Note: the original hard copy of this report is 266 pages. Would you like to order a hard copy?

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....

---

Ch 5. Participation in the legal system

What if you don’t know how the court system works, what if you are too embarrassed to admit you don’t know what to say or do? Or admit that you are scared, or that you have anxiety, or you have a mental illness and you can’t cope? What if you don’t know who to talk to?¹

As noted in Chapter 3, people with a mental illness experience a range of legal issues. As a result, people with a mental illness may come into contact with particular legal processes. This chapter will focus on the barriers that face people with a mental illness and prevent them from effectively participating in such legal processes. For the purposes of this chapter, ‘participation in the legal system’ includes participation in courts and tribunals, internal appeals processes of government departments (e.g. Centrelink), alternative dispute resolution (ADR), and other external complaints processes (e.g. NSW Ombudsman).

This study identified a number of barriers preventing people from initiating legal proceedings and participating effectively in proceedings once commenced. These included:

• stress
• cognitive impairment
• problems with time management
• communication problems
• features of the courtroom environment
• features of ADR
• a lack of legal representation
• perceived credibility of people with a mental illness
• failure to identify or recognise a person’s mental illness.

This chapter will also look at the features of legal processes that enable people with a mental illness to participate effectively. These include:

• flexible service delivery
• therapeutic jurisprudence.

Barriers to participating in the legal system

Stress

When things get too complicated I can’t cope.²

Legal processes can be lengthy, complicated and stressful. People with a mental illness may already have stressful lives as a result of their illness, financial circumstances and other issues, and participating in a legal process may create even more stress. Consultations suggested that stress may act as a barrier to initiating a legal process, it may deter people from continuing with a legal process, or prevent them from participating effectively during a legal process. Two participants interviewed for this study said:

I wasn’t well enough at the time to keep going through the system [CTTT] and get the money that they owed me.³

Well it broke me, emotionally and mentally … I think it was the whole process. The magistrate and the witnesses. Witnesses were saying what I did … it was all stressful, and the outcome was stressful too.⁴

Legal and policy officers interviewed for this study also argued that legal processes can be stressful for people with a mental illness:

If you try to mount a claim in the civil courts and you’re a participant, you don’t get treated that gently. And I would think that a mentally ill person with less-than-perfect recollection and maybe with less-than-perfectly ordered thoughts could be pretty easily reduced to a wreck, basically.⁵

You can’t truthfully say to people it is not stressful because it is. And when you have so many stressful issues in your life as you can handle … to seek a remedy can be too much for some people.⁶

When you have people from non-English speaking backgrounds, or who have a mental illness or intellectual disability or are just very nervous, they find it [the CTTT] very difficult and stressful.⁷

Commenting on the experience of a mentally ill person being discriminated against at university, one solicitor argued:

It’s fairly common … that a person finds themselves, in terms of trying to move forward in their university study, dealing with threatened expulsion from a course and embroiled in a range of grievance mechanisms and disability discrimination type complaints in order to try and deal with the issues. I have not seen that situation pan out particularly well for any individual. It invariably seems that the more they get involved in these mechanisms, the greater the level of stress and anxiety it places upon them.⁸

The high rates of sexual assault and domestic violence experienced by people with a mental illness was reported in Chapter 3. One solicitor noted the particular stress that may be faced at the court by people with a mental illness who have been the victim of sexual assault:

My experience with the court is it’s not generally that sensitive to people who are vulnerable, like victims of sexual assault. I get many of my clients who go through the criminal court process telling me about how traumatic it is. I have had one client, in particular, who had absolutely no recall, who was the victim in a child sexual assault matter. He was cross-examined for three days by a barrister [in] Sydney and on the last day of cross-examination, went home, took too many drugs and alcohol and put a knife through someone. It is a really awful experience.⁹

This stress may deter people from wanting to go to court. One participant interviewed in this study, who had been sexually assaulted by one of her parents, said:

After much soul-searching I realised that it wasn’t worth it. It was just going to cause me more heartache and pain.¹⁰

CLC workers from Shopfront said that many of their clients were so traumatised in child abuse and sexual assault matters that they had difficulties even reporting the offence to the police:

Many of our clients are too frightened to make that sort of disclosure, or too traumatised, and they don’t want to go through the justice process, giving evidence at a court or in a trial.¹¹

The convener of the National Council of Single Mothers and their Children was also of the opinion that in family law matters, women with a mental illness who have been the victims of domestic violence, and have to face the perpetrator in court, may become so stressed that they are unable to participate effectively in the process:

Often they are forced to come into court as self-represented litigants, and put up an argument against the person who has been their perpetrator, and panic attacks, anxiety attacks, mean that some women just physically can’t do that. So mental health issues arising from domestic violence actually become a barrier to participation.¹²

WLS workers acknowledged recent Family Court strategies to assist women who have been the victims of violence during family law matters, such as conferencing, which allows the two parties to sit in different rooms, with the registrar or mediator moving between them. However, they argued that this does not necessarily address the problem of victims having to wait outside in the waiting area with the perpetrator.¹³ This is supported by Kennedy and Tait, who argue that consideration should be given to the stress experienced by victims when they come into contact with perpetrators in courtroom waiting areas.¹⁴

In its submission to the Productivity Commission’s Review of the Disability Discrimination Act 1992 (Cth), the Mental Health Council of Australia argued that for people with a psychiatric disability, reporting acts of discrimination can be a very stressful experience, which can in turn lead to relapses in illness. The review argued that this is a major barrier to participating in the disability discrimination complaints process. One solicitor interviewed for this study described how stressful the experience of reporting discrimination had been for one of her clients:

And then actually having to recall stuff again … [one client] didn’t want to be put on the stand, and that was a big reason why. We got a good settlement, but she was prepared to walk away with nothing, rather than go to court, because it was so difficult for her to have to face all of that again.¹⁵

In its submission to the review, HREOC reported that as a result of stress, outcomes were less favorable for people with psychiatric disabilities.¹⁶ The Disability Council also discussed the impact that lengthy proceedings can have on the stress experienced by people with disabilities, particularly in personal injury compensation cases and discrimination complaints.¹⁷

Cognitive impairment

Cognitive impairment refers to a limitation in a person’s ability to think, perceive, reason or remember. Cognitive impairment is not necessarily a symptom of mental illness; however, some people with a mental illness, particularly those with schizophrenia, may experience a degree of memory loss, and problems with concentrating or planning.¹⁸ Further, cognitive impairment may also be caused by drug and alcohol abuse¹⁹ and concentration and memory problems may be experienced by people with depression.²⁰

Service providers suggested that even slight cognitive impairment may act as a barrier to people participating effectively in the legal system.²¹ For example, after being asked whether they had thought to make a complaint about their mental health treatment, one participant interviewed for this study responded:

The only thing you can do is write an official visitor’s letter but you aren’t quite cognitive at that time [in hospital].²²

Service providers argued that cognitive impairment for people with a mental illness may lead to problems with understanding and comprehending what is occurring during a legal process. For example:

When you’ve got somebody whose world has been restricted due to a mental illness intervening in their life … their developmental milestones are slower. Not because they are intellectually impaired but because they are psychiatrically impaired at times when they are ill … They may get through the acute illness fairly quickly, but the recovery for that illness can take up to a year, so that their cognitive capacity to understand what is going on [is affected].²³

It’s often the case with mental illness that there are concentration impairments. Barriers are a lack of understanding of what is going on, lack of appreciation of what they’re charged with sometimes.²⁴

Capacity to participate in the process is limited … The process unfolds around them without their capacity to understand what is going on.²⁵

I was in the District Court with this client who was very unwell. He was finding it very hard to understand things … he literally sat there and I could see he had no idea what happened, no idea what the conversation was about. When I got out, I had to sit down with him and speak to him and had to explain very clearly what had happened. He just didn’t feel like a participant at all in the court process.²⁶

A service provider reported that people with a mental illness may not understand legal documents, as a result of cognitive impairment arising from mental illness.²⁷ One local court registrar felt that some people with a mental illness were not even aware of why they were at court:

Mostly they don’t understand, and they don’t want to, why they are in court or understand the offence because of the mental illness.²⁸

One mental health worker pointed out that even if a person is well at the time of going through the legal process, a person’s mental illness may have previously impacted on their education and ability to learn those skills essential to negotiating legal processes.²⁹ An investigation officer from the NSW Ombudsman argued that people with a mental illness “may not have sometimes, the education or the background to be able to deal with the many technical bureaucratic processes”.³⁰

Problems with time management

As noted in Chapter 4, people with a mental illness may have problems turning up to appointments with legal service providers as a result of psychiatric medication, substance abuse and illness. During the legal process, service providers suggested that people with a mental illness may also have problems managing court appointments and adhering to strict timeframes.³¹ For example, they reported that people have problems turning up to court and have problems submitting documents necessary to particular legal processes on time:

Their lack of capacity to plan [is a problem]. Many times a magistrate will put them on bail, and then they will forget to show up to court, [which will] make the situation worse.³²

Some people cannot get up in the morning or start functioning till one or two in the afternoon, so how are they going to report at 9 am?³³

People often cannot comply with “this needs to be done in seven days”.³⁴

If people are unable to turn up to court on time, fill in application forms, or respond to timeframes, this may act as a barrier to their effective participation during legal processes. For example, when a person incurs a fine they must pay it within a certain period of time or elect to have the matter heard at court. If they do not do either of these things, a reminder notice is sent out. If the fine is still not paid, it is referred to the State Debt Recovery Office, at which point it is too late to dispute the fine.³⁵ CLC workers from Shopfront were of the opinion that not being able to comply with the time periods in which they have to pay a fine is a particular problem for young people with a mental illness.³⁶ This is also compounded by the fact that many of their clients are homeless, which means that in many instances, people do not receive further notification of their fines.³⁷

Communication

As previously discussed in Chapter 4, consultations suggested that people with a mental illness may have difficulties communicating and therefore participating effectively during the legal process.³⁸ Service providers believed that communication issues are a particular issue for people with a mental illness who are unrepresented throughout a legal process. They argued that problems with communication in addition to being self-represented may act as significant barriers to effective participation in the legal system.³⁹

I think that people with a mental illness find it very difficult to communicate what it is they want, and what their case is. Both to their own representatives, and if they are unrepresented, at court.⁴⁰

Not to be able to get your thoughts together to communicate them adequately; getting to the stage where you’re so emotionally overwhelmed by the whole process that you lack clarity in the delivery of your answers, and there is no capacity to actually have the open court really understand, in your words, what’s going on.⁴¹

That people with a mental illness may experience problems with communicating throughout the legal process is also supported in previous literature. The Disability Council has argued that communication problems for people with a disability may be compounded by “excessive reliance on legal terminology and complicated language”.⁴² The Disability Discrimination Legal Service of Victoria has suggested that people with a cognitive impairment (including those with a mental illness) may need a support person, who can relay and translate information between the court and the person with the impairment.⁴³

