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On the edge of justice: the legal needs of people with a mental illness in NSW   , 2006 This study examines the legal and access to justice issues experienced by people with a mental illness. The methodology comprised a literature review, focus group discussions with key stakeholders, in-depth interviews with 81 legal and non-legal service providers, and 30 semi-structured interviews with people who have a mental illness. The report concluded that people with a mental illness experience a number of legal issues with potentially serious personal and financial consequences, and face many barriers in having these legal issues addressed....

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Ch 3. Legal issues

Consultations for this study indicated that people with a mental illness appear to experience particular legal issues. These include:

• legal issues relating to mental illness, such as issues falling under the Mental Health Act 1990 (NSW) and adult guardianship
• discrimination in relation to employment, education and insurance
• criminal legal issues including behaviour-related offences, drug offences and fines
• housing issues, including problems relating to the Department of Housing (DOH), private rental and boarding house accommodation
• social security issues, including eligibility, breaching and social security debt and prosecution for fraud
• consumer issues, such as credit card debt and banking issues, mobile phone and other contractual debt
• family law and care and protection issues
• domestic violence and victim of crime issues.

Mental health care system-related legal issues

Under the Mental Health Act 1990 (NSW), NSW Health is responsible for providing mental health care. The Act covers and facilitates both the voluntary and involuntary care and treatment of people who have been defined as “mentally ill” or “mentally disordered” in both community care facilities and hospital facilities.¹ The Act defines three categories of mental health patients: informal (voluntary) patients, who agree voluntarily to go to hospital and receive treatment; involuntary patients, who under the Act are ordered to go to hospital by a magistrate; and forensic patients, who are those patients who have a mental illness and have been arrested for committing a crime or who are in prison.² Eight participants in this study reported having been hospitalised as involuntary patients under the Mental Health Act 1990 (NSW) at some stage.³ In addition, four participants also reported having been admitted as informal (voluntary) patients.⁴

According to consultations, the main legal issues facing people with a mental illness who have been hospitalised include:

• confusion about when they are to be discharged from hospital⁵
• confusion about when they move from voluntary to involuntary status⁶
• not understanding their rights in relation to medical treatment.⁷

Although involuntary patients do not have the right to refuse medication under NSW law (unlike the situation in North America), they must be told what the medication is. One participant alleged that she was forcibly injected with medication without being told what it was:

One nurse told me to take a drug and I asked him what is it for and he said just take it. I refused to so they called security. Security marches me to the isolation room and some nurse puts a needle in my bum and then they all go on their merry way. If I had been informed what the medication was and what it was for, I would have complied and hence not created a scene.⁸

Service providers argued that people from a non-English speaking background (NESB) face difficulties understanding their rights because of language barriers. On arrival at hospital, involuntary patients must be read their rights under the Mental Health Act 1990 (NSW).⁹ If a person does not speak English the medical superintendent who is responsible for informing the patient of their rights must arrange for an interpreter.¹⁰ However, service providers argued that people from NESBs are not being properly informed of their rights upon being involuntarily admitted to hospital, because an interpreter was not always available.¹¹ The need for interpreters was also raised as an issue by the Official Visitors Programme.¹²

Adult guardianship

Guardianship is the management of an individual’s personal affairs in the event that they lose the capacity to manage their affairs themselves. Individuals (such as a person with dementia) may appoint their own “enduring guardian”, before they lose capacity, to make lifestyle and medical decisions on their behalf once they lose capacity.¹³ A person can also appoint a person to manage their financial and property affairs by drawing up an enduring power of attorney (EPA), which comes into effect when capacity is lost.¹⁴ The Guardianship Tribunal is a legal tribunal that has the power to appoint a guardian or a financial manager in the event that a person is not able to make their own decisions.¹⁵ In the event that an EPA or other instrument has not been executed, a private guardian, a friend or family member may be appointed by the Guardianship Tribunal to make decisions on behalf of the person. Under the Protected Estates Act 1983 (NSW), the Mental Health Review Tribunal and the Supreme Court of NSW Equity Division—Protective also have the jurisdiction to appoint a financial manager.

In circumstances where no private guardian is available or suitable for appointment, the Office of the Public Guardian (OPG) may be appointed to act as guardian and to make decisions relating to the person’s medical, dental and accommodation needs (but not their financial needs).¹⁶ In the absence of an authority under an EPA or appointment of a suitable person as financial guardian, the Office of the Protective Commissioner (OPC) will be appointed to manage a person’s financial affairs.¹⁷ The OPC can also be appointed to manage a person’s financial affairs where they have problems doing so themselves as a result of disability (such as mental illness, dementia, intellectual disability, brain injury).¹⁸ For example, the OPC may be made a prescribed nominee by Centrelink to receive and manage a person’s social security benefits.¹⁹ Four participants interviewed for this study reported having their financial affairs managed by the OPC.²⁰

The only issue raised in this study relating to guardianship and financial management was where clients placed under a financial management order wished to challenge it or have the order removed. A solicitor from the OPC reported that people who are the subject of financial management orders can develop a lot of anger and resentment as a result of being under such an order, because of the restrictions these place upon what a person can do with their finances.²¹ People under financial management orders may seek to challenge these orders because they want greater control over their money.²² Although most financial management orders are indefinite, people can appeal to the Guardianship Tribunal for the order to be revoked.²³

Three participants who were the subjects of financial management orders felt that they did not receive enough money from the OPC to live on each week and that it was very difficult to obtain additional money for emergencies and further expenses:

I thought they were a little bit hard on me because they didn’t give me enough money.²⁴

It’s like getting blood from a stone.²⁵

I am currently underneath the Protective Office and they can control my finances … It’s really hard because I have nearly over $2000 in my account and they are not letting me have it. They give me $360 a fortnight. They expect me to be able to go to the Salvation Army to get clothes … and being homeless it’s really hard.²⁶

In a 2001 review of the OPC, the NSW Parliament Public Bodies Review Committee said that one of the ongoing challenges facing the OPC is the quality of relations between clients and staff members.²⁷ The review argued that OPC clients and their families reported communication problems that included difficulties contacting OPC staff on the phone, long delays in officers responding to inquiries as well as perceived rudeness on the part of staff.²⁸ Although acknowledging the difficulties highlighted by the OPC in balancing the direct wishes of a client with their overall best interests, the review recommended that the OPC specifically address the quality of client contact.²⁹

Following the NSW Auditor General’s Performance Audit of the Review of the Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, in 1999, and its 2003 follow-up audit, both the OPG and the OPC have implemented internal and external appeals mechanisms.³⁰ Clients of both agencies can request an internal review of a decision made by either the OPG or the OPC.³¹ Following this, decisions can be reviewed externally by the Administrative Decisions Tribunal.³²

Disability discrimination

Discrimination on the basis of disability (including psychiatric disability) is unlawful in NSW, under the Anti-Discrimination Act 1977 (ADA), and in Australia generally, under the Commonwealth Disability Discrimination Act 1992 (DDA). Although they both cover discrimination on the basis of disability, both pieces of legislation differ in the areas they cover, their complaints process, exemptions and upper limits on compensation. For example, under both pieces of legislation it is unlawful to discriminate against someone on the basis of their disability in relation to employment and related areas, education, accommodation, the provision of goods and services and clubs.³³ In addition, under the DDA, it is unlawful to discriminate in relation to sport, Commonwealth laws and programs and land. Under the ADA it is unlawful to discriminate in the area of education, but not for private schools. Complaints made under the DDA must be made to HREOC and there is no upper limit on compensation. Complaints made under the ADA must be made to the Anti-Discrimination Board and compensation must not exceed $40 000.³⁴

