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EMILY McCARRON, ABIGAIL GRAY, MARIA KARRAS[*]
Approximately one in five people in NSW will experience a mental illness at some stage in their life.[1] While the experience of mental illness differs according to the nature of the illness and its severity, people who have a mental illness can face many barriers to participating in everyday activities, such as employment and education.[2] This article argues that people with a mental illness also face barriers to accessing justice, from going to see a solicitor to being able to participate at court.
In mid-2006 the Law and Justice Foundation of NSW published On the Edge of Justice: the Legal Needs of People with a Mental Illness, a qualitative study on the capacity of people with a mental illness in NSW to obtain legal assistance and participate effectively in the legal system.[3] The study also examined the role that non-legal service providers play in supporting people with a mental illness during the legal process and in accessing legal assistance.
The study employed qualitative techniques in both the collection and analysis of data, including an extensive literature review, roundtables with key stakeholders, over 80 in-depth, semi-structured interviews with legal and non-legal service providers, courts and tribunal staff, advocates and other stakeholders and 30 semi-structured interviews with people with a mental illness. Information was also drawn from statistics reported by agencies such as the Australian Bureau of Statistics and the Australian Institute of Health and Welfare, and from case studies provided by stakeholders. This article is based on the findings of this study.
While not all people with a mental illness are socially and economically disadvantaged, this group has been identified as being among the most vulnerable and disadvantaged in our community. Recent reports from the Senate Select Committee on Mental Health[4] and the Mental Health Council of Australia[5] have reported on the barriers to accessing mental health services for people with a mental illness in both NSW and Australia wide. People with a mental illness also have lower rates of educational attainment, are less likely to be employed full-time, and are often reliant on social security benefits, public and community housing and boarding house accommodation.[6] They are less likely to be married or living in a relationship, and have high rates of divorce and separation. Housing stress and homelessness are realities facing many people with a mental illness.
The Foundation’s study suggested that the legal issues they experience are often reflective of this disadvantage. People with a mental illness were reported to experience social security problems, particularly with proving that their psychiatric disability is serious enough to warrant receiving the disability support pension. Problems with proving eligibility for the disability support pension means that people receive other social security benefits, which are paid on less generous terms and have much more strict ‘compliance’ obligations. Due to the nature of their illness, some people with a mental illness had problems adhering to these requirements, and faced being breached and cut off from payments. This can place them at risk of increased financial disadvantage.
The study also found that people with a mental illness can be vulnerable to credit card and other contract-related debt and to receiving fines, particularly those who are young and homeless. These legal issues were reportedly compounded by the fact that people with a mental illness face discrimination in seeking and maintaining employment. If unresolved, these issues can increase financial disadvantage.
I was away sick, and my employer rang my GP and the GP told her that I had a mental illness. My employer walked up to me and said ‘people with a mental illness shouldn’t be doing what you are doing’ and so I resigned on the spot.[7]
People with a mental illness were also reported to experience housing-related legal issues, including housing debt and eviction from both public housing and private rental accommodation, which can make them vulnerable to housing stress and homelessness. Stakeholders interviewed for this study expressed concern about the potential effect of the recent introduction of anti-social behaviour agreements by the Department of Housing. Given the incidence of neighbourhood disputes between people with a mental illness and other residents, there was concern that these agreements would be used against people with a mental illness, placing them at increased risk of homelessness. The findings also suggested that people with a mental illness living in both licensed and unlicensed boarding houses lack privacy, contend with dangerous and unsanitary conditions, face abuse from other residents and operators and are without legislative protection against arbitrary eviction. Again, consultations indicated that the vulnerability to homelessness generated by these legal issues can also be compounded by the fact that people with a mental illness often face discrimination in accessing private rental accommodation.
In addition, the findings suggested that people with a mental illness appear to be vulnerable to a range of legal issues that are related to violence and family breakdown, such as, family law and victim of crime related legal issues. They can also face problems in retaining their children under the Family Law Act (Cth) and State care and protection laws.
The potentially serious financial and personal consequences of unresolved legal issues for people with a mental illness, highlights the importance of accessing legal assistance and resolving these issues through the legal system. However people with a mental illness face numerous barriers to accessing legal assistance and participating in the legal system.
There are a number of barriers related to the experience of being mentally ill that can prevent people from accessing legal assistance and participating in the legal system. Consultations for this study suggested that some people with a mental illness may become overwhelmed and find it difficult to prioritise their legal problem. Being susceptible to stress and not coping with stress may also deter people with a mental illness from accessing legal assistance, or from lodging a complaint or an appeal. It was also reported that the stress they experience in the legal system is often compounded by the fact that legal processes can be intimidating and frightening. Courtrooms, for the most part, are particularly formidable and austere environments. For these reasons, people with a mental illness can benefit greatly from being legally represented, particularly when they have to go to court.
