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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.



Foreword


The objects of the Law and Justice Foundation of New South Wales (the Foundation) are to contribute to the development of a fair and equitable justice system which addresses the legal needs of the community, and to improve access to justice by the community (in particular, by economically and socially disadvantaged people).1

In 2002 the Foundation commenced the Access to Justice and Legal Needs research program. The main purpose of the program is to provide a rigorous and sustained assessment of the legal and access to justice needs of the community, especially disadvantaged people, which will assist government, community and other organisations develop policy and plan service delivery. The research is a challenging program involving an interconnected set of projects employing a range of qualitative and quantitative methodologies.

An important feature of the program is the examination of the particular access to justice and legal needs of selected disadvantaged demographic groups. This report is a qualitative study examining the legal needs of people with a mental illness. Other groups examined or to be examined as part of the program include older people, homeless people and prisoners and those recently released from prison. These groups have been chosen principally because less is available in the literature concerning their legal needs, but also because less comprehensive data concerning their needs is likely to be obtained through the other components of the research program.

People with a mental illness are amongst the most disadvantaged in our society. A surprisingly large number of Australians experience mental illness, and this is often associated with other social and economic disadvantage. As a result of their illness and related disadvantage, our research suggests that people with a mental illness are vulnerable to particular legal issues, and come up against particular barriers that limit their ability to deal with these issues. The combination of poor financial circumstances, a perceived lack of credibility and cognitive and communication impairment pose major challenges for people with a mental illness seeking to participate in legal processes. People with a mental illness are likely to experience complex and multiple legal and other issues, which they are not always well placed to address, and which are deserving of particular attention from both research and service provision.

This report into the legal needs of people with a mental illness is based on a review of existing literature and consultations with legal and non-legal service providers, academics, and the people themselves. It seeks to canvass many of the particular issues relevant to this group in NSW. While the report ‘stands on its own’, it is also important to consider this report in the context of the relevant data on the legal needs and barriers experienced by homeless people and prisoners, as well as the data contained in other components of the Access to Justice and Legal Needs program. The following reports in particular should be considered:


Geoff Mulherin
Director
Law and Justice Foundation of NSW
April 2006


Shortened forms


ABAacceptable behaviour agreement
ABSAustralian Bureau of Statistics
ACCCAustralian Competition and Consumer Commission
ADAAnti-Discrimination Act 1977 (NSW)
ADBAnti-Discrimination Board
ADRalternative dispute resolution
AGDNSW Attorney-General’s Department
AIHWAustralian Institute of Health and Welfare
AVOapprehended violence order
Burdekin ReportHREOC report, Human Rights and Mental Illness (1993)
CCLCConsumer Credit Legal Centre
CCLC NSWCombined Community Legal Centres’ Group (NSW) Inc
CLCcommunity legal centre
CSHACommonwealth State Housing Agreement
CTTTConsumer, Trader and Tenancy Tribunal
DADHCDepartment of Ageing, Disability and Home Care
DDADisability Discrimination Act 1992 (Cth)
DDLCDisability Discrimination Legal Centre
Disability CouncilDisability Council of NSW
DoCSDepartment of Community Services
DOHDepartment of Housing
DSM-IVDiagnostic and Statistical Manual for Mental Disorders
DSPdisability support pension
EPAenduring power of attorney
HREOCHuman Rights and Equal Opportunity Commission
ICD-10International Classification of Diseases
JGOSJoint Guarantee of Service
KLCKingsford Legal Centre
Legal AidLegal Aid Commission of NSW
MHASMental Health Advocacy Service
MHCAMental Health Council of Australia
MHCCMental Health Co-ordinating Council
MHLCMental Health Legal Centre, Victoria
MHRTMental Health Review Tribunal
MMHAMulticultural Mental Health Australia
NCOSSCouncil of Social Services of NSW
NCSMCNational Council of Single Mothers and their Children
NESBNon-English speaking background
NHS National Health Survey
NMHPNational Mental Health Plan
NSMHWNational Survey of Mental Health and Wellbeing
NSW Ombudsman (CSD)NSW Ombudsman (Community Services Division)
NVivoQSR NUD*IST Vivo
OPCOffice of the Protective Commissioner
OPGOffice of the Public Guardian
Palmer ReportReport of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau (2005)
ProjectLegal Needs of People with a Mental Illness Project
PWDPeople with Disability Australia
SAAPSupported Accommodation Assistance Program
SCCLSStatewide Community and Court Liaison Service
Select Committee on Mental HealthNSW Parliament Legislative Council Select Committee
ShopfrontShopfront Youth Legal Centre
SSATSocial Security Appeals Tribunal
Tenants’ UnionTenants’ Union of NSW
TPVtemporary protection visa
WLSWomen’s Legal Services NSW
WRCWelfare Rights Centre, Sydney