Participants for this study reported being discriminated against on the basis of psychiatric disability in relation to employment, accommodation, education and the provision of goods and services.³⁵

Employment

Discrimination in employment was the most common type of discrimination reported by participants and stakeholders.³⁶ Consultations and the literature suggested that people with a mental illness are susceptible to discrimination when they are merely looking for work and once they are in the workforce.³⁷ For example, people with a mental illness may also have to take time off work because of their illness and as a result, they may face discrimination while they are away or when they return.³⁸

Because I was sick at Christmas and had time off, they realised that I had the illness. When I rang up and said “I am right, can I come back to work?” they said “we will call you” and then it basically just fizzled right out.³⁹

I was in employment, and I was away sick, and my employer rang my GP and the GP told her that I had a mental illness. My employer walked up to me and said “people with a mental illness shouldn’t be doing what you are doing” and so I resigned on the spot.⁴⁰

Or as one solicitor indicated, people with a mental illness may be dismissed from employment as a result of the manifestation of their illness, where this affects their work performance and relationship with other employees. For example:

The majority of cases we get … is [where] a person who is already in employment and whose mental illness has manifested, alleges that they are about to be or have been [terminated], and that the reason given is their mental illness. Associated with that might be a breakdown in relationships with people and the employment in the workplace.⁴¹

As a result, service providers reported that people are unwilling to disclose their illness for fear of being discriminated against when they are looking for a job and once they are employed.⁴² A conciliation officer from HREOC provided a case study of a woman who after disclosing that she had a mental illness had had an offer of employment withdrawn:

A woman who was working in a temporary position with a government service agency complained that she had been discriminated against when an offer of permanent work was withdrawn. On her pre-employment medical questionnaire she indicated that she had received treatment for depression. The employer’s medical officer recommended that she undergo a psychiatric assessment. The psychiatrist was of the view that the complainant would not be able to cope with the stressful environment in the workplace concerned. The offer of employment was withdrawn.⁴³

People are not required by law to disclose their disability. However, if they don’t disclose their mental illness, they may not be able to request that certain adjustments be made in the workforce.⁴⁴ In addition, if a person does not disclose that they have a mental illness, then their mental illness may not be taken into account if they have trouble fulfilling the job requirements.⁴⁵

Not all discrimination on the basis of disability in employment is unlawful. If an employer can demonstrate that a person is unable to meet the “inherent requirements” of the job then discrimination is not unlawful.⁴⁶ However, simple adjustments (that do not cause “unjustifiable hardship” to the employer) may allow a person with a disability to meet the requirements of a job.⁴⁷ An employer is not allowed to discriminate against a person with a disability just because they require certain adjustments to be made.⁴⁸ However, if an employer can argue that an adjustment will cause unjustifiable hardship to them, then it may be lawful for them to discriminate against a person with a mental illness.⁴⁹

Other areas of discrimination

Reported in both the literature and by service providers consulted for this study, people with a mental illness also face discrimination in the area of insurance, whereby they are refused access to various types of insurance including travel, income and mortgage protection insurance, on the basis of a past or existing psychiatric disability.⁵⁰

A woman with a psychiatric disability complained that she had been refused death or disablement cover because of her disability which she had disclosed to the insurer.⁵¹

A solicitor from People with Disability Australia (PWD) reported that despite work being done in this area by SANE, beyondblue and the Insurance Council of Australia, insurance companies are still able to deny people with a mental illness access to insurance, because they are thought to have a higher risk of harming themselves.⁵²

Examples of discrimination in the areas of education and housing were also provided by HREOC:

The parents of a boy with a psychiatric condition complained that he had been discriminated against when he was refused admission to a secondary college after the principal formed the view that he was unsuitable for mainstream schooling.⁵³

The complainant leased residential premises from the respondent department. In 2003 the respondent commenced proceedings to evict the complainant alleging that he had failed to keep the premises reasonably clean in accordance with the tenancy agreement. The complainant claimed that it was unreasonably difficult to comply with the terms of the tenancy agreement because of his disability, obsessive compulsive disorder, which causes him to hoard. He claimed that the respondent sought to evict him for the storing of goods in his home. He also claimed that the respondent treated him less favourably than other tenants because of his disability by inspecting and accessing his premises more times than other tenants.⁵⁴

Occupational health and safety

An emerging issue in discrimination law is the interplay between occupational health and safety laws and discrimination laws. A solicitor from PWD argued that following the Purvis decision,⁵⁵ there appears to be a feeling within the Department of Education, and among some employers, that behavioural issues that might pose an occupational health and safety risk may in turn provide “sufficient grounds to terminate a person’s access to either the benefits of that employment or education, or more … in terms of disability services”.⁵⁶

This is supported by the Productivity Commission, which recommends that the “Disability Discrimination Act 1992 be amended to include a general duty by employers to make reasonable adjustments”.⁵⁷ For example, an employer should “work with the individual and put in place prevention approaches … and only where those fail and there is a persistent occupational health and safety risk to then consider termination”.⁵⁸ Without such a duty, the commission states that discrimination would not be adequately addressed.⁵⁹

An example of the interplay between discrimination and occupational health and safety is the reported exclusion of people with a mental illness who have complex needs and behaviours from the Supported Accommodation Assistance Program (SAAP). This program is a jointly funded Australian government and state/territory program that provides supported, temporary accommodation to people experiencing homelessness.⁶⁰ In the Foundation’s No Home, No Justice? report, concerns were raised by stakeholders that people with complex needs (such as mental health and drug and alcohol problems) were being excluded from SAAP services because of concerns for the occupational health and safety of SAAP employees.⁶¹

In its inquiry into the exclusion of people with complex needs from SAAP services, the NSW Ombudsman recommended that SAAP services should move away from a “presumption of risk to considered assessment and risk management”, whereby “policies, procedures and practices are inclusive, and that any exclusions be based on considered assessment of the presenting circumstances of individual clients and fair and transparent exiting procedures”.⁶²

Criminal legal issues

Criminal legal issues that were raised during consultations included:

• behaviour-related criminal offences (including offensive conduct and assault)
• drug-related criminal offences (including theft)⁶³
• fines (e.g. transport fines) particularly for young homeless people with a mental illness.

