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Challenges facing non-legal service providers

The aim of this chapter has been to highlight the important role that non-legal agencies play in assisting people with a mental illness to identify a legal issue and contact a legal service provider and in helping them through the legal process. However, consultations for this study suggest that non-legal agencies face a number of challenges in assisting people with their legal issues. These include lack of legal knowledge and knowledge of referral networks amongst non-legal workers, lack of resources and availability of non-legal services, and the fact that people with a mental illness may not access a particular service. In addition, circumstances in which non-legal service providers may face a conflict of interest in assisting a client with a legal problem were also raised.

Lack of legal knowledge and knowledge of referral networks

While non-legal workers are not lawyers, the important role they play in assisting people with a mental illness through the legal system highlights the fact that in order for them to fulfil this role effectively, they need a basic degree of legal knowledge. A few service providers raised concerns that non-legal agencies do not always possess sufficient legal knowledge to effectively assist their clients.⁵⁴ For example, one solicitor commented that some non-legal service providers are not able to recognise a legal problem and/or they may not be able to give a client correct advice about a specific legal process:

Yeah, they won’t recognise a legal issue, and they will give the person wrong advice, and deal with it badly and not in the interest of the person.⁵⁵

One participant reported receiving incorrect advice from a non-legal service provider about their eligibility for the disability support pension. The participant said that this meant that for a couple of years they were unable to receive a benefit when they had actually been entitled to it.⁵⁶

One roundtable attendee felt that some particularly vulnerable clients, such as people who have agoraphobia and are confined to their home, may be especially reliant on those non-legal workers they come into contact with for assistance with a legal issue. They felt that it was particularly important that a worker could identify a legal issue and know where to seek help.⁵⁷

A CLC worker commented that a lack of legal knowledge can also prevent non-legal workers from knowing when to refer a client to a solicitor:

There are some youth services whose workers are not as well-trained [or] as well-organised and sometimes they make inappropriate referrals. Or either they just send anyone down here, who has even a whiff of a legal issue, even though it’s probably something they could sort out with some advocacy. Or they won’t refer people who have quite serious issues.⁵⁸

Similarly, a Scottish study found that non-legal agencies are not always able to identify that a client has a legal issue and may not know when to refer a client to a solicitor:

There were nevertheless concerns raised [largely by solicitors] that, in a very small minority of cases, the advisers at agencies were unable to recognise that a legal solution might exist. Some solicitors had also had experience of receiving referrals later than they would have preferred. This had on occasions resulted in restricting the options open to the solicitors to resolve the problem, e.g. in a case of eviction or debt.⁵⁹

Consultations for this study indicated that a non-legal service provider’s knowledge of available legal services is also an important factor in how well the referral role works.⁶⁰ Roundtable attendees were of the opinion that non-legal service providers have varying levels of awareness about legal services they could refer their clients to.⁶¹ One solicitor suggested that a greater awareness of referral networks to specialist legal centres and financial counsellors would assist non-legal service providers in finding appropriate assistance for their clients.

I think educating community workers about the roles of the various specialist legal centres and the generalist ones … would be very valuable.⁶²

The same CLC solicitor felt that community workers may not contact a legal service provider on behalf of a client because they are intimidated by solicitors.

I don’t hear from community workers enough. It takes a bit of oomph for them to find us. I try to get out in the community and let people know about us, but for whatever reason, it doesn’t translate into community workers ringing for help. I don’t know why that it is; maybe it is scary ringing up a group of solicitors. Once they meet you and they realise that you are a normal dude then they are happier. But they still have visions that we are hardnosed solicitors, but we are not like that at all. It’s something that I spend a lot of time trying to address through networking.⁶³

Lack of resourcing of non-legal agencies

These people we are in contact with don’t have one problem; they have a multitude of legal issues. They also have a multitude of other issues that are not specifically legal. But if there was more support and funding for appropriate medical services, then that would make our job a hell of a lot easier.⁶⁴

Service providers reported that non-legal agencies are not always adequately funded to provide the level of assistance required by people with a mental illness. In particular, mental health services, which provide a great deal of assistance to people with a mental illness, face a general lack of resources across all sections of mental health service provision, including preventative services, outpatient services, emergency care, rehabilitation services and specialist services for people with dual diagnosis.⁶⁵ This is supported by the literature and by submissions to the current Senate inquiry into mental health care in Australia.⁶⁶ There is also evidence that other non-legal agencies that provide services to people with a mental illness are under-funded.⁶⁷

This chapter has highlighted the important role that non-legal service providers, particularly mental health workers, play in assisting people with a mental illness with their legal problems. The reported crisis in mental health care may mean that in many areas of NSW mental health services are simply not available to people who need them. Hence, people with a mental illness may not necessarily be accessing non-legal assistance. Where services do exist, they do not necessarily have the resources to assist clients with legal issues.