What if you don’t know how the court system works, what if you are too embarrassed to admit you don’t know what to say or do? Or admit that you are scared, or that you have anxiety, or you have a mental illness and you can’t cope? What if you don’t know who to talk to?[8]
The study found that cognitive impairment, which can be associated with mental illness, prevents some people from being able to comprehend legal documents, understand what is going on during the legal process and communicate with their lawyer. This may be exacerbated by the side effects of medication, which can include drowsiness and clouded thinking. Furthermore, a lack of organisation and problems with time management — sometimes characteristics of people with a mental illness — were reported as factors preventing people from keeping appointments with lawyers and turning up to court on time.
People with a mental illness were also reported to often have problems communicating information, complaints and instructions to their solicitor, which may result in their legal issue not being correctly addressed. Problems communicating the substance of their complaint at court or at a tribunal may also present barriers to people participating effectively in the process. These barriers could potentially be compounded for people with a mental illness whose first language is not English.
Those we interviewed argued that some of these barriers may be addressed by the adoption of a more flexible approach to legal service provision and other legal processes such as courts and tribunals — an approach that allows for the needs of people with a mental illness to be met more appropriately throughout the legal process. For example, providing longer appointments for clients with a mental illness was suggested as a strategy that could be used more widely by legal aid and community legal centre officers to overcome communication difficulties with this client group. People who have difficulties with organisation and complying with time frames may benefit from more intensive assistance and even more case management of their matter. Additional features of flexible service delivery could include the provision of information in plain English, the development of procedures to identify disability-related requirements, and the education of staff about mental illness and the communication skills required to effectively assist people with a mental illness.
Findings from this study also suggested that people with a mental illness may benefit from processes that are less adversarial and less formal. Such processes were reported to be less stressful and intimidating, and, due to their ‘inquisitorial’ nature, potentially beneficial in overcoming communication problems by allowing for greater engagement between those involved. Furthermore, being aware of and being flexible towards the needs of people with a mental illness, by allowing for breaks, simplifying the application process and allowing more time to explain things, were also suggested as potentially useful strategies in overcoming stress and communication problems.
We adjust the process so that it’s not too onerous for them, and we look at things like taking breaks and having a support person available to them. We try to do a lot of preparation so that people with a mental illness know what to expect, can be involved in the process, can participate fully, and … hopefully have a sense of what it is that we are going to be talking about and how we are going to talk about it. [We] provide them with as much information as possible prior to the meeting, so that when they come in it’s not a foreign intimidating process.[9]
Consultations for this study indicated that the adoption of an approach to courtroom processes that addresses the underlying causes of offensive behaviour, attempts to improve the wellbeing of parties to the process, and focuses on rehabilitation as a factor in sentencing, could assist in breaking down some of the barriers people with a mental illness face in participating in the legal system. Problem-solving courts (and problem-solving lists) that have adopted this type of approach include the NSW Drug Court, the NSW Local Court Magistrates Early Referral into Treatment (MERIT) program, the Queensland Mental Health Court and various mental health courts in North America. Such courts attempt to tailor outcomes to address the offending behaviour and particular needs of the offender, such as drug and alcohol treatment. These courts also attempt to involve the offender in the process as much as possible, by implementing a less adversarial approach within the courtroom, which allows more direct interaction between judges and offenders. Although many of the courts that implement this type of approach are specific courts or court lists, it has been suggested by the Center for Court Innovation in New York and the California Administrative Office of the Courts that the features of these courts could be implemented on a day-to-day basis in mainstream courts.[10]
This study suggested that such flexibility could be enhanced by the provision of training about mental health issues for solicitors, judges, court staff and other legal stakeholders. Training could include how to communicate effectively with people with a mental illness, what their needs are, what it is like to have a mental illness, indicators of mental illness, referral and resource information, strategies to work effectively with people with a mental illness, stress management, and general awareness-raising in order to combat stigma and discrimination. Some training is already provided by the Legal Aid Commission of NSW, various community legal centres and by the NSW Attorney General’s Department.
Although there is now a greater awareness and understanding of mental illness in the community, it is still commonly misunderstood. Negative perceptions of mental illness — including that people with a mental illness have violent tendencies — lead to stigma and discrimination in the community.[11] Our study suggested that people with a mental illness also face stigma in the legal system, where they are sometimes viewed as lacking credibility and as being unable to perceive the ‘reality’ of events. The perception that people with a mental illness are less credible, and are therefore not telling the truth, creates an additional barrier to accessing legal services, and participating effectively in the legal system.
For example, service providers interviewed for the study reported that, in some circumstances, lawyers have difficulties believing or taking seriously a complaint from a person with a mental illness, particularly if what they are saying is not clear or if there are communication problems. Similarly, people with a mental illness, particularly those who have been victims of sexual assault, may not be taken seriously when they are giving evidence or making a complaint to police. The findings from our study also suggested that those people with a mental illness who are viewed as being ‘excessive complainants’ are also seen to lack credibility. Where people have legitimate complaints, perceptions that they are being vexatious may prevent them from being taken seriously by people in the legal system.
