Dr Andrew Caple1
1Queensland University of Technology, Bardon, Australia
Attempting to publish information about involuntary mental health tribunal cases (whether civil or forensic), advances several ethical and legal issues, such as the public interest in the open administration of justice; the equivocal right to privacy; and involuntary patients’ interests in effective treatment and recovery. This presentation canvasses the competing policy and legal issues relevant to balancing the principle of open justice with the interests of all stakeholders in cases where the media or involuntary patients seek publicity about a mental health tribunal case. There is currently very little transparency of such review hearings in Australia, and therefore these hearings are the subject of limited public and professional oversight. Australia’s statutory frameworks have mostly prevented the media and others from reporting a widely recognised societal problems; those being the efficacy of mental health treatments, and the lawfulness of serious review decisions. Transparency provides a mechanism to understand how relevant individuals and institutions with acknowledged human rights responsibilities discharge those responsibilities in the mental health context. Transparency facilitates the identification of those elements of mental health systems, which may be working effectively, and those which may not. This presentation questions whether Australia’s statutory and administrative approaches are consistent with current human rights obligations regarding open justice and privacy issues. Ultimately, the presentation contends that Australian legislatures should implement genuine supported decision-making frameworks to enable involuntary patients, should they wish, to make autonomous decisions to waive rights to privacy and confidentiality, and to open review hearings either in part, or in full. In addition, the presentation contends that reviewing tribunals should be obliged to publish reasons statements according to a model of good practice (for the most part), currently in operation in the jurisdiction of New South Wales.
Andrew Caple is a sessional academic in the Faculty of Law at the Queensland University of Technology. After graduating as a medallist at Griffith University’s Law School, he worked as a Judge’s Associate in the District Court of Queensland, a Solicitor in the community legal sector, and a Lecturer at the University of Queensland, before completing his PhD at the Australian Centre for Health Law Research at QUT in relation to the operation of the open justice principle at Australian civil commitment review hearings.