Ch 1. Introduction


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 NSW (the Foundation) to study and report on the access to justice and legal needs of economically and socially disadvantaged people in NSW.1

As explained in the background paper to the Access to Justice and Legal Needs Program,2 ‘access to justice’ and ‘legal needs’ involve more than access to formal legal representation and the courts. However, the terms will not be interpreted in such a broad fashion as to consider contested political issues concerning broader notions of ‘rights’ and ‘justice’, where the law is clear. The Access to Justice and Legal Needs Program and this specific project therefore endeavour to investigate issues of access to justice according to current Australian law.



The aim of this project


The Project aimed to examine the capacity of people with a mental illness in NSW to:
A separate study will examine the capacity of people with a mental illness and other disadvantaged groups to participate in law reform processes.

This chapter will begin by developing the Project’s working definition of the term ‘mental illness’. This will be followed by a summary of available data on the prevalence of and demographic factors associated with mental illness. The remainder of this chapter will discuss the Foundation’s reasons for choosing to conduct the Project, and will end with a discussion of relevant literature.



What is 'mental illness'?



Mental health problems and mental illness refer to a range of cognitive, emotional and behavioural disorders that interfere with the lives and productivity of people. There is, however, no one single definition of mental illness, as definitions vary across jurisdictions and professions. In determining an appropriate definition of mental illness for the Project, we have taken into consideration legal, clinical and social approaches to defining mental illness.

Legal definitions of mental illness

Under Mental Health Act 1990 (NSW) sch. 1, “mental illness” is defined as a condition characterised by the presence of symptoms such as delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood, or sustained or repeated irrational behaviour, which seriously impairs, either temporarily or permanently, the mental functioning of a person.6 A “mentally ill person” is someone who suffers a mental illness where, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary, for their own or others’ protection. This determination must take into account the person’s continuing condition, including the effects of any likely deterioration in their condition.7

It is noteworthy that the above-named symptoms, listed in the Mental Health Act 1990 (NSW), are most often associated with a diagnosis of psychosis, a particular and more severe form of mental illness. Other more common mental illnesses such as anxiety disorders, depression and substance abuse may not necessarily fit the definition provided in this Act.8

Clinical definitions of mental illness

Because the focus of clinical practice is on prevention and control of mental illness through treatment, clinical definitions of mental illness are far broader than their legal counterparts. It is rare to find a single definition in the clinical setting: in this context, a definitive statement about what is mental illness is often less helpful than determining how a disorder should be classified and treated.

Accordingly, there are two main international medical standards used in the classification of mental illness. The first of these is the World Health Organisation’s International Classification of Diseases (ICD-10), last revised in 1992 and used predominantly in Europe. The ICD-10 defines “mental disorder” as “a general term which implies the existence of a clinically recognisable set of symptoms or behaviour associated … with … interference with personal functions”.9

The second international standard is the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), revised in 2000 and used more frequently in the UK and the US. According to this system, a “mental disorder” must comprise a manifestation of “behavioural, psychological, or biological dysfunction in the individual”. It is:


Both classification systems have been adopted by key Australian agencies. The Australian Bureau of Statistics (ABS) has used an adapted version of the ICD-10 for its surveys (such as the 2001 National Health Survey (NHS)).11 In the National Mental Health Plan 2003–08,12 both the ICD-10 and DSM-IV classification systems are cited.

