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Identifying mental illness

Stakeholders were of the opinion that a lack of awareness by legal service providers that a client has a mental illness may compromise that client’s ability to access legal assistance.⁹⁷ If a legal service provider is aware that a client has a mental illness, they may take the time to cater to their needs, including allowing more time for the client to give instructions, adopting an appropriate communication style, and providing additional support and flexibility. If a client’s illness is not identified, their needs may not be catered to, making it harder for clients with a mental illness to access and use legal assistance effectively.

Furthermore, mental illness is often considered by CLCs and Legal Aid in determining whether a person is eligible for legal representation.⁹⁸ For example, to be eligible for a grant of legal aid in a wide range of matters, including personal injury and employment, it needs to be established that a client has an “unusual or special disadvantage” which includes having “difficulty in dealing with the legal system by reason of a substantial psychiatric condition”.⁹⁹ A family law solicitor argued that if a person is not identified as having a mental illness, they may not be eligible for special consideration for a grant of legal aid, and may therefore miss out on legal representation.¹⁰⁰

Stakeholders reported that people may not be identified by a legal service provider as having a mental illness for either of two reasons:

• the person does not disclose, because of fear of stigma, or because they are undiagnosed
• the legal service provider does not recognise that the person has a mental illness.

Non-disclosure

A couple of stakeholders suggested that people may not reveal to a legal service provider that they have a mental illness because of the associated stigma. For example:

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.¹⁰¹

This is supported by the Disability Council, which reported in A Question of Justice that participants with psychiatric disabilities spoke of being negatively stereotyped as “crazy”, “mad”, “dangerous” and “violent” and, as a result, felt that the “stigma and consequences of disclosing a psychiatric disability were such that it was better not to”.¹⁰²

In consultation for this study, solicitors from Shopfront Youth Legal Centre argued that young people may be embarrassed to disclose to a lawyer that they have a mental illness, particularly young male clients who may also be in denial about their illness.¹⁰³

Different cultural groups may have different approaches to mental illness, which may prevent them from disclosing that they have a mental illness. A court liaison worker was of the opinion that Aboriginal people tend to see mental illness as highly stigmatic, and would rather go to prison than to a psychiatric hospital.¹⁰⁴ Further, the national program manager from MMHA argued that some people whose first language is not English may not recognise the label or concept of mental illness.¹⁰⁵

A Sydney barrister interviewed for this study argued that people with a mental illness may not disclose their illness because they are not aware they have one.¹⁰⁶ This may be due, as one CLC solicitor suggested, to the fact that inadequate levels of mental health care have resulted in some people with a mental illness going undiagnosed.¹⁰⁷ The same solicitor suggested that this is a particular problem in rural and regional areas, where the availability of mental health services is even more limited.¹⁰⁸

Failure to identify

Consultations for this study indicate that if a person does not disclose that they have a mental illness, it may be difficult for legal service providers to identify that a person has a mental illness.¹⁰⁹ Several legal and non-legal service providers suggested that this may be because it is not overtly apparent that a person has an illness. For example:

Of course it’s relatively easier if someone is obviously in the middle of psychosis, if someone is paranoid and expressing strange thoughts. But it is the people that have some sort of neurosis where it can be quite difficult, where you just realise after a few calls going over the same stuff, or [they are] unable to pursue our advice.¹¹⁰

A couple of legal service providers suggested that it can also be difficult for lawyers to distinguish between people with a mental illness and people who were just being “difficult”:

People may not straight away pick that the problem with this person is that there is an illness happening.¹¹¹

A solicitor and a case manager were of the opinion that identifying that a person has a mental illness is even more difficult over the telephone:

I think that is the trick, people don’t make that distinction very well [between people with an illness who are functioning well and those who are not]. It is very hard to judge over the phone. It is very hard to judge without someone telling you their functionality.¹¹²

One solicitor acknowledged the difficulties faced by legal service providers in asking people directly whether they have a mental illness:

A lot of people won’t tell us they have got a mental illness. We do ask people if there are any particular circumstances or things we should be aware of … but [we] can’t say, “are you mentally ill?”¹¹³

However, service providers referred to ways in which lawyers can attempt to ascertain whether a person has a mental illness. For example, a case manager suggested that if a legal service provider suspects a client may have a mental illness, they could attempt to encourage the client to disclose their illness.¹¹⁴

Sometimes we can needle it out … we tend to say, “you are sounding very anxious. I can see that you are finding this experience very stressful. Have you seen a doctor about your anxiety?” Anxiety can be code for lots of things, but it could be something that they feel more comfortable talking about. If you ask them whether they are seeing a doctor about their anxiety, they might just break down and say, “my doctor thinks I might have schizophrenia”.¹¹⁵

One CLC worker believed that a lack of clarity in legal instructions was often taken as an indicator of mental illness.¹¹⁶