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On the edge of justice: the legal needs of people with a mental illness  ( 2006 )  Cite this report

Ch 5. Participation in the legal system

Barriers to participating in the legal system



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Courtroom environment


Consultations with service providers and participants indicated that the formality and structure of the courtroom environment can be intimidating to people with a mental illness:

    The court process is a fairly formal, intimidating kind of experience where [people with a mental illness] sit on the margins and don’t understand the process.44

    The whole courtroom, the whole atmosphere … It takes a lot for people to walk through the doors. It is intimidating. The atmosphere is very bad for people with a mental illness.45

    I think that court is a serious thing … I felt stressed and anxious.46

Service providers argued that being frightened as a result of the formality and structure of the courtroom may prevent people with a mental illness from actively participating in the legal process:

    You’ve been through security, there are all these people walking around in uniforms, and there’s police and then there’s all these cameras watching. [You think] “I’m not going to say anything more, in fact I am going to walk out because I can’t handle this place … I’m anxious, I can’t make words happen, how humiliating”.47

    Trying to lead evidence out of someone who is already intimidated or psychotic is really difficult. The language of the courtroom is foreign to most people who aren’t legally trained, let alone someone with a mental illness. It is incredibly difficult for them to make appropriate responses.48

    In a courtroom setting, it is very dehumanising for people with bipolar disorder. If people are not confident then they will tell a minimum amount of information.49

In addition, two service providers commented on the way the structure of the court process can prevent advocates from conversing with their clients, in order to support them or explain to them what is going on. Both were of the opinion that other legal settings, such as tribunals, were more conducive to the needs of people with a mental illness:

    I think that people with a mental illness perhaps need more explanation at certain critical stages. However there is no opportunity to do this in a formal court setting. Also, being able to go outside, you can do that in dispute resolution but you can’t do it in a court. [You] can’t say “oh look we need a moment” quite as easily.50

    When my client was on the witness stand and the prosecutor was interviewing her … she couldn’t string a sentence together. She couldn’t convey the information to the court that she actually needed to tell them. Whereas if you are in a tribunal, and you are sitting along side of them, you can actually write them notes and talk to them.51

Kennedy and Tait argue that consideration should be given to how the design and structure of courtrooms can influence people’s “experience of justice”.52 They argue that both the physical and psychological needs of court users should be taken into consideration when designing courts.53 For example, in building and designing courtrooms, consideration should be given to whether courtroom layout and design contributes to people becoming stressed and aggressive.54 Consideration should be given to design factors that improve communication between people within the courtroom.55 Just as the needs of people with physical disabilities should be taken into account in designing courtrooms, the needs of people with intellectual and psychiatric disabilities should also be taken into account:

    While not all needs can be fully met in all courts, court planning procedures should avoid stigmatizing or marginalising people with special needs.56

In a study of the Guardianship Tribunal in NSW and Victoria, Tait and Carney argued that in comparison to courts, tribunals tended to “incorporate the person who is the subject of the application, treat them as equal participants, with a right to speak, be listened to, and express views and even comment on the decision”.57 Service providers, interviewed for this study, were also of the opinion that the structure of the Guardianship Tribunal is less formal, and therefore more suited to the needs of people with a mental illness.58

CLC workers from Shopfront argued that the Children’s Court is less intimidating for young people with a mental illness, due to the fact that magistrates are trained to be “much kinder and much gentler in their approach and less punitive”.59 Similarly, one mental health worker was of the opinion that magistrate inquiries at hospital are a lot more inclusive to people appearing before them:

    It’s a much less formal process. You are able to have the odd little interjection with the client. The magistrate, who comes to hear the Mental Health Act stuff, will canvas if anybody else wants to say anything, and lets the person talk as much as they want to talk, and let the family talk if they want to talk. So I think most people get out of it feeling less worried than when they go into it. That is a real issue for a lot of people, probably because most of them when they come in under the Mental Health Act, they have a sense of being stripped of [their] rights in some way. So to be able to sit down and talk … that can actually be kind of empowering for some of them, to be part of that process.60

When a person is involuntarily admitted to hospital, a magistrate’s inquiry is held on-site, to determine whether the person should stay in hospital or be discharged.61

Consultation with CLC workers, Shopfront, September 2004.
Consultation with registrar, Local Court, Sydney, July 2004.
Interview no. 10.
Consultation with disability awareness trainer, August 2004.
Consultation with CLC workers, WLS, October 2004.
Roundtable consultation, 16 June 2004.
Consultation with CLC worker, Western NSW, September 2004.
Consultation with mental health worker, Sydney, September 2004.
Kennedy & Tait, 1999, p. 1018.
Kennedy & Tait, 1999, p. 1018.
Kennedy & Tait, 1999, p. 1032.
Kennedy & Tait, 1999, p. 1034.
Kennedy & Tait, 1999, p. 1048. Also consultation with disability awareness trainer, August 2004.
T Carney & D Tait, The Adult Guardianship Experiment: Tribunals and Popular Justice, The Federation Press, Sydney, 1997, p. 195. See also MHCC, The Mental Health Rights Manual, p. 53.
Roundtable consultations, 3 & 16 June 2004. Also consultations with the OPG, August 2004, solicitor, OPC, September 2004, social worker, MHAS, August 2004.
Consultation with CLC workers, Shopfront, September 2004.
Consultation with mental health worker, Sydney, September 2004.
MHCC, The Mental Health Rights Manual, p. 33.

44  Consultation with CLC workers, Shopfront, September 2004.
45  Consultation with registrar, Local Court, Sydney, July 2004.
46  Interview no. 10.
47  Consultation with disability awareness trainer, August 2004.
48  Consultation with CLC workers, WLS, October 2004.
49  Roundtable consultation, 16 June 2004.
50  Consultation with CLC worker, Western NSW, September 2004.
51  Consultation with mental health worker, Sydney, September 2004.
52  Kennedy & Tait, 1999, p. 1018.
53  Kennedy & Tait, 1999, p. 1018.
54  Kennedy & Tait, 1999, p. 1032.
55  Kennedy & Tait, 1999, p. 1034.
56  Kennedy & Tait, 1999, p. 1048. Also consultation with disability awareness trainer, August 2004.
57  T Carney & D Tait, The Adult Guardianship Experiment: Tribunals and Popular Justice, The Federation Press, Sydney, 1997, p. 195. See also MHCC, The Mental Health Rights Manual, p. 53.
58  Roundtable consultations, 3 & 16 June 2004. Also consultations with the OPG, August 2004, solicitor, OPC, September 2004, social worker, MHAS, August 2004.
59  Consultation with CLC workers, Shopfront, September 2004.
60  Consultation with mental health worker, Sydney, September 2004.
61  MHCC, The Mental Health Rights Manual, p. 33.


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Karras, M, McCarron, E, Gray, A & Ardasinski, S 2006, On the edge of justice: the legal needs of people with a mental illness in NSW, Law and Justice Foundation of NSW, Sydney