Consultations indicated that people with a mental illness may be charged with offences relating to behaviour arising from their illness (such as offensive language and conduct, assault, resisting arrest and assaulting police).⁶⁴

As a general rule it’s usually public disorder … where they bring themselves under notice due to their actions. Apart from that, it’s generally assault where somebody has walked up to someone else and hit them.⁶⁵

The Burdekin Report noted that the behaviour of people with a mental illness who are untreated can bring them to the attention of the police:

Untreated mental illness clearly causes some people to behave irresponsibly, irrationally and in a bizarre fashion. Sometimes this behaviour brings people to the attention of the police.6⁶

A couple of legal service providers said that behaviour may also be drug- and alcohol-related.⁶⁷ For example:

A lot of our clients with mental health issues or alcohol problems get pulled up for offensive language. If they are walking a bit strangely or they look like they are under the influence, a police officer will pull them up. And if they give them an earful of abuse they get charged with offensive language.⁶⁸

Consultations also indicated that people with drug and alcohol problems may experience particular legal issues specifically related to drugs (such as possession) or to their financial situation (such as stealing).⁶⁹

He has schizophrenia [which is] often made worse by taking a variety of drugs. [He] was detained by railway police on a train for strange behaviour (he said he was hearing voices) and a small amount of marijuana dropped out of his pocket. He admitted everything and was charged with possession and released on bail.⁷⁰

Yeah, I got charged a while back. I got charged for car [theft], assault and grievous bodily harm. I was in for two and a half months. And then rehab for three months.⁷¹

I broke into cars and stole them, stripped them. Drugs do evil things to people. I’m a walking example.⁷²

A number of participants reported that they had fines that ranged in amount and seriousness. For example, one participant had a fine for riding a pushbike without a helmet.⁷³ Another had a parking fine.⁷⁴ Another had received a fine for smoking at a train station.⁷⁵ Two other participants had received fines and lost their drivers’ licences as a result of speeding.⁷⁶ One older participant reported that he had $12 000 in unpaid fines from another state.⁷⁷

Young people with a mental illness (especially those who are homeless) are particularly vulnerable to receiving fines for transport, traffic and graffiti-related offences:⁷⁸

I’ve received some pretty hefty fines for impulsive things that I am known to do. The fines have added up to $1600 or something. One was due to the fact that my driver licence had expired and I jumped in my car and got a speeding fine and a no-licence fine which is like $578. Then on top of that, train fines: having no ticket, running on the platform, lying about who I was, smoking on the platform.⁷⁹

Driving without a licence, graffiti, malicious damage. I got caught [doing graffiti] in a tunnel. I didn’t really think that it’d be that illegal, in a tunnel out in nowhere. I got charged and fined.⁸⁰

One of them [a fine] was issued when I was mentally unstable—I ran across the train tracks without using the train bridge.⁸¹

Housing issues

Housing is always an issue, both when they have it and when they don’t.⁸²

Housing-related legal issues were raised in the consultations as a particular concern for people with a mental illness. Because a large proportion of people with a mental illness are on low incomes in NSW, many are dependent primarily on private rental accommodation, and on public and community housing. Other than this, there is a paucity of stable, secure and appropriate accommodation available to people with a mental illness.⁸³ If evicted from private rental accommodation or public housing, the only other accommodation available to people with a mental illness are boarding houses, caravan parks, family/friends and emergency accommodation (such as SAAP accommodation). Housing stress and homelessness is a reality facing many people with a mental illness.⁸⁴

Participants interviewed in this study were found to be living in private rental accommodation, public housing, licensed and unlicensed boarding house accommodation and SAAP accommodation. Legal issues are documented according to each type of accommodation. A number of participants consulted for this study were also homeless.

Private rental accommodation

Four participants from this study lived in private rental accommodation. Service providers reported that people with a mental illness face a number of barriers in trying to access private rental accommodation. They may be vulnerable to discrimination because of the stigma associated with their mental illness.⁸⁵ They may not possess the necessary references (or they might have bad references) to gain private rental accommodation.⁸⁶ Furthermore, because many people with a mental illness are financially disadvantaged, they might not be able to raise the bond money, or to pay for private rental accommodation—particularly those living in Sydney.⁸⁷

Once people are in accommodation, it would appear that they are still vulnerable to discrimination.⁸⁸ A caseworker from a regional area was of the opinion that once a landlord establishes that a tenant has a mental illness, they can be very quick to try to get rid of them:

The landlord might have observed them [the tenant] trying to cope with schizophrenia, depression and drug addiction. They tend to become very antagonistic [although] they do it very diplomatically. They’ll just go to the real estate agent and say “I’m pulling the house off the market, I’m moving into it or selling it: I need them out.”⁸⁹

Department of Housing (DOH) accommodation

Eleven participants reported living in DOH accommodation, a major provider of accommodation to people with a mental illness.⁹⁰ A number of legal issues were raised by both stakeholders and participants in relation to DOH.

Eligibility

To be eligible for public housing, applicants must meet a number of criteria that includes possessing citizenship or permanent residency in Australia, having a certain household income and also the “ability to sustain a successful tenancy”.⁹¹ To prove that they can sustain a successful tenancy, the applicant must show that they can pay their rent, look after their property, not create a nuisance to their neighbours and live independently on an ongoing basis.⁹² DOH can order an “independent living skills report” that assesses the ability of the applicant to meet these requirements.⁹³

The Tenants’ Union of NSW (Tenants’ Union) suggested that people with a mental illness can have problems proving their eligibility for DOH accommodation because of their potential inability to pass an independent living skills report or comply with a residential tenancy agreement:

If they have got problematic behaviour then, yes, it may stop them getting public housing. It depends on whether the department can be convinced that they have the independent living skills and they are capable of complying with the residential tenancy agreement.⁹⁴

A mental health worker working with young people also observed that young people with a mental illness face difficulties accessing DOH accommodation because they are often unable to prove that they can sustain a successful tenancy:

… it’s like getting gold from a dragon getting Department of Housing accommodation for a young person.⁹⁵

One of the aims of the independent living skills report is to determine whether an applicant needs support services in order to sustain a successful tenancy.⁹⁶ A legal officer from the Tenants’ Union argued that people with a mental illness may need a lot of support to prove they are eligible, and to be able to stay in DOH accommodation.⁹⁷ Although they can refer people to support services, it is not the responsibility of DOH to provide such support directly to tenants.⁹⁸ One legal worker believed that a lack of available mental health and other support services in rural and regional areas may make it difficult for some people with a mental illness to comply with their residential tenancy agreements.⁹⁹ This worker also highlighted the dilemma in using a person’s mental illness as a reason for applying for housing, as it can be used as a reason for not giving it to them.¹⁰⁰

Eviction and debt

Service providers also argued that people with a mental illness may face eviction and accrue housing related debt as a result of unpaid rent and property damage.¹⁰¹ In its submission to the NSW Legislative Council Select Committee on Mental Health, Shelter NSW pointed out that people with a mental illness can be forgetful, and forget to pay rent and fall into arrears.¹⁰² Property damage may be committed by the people themselves or by family members. One participant provided an example of where he had been held responsible for damage committed by a family member:

Four months ago I had one of my sons staying with me. It was because of him I had to move out of the house. It was just a nightmare. He got into the house after I moved out and trashed it. I got a bill there.¹⁰³