The Commonwealth Department of Health and Aged Care’s Mental Health Branch makes the further distinction of classifying mental illnesses as either psychotic—including schizophrenia and some forms of depression—or non-psychotic—including phobias, anxiety, some forms of depression, eating disorders, physical symptoms involving tiredness or pain, and obsessive-compulsive disorder.13

Social definitions of mental illness

The term ‘psychiatric disability’ is a narrower term than mental illness, as not all people with a mental illness will consider themselves, or be considered, to have a psychiatric disability. This is reflected, for example, in the Disability Services Act 1986 (Cth), where the very narrow definition of “disability” is restricted to those conditions which are “permanent or likely to be permanent”.

Nevertheless, it is important to consider the social model of disability, which though subject to constant evolution, is largely preferred by disability advocates. While not denying the individual’s limitations, the social model understands disability as a function of “society’s failure to provide appropriate services and adequately ensure the needs of disabled people are fully taken into account in its social organisation”.14 This is in contrast to “official” definitions, which locate disability in the individual’s pathology or biology.15 One important Australian study which applied the social model was the Disability Council of NSW’s (Disability Council) 2003 A Question of Justice report.16 Here, the model was used to “shift the focus from issues of individual impairment to issues of systemic disablement”, identifying as the source of disability not impairment itself, but socially and economically constructed discrimination and exclusion, that is, the responses of society towards impairment. Carney suggests that the social model has now gained wide acceptance within disability literature, with policy also moving away from the traditional medical model and towards a more nuanced understanding, whereby the emphasis is on “participation” rather than “impairment”.17

Working definition of mental illness for this project

Although the DSM-IV is somewhat more commonly used in clinical settings in Australia, the Project has adopted the ICD-10 definition, which is used by the ABS and so enables the use of ABS data. The Project did not adopt the Mental Health Act 1990 (NSW) definition due to its more limited scope.

Of particular interest to the Project were the disorders with the highest prevalence in Australia and NSW, namely, anxiety disorders, affective disorders and substance use disorders. As the next section indicates, a significant number of people in NSW are affected by these disorders. Recent literature has focused on the social and economic disadvantages that those suffering from these disorders can face.18 Despite their lower prevalence, psychotic disorders were also of interest, given their strong association with high levels of social, economic and, at times, physical disadvantage.19 While the above-named disorders were of particular interest, no mental illnesses were excluded from our study. In accordance with the design of this research, those we interviewed and consulted were free to raise whichever mental illnesses they felt were relevant.

In summary, for the purposes of the Access to Justice and Legal Needs of People with Mental Illness Project, ‘mental illness’ means the existence of a clinically recognisable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions.20 While not an exhaustive list, the following clinically recognisable disorders were of particular interest in our study:


In conjunction with this definition, the social model of disability—explained above—was also drawn upon. This model allows for an understanding of the social and environmental factors that contribute to the lived experience of people with these disorders.21


Mental illness in Australia and NSW


How many people in NSW experience mental illness, and what are their demographic characteristics? This section provides information on available statistics in order to describe the scope and nature of mental illness experienced in Australia and NSW.22

Statistics for this section were drawn from the following sources: Due to under-reporting and sample limitations, most estimates of mental illness prevalence outlined in the above studies have been appropriately described as underestimates of actual prevalence. Furthermore, these sources have collected no or limited information about certain groups, such as Indigenous Australians and people from culturally and linguistically diverse backgrounds, as well as people living in institutions such as hospitals, colleges, sheltered accommodation and prisons, members of the armed services, and homeless persons.30

These studies provide the bulk of the information available on people with mental illness in Australia and NSW. However, due to the limitations described above, the statistical data are somewhat deficient, a situation which has been noted in several publications to date.31

