Mental illness, forensic patients & treatment without consent

A person known by the pseudnym A more than 10 years ago set fire to premises where he worked, resulting in the death of a fellow employee and extensive damage to the premises. He was charged with the murder of the deceased, and with maliciously damaging property by fire with intent to endanger life. A judge determined that he was unfit to stand trial and he was later found not guilty by reason of mental illness. An order was made for his detention at a forensic hospital.

The most recent proceedings brought by A were reported as A (by his tutor Brett Collins) v Mental Health Review Tribunal (No4) [2014] NSWSC 31; they were in the nature of an appeal from a Mental Health Review Tribunal order regarding compulsory treatment by way of injections for schizophrenia (which A argued he did not have). It appears from the reasons for judgment that A may have been assisted by a lobby group Justice Action.

The judgment is of interest for its careful review of the legislative scheme, appeal rights and the potential interplay with the court’s protective jurisdiction.

Three prior applications had been brought by A:

In the present proceedings, leave to appeal was refused. Set out in the reasons is an explanation that even if leave had been granted:

The deliberate decision of the Tribunal, made after due consideration of evidence of particular facts and competing opinions, to defer to the judgement of the plaintiff’s treating doctors is not fairly able to be characterised as an error of law on the part of the Tribunal. (at [256])