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Identification of mental illness

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. However, one of the major barriers raised in this report is that people with a mental illness, for a variety of reasons, are not identified as having a mental illness, either by legal service providers or in the legal system (see Chapters 4 and 5). 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.

The implications of not being identified as having a mental illness are that many do not have their needs met by either legal service providers or in the legal system. 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 regarding whether representation should be granted to a client by a CLC, often include an assessment of whether a person is particularly disadvantaged—including whether they have a mental illness. Hence, if people do not disclose that they have a mental illness, they reduce their chance to be eligible for further legal assistance.

Furthermore, failure to identify that a person has a mental illness during a legal process may mean that person’s particular needs are not catered for during the process. For example, options such as allowing a person to take breaks, allowing for more time, or conducting processes over the phone, may not be offered to a person, unless it was recognised that they had a mental illness. 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 may be improved by the provision of training on mental health issues 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 whereby 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.