High prevalence disorders: adults

Figures taken from the adult component of the NSMHW reveal that an estimated 17.7 to 18% of adults in Australia had experienced an anxiety, affective or substance use disorder, or a combination of these, in the 12 months preceding the 1997 survey. These rates mean that, overall, approximately 2 383 000 Australian adults had a high prevalence mental disorder.32 The NSW estimate at 17.4% (approximately 800 000 people) was not markedly different from the national average.33

Breaking down these figures further into the separate disorders, the prevalence of affective disorders was shown to be 5.8% of all adults within the Australian adult population and 5.4% of adults in NSW. Anxiety disorders were found to affect 9.7% of adults within Australia and 9.9% of adults in NSW. With respect to substance use disorders, the prevalence was shown to be 7.7% of all adults in the Australian population, a figure which was matched exactly in NSW adults.

Psychotic mental illnesses: adults

Prevalence figures for psychotic illness were reported in a study examining the low prevalence disorders component of the NSMHW.34 This component studied people living with psychotic disorders in catchment areas in the Australian Capital Territory, Queensland, Victoria and Western Australia. Prevalence estimates for the national population were extrapolated from these samples.

Nationally, the prevalence of psychotic disorders in the adult population is estimated to be in the range of 4 to 7 per 1000 people.35 The range of prevalence is dependent on the area under study, with rural and remote areas being under-reported in the study.36 Schizophrenia and schizoaffective disorders (as per the DSM-IV)37 account for over 60% of reported psychotic disorders.38

Co-morbid substance use disorder (dual diagnosis)39 complicates the course of psychotic illness in a substantial proportion of cases: 30% report a history of alcohol abuse, 25.1% a history of cannabis abuse and 13.2% a history of other substance abuse.40 According to Australia’s Health:


Overall prevalence estimate: adults

In relation to their figure of approximately one in five Australians experiencing a mental illness, the authors of The Mental Health of Australians state:


The 2001 NHS provides more recent estimates of the prevalence of mental health problems in Australia. Unlike the 1997 NSMHW, which used a structured diagnostic interview, the NHS estimates are based on self-reports (a method more likely to lead to underestimates). Almost 9.6% of respondents reported a long-term mental or behavioural problem. The NHS also measured psychological distress using the Kessler Psychological Distress Scale.43 In total, about 18% of adult respondents reported a mental or behavioural problem, and/or had a very high or high level of psychological distress, with 12% reporting both a mental or behavioural problem and a very high level of psychological distress. In summary, both of these key sources indicate that a significant number of people in Australia, approximately one in five people, experience mental illness.

Prevalence of mental illness: children and adolescents

The child and adolescent component of the NSMHW found that 14% of children and adolescents have mental health problems, and this high prevalence extended across all age and gender groups. There was a higher prevalence of child mental health problems among those living in low-income, step, blended and sole parent families.44

Demographics and high prevalence disorders

Gender

According to the NSMHW, mental illness in general affects 17.4% of Australian males and 18% of Australian females within the adult population.45 The NSW estimate is 16.9% for males and 17.9% for females.

As can be seen in Table 1, nationally, men were much more likely to have a substance use disorder than women (11.1% versus 4.5%), while women were much more likely than men to have an anxiety disorder (12.1% versus 7.1%) or an affective disorder (7.4% versus 4.2%). The survey found approximately the same magnitude of difference for NSW in the measurement of prevalence of substance use disorders (10.4% versus 5%), while for anxiety and affective disorders the prevalence for women was again greater than for men, with anxiety at 12.8% versus 7%, and affective disorders at 6.8% versus 4%.

Table 1: Prevalence of disorders in NSW and Australia

Females
Males
NSW%
Australia%
NSW%
Australia%
Anxiety disorders
7
7.1
12.8
12.1
Affective disorders
4
4.2
6.8
7.4
Substance use disorders
10.4
11.1
5
4.5
Total mental disorders
16.9
17.4
17.9
18

Geographical area

Again, based on the NSMHW, the ABS reports that nationally, the prevalence of mental illness generally is equivalent between “capital city” (17.5%) and “rest of State” (17.3%) areas.46 However, different patterns emerge when these figures are broken down. From a sample of adults, both male and female, it was observed that substance use disorders were more prevalent in the city than in the rest of the state (8.2% versus 6.8%), while anxiety disorders were more prevalent in the rest of the state than in the capital city (11.1% versus 9.2%).