Courtroom environment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Features of ADR

A few service providers suggested that legal processes that offer alternative dispute resolution (ADR)—such as HREOC, the Anti-Discrimination Board (ADB) and the Family Court—may be more accessible to people with a mental illness.⁶² ADR includes mediation, where parties to a dispute negotiate directly with each other in the presence of a neutral mediator, and conciliation, which is similar to mediation but generally involves the conciliator taking on a more interventionist role during the conciliation process.⁶³ Simpson suggests that while litigation can be expensive, formal and lengthy, ADR is relatively cheap, and its informality and flexibility may be better suited to a person who is intimidated by the courtroom experience.⁶⁴

ADR is generally a beneficial process, that doesn’t have the stress barriers associated with court processes. I think ADR is educative, and provides people with a sense of participating and feeling involved: “I negotiated this, this is my outcome”.⁶⁵

One of the features of ADR is that, in general, it relies less on legal representation and more on the parties to a dispute meeting face-to-face with each other in the presence of a professional mediator or conciliator.⁶⁶ For example a person can make a complaint about unlawful discrimination to HREOC, which offers parties conciliation without the need for legal representation (although it does not exclude parties from getting legal advice).⁶⁷ At the CTTT, people have to get leave to allow another person, tenant advocate or lawyer to represent them in proceedings.⁶⁸ The Family Court also offers mediation and conciliation.⁶⁹

Less reliance on legal representation in ADR, however, may not be beneficial to people with a mental illness. Service providers argued that ADR can still be a stressful experience for this group, particularly in discrimination and family law problems where they may have to face the person who discriminated against them or the person from whom they are separated or divorced:

It doesn’t matter how accessible you make it, it is still stressful to come face-to-face.⁷⁰

I had a very depressed client who found the conciliation process dreadful. The solicitor for the respondent was an aggressive man, and the respondent literally sat there and smirked at my client the whole time. My client, who was literally shaking like a leaf by the time he got out during the break, said to me “I can’t go back in there”.⁷¹

Simpson states that these problems may exist where there is an imbalance in power between a person with a disability and the other party, which may lead to the party with a disability not understanding what is going on and not identifying and protecting their own interests.⁷² This can place extra pressure and stress on a person with a mental illness.⁷³ One of the participants interviewed for this study described her experience during mediation:

[And how did you feel about going into mediation with this person?] I was a bit sort of anxious about it. I didn’t know whether he [the other party] was going to get angry at me.⁷⁴

The Family Law Division of Legal Aid runs a mediation service for couples with a family law issue. A family law solicitor noted the problems for people with a mental illness participating in this service:

There will be times where it might be very difficult to have mediation if someone has particular mental health conditions, because they may have certain problems giving instructions. The issue of equal bargaining power is obviously very important—it can affect people with some sorts of mental illness. On the other hand, sometimes people with a mental illness, depending on what it is, can be more aggressive than the other person. [There is] a screening process for ADR … the conference organisers will make contact [with the parties] to determine if a matter is appropriate for ADR..⁷⁵

CLC workers from WLS argued that at the Family Court,⁷⁶ which encourages people to participate in mediation, women who have developed a mental illness as a result of domestic violence, may be at a distinct disadvantage due to low self-esteem and communication difficulties:

It could be any mental illness, but [it is] often depression where they have been in situations of DV. Often the women have low self-esteem, and it’s just hard for them even to express themselves, and to put their point of view forward at all.⁷⁷

Simpson has argued that barriers to participation in ADR for people with a mental illness might be addressed through a number of measures, including the mediator being made aware of a person’s particular needs and being made aware of and addressing the power imbalances between parties, and the use of an advocate—whether a lawyer or a non-legal advocate—for the person with a disability.⁷⁸ A solicitor for this study suggested that without legal representation, ADR may not be beneficial to people with a mental illness:

A person with a mental illness unsupported in reconciliation is going to be at a particular disadvantage if [their] anxiety impacts on their mental illness. In my opinion, the more formal court processes are better because there is more opportunity for representation … I don’t wish to give the impression that I wish to see more formalised court-based processes, [but] where the disadvantage arises is where the person doesn’t have advocacy or support with them.⁷⁹

Ultimately, the facilitator or mediator needs to decide whether ADR is appropriate for the particular situation. This might include an assessment of whether the person is able to “fully participate” in the process.⁸⁰ A mediator from a community justice centre was of the opinion that, if a mediator becomes aware that a person is not capable of making a decision, they may make an assessment to determine whether mediation is appropriate for the parties.⁸¹ This mediator also highlighted the need for mediators to have training on mental illness.⁸²

Lack of legal representation

Consultations indicated that without appropriate legal representation at court and in ADR, many people with a mental illness do not participate as effectively in the legal system.⁸³ For a person who has problems communicating and understanding what is going on during the legal process, a legal representative can assist by explaining events, advocating and ensuring the person makes it through the legal process:

If you are paranoid and fearful you may not be able to make an informed judgment about what’s needed [at court]. They need lawyers to explain the process to them properly.⁸⁴

I can get people to participate in the legal process if I can get a hold of them and walk them through. But if they never get to me or the centre, then they are not going to get through it.⁸⁵

Stressed by litigation or stressed by their circumstances. During a hearing they are absolutely exhausted, because they have to go home and think about what they are going to do the next day, and they are just totally exhausted by it all. They haven’t a clue how to do their affidavits.⁸⁶

In its submission to the Senate Select Committee on Mental Health, the WRC indicated that without legal representation, people with a mental illness may not receive a good outcome in court, particularly if they do not understand the legal options available to them:

We regularly deal with clients with a mental illness who may have had a strong case for waiver of their social security debt, for whom we can do nothing—because they have already been convicted of a criminal offence in relation to the debt. In many cases our clients in this situation were unrepresented (or poorly represented) in the criminal matter, and they inappropriately pleaded guilty. These people now have undeserved criminal convictions as well as the burden of repaying a debt—both of which exacerbate their mental illness.⁸⁷

A family law solicitor was of the opinion that some self-represented litigants in the Family Court who have a mental illness behave inappropriately, which may also affect the outcome of their case:

I have had people stand up there and scream. They don’t care what the judge does, because they will just do what they are going to do anyway. I have seen judges try to handle that without calling the court officer. I had a guy go into court wearing a green Elvis suit and bring in a whole range of baby bottles and blankets and put them on the bar table and then stand up and talk over the judge.⁸⁸

One participant with a mental illness described going to court as the defendant to an apprehended violence order (AVO) without legal representation:

I have been to court with this neighbor, and I had no solicitor there. I didn’t know what to do legally. I had to examine the witnesses you know. Well I broke down, at the hearing and admitted it. The magistrate’s attitude was very harsh … I think that [not having legal representation] might have contributed to me breaking down. Because I know very little about the law and court proceedings.⁸⁹

Support for people with a mental illness through the legal process need not be strictly legal. For example, support through the legal process might be provided by a non-legal advocate such as a tenancy worker or a social worker. Non-legal service providers can provide support to people with a mental illness during the legal process by assisting them with filling out forms, advocating to a government department or providing general support at court or a tribunal.⁹⁰ For example, people appearing before the SSAT are allowed to bring a friend, family member or advocate to a hearing.⁹¹

If somebody has a serious mental illness, then without a lot of support, they may not be able to get through the [DOH] application process, let alone the actual living process. And if they are knocked back, they may not be able to go through the appeal process without serious assistance.⁹²

Credibility

As noted in Chapter 4, consultations suggested that people with a mental illness are often viewed as being less credible by those in the legal system.⁹³ In A Question of Justice, the Disability Council reported that communication problems may lead to people working in the justice system not understanding people with a disability, and labelling them as delusional or paranoid.⁹⁴ For example, they may be perceived as incapable of perceiving the ‘reality’ of events:

There is a lot of prejudice against our clients who are suffering mental illness or have drug and alcohol issues. And that is [from] DoCS, the police, or the court. And it is often a challenge—their story isn’t as clear, and the presumptions that different people have [against them] can create hurdles for them legally.⁹⁵

Their complaint gets trivialised or it’s put down to being something else. Their mental illness is seen as the problem rather than their legitimate complaint. And so the barrier is people’s perception.⁹⁶

Not being taken seriously or not being believed may act as a barrier to people with a mental illness participating in legal processes. For example, consultations suggested that for people with a mental illness who have been the victims of violence, police do not always take their complaints seriously because they do not view their evidence as credible:

Evidence might not be seen as valid, you know because they might think that she has a mental illness; she is a bit mad, you can’t really trust her evidence because who is to say that she isn’t psychotic or wasn’t psychotic at the time she was attacked. Who is to say that really happened? So my validity as a witness may be in question.⁹⁷

One participant provided an example of this:

Someone keeps sending me bogus texts on my phone. I want to go to the police and report it. But I am worried that because they have scheduled me before, that they will think that I am a loony, that I am imagining it or something.⁹⁸

In its submission to the Productivity Commission’s Review of the Disability Discrimination Act 1992 (Cth), the Victorian Office of the Public Advocate said that people with cognitive incapacities who have been the victim of a crime or sexual assault are often viewed as making less credible witnesses.⁹⁹ The NSW Council of Social Services has also reported that women with disabilities, particularly women with intellectual and psychiatric disabilities, often feel that they are not treated equally in the legal setting, and are not viewed as “credible” victims or witnesses.¹⁰⁰

Excessive complainants

Excessive complainants have been described as people who look to the legal system to address wrongs that have been done to them, engaging in “querulous and apparently interminable campaigning and complaining”.¹⁰¹ They appear to be difficult to negotiate with, unable to accept a negative outcome, and continue to use the legal system even where those wrongs cannot be addressed.¹⁰² It should be noted that not all excessive complainants will have a mental illness, just as, clearly, not all people with a mental illness will be excessive complainants. Mullen notes that in some circumstances, however, complaints may be born out of delusions or a pre-existing psychotic illness.¹⁰³ A number of examples of people with a mental illness who had exhibited such behaviour while participating in the legal system were raised in consultations.¹⁰⁴ Two legal service providers gave examples of this type of complainant:

The first one is I have [is] this lady. She used to work at [a university]; she resigns and takes a part-time job at the uni, has a fall-out with them; starts forming views of them being racist, holding her back, etc. and now she has been to the Supreme Court, has been arrested twice for trespassing into the uni. She has an apprehended violence order [AVO] against the chancellor, against the staff, against security and she writes to Bob Carr on a regular basis. Here are 15 letters from her to Bob Carr. She also writes on a regular basis to the solicitor at the uni; has personally taken AVOs to the Supreme Court and has lodged a complaint against the HREOC complaints division. This lady is obsessed and has paranoia. She sees the legal system as against her.¹⁰⁵