Their complaint gets trivialised or it’s put down to being something else. Their mental illness is seen as the problem rather than their legitimate complaint. And so the barrier is people’s perception.[12]
Our findings suggested that misconceptions of mental illness within the legal system could be addressed by providing training to people in the legal system to raise awareness and understanding of people with a mental illness, and overcome beliefs that they are less credible. A legal service provider interviewed for this study suggested that solicitors working with clients who have a mental illness need to treat their claims as legitimate, and work together with their client to try and gain a clear understanding of events.
In order to address the needs of people with a mental illness within the legal system, there need to be systems in place to identify that people actually have a mental illness. Consultations indicated that people with a mental illness, for a variety of reasons, are not always identified as having a mental illness, either by legal service providers or in the legal system. This is because it is either not obvious that people have a mental illness—people may not wish to disclose that they have an illness because of potential stigma and discrimination, or they may be reluctant to disclose this information for cultural reasons—or people themselves might not be aware that they have a mental illness.
Our study reported that a potential consequence of not identifying a client as having a mental illness is that their needs may remain unaddressed. For example, if a solicitor is aware that a person has a mental illness, they may set aside more time or be more flexible in response to the needs of a particular client. Furthermore, eligibility for legal aid representation, and decisions about whether representation should be granted to a client by a community legal centre, often include an assessment of whether a person is particularly disadvantaged — including whether they have a mental illness. Hence, if people are not identified as having a mental illness, their eligibility for further legal assistance may also not be identified.
There is the whole tension between, if I disclose that I have got a mental illness, will I then be stigmatised, and harmed, and treated more adversely than if I didn’t disclose—but if I don’t disclose, then my needs don’t get met, and I am perhaps excluded from or compromised right through the process.[13]
Furthermore, failure to identify that a person involved in a legal process has a mental illness, may mean that their particular needs are not catered for during that process. For example, options such as allowing the person to take breaks, allowing for more time, or conducting processes over the phone, may not be offered. In addition, in those matters where mental illness is taken into consideration in determining the outcome of a case, failure to recognise that a person has a mental illness would mean that the illness is not taken into consideration in determining the outcome. That said, it should be recognised that in family law, and care and protection matters, people with a mental illness may be reluctant to disclose that they have a mental illness, for fear that it will be used in a way that does not favour them.
Problems with identifying that a person has a mental illness could be improved by the provision of training on mental health to lawyers and others in the legal system. However, it should be acknowledged that it is not the role of legal professionals to make mental health assessments of clients. Creating an environment in which people feel comfortable and are encouraged to divulge that they have a mental illness may address some of the concerns people have about disclosure. Court-based assessment services such as the NSW Statewide Community and Court Liaison Service also provide valuable assistance to courts in identifying those clients who have a mental illness.[14]
Some service providers interviewed for this study suggested that a specialist legal service for people with a mental illness would help address some of the barriers encountered in accessing legal assistance. A possible model for this is the Mental Health Legal Centre in Victoria, a specialist legal centre for people with a mental illness that provides legal advice and representation for people who have a legal matter related to their mental illness, as well as a referral service, legal education and telephone advice. However, some concern was expressed that not all people with a mental illness would access a specialist mental health legal centre, because they do not believe or know they have a mental illness, or because they are afraid of experiencing the stigma associated with mental illness. The idea of a specialist legal centre would therefore require further investigation.
The findings of this study suggested that by virtue of their illness and their financial disadvantage, it is apparent that people with a mental illness come into contact with a range of non-legal service providers such as mental health workers, social workers, youth workers, community groups, church-run welfare services and other government services, such as the Office of the Protective Commissioner, the Office of the Public Guardian, Centrelink and the Department of Housing. One of the aims of this study was to examine the role that these non-legal service providers play in assisting people with a mental illness through the legal process and in accessing legal services. Findings suggested that non-legal service providers, particularly mental health workers and social workers, do play a role in supporting people with a mental illness throughout the legal process, which highlights the need for recognition of the role they play and for increased relationship building between non-legal services and legal service providers.
The only reason we are acting for him is that he has been linked in with us through a youth service that we have very good contact with. So he has accessed a service that is able to identify [his] legal problem and send him over to us and we are able to assist him … otherwise he would just be falling through the net.[15]
Non-legal agencies were found to assist people with a mental illness to identify that they have a legal issue, provide them with information about that legal issue, refer them to a legal service provider, advocate on their behalf and conduct community education and awareness-raising about mental illness.
