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

Ch 4. Barriers to accessing legal assistance

Systemic barriers to seeking legal assistance

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Availability of affordable legal services

Consultations for this study and previous literature indicate that people with a mental illness tend to have low levels of income.⁶⁰ People with a mental illness are therefore less likely to be able to afford private legal representation:

What avenues have I got for representation, just generally? It’s just that I associate legal help as costly. So I don’t bother about it.

⁶¹

As a result, many people with a mental illness are likely to be dependent on legal assistance and advice from Legal Aid, CLCs and pro bono legal service provision.⁶² However, service providers interviewed for this study were of the opinion that the limited availability and resources of these types of legal services can act as a barrier to accessing legal assistance for people with a mental illness.⁶³

A number of studies and submissions have documented that Legal Aid is under-resourced.⁶⁴ In its submission to the Access to Justice and Legal Needs Program, the Law Society of NSW suggested that it was much harder for people to obtain a grant of legal aid now than it would have been several years ago.⁶⁵ Furthermore, Legal Aid services at court, such as the Duty Solicitor Scheme, are only found in the criminal jurisdiction and in some family courts. Several service providers interviewed for this study commented that the limited availability of legal aid may prevent some people with a mental illness from accessing legal advice and representation.⁶⁶

There is not enough legal aid out there. I remember one consumer calling me who had tried Legal Aid and tried the Mental Health Advocacy Service … he kept trying all these other agencies and he couldn’t access any legal support.

⁶⁷

Roundtable attendees argued that the eligibility criteria for obtaining legal aid is also very confusing, which can deter people with a mental illness from even trying to obtain a Legal Aid grant.⁶⁸

Similarly, CLCs’ resources are constrained. In its Submission to the Review of NSW Community Legal Service Funding Program, the Council of Social Services of NSW (NCOSS) commented in relation to one specific CLC that “existing resources are woefully inadequate to meet demand”.⁶⁹ CLCs therefore focus on providing legal assistance and advice and community legal education. Representation is not usually available except in cases of unusual disadvantage or if the case is in the public interest.⁷⁰

Consultations with solicitor in charge, MHAS, Legal Aid, December 2004, caseworker, Blue Mountains, July 2004, convener of the NCSMC, December 2004, registrar, Local Court, August 2004, manager, ADB, November 2004, Aboriginal mental health worker, Sydney, September 2004, Local Courts & Sheriff, July 2004. See also Andrews et al., The Mental Health of Australians, Butterworth, 2003, Jablensky et al., People Living With Psychotic Illness, Cameron et al., Thin Ice.

Interview no. 8.

In its Submission to the Senate Select Committee on Mental Health (p. 6), CCLC NSW estimated that a substantial proportion of their clients have mental health problems.

Consultations with Aboriginal mental health worker, Sydney, September 2004, President, Mental Health Review Tribunal, June 2003, executive officer, Human Services CEOs Forum, March 2005, consumer advocate, Sydney, August 2004, investigation officer, NSW Ombudsman, September 2004.

Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and Access to Justice, Final Report, LSCRC, Canberra, 2004, pp. 48.

Law and Justice Foundation of NSW, Access to Justice Research Program: A Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW. Stage 1: Public Consultations, Law and Justice Foundation of NSW, Sydney, 2003, p. 37.

Consultations with President, Mental Health Review Tribunal, March 2005, consumer advocate, Sydney, August 2004, mental health worker, Sydney, September 2004, Aboriginal mental health worker, Sydney, September 2004, executive officer, Human Services CEOs Forum, March 2005, investigation officer, NSW Ombudsman, September 2004.

Consultation with consumer advocate, Sydney, August 2004.

Roundtable, 3 June 2004.

Council of Social Service of NSW (NCOSS), Submission to the Review of NSW Community Legal Service Funding Program, NCOSS, Sydney, 2004, p. 6. Note that while this statement relates specifically to the work of the WLS, Indigenous Womens Unit Violence Prevention Units, the tone of this submission indicates that NCOSS is of the view that the under-resourcing of publicly funded legal services is widespread in NSW.

CCLC NSW, Submission to the Senate Select Committee on Mental Health.

⁶⁰ Consultations with solicitor in charge, MHAS, Legal Aid, December 2004, caseworker, Blue Mountains, July 2004, convener of the NCSMC, December 2004, registrar, Local Court, August 2004, manager, ADB, November 2004, Aboriginal mental health worker, Sydney, September 2004, Local Courts & Sheriff, July 2004. See also Andrews et al., The Mental Health of Australians, Butterworth, 2003, Jablensky et al., People Living With Psychotic Illness, Cameron et al., Thin Ice.

⁶¹ Interview no. 8.

⁶² In its Submission to the Senate Select Committee on Mental Health (p. 6), CCLC NSW estimated that a substantial proportion of their clients have mental health problems.

⁶³ Consultations with Aboriginal mental health worker, Sydney, September 2004, President, Mental Health Review Tribunal, June 2003, executive officer, Human Services CEOs Forum, March 2005, consumer advocate, Sydney, August 2004, investigation officer, NSW Ombudsman, September 2004.

⁶⁴ Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and Access to Justice, Final Report, LSCRC, Canberra, 2004, pp. 48.

⁶⁵ Law and Justice Foundation of NSW, Access to Justice Research Program: A Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW. Stage 1: Public Consultations, Law and Justice Foundation of NSW, Sydney, 2003, p. 37.

⁶⁶ Consultations with President, Mental Health Review Tribunal, March 2005, consumer advocate, Sydney, August 2004, mental health worker, Sydney, September 2004, Aboriginal mental health worker, Sydney, September 2004, executive officer, Human Services CEOs Forum, March 2005, investigation officer, NSW Ombudsman, September 2004.

⁶⁷ Consultation with consumer advocate, Sydney, August 2004.

⁶⁸ Roundtable, 3 June 2004.

⁶⁹ Council of Social Service of NSW (NCOSS), Submission to the Review of NSW Community Legal Service Funding Program, NCOSS, Sydney, 2004, p. 6. Note that while this statement relates specifically to the work of the WLS, Indigenous Womens Unit Violence Prevention Units, the tone of this submission indicates that NCOSS is of the view that the under-resourcing of publicly funded legal services is widespread in NSW.

⁷⁰ CCLC NSW, Submission to the Senate Select Committee on Mental Health.

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Mental illness

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