[A senior executive going through a divorce] … it all started to change with the ramifications of [his] property settlement. He just couldn’t handle it … he goes from one legal representative to another. He genuinely is strapped; he has no money, no property. It would have been nice if somewhere along the line the solicitor had said “Stop this, don’t spend any more money, you are not going to get anywhere, this is not going to work”. I tried to intervene many times by saying “Isn’t it time to stop?”, but he had some kind of bit between his teeth that justice should be done. But you could never get it into his head that the law had nothing to do with morality.¹⁰⁶

The main barrier to participation that appears to arise from this type of behaviour is that these litigants are perceived to be difficult to deal with,¹⁰⁷ and so they very quickly lose their credibility. Akin to the “boy who cried wolf”, legal service providers and other workers in the legal system become annoyed by excessive complainants, and become less likely to believe what they are saying. It becomes difficult for people to decipher the truth, which creates the risk of a legitimate complaint not being addressed.¹⁰⁸

In A Question of Justice, the Disability Council reported that there is a tendency in the justice system to label people with a disability as vexatious or unreasonable, where they had been previously involved in other legal actions.¹⁰⁹ The report stated that people with disabilities felt that these assumptions did not take into account the difficulties they face in trying to exercise their rights.¹¹⁰ A director from the SSAT referred to an appeal (the person’s identity was not disclosed) where a man who had been seeking an internal review at Centrelink for a failed activity test breach, was wrongly labeled as “vexatious”, when in fact he had a valid complaint.¹¹¹

Identification of mental illness

People with a mental illness sometimes don’t know they’re mentally ill. So they will go to court and they won’t tell anyone that they have a mental illness. The court thinks they don’t have one and if they can keep themselves focused for a period of time, nobody will know until they end up in prison.¹¹²

As noted in Chapter 4, people with a mental illness may pass through the legal system without their illness being identified or recognised. Failure to identify that a person has a mental illness may mean that no attempt is made to cater to that person’s particular needs in a way that would improve their participation in the process or that the illness is not taken into consideration in determining the outcome of a matter. For example, where a person accrues a debt with Centrelink, the debt may be waived if special circumstances (such as mental illness) are identified.¹¹³

If a person is identified as having a mental illness during a legal process, their illness may in some cases be taken into account in determining the outcome of the matter, or in simply catering to their particular needs throughout the legal process. For example, in the criminal process, if a person is suspected as having a mental illness, they may be referred to the Statewide Community and Court Liaison Service (SCCLS). This service is in operation at 19 courts throughout NSW, and provides a full-time clinical nurse to assist people identified as having a mental illness. The aim of this service is to divert people with a mental illness who have been charged with minor offences away from the criminal justice system and back into the community, where they can receive appropriate mental health treatment in lieu of incarceration.¹¹⁴ The SCCLS tries to identify people with a mental illness who have been charged with minor offences, through a questionnaire administered by the Local Court that asks people about self-harm and any medication they might be on. In consultation, however, one court liaison worker believed that, in some circumstances, people do not wish to disclose their illness.¹¹⁵

In other processes, such as before the SSAT, adjustments—for instance, allowing a support person or more flexibility in relation to time—can be made, to maximise the participation of a person with a mental illness.¹¹⁶

Facilitating participation in the legal system for people with a mental illness

This section will discuss those features of existing legal processes identified in this study as increasing participation for people with a mental illness. The first part of this section looks at the way in which flexible service delivery of legal processes to people with a mental illness can improve their participation in these processes. The second part of this section explores the way in which courts that adopt a ‘therapeutic jurisprudence’ model may also improve participation.

Flexible service delivery

To the credit of the staff here, they are very experienced and very compassionate about dealing with people with mental illness. We have developed sensitivity and an understanding that we may need to adjust our processes to accommodate, and ensure that, the barriers to access can be overcome for the particular client that is in front of you.¹¹⁷

In A Question of Justice, the Disability Council reported that people with disabilities see flexible service delivery as important in addressing barriers to participation.¹¹⁸ The report argued that flexible service delivery includes:

• training staff
• implementing procedures for identifying disability-related requirements
• implementing flexible work practices
• providing alternative ways of lodging and making complaints
• allowing flexible timeframes to be built into procedures
• using plain English in the provision of information.¹¹⁹

In NSW, the Attorney-General’s Department (AGD) has implemented a Disability Strategic Plan (2003–05) aimed at ensuring equal access to its services and programs, so that people with disabilities are not discriminated against in its services and workplaces and to ensure that disability principles are incorporated into the AGD’s policies and practices.¹²⁰ As part of the plan, managers across the AGD are to implement:

• A Flexible Service Delivery Program (Strategy 1.3) that allows for the modification of court procedures and other practices, the relocation of services, the development of specialist resources and the recruitment of specialist staff.
• A communications strategy (4.1) that provides advice on communicating appropriately with people who have particular disabilities.
• A staff training strategy (6.1) that involves the introduction of staff training programs that promote awareness and skills to provide effective services to people with a disability.