There is a Joint Guarantee of Service (JGOS) between DOH, NSW Health, DoCS, the NSW Aboriginal Housing Office and the Aboriginal Health and Medical Research Council of NSW, which outlines the roles and responsibilities of each agency in relation to housing people with a mental illness.¹⁰⁴ The aim of the guarantee is to enhance the coordination of service delivery between the agencies.¹⁰⁵ Guidelines as set out by the JGOS are to be implemented at the local level.¹⁰⁶ However, Shelter NSW has maintained that the application of these guidelines across NSW depends on local circumstances, and they are therefore not always completely upheld.¹⁰⁷ In consultation, policy officers from DOH said that where the behaviour of people with a mental illness leads them to experience difficulties maintaining their tenancy, under the JGOS, DOH workers are to refer people to appropriate mental health support.¹⁰⁸ Be that as it may, they argued that it may not be obvious to DOH workers that a person has a mental illness, or people themselves may be unwilling to disclose that they have a mental illness.¹⁰⁹

Ultimately, DOH has the discretion to allow a person to remain as a tenant, even if the department has successfully taken a client to the Consumer, Trader and Tenancy Tribunal (CTTT) and had an eviction order made. A legal officer from the Tenants’ Union held that DOH does not necessarily enforce every termination and possession order it gets:

Sometimes DOH, having got orders of termination and possession, uses those orders to convince other organisations to provide the support that the person needs to remain in public housing, and maybe transfer them to better premises for that arrangement. So it’s not the case that every time they get orders they actually do make somebody with a mental illness homeless. But it is something that does happen.¹¹⁰

In addition to being evicted, people may be left with significant debt arising from rent arrears or property damage, which can also act as a barrier to people re-entering DOH accommodation in the future.¹¹¹

Neighbourhood disputes

As public housing stock is diminishing, it is being increasingly allocated to households with the greatest needs, with a significant emphasis placed on disability, homelessness and health problems.¹¹² This suggests that in certain public housing areas there will be a high concentration of complex needs among public housing tenants. Exacerbated by the limited availability of mental health and other support services to people with complex needs in such areas, disputes between residents can occur. Many people with a mental illness may either feel harassed, intimidated or discriminated against by their neighbours, contributing to a feeling of insecurity and, often, an exacerbation of their mental illness, or indeed they may exhibit behaviour that is problematic to others, likewise jeopardising the security of their housing.¹¹³

The most common issue relating to DOH raised in the consultations for this study were neighbourhood disputes between residents with a mental illness and other public housing residents:

We do tend to get complaints about people with particular behaviours that neighbours don’t agree with or the housing authority doesn’t agree with.¹¹⁴

Disputes ranged from small disputes over privacy to theft and harassment:

I had a problem: my next door neighbour put some excrement on the garden. I asked DOH to come out and tell her to stop it [but] it’s still going on. The same woman looks in my window if I have my blinds open, stands there and stares at me, or through the hole in my back gate.¹¹⁵

I have only lived here for three months. They have been there for three years. It’s like their turf; I feel like I am the one that has to be locked in the flat all day and not make an appearance out the front, otherwise they will stare at me or something.¹¹⁶

I have had conflict with neighbours; some have gotten over it and responded to me, others haven’t. What did I do? Have I offended people? Is it because I have been in trouble with the police?¹¹⁷

Acceptable behaviour agreements

Quite recently, the NSW Parliament passed the Residential Tenancies Amendment (Public Housing) Act 2004 introducing acceptable behaviour agreements (ABAs), in an attempt to curb neighbourhood disputes and address problematic “anti-social” behaviour in public housing. The legislation statutorily recognises the concept of renewable tenancies, so that a fixed term can be imposed on a public tenant’s residential tenancy agreement. The second part of the legislation allows DOH to require tenants who have been identified as exhibiting “anti-social” behaviour to sign an ABA.

The legislation stipulates that following an application from DOH, the CTTT must order that the tenancy be terminated in either of two situations:

• a tenant refuses DOH’s request to sign an ABA¹¹⁸
• a tenant or a member of a tenant’s household persistently breaches the ABA.¹¹⁹

Given the fact that public housing tenants with a mental illness may be involved in neighbourhood disputes and exhibit problematic behaviour, tenancy workers and legal workers are concerned that ABAs will be likely to disproportionately impact upon people with a mental illness.¹²⁰ The MHCC reports that DOH has finalised a policy framework that will ensure people with disabilities will receive a proper assessment, placing them outside the ABA regime. For example, when considering whether to put a person on an ABA, DOH must consider whether there are any special circumstances that need to be taken into account.¹²¹

This may however be problematic for people who do not disclose or who actively deny that they have a mental illness. Furthermore, a legal officer from the Tenants’ Union was concerned that this policy would not be always implemented:

DOH has said in writing that they do not want to use these amendments to evict people with mental illness. But people with a mental illness are obviously vulnerable to this if it’s used other than according to the department policy.¹²²

Tenants may appeal to the CTTT within 14 days of an order of termination being made.123 However, as discussed in Chapter 5, this may be problematic for people with a mental illness who face many barriers to participating in legal processes such as the CTTT.

Boarding houses

People with a mental illness have been found to live in both licensed (licensed by DADHC to provide accommodation to people with intellectual and psychiatric disabilities) and unlicensed boarding houses (privately owned boarding houses). Instead of just providing a room, licensed boarding houses provide a higher level of service, including the provision of food and the coordination of other services, such as mental health care. Two participants interviewed for this study lived in unlicensed boarding houses and two lived in licensed boarding houses.

No Home, No Justice? acknowledged some of the issues experienced by people living in unlicensed boarding houses.¹²⁴ These included:

• Unsanitary and dangerous conditions
• Arbitrary eviction
• Unsatisfactory lock systems and belongings being stolen
• No regulation over rent or late penalties
• Lack of legislative protection.

Similar issues confront residents of licensed boarding houses with the predominant legal issue being that licensed boarding houses (just like unlicensed boarding houses) fall outside existing tenancy protection.¹²⁵ Hence, boarding house residents are not protected against arbitrary eviction. The NSW Ombudsman has reported that if mistreated, “in many instances residents are too frightened to complain in case they are either punished or evicted”.¹²⁶

In addition to a lack of tenancy protection, service providers also commented on the poor quality of service provided by some boarding house operators. An investigation officer from the NSW Ombudsman reported receiving many complaints about licensed boarding houses, regarding the adequacy of nutrition, appropriate support available to residents, and appropriate medical attention.¹²⁷ A community worker raised concerns over the lack of privacy given to residents, unsanitary and dangerous conditions in boarding houses, and violence directed at residents from boarding house operators and other residents.¹²⁸ In its investigation into two particular licensed boarding houses, the NSW Ombudsman documented an incident where a person with a mental illness had his bank account accessed and all the money withdrawn while he was in hospital.¹²⁹

Social security issues

The big problems that people can end up with are either not getting paid, having their payment cancelled because they can’t comply, not getting granted it in the first place because they can’t get through all the paperwork, or ending up with a significant debt and not dealing with it.¹³⁰

Australia-wide, 21% of people receiving the disability support pension (DSP) have a psychological or psychiatric disability, and these conditions are among those which may satisfy the necessary “impairment rating” needed for qualification for this payment.¹³¹ However, people with a mental illness will frequently be on other benefits, such as Newstart payment for people who are unemployed. A recent study on the prevalence of mental illness among social security income recipients found that almost one in three income support recipients had a diagnosable mental illness in any 12-month period.¹³²

In our study, nearly every participant reported receiving social security benefits: 23 participants were on the DSP, 3 participants were on the sole parent pension, 1 was on the age pension and another was on Newstart. Only 2 people were working, and 1 person’s status was unknown.

