Note: the original hard copy of this report is 266 pages .

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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....


Executive Summary


The aim of this project

The Legal Needs of People with a Mental Illness Project (the Project) is part of a broader research program being undertaken by the Law and Justice Foundation of New South Wales (the Foundation) to study and report on the access to justice and legal needs of economically and socially disadvantaged people in New South Wales (NSW).1

The Project aimed to examine the capacity of people with a mental illness in NSW to:


Why a project on the legal needs of people with a mental illness?

According to the World Health Organisation, mental illness refers to “the existence of a clinically recognisable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions”.2 Using this definition, research has found that a considerable number of Australians—approximately one in five—have a mental illness.3

Previous studies have identified people with a mental illness as among the most vulnerable and disadvantaged in our community.4 People with a mental illness have been found to have lower levels of education and employment, less stable housing conditions, and higher levels of poverty.5 This relationship between mental illness and other forms of social and economic disadvantage make this a group of particular interest to the Access to Justice and Legal Needs Program. Further, the extensive reporting of the ‘crisis’ in mental health care, as well as human rights concerns,6 alerts us to the vulnerability of this group and the difficulties they are likely to face in having their legal needs addressed.

While some literature on the access to justice and legal needs of people with a mental illness does exist, there are many gaps. Previous literature has focused primarily on criminal justice issues. Accordingly, this Project sought to address the gaps and to collect new information regarding access to justice and legal needs issues experienced by people with a mental illness.

Methodology

A research design, which involved few assumptions about the nature and range of the legal needs of people with a mental illness, was employed for the Project. This involved the use of qualitative techniques in both the collection and analysis of data.

An initial review of literature was completed, and two ‘roundtable’ focus group discussions with key stakeholders7 were held in the early stages of the Project. This was followed by in-depth interviews with 81 legal and non-legal service providers, court and tribunal staff, advocates and other stakeholders. Another key component was the completion of 30 semi-structured interviews with people who have a mental illness. The barriers they perceived and experienced in addressing their legal issues add great richness to this study’s results. Also drawn upon were statistics reported by agencies such as the Australian Bureau of Statistics and the Australian Institute of Health and Welfare, case studies provided by stakeholders, and data from the Foundation’s quantitative survey of the legal needs of people in six regions in NSW.

One final noteworthy feature of the Project’s design was the inclusion of people with a mental illness as advisors at key stages of the research process. Advocates, researchers and trainers in the field, who had lived experience of mental illness themselves, provided input into roundtable discussions, sampling methods and interview schedule design.

Key findings

Legal issues experienced by people with a mental illness

Consultations indicated that people with a mental illness experience particular legal issues. These issues often reflect their financial and social disadvantage, as well as the incapacity that may be caused by their illness. The issues raised include:


These legal issues can have serious financial and personal consequences if not addressed, which highlights the importance of resolving them through accessing legal assistance.

Barriers to accessing legal assistance

Consultations for the Project revealed that people with a mental illness face a number of barriers to accessing legal assistance. Some of these barriers relate to the individual’s circumstances and symptoms, namely:


Apart from these individual barriers, those we interviewed argued that there are also certain systemic barriers experienced by people with a mental illness accessing legal services. These include:
Barriers to participating in the legal system

This study identified a number of barriers that appear to prevent people from accessing and participating in the legal system.8 These included:


Non-legal support in accessing the justice system

Consultations indicated that non-legal services are often the first point of call for disadvantaged people faced with a legal problem. The assistance provided by non-legal services includes:


It was suggested that despite the important role non-legal services can provide to people with a mental illness, there are a number of barriers preventing non-legal agencies from undertaking this role. Firstly, non-legal agencies may not be equipped in terms of resources, availability of staff, and legal knowledge and expertise. In some case, such expertise will be well outside of the primary function of these service providers. The reported crisis in mental health care and constraints on resources may mean that non-legal agencies are not able to provide support to clients with a mental illness in the legal system.

A lack of awareness of services, and the stigma associated with having a mental illness, may prevent some people from accessing non-legal services and agencies in the first place. Therefore, some people with a mental illness may be isolated from both legal assistance and non-legal assistance. This presents a major barrier to accessing justice.

