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Ch 7. Discussion and conclusion
The aim of this project was to examine the capacity of people with a mental illness in NSW to obtain legal assistance and participate effectively in the legal system. It also examined the role that non-legal service providers play in supporting people with a mental illness during the legal process and in accessing legal assistance. The Project sought the views of people with a mental illness, as well as legal service providers, court and tribunal staff, and non-legal service providers who provide support and advocacy to people with a mental illness. Qualitative methods of data collection, including semi-structured interviews and focus groups, were employed to gather these views. Information was also drawn from the relevant literature, available statistics and from case studies provided by stakeholders.
Social and economic disadvantage and mental illness
A considerable number of Australians currently have a mental illness, or will have a mental illness at some time during their lives. Approximately one in five Australian adults had a mental illness in 1997.1 While the experience of mental illness differs according to the nature of the illness and its severity, people who have a mental illness can face many barriers to participating in everyday activities, such as employment and education.2 Hence, while not all people with a mental illness are financially disadvantaged, an overwhelming theme raised in the Project is that many people with a mental illness face great social and financial disadvantage. The overview of available data presented in Chapter 1 indicated that people with a mental illness have lower rates of educational attainment, are less likely to be employed full-time, and are often reliant on social security benefits. People with a mental illness are less likely to be married or living in a relationship, and have high rates of divorce and separation. Previous literature has indicated that many people with a mental illness are dependent on private rental accommodation, public and community housing and boarding house accommodation. Housing stress and homelessness is a reality facing many people with a mental illness.3
The data collected in the Project suggested that the legal issues facing people with a mental illness (see Chapter 3) reflect the disadvantage that they experience. These people experience social security problems which can place them at risk of having a very low income. Problems with proving eligibility for the DSP may mean that many 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. Due to the nature of their illness, they may also have problems adhering to these requirements, and face being breached and cut off from payments. This places them at risk of increased financial disadvantage.
The Project also found that people with a mental illness can be vulnerable to credit card debt and other contract-related debt. Consultations indicated that they are also vulnerable to receiving fines, particularly those who are young and homeless. These legal issues are compounded by the fact that people with a mental illness may face discrimination in seeking and maintaining employment. If unresolved, these issues can place them at risk of experiencing even greater financial disadvantage.
Housing-related legal issues, including housing-related debt and eviction from both public housing and private rental accommodation, can make people with a mental illness vulnerable to housing stress and homelessness. According to consultations, neighbourhood disputes and the recent introduction of ABAs by DOH could affect them and place them at risk of homelessness. It was reported that people with a mental illness living in both licensed and unlicensed boarding house accommodation lack privacy, contend with dangerous and unsanitary conditions, face abuse from other residents and operators and are without legislative protection against arbitrary eviction. Again, the vulnerability to homelessness generated by these legal issues is also compounded by the fact that people with a mental illness can face discrimination in accessing private rental accommodation.
In addition, the data suggests that people with a mental illness are vulnerable to a range of legal issues that are related to violence and family breakdown, such as, family law and victim of crime related legal issues. They can also face problems in retaining their children under Commonwealth family and state care and protection laws.
The fact that these legal issues may have serious financial and personal consequences if not addressed highlights the importance of accessing legal assistance and resolving these issues through the legal system. The next section will outline the barriers faced by people with a mental illness in accessing legal assistance and participating in the legal system.
Mental illness and participation in the justice system
As noted in Chapters 4 and 5, this report found that there are a number of barriers related to the experience of being mentally ill that can prevent people from accessing legal assistance and participating in the legal system. Being susceptible to stress and not coping with stress may deter people with a mental illness from accessing legal assistance, or from lodging a complaint or an appeal. The stress they experience in the legal system is also compounded by the fact that legal processes can be intimidating and frightening. Courtrooms can be particularly formidable and austere environments. In addition, the adversarial process may not be conducive to their needs as these processes do not enable people to relate more directly with judges and other legal stakeholders. For these reasons, people with a mental illness can benefit greatly from being legally represented, particularly when they have to go to court.
Cognitive impairment, which can be associated with mental illness, may prevent some people from being able to comprehend legal documents, understand what is going on during the legal process and communicate with their lawyer. Furthermore, a lack of organisation and problems with time management—sometimes a characteristic of people with a mental illness—can prevent people from keeping appointments with lawyers and turning up to court on time.
Problems with communication can also pose a barrier to accessing legal assistance and participating in the legal process. People with a mental illness may have problems communicating information, complaints and instructions to their solicitor, which may result in their legal issue not being correctly addressed. These barriers are compounded for people with a mental illness whose first language is not English. According to consultations with service providers, communicating over the phone can also be a barrier for people with a mental illness who are often more comfortable communicating face-to-face. Problems communicating at court or at a tribunal may also present a barrier to people participating effectively in the process, if they are not able to communicate the substance of their complaint.