DSP eligibility

Consultations suggested that one of the main legal issues relating to social security for people with a mental illness is proving eligibility for the DSP.¹³³ Problems with proving eligibility for the DSP may mean that many people receive other social security benefits, which are paid on less generous terms (both in the base rate and the generosity of the ‘taper’ for any non-pension income) and have much stricter compliance obligations attached to them. Claimants for the DSP have to establish that they have not been able to work or retrain for the last two years because of their disability.¹³⁴ A person’s disability must also attract an impairment rating of at least 20 points on Centrelink’s impairment tables.¹³⁵

Proving the seriousness of mental illness

According to a case manager from the Sydney Welfare Rights Centre (WRC), people have problems proving that their psychiatric disability is serious enough to warrant receiving the DSP, particularly if they suffer from episodic mental illness:

The DSP rules are difficult for people with episodic disability because they might see the government doctor and be assessed on a good day and have periods where they have the capacity to work.¹³⁶

The MHCC has written that application forms for the DSP do not necessarily pick up on a person’s past history of illness or the severity of their illness.¹³⁷ Furthermore, as part of the 2005 Budget, from 1 July 2006 people applying for the DSP will have to prove that they are unable to work a 30-hour week instead of a 15-hour week. Those people who are able to work between 15 and 30 hours a week will have to apply for Newstart.¹³⁸ These new requirements may make it harder for people with a mental illness to prove that they are eligible for the DSP.

One participant interviewed for this study said that she had been concerned that she wouldn’t be able to prove her eligibility for the DSP when she went to see a new doctor:

I had problems … I was up for review, and I was a bit worried that I wouldn’t be able to get the pension again because I got a GP who didn’t know me as well as the psychiatrist.¹³⁹

Failure to identify the mental illness

Another issue relating to eligibility is where either people fail to disclose that they have a mental illness (because they are unaware of it, or because they do not want to disclose this information), or where Centrelink staff fail to identify or pick up that people have a mental illness.¹⁴⁰ As a result, the DSP may not be provided as an option for that particular person. In consultation for this study a Centrelink manager acknowledged that Centrelink officers can have problems identifying whether a person has a mental illness but that when they do, they try to “identify which is the most prominent [mental] illness when going through the process of eligibility”.¹⁴¹ However, he also said that “many people will develop other illnesses while on payments because of changes in life which aren’t necessarily disclosed to Centrelink”.¹⁴²

The exclusion of particular categories of applicants

A case manager from the WRC reported that many people on temporary protection visas (TPVs) suffer from mental illness, often as a result of a traumatic past as a refugee.¹⁴³ However, they are not eligible for any type of social security benefit other than special benefits and family assistance.¹⁴⁴

People who have received compensation for an injury (including payment from damages in respect of lost earnings or capacity to earn¹⁴⁵) were also identified by this case manager as not being eligible to receive social security.¹⁴⁶ People who have received a compensation payment settlement will have a “preclusion period” prohibiting them from getting social security for a particular period of time, regardless of whether they spend their lump sum before the expiration of the preclusion period.¹⁴⁷ For a lump sum settlement made after 9 February 1988, 50% of the amount paid by way of compensation is deemed to be the “compensation part” of the payment and is used to calculate the preclusion period.¹⁴⁸ This case manager was of the opinion that people often spend their money before the expiration of the preclusion period.¹⁴⁹ A case study was provided by a community worker regarding a woman with a mental illness who had received a lump sum compensation payment and was unable to receive any benefits:

This woman who was injured at work some years ago was granted $200 000 of compensation for a severe neck injury … The legal firm that represented her took $52 000 because she was non-union. Her husband squandered away most of what was left. Her medical expenses are extreme. She has absolutely no income because the Centrelink exclusion period continues until 2006.¹⁵⁰

Preclusion periods can be set aside in special circumstances; however, the gateway is a narrow one, with financial hardship alone not usually enough to qualify.¹⁵¹ Normally, a combination of factors including financial hardship, ill-health, and impact on dependents, among other factors, must be considered.¹⁵² The case manager from the WRC also felt that applying to have the period set aside can be arduous for someone with a psychiatric disability.¹⁵³

Hence, consultations for this study and literature suggest that there is a whole group of people with a mental illness who are not able to prove that they are eligible to receive the DSP, but who may be on other social security benefits.

Breaching and debt

All social security recipients are required to notify Centrelink of any income they receive (there is a cap on the amount of income people are allowed to earn on top of their payment), any change in assets, and changes in other circumstances (such as change in address, or whether a person has moved in with a partner).¹⁵⁴ Where people fail to declare their income on other pensions and benefits, or fail to notify Centrelink of a change in their circumstances that would have affected their payment—such as when a student fails to notify Centrelink that they are not studying anymore—that person may incur a debt.¹⁵⁵ All debts are presumptively recoverable, including by deductions from ongoing payments, or garnishment.¹⁵⁶ Debts can also be waived under s1237AAD of the Social Security Act 1991 (Cth) where the debt did not arise from a person knowingly making a false statement or if there are special circumstances other than financial hardship alone.¹⁵⁷

Where a person incurs a significant debt (generally over $5000) as the result of deliberately “making a false statement and representation to Centrelink”, the matter may be referred to the DPP for criminal prosecution. This can ultimately lead to a person being convicted on criminal charges and sentenced accordingly.¹⁵⁸

In addition, there are a number of requirements that people receiving Newstart and Youth Allowance have to fulfil as part of receiving their benefit. Recipients of Newstart and Youth Allowance (those who are not full-time students) may be required to look for work, participate in courses or voluntary work, or participate in the work-for-the dole program. If they do not fulfil these requirements they may be “breached”. Breaching involves a temporary period of rate reduction (of 13 or 26 weeks) or non-payment (for 8 weeks).¹⁵⁹

DSP

Only two participants receiving the DSP interviewed for this study reported having experienced any problems with their benefits once in receipt of them. Both had incurred a debt as a result of changes to their circumstances:

They made a mistake. I did a course at my church and I told them about it but I was also doing a part-time course at uni. They told me that they only thought I was doing the church course. So they told me that I have to pay back all the pension education supplement. They are taking that out of my wage, at a rate of $40 a fortnight.¹⁶⁰

I am with the OPC, and they know that I never find out how much I have got for the fortnight until I receive a payslip, which is four days after. I have tried sorting that out with them, but they keep cutting off my pension.¹⁶¹

A manager from Centrelink acknowledged that people with a mental illness who are on the DSP may have problems complying with information requests, or informing Centrelink of changes to their circumstances.¹⁶² However, he said that if Centrelink knows that the person has a mental illness, they will investigate whether that person was experiencing problems at the time the debt was incurred:

If there is a situation being investigated, especially with our mental illness customers, we have to involve our psychologists or disability officers to look at the history, what influence we might have had, interview them or the carer and look at compliance ability. If any doubt, we don’t penalise people.¹⁶³

Job seekers

We regularly advocate for clients who are clearly suffering from a firmly entrenched mental illness due to which they cannot comply with their obligations on Newstart or Youth Allowance (a payment which requires recipients to undertake an “activity test”), and who should be on disability support pension (which is not currently activity tested). Such clients face endless interruptions to payments.¹⁶⁴

