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Barriers to participating in the legal system

Stress

When things get too complicated I can’t cope.²

Legal processes can be lengthy, complicated and stressful. People with a mental illness may already have stressful lives as a result of their illness, financial circumstances and other issues, and participating in a legal process may create even more stress. Consultations suggested that stress may act as a barrier to initiating a legal process, it may deter people from continuing with a legal process, or prevent them from participating effectively during a legal process. Two participants interviewed for this study said:

I wasn’t well enough at the time to keep going through the system [CTTT] and get the money that they owed me.³

Well it broke me, emotionally and mentally … I think it was the whole process. The magistrate and the witnesses. Witnesses were saying what I did … it was all stressful, and the outcome was stressful too.⁴

Legal and policy officers interviewed for this study also argued that legal processes can be stressful for people with a mental illness:

If you try to mount a claim in the civil courts and you’re a participant, you don’t get treated that gently. And I would think that a mentally ill person with less-than-perfect recollection and maybe with less-than-perfectly ordered thoughts could be pretty easily reduced to a wreck, basically.⁵

You can’t truthfully say to people it is not stressful because it is. And when you have so many stressful issues in your life as you can handle … to seek a remedy can be too much for some people.⁶

When you have people from non-English speaking backgrounds, or who have a mental illness or intellectual disability or are just very nervous, they find it [the CTTT] very difficult and stressful.⁷

Commenting on the experience of a mentally ill person being discriminated against at university, one solicitor argued:

It’s fairly common … that a person finds themselves, in terms of trying to move forward in their university study, dealing with threatened expulsion from a course and embroiled in a range of grievance mechanisms and disability discrimination type complaints in order to try and deal with the issues. I have not seen that situation pan out particularly well for any individual. It invariably seems that the more they get involved in these mechanisms, the greater the level of stress and anxiety it places upon them.⁸

The high rates of sexual assault and domestic violence experienced by people with a mental illness was reported in Chapter 3. One solicitor noted the particular stress that may be faced at the court by people with a mental illness who have been the victim of sexual assault:

My experience with the court is it’s not generally that sensitive to people who are vulnerable, like victims of sexual assault. I get many of my clients who go through the criminal court process telling me about how traumatic it is. I have had one client, in particular, who had absolutely no recall, who was the victim in a child sexual assault matter. He was cross-examined for three days by a barrister [in] Sydney and on the last day of cross-examination, went home, took too many drugs and alcohol and put a knife through someone. It is a really awful experience.⁹

This stress may deter people from wanting to go to court. One participant interviewed in this study, who had been sexually assaulted by one of her parents, said:

After much soul-searching I realised that it wasn’t worth it. It was just going to cause me more heartache and pain.¹⁰

CLC workers from Shopfront said that many of their clients were so traumatised in child abuse and sexual assault matters that they had difficulties even reporting the offence to the police:

Many of our clients are too frightened to make that sort of disclosure, or too traumatised, and they don’t want to go through the justice process, giving evidence at a court or in a trial.¹¹

The convener of the National Council of Single Mothers and their Children was also of the opinion that in family law matters, women with a mental illness who have been the victims of domestic violence, and have to face the perpetrator in court, may become so stressed that they are unable to participate effectively in the process:

Often they are forced to come into court as self-represented litigants, and put up an argument against the person who has been their perpetrator, and panic attacks, anxiety attacks, mean that some women just physically can’t do that. So mental health issues arising from domestic violence actually become a barrier to participation.¹²

WLS workers acknowledged recent Family Court strategies to assist women who have been the victims of violence during family law matters, such as conferencing, which allows the two parties to sit in different rooms, with the registrar or mediator moving between them. However, they argued that this does not necessarily address the problem of victims having to wait outside in the waiting area with the perpetrator.¹³ This is supported by Kennedy and Tait, who argue that consideration should be given to the stress experienced by victims when they come into contact with perpetrators in courtroom waiting areas.¹⁴

In its submission to the Productivity Commission’s Review of the Disability Discrimination Act 1992 (Cth), the Mental Health Council of Australia argued that for people with a psychiatric disability, reporting acts of discrimination can be a very stressful experience, which can in turn lead to relapses in illness. The review argued that this is a major barrier to participating in the disability discrimination complaints process. One solicitor interviewed for this study described how stressful the experience of reporting discrimination had been for one of her clients:

And then actually having to recall stuff again … [one client] didn’t want to be put on the stand, and that was a big reason why. We got a good settlement, but she was prepared to walk away with nothing, rather than go to court, because it was so difficult for her to have to face all of that again.¹⁵

In its submission to the review, HREOC reported that as a result of stress, outcomes were less favorable for people with psychiatric disabilities.¹⁶ The Disability Council also discussed the impact that lengthy proceedings can have on the stress experienced by people with disabilities, particularly in personal injury compensation cases and discrimination complaints.¹⁷