One regional mental health worker commented on the impact that limited resources in mental health care has had on the support role his service used to play in assisting clients with a mental illness in going to court:

We don’t do much actual physical support; we don’t have the time or the resources. When I first came here four years ago, staff would go all day to court, and be a support person, but they had to stop that because we don’t have the time or the resources.⁶⁸

It was suggested that a lack of resources may also mean that services are unable to provide a client with support in actually getting to and from a legal service.⁶⁹ As discussed in Chapter 4, actually getting to a legal service can be a serious problem for people with a mental illness. Two CLC solicitors also reported that, in their experience, it was not very common for a non-legal service provider to stay involved with a client once they had accessed a legal service.⁷⁰

They [caseworkers] just hand over. As far as I know they don’t do what financial counsellors and community legal centres do. They can’t run the case without resources, [so] they just want to hand over. That’s something that needs to be questioned because sometimes you want the community worker in the mix, particularly a social worker for someone with a mental illness. I think it is a good idea, but it just isn’t happening that way.⁷¹

Two legal service providers commented that if mental health and community services are under resourced they may not be able to act as advocates on behalf of a client.⁷²

Lastly, as discussed in Chapter 4, the lack of availability of mental health care and support for people with a mental illness means that it is more difficult for them to stabilise the effects of their illness. Consultations for this study indicate that this may make people with a mental illness less able to access legal assistance and less able to participate effectively in the legal system.⁷³

People not accessing services

The majority of Australians with a DSM-IV anxiety, mood or substance related disorder had not utilised health services during the survey year.⁷⁴

It is also evident that people with a mental illness may not be accessing non-legal services, particularly mental health services for a number of reasons. A CLC worker from WLS commented that people with a mental illness may not be accessing mental health services because of the stigma of being identified as mentally ill. This is supported by the recent work of Kamieniecki, Cullen and Szirom.⁷⁵ A study into the barriers young people with dual diagnosis (mental illness and drug and alcohol issues) face in accessing mental health services found that stigma was a particular issue for young people and acted as a barrier to them accessing services:

The stigma that is frequently associated with mental health conditions was also reported as a significant barrier to service access, insofar as young people were extremely reluctant to access mental health services for fear of being labelled a “mental case”.⁷⁶

A legal service provider consulted for this study commented:

There are some [young people] that are not linked with any services. They might have had contact with other services, but they don’t want to be involved because all these youth workers are telling them “You’ve got to go and get an assessment or you have to take your medication”. [They say] “Who are they? I don’t want to do that!”⁷⁷

A few service providers indicated that clients with a mental illness from a NESB don’t tend to access mental health services because of language difficulties, lack of awareness of services and cultural factors relating to stigma.⁷⁸ This is supported by both the Burdekin Report and the more recent Not for Service report.⁷⁹

Roundtable attendees felt that some families were reluctant to seek help from child support organisations for fear of having their children removed.⁸⁰ They argued that this fear prevents families from accessing drop-in centres and therefore from receiving the support they may need to maintain custody.⁸¹ This is supported by Nicholson:

The stigma of mental illness ultimately translates for parents into the fear of custody loss particularly because of the assumptions made by society at large about individuals with mental illness. Fear of losing custody can keep parents from acknowledging problems and requesting services.⁸²

Conflict of interest

Whilst the majority of service providers and participants interviewed for this study talked about the supportive role non-legal services played in assisting people with a mental illness with their legal problem, two important studies into the mental health system discuss situations where these service providers are involved in the denial of legal or human rights and/or the obstruction of a client’s access to legal recourse.

In the 1993 Burdekin Report, HREOC stated that people who had been the victims of sexual assault in hospital reported not being able to pursue the matter because staff claimed that they were delusional as a result of their mental illness.⁸³ This was also true in cases of more general abuse.⁸⁴ The more recent Not for Service study reported widespread concern about the continuing exposure of people with a mental illness to abuse in mental health services and their lack of access to complaints procedures.⁸⁵

In addition, as mentioned in Chapter 3 of this report, people with a mental illness may be afraid of complaining about conditions in boarding houses because they fear being either subjected to more abuse or evicted.⁸⁶ HREOC reported concerns regarding the private sector providing housing for people with psychiatric disabilities:

This can lead to a conflict of interest in some cases where a profit-making business has the day-to-day responsibility for a vulnerable group of people.⁸⁷

Non-legal services may face a conflict of interest when clients who are dependent on them call their services into question. One participant interviewed for this study alleged that they had received incorrect advice regarding their eligibility for the disability support pension. They had subsequently attempted to change caseworkers but felt that they were obstructed in this by their existing caseworker.⁸⁸