Consultations revealed that job seekers with a mental illness who are on Newstart Allowance or Youth Allowance are very vulnerable to incurring breaches and debt. Pearce et al. note that these are

job seekers whose personal circumstances make them especially vulnerable to particular difficulties in receiving, understanding or being able to comply with official communications about obligations such as attending interviews or returning forms.¹⁶⁵

That people with a mental illness can find it hard to comply with social security requirements was reported by a number of service providers:

People with mental illness for practical and personal reasons can find it very hard to comply … People are required to make written applications for 10 jobs a fortnight. This is difficult for anyone but for someone with an underlying problem or an episodic problem it can be very very difficult … they end up being suspended or breached and their payment is reduced or stopped.¹⁶⁶

It’s hard enough for any sane, rational or well-educated person to sort it out [but] for a young person, particularly a young person with a mental illness, it’s virtually impossible to negotiate your way through. And it’s not uncommon in my experience … to discover that somebody has been cut off because they haven’t responded to anything … They see the envelope and they just throw it [away] because they know they can’t interpret it.¹⁶⁷

One participant interviewed for this study talked about some of the difficulties he had experienced in complying with his Newstart requirements:

They’d call you in for an interview [but] I wouldn’t get the letter, because I had been moving around the place. And then they breach you and they fine you. You tell them, “Oh, I didn’t get the letter,” and they would say “ we’ll have a look into it.” And then you call them back a couple of months later, and they’re like, “Oh, it’s too late now”. And you’re living off, like, not enough to eat.¹⁶⁸

The new social security compliance framework, introduced as part of the 2005–06 Budget and commencing in mid-2006, will also impose stricter participation requirements on job seekers. If a job seeker does not meet a participation requirement (such as attending a job interview), their payment will be suspended until they do so. For repeated and more serious breaches, job seekers will be suspended without payment for eight weeks.¹⁶⁹ Although the government did announce that there would be an at-risk list of vulnerable people for whom the Job Network agencies would not have to suspend payments,¹⁷⁰ this does not recognise those people who may not, as discussed above, be identified as particularly vulnerable. Therefore, these changes may have an effect on those people with a mental illness who are not eligible for the DSP, but who have difficulties in complying with their Newstart or Youth Allowance requirements.

A director from the Social Security Appeals Tribunal (SSAT) did note that Centrelink has adopted an internal procedural policy in response to breaching: if a person is breached two or three times, they will be referred to a Centrelink social worker or personal adviser. Commencing in June 2001, the Centrelink “Third Breach Alert” states that when a person is breached for the third time, they will be referred to a social worker or psychologist to determine whether the customer has any special needs.¹⁷¹ A director from the SSAT was of the opinion that this had resulted in the number of breaches being reduced.¹⁷² People can also be granted a temporary exemption from an activity test if they get a medical certificate from a doctor stating that they are unable to work for a certain period of time. They are then paid Newstart allowance on sickness allowance conditions.¹⁷³ However, a case manager from the WRC was of the opinion that Centrelink are being increasingly strict in terms of whether they accept medical certificates.¹⁷⁴

Sole parents and students

Butterworth’s study on mental health and social security found that the prevalence of anxiety and depressive disorders was highest among un-partnered women with children, on the parenting payment (single).¹⁷⁵ The convener of the National Council of Single Mothers and their Children argued that the high number of women with mental illness on the parenting payment (45.3% compared to 33.7% of people on unemployment benefits)¹⁷⁶ raises concern over the ability of recipients with mental illness to comply with the requirements of the parenting payment.¹⁷⁷

Recent changes to the parenting payment, announced under the 2005–06 Budget are also set to start from 1 July 2006. From 1 July 2006, those on existing parenting payments will remain on the parenting payment until their child is 16. Parents applying for the parenting payment after 1 July 2006 can do so until their youngest child turns six, at which point they will be transferred to the Newstart Allowance.¹⁷⁸ Once parents are placed on Newstart Allowance they will be required to seek at least 15 hours part-time paid work.¹⁷⁹ This has the potential to seriously impact on parents with a mental illness, who may have difficulty in complying with the new requirements.

A couple of service providers were of the opinion that students who have a mental illness who are on Austudy or Youth Allowance (student) can experience problems complying with the requirements¹⁸⁰ of their benefit:

For people who, say, during semester one start fading away, intending to study, intend re-enrolling in semester two, but by that stage [they] are in the depths of depression or it’s the first episode of schizophrenia, [or they are] just not coping thinking that they will be better next week but it goes on and on. You can end up with students who haven’t attended study from March through to the end of year with a debt that is quite significant—$6000 or $7000.¹⁸¹

We’ve got a few where they drop out of school and they often don’t think to tell [Centrelink] … and then they get cut off and hit with a debt repayment because they didn’t notify [Centrelink] that they weren’t at school.¹⁸²

Consumer issues

[There is an] issue with their capacity to make sensible decisions about what they are doing; financial problems, gambling, spending money on drugs and alcohol, preyed upon by other people. The financial problems are fairly common.¹⁸³

That consumer debt is an issue affecting people with a mental illness has been raised in the literature and by both service providers and participants interviewed for this study. The literature suggests that people with a mental illness are in many instances financially disadvantaged,¹⁸⁴ which may place them at risk of accruing debt. This was also raised in the consultations:

I think that debt and credit cards and mobile phones and all that sort of stuff is an area of need … for people with mental illness, as it is for many people without a lot of money basically.¹⁸⁵

Credit and debt [are issues], given that the disability support pension is not adequate.¹⁸⁶

First, a number of participants in this study appeared to have accrued debt as a result of general financial disadvantage:

My mum dying … I have got the debt collectors on about the funeral bill, because it’s all in my name. The funeral guy just came over to me then. I can’t believe he did it; I was sitting there with groceries I [obviously] got from St Vincent de Paul.¹⁸⁷

[I have a] low income … I have many bills to pay … car insurance, the green slip of my car, telephone and electricity, and the pension is just sometimes not enough. I don’t believe I can pay my insurance this year, or I can register my car this year … I have a credit problem. I owe $1300.¹⁸⁸

My phone bill, because my mother passed away the money dropped down so I have been having trouble managing financially … credit card, I have it owing, yeah, rates, water rates, land rates, I have all that owing at the moment. Austar, you name it, I owe money on it at the moment.¹⁸⁹

Secondly, a number of service providers suggested that people may be particularly unwell (e.g. in a manic state), or have an addiction, which influences their capacity to make sensible decisions about purchasing items or entering into contracts:

Issues relating to people who have a mental illness may include capacity (in the legal sense) to enter into a binding contract or understanding of purchase. For example, a person who is in a manic state who has made a purchase; comprehension issues about complex contracts.¹⁹⁰

For example, a solicitor from the Consumer Credit Legal Centre believed that the biggest financial issue for people with a mental illness concerns credit cards, with people over-committing themselves while they are unwell:

I don’t know how many times people have rung me up and said “I was manic and the bank let me spend all this money. I shouldn’t have done it but I was sick.” If you have a mental illness and you get an unsolicited limit increase, you just sign, if you are in a manic stage you just sign.¹⁹¹

