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Need for flexibility

Barriers related to the experience of mental illness could be addressed through the adoption of a more flexible approach to legal service provision, courts, tribunals and other legal processes (see Chapter 5). For example, to overcome communication difficulties with solicitors, more time could be allowed for appointments with clients who have a mental illness. Implementing a case management approach for people who have difficulties with organisation and complying with time frames could also be highly beneficial. They may require more intensive assistance with tasks such as filling out forms.

In terms of legal processes, this could involve establishing processes that are less adversarial and less formal, such as those found at the SSAT and HREOC. Not only were processes like these reported to be less stressful and intimidating, but they can also allow for more engagement between litigants, advocates and other staff, which may be beneficial in overcoming communication issues. Furthermore, being aware of and being flexible towards the needs of people with a mental illness, such as allowing for breaks and allowing more time to explain things, may also assist in overcoming stress and communication problems.

The adoption of a more therapeutic jurisprudence based approach to courtroom processes may also assist in breaking down some of the barriers to people with a mental illness participating in the legal system. Problem-solving courts and problem-solving lists, such as the NSW Drug Court and the NSW Local Court MERIT program, are examples of courts that have adopted a therapeutic jurisprudence approach to delivering justice. These courts attempt to address the behaviour of offenders that contributed to the offence being committed. This is done by tailoring an outcome that addresses the particular needs of the offender, such as drug and alcohol treatment. In addition to tailoring a more ‘therapeutic’ outcome, courts such as these also attempt to involve the offender in the process as much as possible, by implementing a less adversarial approach within the courtroom, thus allowing for a more direct interaction between judges and offenders. Although many of the courts that implement a therapeutic jurisprudence approach are specific courts or lists, it has been suggested by the Center for Court Innovation and the California Administrative Office of the Courts that the features of this approach be implemented on a day-to-day basis in mainstream courts.⁴

Training programs promoting awareness of mental illness and disability, and teaching service providers how to provide effective services to people with a mental illness, could also be beneficial for legal service providers, judges, court staff and other legal stakeholders.