Need for flexibility
Barriers related to the experience of mental illness could be addressed through the adoption of a more flexible approach to legal service provision, courts, tribunals and other legal processes (see Chapter 5). For example, to overcome communication difficulties with solicitors, more time could be allowed for appointments with clients who have a mental illness. Implementing a case management approach for people who have difficulties with organisation and complying with time frames could also be highly beneficial. They may require more intensive assistance with tasks such as filling out forms.
In terms of legal processes, this could involve establishing processes that are less adversarial and less formal, such as those found at the SSAT and HREOC. Not only were processes like these reported to be less stressful and intimidating, but they can also allow for more engagement between litigants, advocates and other staff, which may be beneficial in overcoming communication issues. Furthermore, being aware of and being flexible towards the needs of people with a mental illness, such as allowing for breaks and allowing more time to explain things, may also assist in overcoming stress and communication problems.
The adoption of a more therapeutic jurisprudence based approach to courtroom processes may also assist in breaking down some of the barriers to people with a mental illness participating in the legal system. Problem-solving courts and problem-solving lists, such as the NSW Drug Court and the NSW Local Court MERIT program, are examples of courts that have adopted a therapeutic jurisprudence approach to delivering justice. These courts attempt to address the behaviour of offenders that contributed to the offence being committed. This is done by tailoring an outcome that addresses the particular needs of the offender, such as drug and alcohol treatment. In addition to tailoring a more ‘therapeutic’ outcome, courts such as these also attempt to involve the offender in the process as much as possible, by implementing a less adversarial approach within the courtroom, thus allowing for a more direct interaction between judges and offenders. Although many of the courts that implement a therapeutic jurisprudence approach are specific courts or lists, it has been suggested by the Center for Court Innovation and the California Administrative Office of the Courts that the features of this approach be implemented on a day-to-day basis in mainstream courts.4
Training programs promoting awareness of mental illness and disability, and teaching service providers how to provide effective services to people with a mental illness, could also be beneficial for legal service providers, judges, court staff and other legal stakeholders.
Credibility
Although there is now a greater awareness and understanding of mental illness in the community, it is still commonly misunderstood. Negative perceptions of mental illness—including that people with a mental illness have violent tendencies—lead to stigma and discrimination in the community. Those interviewed for this study indicated that people with a mental illness also face stigma in the legal system, where they are often viewed as lacking credibility. As discussed in Chapters 4 and 5, the perception that people with a mental illness are unable to perceive the ‘reality’ of events, and are therefore not telling the truth, can create a barrier to accessing legal services, and prevent people from participating effectively in the legal system.
For example, service providers reported that, in some circumstances, lawyers have difficulties believing or taking seriously a complaint from a person with a mental illness, particularly if what they are saying is not clear. This may be exacerbated by communication problems between lawyers and clients. Not being taken seriously could also prevent people from addressing their legal issues. A recommendation was for solicitors working with clients who have a mental illness to treat all their claims as legitimate, and to work together with their client to try and gain a clear understanding of events.
Similarly, in the legal system people with a mental illness (particularly those who have been the victim of sexual assault) may not be taken seriously when they are giving evidence or even making a complaint to police. This can in turn deter those who have been the victim of an assault from making a complaint to the police. People with a mental illness who are viewed as being ‘excessive complainants’ are also seen to lack credibility. Where people have legitimate complaints, perceptions that they are being vexatious may prevent them from being taken seriously by people in the legal system.
Misconceptions of mental illness within the legal system could be addressed by providing training to people in the legal system to make them more aware and more understanding of people with a mental illness. This may overcome common beliefs that people with a mental illness are less credible.
Identification of mental illness
In order to address the needs of people with a mental illness within the legal system, there need to be systems in place to identify that people actually have a mental illness. However, one of the major barriers raised in this report is that people with a mental illness, for a variety of reasons, are not identified as having a mental illness, either by legal service providers or in the legal system (see Chapters 4 and 5). This is because it is either not obvious that people have a mental illness—people may not wish to disclose that they have an illness because of potential stigma and discrimination, or they may be reluctant to disclose this information for cultural reasons—or people themselves might not be aware that they have a mental illness.
The implications of not being identified as having a mental illness are that many do not have their needs met by either legal service providers or in the legal system. For example, if a solicitor is aware that a person has a mental illness, they may set aside more time or be more flexible in response to the needs of a particular client. Furthermore, eligibility for legal aid representation, and decisions regarding whether representation should be granted to a client by a CLC, often include an assessment of whether a person is particularly disadvantaged—including whether they have a mental illness. Hence, if people do not disclose that they have a mental illness, they reduce their chance to be eligible for further legal assistance.
Furthermore, failure to identify that a person has a mental illness during a legal process may mean that person’s particular needs are not catered for during the process. For example, options such as allowing a person to take breaks, allowing for more time, or conducting processes over the phone, may not be offered to a person, unless it was recognised that they had a mental illness. In addition, in those matters where mental illness is taken into consideration in determining the outcome of a case, failure to recognise that a person has a mental illness would mean that the illness is not taken into consideration in determining the outcome. That said, it should be recognised that in family law, and care and protection matters, people with a mental illness may be reluctant to disclose that they have a mental illness, for fear that it will be used in a way that does not favour them.