NSW courts and tribunals must implement the Disability Strategic Plan into their services. In consultation for this study, a manager from the ADB discussed the way in which “flexible service delivery” was incorporated into ADB services, and how this related to people with a mental illness.¹²¹

Workers from other federal courts and tribunals, such as the Family Court and the SSAT, also discussed ways in which they had adjusted their processes to be more flexible, with particular reference to people with a mental illness.¹²²

Simplifying the application process

As noted above, people with a mental illness may possess a degree of cognitive impairment, or have problems with organisation. This can lead to people with a mental illness having problems coping with written material. Having to deal with complex written applications may deter people with a mental illness from making applications to participate in particular legal processes. Thus, these people may benefit from simplification of the application process. A manager from the SSAT reported such changes to their application procedures:

It’s a simple process to apply to the SSAT; you can actually lodge an appeal by telephone. You don’t need to fill in a form or sign anything, although most of our appeals do come in writing. People can simply just phone up and say, “I don’t agree with the decision”, and the staff will ask them questions to get the information they need to lodge an appeal.¹²³

Less adversarial and less formal courtroom/tribunal processes

The SSAT manager also discussed how SSAT processes were designed to be less formal and less adversarial, which may be beneficial to people with a mental illness, who can find the experience of complex and formal legal processes highly stressful:

It is very informal. It’s an inquisitorial style of hearing, so if the person isn’t able to articulate what the legal issues are, that is not a problem. It’s our expectation that it’s the tribunal members’ responsibility to make sure that they know what issues need to be considered, so they can make the correct decision … it’s their job to help that person to give them the information that’s needed.¹²⁴

The Family Court is also trialling a less adversarial process, the Children’s Cases Program. The aim of this program is to reduce the “adversarial nature” of Family Court proceedings relating to disputes about children:¹²⁵

Instead of the traditional adversarial courtroom processes, whereby it is often difficult for the judge to engage with the parties to a dispute, the judge takes a much more hands-on approach to managing the case in a manner appropriate to the individual needs of each case. The judge is less constrained in exploring appropriate avenues for resolution of disputed issues, but the ultimate objective remains for the Judge to make an informed determination of issues in dispute.¹²⁶

The less adversarial nature of the Children’s Cases Program, which enables the judge to better adapt courtroom processes to meet the individual needs of each case, may be beneficial to people with a mental illness.

As part of its flexible service delivery model, the AGD recommends that court staff “minimise the sense of intimidation felt by people with disabilities in the court … [through] the use of plain English in their communications and in court proceedings”.¹²⁷ In relation to clients with cognitive impairment who are witnesses in sexual assault cases, the Disability Discrimination Legal Service in Victoria also recommends that “courtroom language should be modified to meet the needs of the individual with a cognitive impairment … to allow maximum participation in the process”.¹²⁸

Being flexible and responsive to the specific needs of people with a mental illness

From the barriers identified earlier in this chapter, it is apparent that people with a mental illness have particular needs that must be addressed during the legal process. They might need more time to communicate, breaks in proceedings in order to address anxiety and stress, and clarification of the process itself. Both representatives from the ADB and the SSAT described how they were willing to adjust their processes to suit the needs of people with a mental illness. For example, an ADB manager said:

We adjust the process so that it’s not too onerous for them, and we look at things like taking breaks and having a support person available to them. We try to do a lot of preparation so that people with a mental illness know what to expect, can be involved in the process, can participate fully, and … hopefully have a sense of what it is that we are going to be talking about and how we are going to talk about it. [We] provide them with as much information as possible prior to the meeting, so that when they come in it’s not a foreign intimidating process.¹²⁹

A director of the SSAT also recommended that there be an increase in personal service delivery, whereby processes are adjusted to fit the individual client.¹³⁰

We will take into account too that some people have a phobia, and don’t want to come into the office because they’re scared about the lifts. We try to accommodate that … in some cases … we have done home visits.¹³¹

He also argued that there should be a general focus on customer service delivery, such as writing decisions in plain English, making sure that the reception area is accessible and comfortable, providing information to participants, and acknowledging that people are intimidated by legal processes and forums, even where those processes have been made as accessible as possible.¹³²

Higher level of assistance to people with a mental illness

People with a mental illness may benefit from a higher level of assistance throughout the legal process, particularly if they are unrepresented. Representatives from the ADB, HREOC and the SSAT argued that they try to assist people with a mental illness when they lodge a complaint or an appeal. For example, the ADB manager said:

We have always taken the view that if someone has difficulty in putting the complaint in writing we will assist them. That’s difficult over the telephone, but then we might say to them, “If you are in Sydney, or you are close to our Wollongong or Newcastle office, please come into the office and we will sit down and we will write out the complaint for you”. That involves actually interviewing the person to try and draw out the relevant details, and put it in a way that is going to be meaningful to them, and accurate, and meaningful to a respondent who may not even know of these issues.¹³³

However, this manager also acknowledged that ADB workers cannot provide too much assistance to people because this raises bias problems:

We have to be careful about our neutrality in this as well. We are not an advocate for complainants or respondents, and we need to be mindful of the principles of administrative or natural justice and procedural fairness, that we don’t seem to be formulating the complaint for someone. At the same time, we are providing a service as part of our commitment to our clients, we give them assistance. But we can’t give them advice, we can’t advocate; we can write the complaint for them but we can’t formulate the complaint. It can be a very fine line sometimes, and often if people do have a comprehension issue, then getting that message back to them is also an issue that we face as a provider of services. It’s hard for people to understand our neutrality—“You have just sat down with me, you have asked me all these questions, you have written it up for me, and now you are telling me that you are not helping me”—so there is a conceptual difficulty there sometimes.¹³⁴

Case management

Consultations indicated that some people with a mental illness may benefit from case management throughout the legal process. They argued that this approach may reduce the potential stress experienced by people with a mental illness as they participate in the legal process. To a certain degree, a case management approach incorporates some of the features mentioned above, such as individualised service delivery and increasing the participation of the client as much as possible. However, it also involves having one case manager at a court or tribunal who is responsible for coordinating the person as they participate in a particular process.¹³⁵

