without conviction. This order was pursuant to section 19(5) of the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), now titled the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

Noble’s case was taken up by the Australian Medical Association, the WA Greens and was then the subject of an ABC Radio National Law Report on March 22, 2011. Much more detail on his case became available after a report to the Minister for Corrective Services prepared by Robert Cock QC was tabled in the WA Parliament on 18 August 2011.

The Cock Report revealed the Mentally Impaired Accused Review Board had in 2006 approved a five step plan to gradually release Noble back into the community. In 2010, Noble was allowed 48 hours’ leave of absence per week with the support of the Disability Service Commission. He had owned his own house for four years and held down a job outside of prison.

However, he tested positive for amphetamines on his return from weekly release on September 3, 2010. Despite a further urine test detecting no illicit drugs, and a declaration by Noble’s support worker that she had supplied him with a Sudafed tablet, he was charged under s70(d) of the Prisons Act 1981 (WA) with the aggravated prison offence of using an illicit drug and his leave of absence was suspended.

Mr Cock dealt with the oversights in the prisons and board processes leading to this decision which delayed for six months Noble’s the chance to work towards his eventual release. Noble was returned to that graduated release program on March 25 this year.

By late 2011 the Marlon Noble case was displaying characteristics of a miscarriage of justice. As Noble’s lawyer Matthew Holgate pointed out on the ABC’s Law Report, the charges his client faced remained only allegations for the decade of his incarceration, no evidence against him had been tested, nor had he been given the opportunity to enter a plea.

All of this was reportable through a combination of open justice principles, parliamentary privilege and West Australian legislation on mental impairment forensic cases. Section 171 of the WA Criminal Procedure Act 2004 provides for open court as the default position, although courts can suppress identities, and in cases like this other restrictions related to child witnesses and sexual assaults would come into play.

The Noble case demonstrates that the closing of proceedings, the lack of identification of parties and suppression of evidence in mental health proceedings diminishes the transparency of those proceedings and can lead to the ongoing incarceration of patients in circumstances where publicity about their cases might have resulted in different outcomes. Certainly, it was the publicity factor in this case that led to the increased scrutiny and review of the patient’s plight.

The way ahead through research and review

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.

The chapter concludes by calling for some uniformity in approaches, informed by some further research into both the policymaking and into the positive and adverse impacts of open processes. I hope you find it useful when the book is published.

* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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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 2011

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