A British study on mental illness and social exclusion reported that people with a mental illness can experience problems with credit and debt after they go on “sprees” while unwell. The same study also found that many people with a mental illness who had accumulated such credit-related debt were on very low incomes.¹⁹²

An example of someone entering into a financial agreement whilst they were unwell was provided by the OPC:

X owned an apartment. On the basis of this property X got a loan from a financial institution to buy an investment property. It was a bad investment and X could not rent it out and therefore had no income to finance the interest on the loan. The loaning institution wanted to sell both properties to get back their original loan and the interest owing. X was actually very ill and was admitted as a patient to a mental hospital. X’s psychiatrist gave evidence re the mental state of X at the time X entered into the mortgage agreement. Under the Contract Review Act there was a good case to set the transaction/contract aside and the situation was successfully resolved.¹⁹³

Thirdly, a couple of service providers suggested that some people with a mental illness appear to be vulnerable to high pressure sales tactics. For example:

The way that those sorts of services are marketed, tends to mean that those [people] with a less sophisticated understanding of that [service] get the worst deals. [They] don’t necessarily appreciate what they are signing up for, and are the ones that in the end get the greater debts.¹⁹⁴

People with particular illnesses are susceptible to particular sales tactics. For example, sales tactics that feed into situations where people are in a manic state.¹⁹⁵

Finally, consultations also indicated that people with a mental illness can be vulnerable to financial exploitation and fraudulent activity by other people. The following are examples of this:

A young man with chronic schizophrenia became infatuated with a young woman he knew. She was able to persuade him to borrow money from a lending shark at very high interest rates (40%). He owned half an apartment with his brother and this was used as collateral. He gave the money to the woman and never saw her again. He couldn’t repay the interest on the loan so the loaning institute came after him.¹⁹⁶

I was talking to someone on the internet, and he said he was a “working humanitarian” who gave financial assistance. He said he could help me if I needed help. He said “if I send you a cheque would you accept it?” and I said “yes I would accept it”, and so he sent me a cheque. And then I took it to the bank, and the bank cleared it, but after the bank cleared it, they told me that the cheque had bounced. But I had already withdrawn the money. Then, they told me that I had to pay the money back.¹⁹⁷

Family law issues

It is evident from the literature that there is a link between family separation and mental illness.¹⁹⁸ Indeed, there are high rates of anxiety, depression, substance abuse and depression among adults experiencing divorce or separation.¹⁹⁹ This raises questions regarding the impact mental illness can have on outcomes for people involved with the family law system.

For this study, consultations indicated that the most significant legal issue facing people with a mental illness who are involved in the family law system relates to parenting orders (orders concerning where and with whom children live). One participant stated:

I am going to apply for a full blown divorce after I’ve moved into my own place. Then it will be an uphill battle after that just to get contact, or a phone number or a letter or something … I can’t see me getting unsupervised access anywhere.²⁰⁰

In making a parenting order, the Family Court must take into consideration the best interests of the child. Hence, in addition to the child’s expressed wishes and current living arrangements, and the parent’s attitude, the capacity of each parent to provide for the child’s needs is taken into account.²⁰¹ Mental illness may be taken into account in assessing the capacity of a parent to care for their child.²⁰²

Legal service providers noted the difficulties people with a mental illness can have in proving they have the capacity to look after their children. First, one solicitor was of the opinion that there is often a perception that men who have a mental illness are more violent, and that this creates a bias against them in the Family Court.²⁰³

Secondly, community legal centre workers from Women’s Legal Services held that that for women who have been hospitalised as a result of mental illness, they can have great difficulties in regaining custody of their children when they are in hospital:

She has been married for seven years, and there was ongoing domestic violence. She must have been very depressed [so] the husband suggested to her that she go and stay with her mother for a week, to give her a break. In the meantime her mental illness became much worse, and she ended up being hospitalised for a month. The children became settled in living with the father (even though he had been perpetrating domestic violence against her) so it will become much harder for her to get the children back again to live with her. It comes down to the best interests of the children and courts are very reluctant to change what they call the status quo residency. He might be violent towards her, but not violent towards the children. And you have got the case that she has mental health issues that will probably affect her parenting skills, so she has an uphill battle to start with. He will probably in all likelihood get residence.²⁰⁴

This was also reported by HREOC in the Burdekin Report.²⁰⁵

One family law solicitor said that in family court proceedings, parents with a mental illness must show that they have the capacity to care for their child:

The best interests of the child are of paramount consideration when it comes to making parenting orders. So for somebody with a mental illness … if that becomes an issue in the proceedings, it becomes important to be able to show capacity in terms of being able to cater for the needs of children whether they are the contact parent or resident parent or shared care parent … It’s important to get relevant medical evidence so that the issues of capacity can be squarely addressed, so that the person is not disadvantaged by that evidence not being available.²⁰⁶

She stated that an important part of proving that parents have the capacity to care for their children is through assessment of the type of medical supervision available to the parent.²⁰⁷ However, one rural and regional solicitor was of the opinion that lack of appropriate medical treatment in rural and regional areas can pose a problem for parents with a mental illness who wish to gain residence or contact with their children.²⁰⁸

Care and protection issues

… why is DoCS taking proceedings? They are taking proceedings because they don’t think the parent has the capacity to look after the kids. Very often it will be because of allegations of mental illness and/or substance abuse; the child is just sitting there and not being fed, nappies are not being changed. The kids themselves can be at risk … DoCS could consider that the level of services which a family might need to address the capacity issues of a parent might be simply too great..²⁰⁹

Consultations indicated that care and protection under state child welfare law can be an issue facing parents who have a mental illness. In particular, a number of service providers believed that if DoCS is notified about the child of a person with a mental illness, that parent’s mental illness may be taken into account when assessing the wellbeing and safety of the child.²¹⁰

I do believe that people with a mental illness are discriminated against as being incompetent people … [P]eople … hear of a diagnosis of a mental illness, and they immediately think that they are incompetent, they immediately think that they are unpredictable, unreliable, and unsafe.²¹¹

I can think of several examples where complainants have come to us specifically with complaints against DoCS … The ones that I am thinking of actually have been diagnosed with a mental illness, and feel that … their behavioural capacities or otherwise have been mis-assessed, or not adequately assessed, and then that fuels into the assessment of their capacity to parent, and the department’s ensuing involvement with them.²¹²

If DoCS is notified about a child whose wellbeing is at risk, they have a legislative duty of care to do what is in the best interests of the child at risk. A manager from DoCS stated that when they are notified about a child at risk, they do a risk analysis on the current situation facing the child. They use the expertise of a variety of experts (such as psychiatrists and psychologists) to inform their decisions.²¹³ She also argued that although mental health issues do figure very heavily in the risk analysis of children at risk, care and protection issues usually arise out of a combination of factors (such as domestic violence and mental health issues):

It could be because they are not capable of adequately supervising them. It could be because they are exposed to terrible domestic violence. It could be because they are exposed to psychological harm. It could also be because they are not supervising the child and the child is being neglected or sexually assaulted. So when we get a report and the primary thing is that the carer has a mental health issue, it is not just because they have a mental health illness per se; it is the impact of the caring for that child. It may be a whole heap of issues and because of their mental health condition they are not able to address those issues adequately.²¹⁴