I’m not just an Aboriginal health worker; I am a social worker; I am a psychologist; housing officer, Centrelink officer, legal officer, core support, you name it. I am also a community development officer, a community capacity building officer, a prevention and promotions officer. You name the job, I am doing it.[16]
Non-legal service providers were also reported to play a role in helping people with a mental illness overcome barriers such as communication problems, stress, cognitive impairment and problems with organisation. For example, having a non-legal service provider go along to an interview with a solicitor may assist a person with a mental illness to communicate more effectively and feel more at ease with the solicitor. Having a non-legal service involved in the process can also help provide the legal service with background information about the client that can assist in determining the nature of the client’s legal problem and the level of support the client may need. This can be particularly important in cases where clients themselves may not divulge what is going on in their lives and in particular the fact that they have an illness. Furthermore, having a support person at court may also assist people with a mental illness who find the courtroom experience stressful, or who have problems turning up to court on time and understanding what is going on.
However, the findings of this study indicate that non-legal support for people with a mental illness participating in the legal system is limited by the capacity of many services to provide such support. In order to effectively assist clients with a mental illness, non-legal service providers require a degree of legal knowledge.
In particular they require the ability to recognise a legal problem, understand basic legal processes, and know when and where to refer a client to a legal service. Non-legal services therefore need to be able to access legal information and advice, as well as information on referral networks. In addition, building relationships and sharing information (including training) between non-legal service providers and legal service providers may assist non-legal service providers in this role.
Although the purpose of this study was not to investigate whether people with a mental illness are accessing appropriate mental health care and treatment, a commonly reported theme that emerged during the study was that people with a mental illness can face great difficulties in accessing mental health care and treatment. This was linked to their experience of certain legal issues, as well as their ability to access legal assistance and to participate in the legal system.
For example, not having access to appropriate mental health care and treatment may prevent people who face having their children removed by the Department of Community Services from accessing the support they need to be able to keep them. Fines and public disorder crimes may arise as a result of not receiving appropriate treatment. It is also possible that barriers related to being unwell, which prevent people from accessing legal services and participating in the legal system, might also be addressed if people had more adequate access to mental health care treatment. Finally, diverting people with a mental illness from the criminal justice system, through programs such as the NSW Statewide Community and Court Liaison Service, may be undermined if mental health services in NSW are unable to meet the demand.
A great number of people in NSW experience mental illness, many of whom are both financially and socially marginalised. The legal issues they face reflect this marginalisation, and if unaddressed, can place them at risk of increased financial disadvantage, homelessness and physical vulnerability. A number of barriers outlined in this study prevent people with a mental illness from addressing these legal issues, and contribute to the relegation of people with a mental illness to the social and financial fringes of our community. Addressing and resolving these barriers reflects a wider community need to develop a better understanding and awareness of the needs of people with a mental illness.
[*] EMILY McCARRON, ABIGAIL GRAY and MARIA KARRAS are researchers at the Law and Justice Foundation of NSW.
© Law and Justice Foundation of NSW 2006
[1] G Andrews et al, ‘The Mental Health of Australians’ (Mental Health Branch, Commonwealth Department of Health and Aged Care, Canberra, 1999).
[2] See, eg, A Jablensky et al, ‘People Living with Psychotic Illness: An Australian Study 1997–98’ (Mental Health Branch, Department of Health and Aged Care, Canberra, 1999) and Andrews et al, above n 1.
[3] This article is based on the Law and Justice Foundation of NSW study, On the Edge of Justice: the Legal Needs of People with a Mental Illness, (2006) <http://www.lawfoundation.net.au/report/mental> at 20 October 2006.
[4] Commonwealth of Australia, Senate Select Committee on Mental Health, A National Approach to Mental Health- from Crisis to Community (2006).
[5] Mental Health Council of Australia, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (2005).
[6] See, eg Jablensky et al, above n 2.
[7] Person with a mental illness interviewed for On the Edge of Justice.
[8] Disability awareness trainer interviewed On the Edge of Justice.
[9] Manager, Anti-Discrimination Board of NSW interviewed for On the Edge of Justice.
[10] D J Farole and N Puffett, Can Innovation be Institutionalized? Problem-Solving in Mainstream Courts (2004), <http://www.courtinnovation.org/pdf/can_innovation.pdf> at 20 October 2006. These features form part of an approach to courtroom processes known as ‘Therapeutic Jurisprudence’, which examines the role of the law as a therapeutic agent.
[11] Disability Council of NSW, Sydney, A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System (2003).
[12] Community legal centre worker interviewed for On the Edge of Justice.
[13] Academic interviewed for On the Edge of Justice.
[14] Justice Health, The Statewide Community and Court Liaison Service, <http://www.justicehealth.nsw.gov.au/services/mental_health.html> at 20 October 2006.
[15] Community legal centre worker interviewed for On the Edge of Justice.
[16] Aboriginal mental health worker, interviewed for On the Edge of Justice.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2006/46.html