Staff at the [SSAT] registry are mostly case managers, so when people phone and want to lodge an appeal, they are put directly through to a case manager. These case managers manage a case from beginning to end. We see that as a very important part of the service that we provide to the applicant, because they build up a relationship with that person, they don’t have to find a different person who doesn’t know where their case is up to every time they speak to them. So that person manages the process.¹³⁶

One solicitor said that a case management approach to service delivery might reduce the delay in matters, a delay that can contribute to enormous pressure and stress on people with a mental illness:

If there could be a way of identifying these matters and perhaps case managing them … There have been times where people who have some sort of anxiety or depression, and the hearing and judgment have been delayed for 6 months, 8 months, 10 months, and that puts an enormous amount of pressure on that person, after they have had to go through all the procedures as well.¹³⁷

Training staff on mental health issues

The AGD’s Disability Strategic Plan (2003–05) states that training programs promoting awareness of mental illness, and teaching skills to provide effective services to people with a disability, should be implemented by NSW courts and tribunals.¹³⁸ For example, the ADB and the Community Services Division of the NSW Ombudsman provide their staff with training on mental health issues. A disability awareness trainer consulted for this study suggested that people working in the legal system should be taught about the lived experience of having a mental illness:

I try to provide education that takes the view that the starting point is the inside-out experience of having a mental illness. So I talk people through the lived experience of mental illness, and [about] circumstances that they can relate to in their workplace, behaviours that they might have encountered and so on. What I am trying to do is give people an insight into what’s actually happening in your mind when people may be saying or doing these things that people find quite hard to know what to do about.¹³⁹

One consumer advocate interviewed for this study said that she had participated in a forum on mental illness with the local magistrate.¹⁴⁰ As a result of her participation, the magistrate had sent court staff to training sessions on mental illness, at the NSW Institute of Psychiatry.¹⁴¹

Research indicates that divorced and separated people have higher rates of mental health problems than married people, both in the short and long term.¹⁴² Accordingly, the Family Law Courts have obtained funding from the Department of Health and Ageing to conduct the Mental Health Support Project, a pilot project being conducted in Adelaide and Darwin. The project aims to better support the emotional wellbeing of clients who may be distressed, have mental health issues, and/or be suicidal. Under the project, Adelaide and Darwin staff are being trained in mental health first aid—i.e. to assist someone experiencing a mental health problem before professional help is obtained. Skilled staff are then able to directly link clients to appropriate support and treatment provided by community and government-based providers of mental health services.¹⁴³

Therapeutic jurisprudence and problem-solving courts and lists

‘Problem-solving courts’ are specialised courts that aim to provide new responses to criminal activity by addressing the behaviour underlying many criminal offences. Problem-solving courts originated in the United States, with the establishment of the Florida Drug Court in 1989. Since then, many other problem-solving courts, including drug courts, mental health courts and family violence courts, have been established throughout the United States.¹⁴⁴ Problem-solving lists serve the same functions as problem-solving courts, only on particular days at a ‘regular’ court.

Problem-solving courts are influenced by therapeutic jurisprudence, which is “the study of the role of the law as a therapeutic agent”.¹⁴⁵ Therapeutic jurisprudence examines the role of the law as a therapeutic agent in relation to legal rules, legal processes and the role of the legal profession.¹⁴⁶ In relation to the court process, therapeutic jurisprudence focuses on the role of the court in improving the wellbeing of parties to its processes. More specifically, in the criminal jurisdiction, therapeutic jurisprudence involves the consideration of “rehabilitation as a factor in sentencing”.¹⁴⁷ Hence, the aim of these courts is to address the “underlying cause” of the offending behaviour, by fashioning sentences that involve linking offenders to various services, such as drug treatment or mental health services. Other features of problem-solving courts include collaboration with social services, assessment of offenders’ needs by caseworkers, a less adversarial courtroom and increased interaction between judges and offenders.¹⁴⁸

One North American example of a problem-solving court is the Brooklyn Mental Health Court in New York. The aim of this court is to link offenders with serious mental illnesses—who would normally be incarcerated—with appropriate mental health care and support.¹⁴⁹ A number of Mental Health courts have also been established in various counties throughout California.¹⁵⁰ An example of a problem-solving court found in the civil jurisdiction is the Manhattan Family Treatment Court in New York. Launched in 1998, this court aims to address the drug and alcohol problems of parents of neglected children, by referring them to support services so that they can regain custody of their children.¹⁵¹

In NSW, examples of problem-solving courts and lists, and other court services that are relevant to people with a mental illness, include:

• the NSW Drug and Youth Drug Courts
• the Magistrates Early Referral into Treatment (MERIT) Program (in NSW)
• the NSW Statewide Court Liaison Service.

The Enforcement Review Pilot Program (Special Circumstances List) in Victoria is also of interest, because of its applicability to people with a mental illness.

NSW Drug Courts

The NSW Drug Court is a program which commenced in 1999 that aims to reduce drug dependency, promote re-integration of drug-dependent people into the community, and reduce the need for drug-dependent people to resort to criminal activity.¹⁵² If an offender is eligible, they are remanded for detoxification and assessment at the Drug Court clinic. Their sentence is suspended on condition that they adhere to the requirements under their treatment plan. This plan requires participants to enter a residential rehabilitation centre, or live in accommodation approved by the court.¹⁵³ Currently, the NSW Drug Court is restricted to people living in Western Sydney. Offenders who have committed an offence of a sexual or violent nature are not eligible for the program.¹⁵⁴

Similar in its aims to the adult Drug Court, the NSW Youth Drug and Alcohol Court was established in July 2000 in two children’s courts in Western and South Western Sydney (Cobham Children’s Court on Monday and Campbelltown Children’s Court on Thursday). The court tries to address young offenders’ social needs, by tailoring a treatment plan that covers areas such as education, housing, employment and health.¹⁵⁵