Problems with identifying that a person has a mental illness may be improved by the provision of training on mental health issues to lawyers and others in the legal system. However, it should be acknowledged that it is not the role of legal professionals to make mental health assessments of clients. Creating an environment whereby people feel comfortable and are encouraged to divulge that they have a mental illness may address some of the concerns people have about disclosure. Court-based assessment services such as the NSW Statewide Community and Court Liaison Service also provide valuable assistance to courts in identifying those clients who have a mental illness.
The role of non-legal service providers
By virtue of their mental illness and their financial disadvantage, Chapter 6 discussed the way in which people with a mental illness are likely to come into contact with a range of non-legal service providers to assist them with various day-to-day financial, social and health issues. Consultations suggested that people with a mental illness are in contact with mental health workers, social workers, youth workers, community groups, church services and other government services, such as the OPC and the OPG, Centrelink and DOH. One of the aims of this project was to examine the role that these non-legal service providers play in assisting people with a mental illness through the legal process and in accessing legal service provision.
Instead of accessing a legal service, people with a mental illness may turn to their mental health caseworker, social worker or community group if they have a legal problem. In this respect, non-legal service providers can assist them to identify that they have a legal issue, provide them with information about that legal issue, or refer them to a legal service provider. The ability of the non-legal service provider to offer this information will depend on the individual worker’s knowledge about the particular legal issue and their networks, and their knowledge of where to refer a person for legal assistance. Building relationships and sharing information (including training) between non-legal service providers and legal service providers may assist non-legal service providers in this role. In turn, non-legal agencies also provide support and assistance to legal service providers and their clients.
Noting the barriers facing people with a mental illness that prevent them from accessing legal assistance and from participating effectively in the legal process, non-legal service providers can also play a role in helping people with a mental illness overcome barriers such as communication problems, stress, cognitive impairment and problems with organisation. For example, having a non-legal service provider go along to an interview with a solicitor may assist a person with a mental illness to communicate more effectively and feel more at ease with the solicitor. Furthermore, having a support person at court may also assist people with a mental illness who find the courtroom experience stressful, or who have problems turning up to court on time and understanding what is going on. This aspect of non-legal support to people with a mental illness participating in the legal system is limited by the capacity of many services to provide such support.
The impact of mental health care in NSW
Although the purpose of this project was not to investigate whether people with a mental illness are accessing appropriate mental health care and treatment, an unavoidable theme that emerged during the Project was that many people with a mental illness face great difficulties in accessing mental health care and treatment. This was linked to their experience of certain legal issues, as well as their ability to access legal assistance and to participate in the legal system. That there is a crisis in mental health care in NSW has been documented in the media and the literature.
For example, not having access to appropriate mental health care and treatment may prevent people who face having their children removed by DoCS from accessing the support they need to be able to keep them. Fines and public disorder crimes may arise as a result of not receiving appropriate treatment. It was suggested that many of the barriers related to being unwell, which prevent people from accessing legal services and participating in the legal system, might also be addressed if people had access to mental health care treatment. Finally, diverting people with a mental illness from the criminal justice system, through programs such as the NSW Statewide Community and Court Liaison Service, is undermined by the limited availability of mental health services in NSW. These problems also exist for people with dual diagnosis, who are often ineligible for both drug and alcohol treatment and mental health treatment or who will be refused by mental health service because of their addiction.
Further research
There are a number of issues that were raised in this study which require further research and investigation. For example:
- This study collected information indicating the particular disadvantage faced by Indigenous people with a mental illness experiencing legal issues. However, as previous researchers have indicated (see Chapter 1 for discussion on this), targeted and carefully designed studies are needed to do justice to the complexity of the issues involved (e.g. issues such as intergenerational grief and cultural conceptions of mental illness).
- Further investigation could be made into how identification of mental illness in the legal system can be improved. We have highlighted this as a significant barrier facing people with a mental illness, in terms of both accessing legal assistance and participating effectively in the legal system. Several of those interviewed believed that this was a complex issue and not easily resolved. Further research could be done to develop strategies to overcome this barrier.
- Further investigation could also occur into how the needs and viewpoints of people with a mental illness can be incorporated into legal service delivery.
- Findings and suggestions raised in this study warrant investigation into the establishment of a specialist legal service for people with a mental illness that would provide legal advice and undertake community legal education, law reform and legal policy analysis for people with a mental illness.
- A number of strategies and innovations that could improve access to justice for people with a mental illness were discussed in the report. Further research and evaluation into the practical implications of these innovations would be required.
Conclusion
A great number of people in NSW experience mental illness, many of whom are both financially and socially marginalised. The legal issues they face reflect this marginalisation, and if unaddressed, can place people with a mental illness at risk of increased financial disadvantage, homelessness and physical vulnerability. A number of barriers outlined in this report prevent people with a mental illness from addressing these legal issues, which contributes to the relegation of people with a mental illness to the social and financial fringes of our community. Addressing and resolving these barriers reflects a wider community need to develop a better understanding and awareness of the needs of people with a mental illness.