Tag Archives: Tom Morton

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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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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Filed under free expression, intellectual property, media ethics, media law, Media regulation, Uncategorized

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

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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Why we can name this forensic mental health patient, but you can’t: open justice in action

By MARK PEARSON

Almost 13 years ago an interpreter at the Community Relations Commission in Ashfield in Sydney – Ms Radmilla Domonkos – died in a fire that had been deliberately lit. Two colleagues were critically injured.

Long_Bay_Jail_2

Long Bay Correctional Centre in Sydney. Photo: JBar, WikimediaCommons

A co-worker was charged with her murder and with maliciously damaging property by fire with intent to endanger life.

After two years of court processes in March 2004 the accused was found not guilty on the ground of mental illness and has since then been held for treatment at the Long Bay Prison Hospital under the Mental Health (Forensic Provisions) Act (1990).

As in many other jurisdictions, the Mental Health Act (2007) prohibits at s. 162 the publication of the names of such patients even if they wish to be named.

As my colleague and research partner Associate Professor Tom Morton explained in an ABC Radio National Background Briefing program – The Man Without A Name – earlier this year, this patient has been prevented from telling his own story because of such anonymity provisions.

As he reported there, the ABC prepared a detailed application for permission to name the patient in that program and we attended a special hearing of that application before the Mental Health Review Tribunal in Sydney last September.

That application was approved, and Tom was able to name the patient in that program that aired in April this year.

However, were advised that such permission was limited to that single publication of the patient’s name. In other words, even though you can listen to a podcast of that program available here to discover his name, we would not be allowed to repeat it in our research outputs without further permission.

Earlier this year we went through that process, and I am pleased to advise that the Mental Health Review Tribunal has granted us permission to name the patient in our research publications and also in this blog.

I believe this is somewhat of a first – an academic research blog being granted permission to name a forensic patient – so journlaw.com is likely breaking new ground here as we do so.

The order states:

The means of publication are restricted to the following outlets for academic scholarship:

1. Academic journal articles, books and book chapters authored by Professor Morton and / or Professor Pearson.

2. Academic research blogs authored by Professor Morton and/or Professor Pearson.

It proceeds to require that any such publication must indicate our authorship, that the Tribunal can withdraw the consent at any time, and that any publication must carry the following 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.”

That should make it clear why we can name the patient but you cannot – at least without going through this whole process of application detailed in the Tribunal’s Practice Direction on s. 162, viewable here (pdf file).

So, after that extended preamble, I shall now reveal the patient’s name.

It is Mr Saeed Sayaf Dezfouli.

dezfouli

Forensic patient Saeed Dezfouli. Photo: Justice Action

In coming months we will be publishing our academic outputs on the research and journalistic processes involved in our pursuit for permission to identify Mr Dezfouli, kindly funded by a Rule of Law Institute of Australia grant.

Clearly, there are many competing rights and interests at stake in such a situation, including the patient’s right to privacy and effective treatment, their liberty, community safety, the reputations of their treatment team, and the welfare of victims and their families.

There are also the important legal principles of open justice, free expression, and the public’s right to know about the workings of the mental health and criminal justice systems. We will be exploring such issues in our academic publications.

Meanwhile, if you are interested in the Tribunal’s processes you might wish to read the Tribunal’s Official Report of an uncannily similar case (pdf file) it has published on its website using the name “Mr Ephram”.

The prisoner rights advocacy group Justice Action has also applied for, and obtained, permission to name Mr Dezfouli on its website and you can read more about his situation there.

Also, if you search for his name in a web browser you will find some other instances of him being named in the media, although it is unknown whether there were any legal consequences for the outlets which identified him.

(Tom Morton’s ABC Background Briefing program ‘The Man Without A Name’ – 20 April 2014)

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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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