Magistrates Early Referral into Treatment (MERIT) Program

The MERIT program is a pre-plea NSW Local Court-based diversion program for adult offenders with substance abuse problems. The aim of the program is to address substance abuse associated with criminal behaviour. While the NSW Drug Court targets offenders who have committed more serious offences, the MERIT program is aimed at those offenders who are eligible for bail. Indeed, the program may be undertaken as part of a person’s bail conditions, and an admission of guilt is not required. Participants may be identified by magistrates, the police, solicitors or even by themselves as being suitable for the program. The program may involve counselling, detoxification, methadone treatment, residential rehabilitation and case management, depending on the needs of the defendant. The person’s matter will be adjourned until they have completed the program. It is only then that the outstanding matter is heard and sentencing occurs. Offenders who have committed an offence of a sexual or violent nature are not eligible for the program.¹⁵⁶

The Statewide Community and Court Liaison Service

As noted earlier in this chapter, the Statewide Community and Court Liaison Service provides specialist mental health advice to 19 local courts across NSW.¹⁵⁷ The aim of the service is to assist magistrates to identify whether a person charged with a minor offence has a mental illness, and to assist in referring them to appropriate treatment in lieu of incarceration.¹⁵⁸ The use of caseworkers to evaluate defendants is one of the main principles adopted by problem-solving courts.¹⁵⁹ Thus, although this service is not in itself an example of a problem-solving court, it provides a similar service to that offered by US Mental Health Courts, whereby defendants with mental illnesses are identified and referred to appropriate treatment.

Enforcement Review Program (Magistrates Court of Victoria)

The Enforcement Review Program assists people with “special circumstances”—mental illness, neurological disorders, and physical disabilities—who have outstanding fines registered at the PERIN (Penalty Enforcement by Registration of Infringement Notice) Court.¹⁶⁰ If a person is identified as having a mental illness, the magistrate can take this into account in tailoring a sentencing order. Defendants may also be referred to other support services, such as mental health services or accommodation services, at this point. The Victorian Homeless Persons’ Court project reported that homeless participants who had appeared before the Special Circumstances List had a positive perception of the court, because it allowed them to tell their story directly to the magistrate.¹⁶¹

Barriers to the effectiveness of problem solving courts

The principal aim of problem-solving courts is to address the underlying causes and behaviour of criminal offences. However, concerns have been raised over the limited support services attached to problem-solving courts and the fact that many problem-solving courts are found only in capital cities or other major cities.¹⁶²

In its report Improving the Administration of Justice for Homeless People in the Court Process, the Victorian Homeless Persons’ Court project raised the concern that the support services that people are referred to by the Special Circumstances List are not able to provide ongoing support. It reported that participants expressed some frustration at the lack of ongoing support attached to specialist lists.¹⁶³ This suggests that in order for problem-solving courts and lists to be successful, they need services that are able to provide ongoing support to the people who are referred to them.

People living in rural and regional areas may not have access to problem-solving courts that are found only in capital cities. For example, the NSW Drug Court is only found in Sydney. One way of overcoming this would be to implement the features of problem-solving courts into mainstream courts. In a study conducted by the Center for Court Innovation and the California Administrative Office of the Courts, judges from California and New York were asked which features of problem-solving courts could be so implemented. They responded that judges in non-problem-solving courts could adopt a more “problem-solving orientation”, tailoring sentences based on the needs of each offender (such as mental health and drug and alcohol needs), engaging more directly with the defendant, and encouraging a non-adversarial approach to conversing with lawyers and offenders.¹⁶⁴

Summary

According to consultations, barriers such as stress, cognitive impairment, problems with time management, communication problems and complicated legal technology may prevent people with a mental illness from complying with timeframes, understanding legal documents, and understanding what is occurring once they are at court.

Confronted with these barriers, people with a mental illness may benefit from a higher level of assistance, and a simplification of the application process, particularly in terms of filling out forms and lodging complaints. People with a mental illness who are affected by stress, and who have problems with time management, may also benefit from a case management approach throughout the legal process.

Consultations also indicated that individual barriers are exacerbated by the structure and features of the courtroom environment. They suggested that the formality of the courtroom can be intimidating to people with a mental illness, and that its lack of flexibility can also prevent people from communicating effectively with their lawyers. Even the atmosphere and the physical environment of the courtroom were reported as being intimidating and frightening for some people with a mental illness.

Service providers argued that less formal and less adversarial legal processes may not be as stressful for people with a mental illness. Furthermore, a greater awareness of their needs and a greater flexibility within court processes would also be beneficial. The principles of therapeutic jurisprudence, which in addition to referring people to therapeutic services also encourage more direct engagement between judges and defendants, and a less adversarial environment, may also be highly beneficial.

To some extent, ADR is a lot more flexible, and was considered by service providers to be more appropriate for people with a mental illness. However, it was not considered as beneficial to people with a mental illness, if they were unrepresented. Indeed, the importance of both legal representation and general support for people with a mental illness in any legal process was stressed in consultations.

Of course, recognition of the needs of people with a mental illness during the legal process is also dependent on the fact that a mental illness has actually been identified as such. However, it is apparent that people are not always identified as having a mental illness. Consultations for this study also highlighted the perception by those in the legal system that people with a mental illness are less honest and less credible as a result of their illness. Training workers in the legal system about disability awareness may overcome problems relating to identification and misperceptions about credibility.

---