Addressing barriers to justice

A number of strategies and innovations that could improve access to legal assistance and participation in legal processes for people with a mental illness were raised in the literature and our consultations.

One such strategy involves a more flexible service delivery approach to legal service provision, courts, tribunals and other legal processes. A more flexible approach could allow the needs of people with a mental illness to be targeted and tailored to—for instance, allowing for breaks, and more time for explanations. This may 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. In addition to tailoring a more therapeutic outcome, courts that adopt this approach also attempt to involve the person in the process as much as possible, by implementing a less adversarial approach within the courtroom, thus allowing for a more direct interaction with judges.9

Consultations also suggested that training programs promoting awareness of mental illness and disability be provided to legal service providers, judges, court staff and other legal stakeholders (see Chapter 4 for a discussion of training programs already in existence). Such training could assist with addressing two key barriers, namely, misperceptions regarding the credibility of people with a mental illness, and the failure of those in the justice system to identify mental illness.

Given the important role that non-legal service providers can play in helping people to access legal services and processes, stakeholders argued that non-legal agencies need access to legal advice and information themselves. It was also suggested that relationships between non-legal and legal agencies be further developed to assist the referral process and improve each sector’s understanding of the other.

Many of those we consulted in this study commented on the difficulties people with a mental illness face in accessing mental health care and treatment. Importantly, this lack of treatment and care for people with a mental illness 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. This highlights the need to recognise the way in which limitations in mental health care can impact on access to justice for people with a mental illness in NSW.

Conclusion

A considerable number of Australians experience mental illness, and this is often associated with other social and economic disadvantage. This study used qualitative methods to examine the legal and access to justice issues experienced by people with a mental illness. Stakeholders and participants indicated that while people with a mental illness experience a number of legal issues with potentially serious personal and financial consequences, they can also face many barriers in having these legal issues addressed. Based on the data collected for this study several suggestions for improving access to legal services and participation in the legal process have been raised.





 The Access to Justice and Legal Needs Program is described in the preface to this report.
 World Health Organisation, ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines, World Health Organisation, Geneva, 1992, p. 5.
 G Andrews, W Hall, S Henderson & M Teeson, The Mental Health of Australians, Mental Health Branch, Commonwealth Department of Health and Aged Care, Canberra, 1999.
 P Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients: Approach, Validity and Findings, Policy Research Paper No. 21, Centre for Mental Health Research, Australian National University, Canberra, 2003, Human Rights and Equal Opportunity Commission (HREOC), Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness, HREOC, Canberra, 1993, A Jablensky, J McGrath, H Herrman, D Castle, O Gureje, V Morgan & A Korten, People Living with Psychotic Illness: An Australian Study 199798, Mental Health Branch, Department of Health and Aged Care, Canberra, 1999, Mental Health Council of Australia (MHCA), Submission to the Senate Select Committee on Mental Health, 2005, <http://www.aph.gov.au/senate/committee/mentalhealth_ctte/submissions/sub262.pdf> (accessed August 2005), M Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, Commonwealth of Australia, Canberra, 2005, NSW Parliament Legislative Council Select Committee on Mental Health (Select Committee on Mental Health), Inquiry into Mental Health Services in NSW: Final Report, Parliamentary Paper No. 368, NSW Parliament, Sydney, 2002.
 Jablensky et al., People Living with Psychotic Illness, Andrews et al. The Mental Health of Australians, Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients.
 HREOC, Human Rights and Mental Illness, MHCA, Submission to the Senate Select Committee on Mental Health, Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, Select Committee on Mental Health, Mental Health Services in NSW: Final Report.
 The term stakeholder is used throughout this report to refer to those we consulted at the legal and non-legal agencies listed in Appendix 1. These people are considered a sample of stakeholders or key-informants because of their experience and/or knowledge of the legal issues and needs experienced by people with a mental illness.
 For the purposes of this project, participation in the legal system includes participation in courts and tribunals, internal appeals processes of government departments (e.g. Centrelink), alternative dispute resolution, and other external complaints processes (e.g. NSW Ombudsman).
 See Chapter 5 for an explanation and discussion of the therapeutic jurisprudence-based approach.