In addition to removing children, DoCS also has a wide range of other options available to it, including referring families to other services for assistance. However, service providers argued that DoCS is not always able to take up the option to refer people to services for assistance because it is limited by a lack of available services for people with a mental illness.²¹⁵ A manager from DoCS said:

Sometimes a big problem is that we have no one to refer to … we can only focus on assessment and then taking the appropriate action. We don’t provide services ourselves as such. We don’t do counselling or therapy or those sorts of things.²¹⁶

In this study, four participants who had children had come into contact with DoCS. One participant said that when she was hospitalised, the hospital had notified DoCS about her children, although they were not removed.²¹⁷ Three other parents, who were also homeless, had their children previously removed by DoCS.²¹⁸

Victim of crime issues

People with a mental illness are often depicted in the media and in popular culture as violent, dangerous and aggressive.²¹⁹ Yet the literature shows that overwhelmingly, people with a mental illness are themselves the victims of assault, sexual assault, domestic violence and child abuse.²²⁰ For this study, 12 participants reported having been the victim of a crime: three reported sexual assault, five reported general assault, five reported having been victims of child abuse, and one reported being the victim of severe domestic violence. For example:

I was raped when I was six months pregnant with my daughter, by a stranger.²²¹

I got dragged off the street and raped by two guys who were high on something.²²²

They came around because my husband had put me on fire and then tipped scalding water over me.²²³

Many service providers interviewed for this study, particularly mental health workers and solicitors who undertake domestic violence and victims compensation matters, reported having clients with past histories of abuse, sexual assault and domestic violence:²²⁴

I have a client who … between the age of 5 and about 14 … kept on getting in trouble with the police. It turned out that the reason why she kept on getting in trouble with the police was [she was being sexually abused] and she was being bailed to the perpetrator … She kept on getting in trouble with the police because going to jail was a lot safer than being bailed to this man. She has subsequently, understandably, had severe drug and alcohol problems; her life now is flitting between Bloomfield [psychiatric] hospital and Mulawa women’s prison. When she gets out, all she wants to do is go back in, because that is where she feels safe, in jail, because her outside life is horrible.²²⁵

A woman [with a mental illness] with older teenage children … suffered 23 years of violent abuse at the hands of her husband (who) was convicted as recently as July of assault upon her, causing actual bodily harm. He was put onto a 2-year-long good behaviour bond and a 2-year-long AVO to stay away from her. That worked for 2 weeks. He is abusing his eldest daughter as a way of getting back at his wife.²²⁶

Not only do some people with a mental illness have prior histories of trauma, but the experience of mental illness can also lead to people being more vulnerable to abuse and trauma. Consultations indicated that people with a mental illness are very vulnerable to sexual exploitation and sexual assault:

I had a client in Dubbo, who was 19, and we were doing a section 63 application for child support. You have to do a DNA test to see who the father was, and she sat down with me with this baby, and said “oh I had sex with eight men that night”. This group of blokes picked her up, took her back to their hotel room and had sex, took turns with her.²²⁷

People with a mental illness are vulnerable to homelessness,²²⁸ and are often forced to live on the streets and in boarding houses, where it is reported they are further exposed to abuse. A 1998 study of homeless people living in inner-city Sydney found that “75% of all homeless people using inner-city hostels and refuges had had a mental disorder (including schizophrenia, alcohol use disorders, drug use disorders, and mood and anxiety disorders) in the previous 12 months”.²²⁹ This 1998 study also found that “93% of homeless people in the inner city have experienced at least one major trauma event” (such as serious physical assault, rape and witnessing someone being killed) in their lives.²³⁰ A caseworker interviewed for this study reported having received

reports of boarding house staff having [not treated] the clients in the manner that they should be treated. There have been a number of instances where people have been verbally abused … other instances where reports of physical abuse have occurred … Other instances where one person with a health problem has physically or verbally abused another resident of the house, and no action has been taken by staff at the boarding house.²³¹

Service providers also reported that people can be vulnerable to abuse in psychiatric institutions.²³² An official visitor alleged that instances of theft, assault and general aggressive behaviour committed by other patients are reported, more so in public mental health facilities than in private hospitals.²³³ The Burdekin Report stated that there had been many submissions to the inquiry about the abuse of people with a mental illness, by both staff and other patients in hospital. HREOC maintained that the rate of sexual assaults among patients was particularly disturbing.²³⁴ One participant in our study articulated her fears of being assaulted in hospital:

I feared I would get raped. I was so sedated I don’t know if I was being touched or not … I believe there should be a security patrol once or twice a night just for patients to feel safe and to ensure that patient social conduct is within policy and not in breach (e.g. verbal and physical threats, assault, rape and illicit drug use).²³⁵

A recent study conducted by the Victorian Disability Discrimination Legal Service found that women with cognitive impairment (including women with cognitive impairment from mental illness) are particularly vulnerable to abuse, particularly those who are homeless or living in boarding houses or institutional settings.²³⁶

Summary

This study has raised a number of legal issues experienced by people with a mental illness. These include legal issues that relate specifically to their experience of mental illness and subsequent incapacity. For example, people with more severe and persistent mental illnesses who have been hospitalised may experience legal issues relating to the Mental Health Act 1990 (NSW), and mental health care. They may also experience legal issues relating to guardianship and financial management.

As many people with a mental illness tend to be financially disadvantaged, they tend to face legal issues relating to this disadvantage. For example, legal issues relating to social security and housing reflect the fact that many of them receive government benefits and live in public housing. The legal issues arising in these areas also reflect the difficulties they can experience, in complying with certain administrative and behavioural requirements set out by Centrelink and DOH. In addition, they may also experience consumer issues such as credit and debt problems (such as mobile phone and other contractual debt), which are a further reflection of the fact that they are likely to be financially disadvantaged. Consumer issues can arise for people with a mental illness as a result of being particularly unwell when they enter into contracts or make purchases. They, particularly young people, are also vulnerable to receiving fines.

Another category of legal need that can lead to financial disadvantage for people with a mental illness is disability discrimination. They may face discrimination on the basis of psychiatric disability, particularly in the area of employment. They can experience discrimination in the areas of education, housing and the provision of goods and services. The impact that occupational health and safety has had on decisions by employers and education and housing providers not to provide services to people with a mental illness was also discussed.

Another area of legal need raised both in the literature and by participants and stakeholders interviewed for this study was the high rate of violence committed against people with a mental illness. They are vulnerable to sexual assault, general abuse and violence, and domestic violence, as children and adults. In addition, they are vulnerable to abuse while homeless, living in boarding house accommodation, and in psychiatric institutions. Women with mental illness were thought to be particularly vulnerable to sexual assault and domestic violence.

The purpose of this chapter has been to look at the types of legal issues that people with a mental illness in NSW may face. They face a range of legal issues that reflect their financial and social disadvantage. If unaddressed, these issues may lead to increased financial and physical vulnerability, which highlight the importance of accessing legal advice. Drawing on this, the next chapter will look at types of legal service provision available to people with a mental illness, and the barriers they face in accessing these services.

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