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Lack of legal representation

Consultations indicated that without appropriate legal representation at court and in ADR, many people with a mental illness do not participate as effectively in the legal system.⁸³ For a person who has problems communicating and understanding what is going on during the legal process, a legal representative can assist by explaining events, advocating and ensuring the person makes it through the legal process:

If you are paranoid and fearful you may not be able to make an informed judgment about what’s needed [at court]. They need lawyers to explain the process to them properly.⁸⁴

I can get people to participate in the legal process if I can get a hold of them and walk them through. But if they never get to me or the centre, then they are not going to get through it.⁸⁵

Stressed by litigation or stressed by their circumstances. During a hearing they are absolutely exhausted, because they have to go home and think about what they are going to do the next day, and they are just totally exhausted by it all. They haven’t a clue how to do their affidavits.⁸⁶

In its submission to the Senate Select Committee on Mental Health, the WRC indicated that without legal representation, people with a mental illness may not receive a good outcome in court, particularly if they do not understand the legal options available to them:

We regularly deal with clients with a mental illness who may have had a strong case for waiver of their social security debt, for whom we can do nothing—because they have already been convicted of a criminal offence in relation to the debt. In many cases our clients in this situation were unrepresented (or poorly represented) in the criminal matter, and they inappropriately pleaded guilty. These people now have undeserved criminal convictions as well as the burden of repaying a debt—both of which exacerbate their mental illness.⁸⁷

A family law solicitor was of the opinion that some self-represented litigants in the Family Court who have a mental illness behave inappropriately, which may also affect the outcome of their case:

I have had people stand up there and scream. They don’t care what the judge does, because they will just do what they are going to do anyway. I have seen judges try to handle that without calling the court officer. I had a guy go into court wearing a green Elvis suit and bring in a whole range of baby bottles and blankets and put them on the bar table and then stand up and talk over the judge.⁸⁸

One participant with a mental illness described going to court as the defendant to an apprehended violence order (AVO) without legal representation:

I have been to court with this neighbor, and I had no solicitor there. I didn’t know what to do legally. I had to examine the witnesses you know. Well I broke down, at the hearing and admitted it. The magistrate’s attitude was very harsh … I think that [not having legal representation] might have contributed to me breaking down. Because I know very little about the law and court proceedings.⁸⁹

Support for people with a mental illness through the legal process need not be strictly legal. For example, support through the legal process might be provided by a non-legal advocate such as a tenancy worker or a social worker. Non-legal service providers can provide support to people with a mental illness during the legal process by assisting them with filling out forms, advocating to a government department or providing general support at court or a tribunal.⁹⁰ For example, people appearing before the SSAT are allowed to bring a friend, family member or advocate to a hearing.⁹¹

If somebody has a serious mental illness, then without a lot of support, they may not be able to get through the [DOH] application process, let alone the actual living process. And if they are knocked back, they may not be able to go through the appeal process without serious assistance.⁹²