The pattern of mental illness between the sexes showed more interesting discrepancies between capital city and rest of state samples: for males, the rates of anxiety disorders were equivalent (7.0% capital city versus 7.1% rest of state), while the rates of anxiety disorders for females varied distinctly (11.4% capital city versus 15.1% rest of state). Likewise, the rates of substance use disorders for males varied considerably between capital cities and the rest of the state (11.6% capital city versus 8.3% rest of state), while the rates for females were not very different (4.9% capital city versus 5.2% rest of state).

Table 2: Mental illness in NSW according to geographic area and gender

Geographic Area
Males%
Females%
Capital city
17.6
17.5
Rest of state
15.8
18.8

The NSW picture shows a slightly different pattern: for males, compared to an approximately equivalent national rate in capital city versus rest of state (i.e. 17.1% versus 17.5%), the NSW statistics show that rates of mental illness are actually lower for the rest of the state than for the capital city (17.6% capital city versus 15.8% for rest of state). The rates for women in NSW more closely reflect the national statistics (17.5% capital city versus 18.8% rest of state).

Age and gender

Figure 1 shows the prevalence statistics among women for different types of mental illness in Australia. As can be seen, the highest rate of anxiety disorders was observed in females aged 45–54 years (16%). The NSW statistics tell a different story, where the highest prevalence of anxiety disorders is in women aged 18–24 years (17.5%). Also, the prevalence in women aged 45–54 years was the same as for women aged 35–44 years (17.1%).

Figure 1: Females, prevalence of types of mental disorders by age, in Australia.47

In the Australian adult population, the prevalence of affective (mood) disorders was highest for women aged 18–24 years at 11%, more than three times the rate for men of this age (see Figure 2). This is quite a similar pattern to the NSW profile, where the same age group had the highest prevalence (females, aged 18–24), but the rate was slightly lower (9.2% compared to 11.1% national average). For women, the prevalence of affective disorders generally declined with age, while for men rates increased in the middle years before declining after age 55.

Figure 2: Males, prevalence of types of mental disorders, by age, in Australia.48

The NSMHW obtained information on the use of alcohol and four groups of drugs that included both illegal and prescription drugs. Young men were particularly prone to substance use disorders, with about one in five of those aged 18–24 being affected. For both men and women, the prevalence of substance use disorders declined with age to 1.1% of those aged 65 years and over. Alcohol use disorders were about three times as common as drug use disorders. In terms of prevalence, the NSW statistics on substance use disorders are slightly below the national average. While the same age and gender group has the highest prevalence (males aged 18–24), the NSW rate was markedly below the national rate, at 16.0% as opposed to 21.5%.49

Living arrangements and marital status

After adjusting for age, the prevalence of mental disorder across Australia was highest for both men and women living alone.50 This was also the case for anxiety, affective and substance use disorders individually. Overall, the prevalence of mental illness decreased as the number of people living in a household increased. Rates of mental disorder were also highest among those who were separated or divorced (24% of men and 27% of women). People who had never married also had higher rates of mental disorder than those who were married. In terms of specific disorders, those who were separated or divorced had higher rates of anxiety and affective disorders (18% and 12%, respectively). Of those never married, 14% had substance use disorders.

In terms of the rates of mental illness in people living alone as opposed to those living with other people, patterns in NSW differed according to gender.51 While the highest rate of mental illness in men was found in those living alone (18.9%), the number of people living in the household impacted differently on women. The highest prevalence of mental illness in women was in those living in households of four or more people (20.4%), compared to 15.6% and 14.9% for females living alone or with one other person respectively.

As to marital status, in NSW, as in the rest of Australia, the highest rates of mental illness are experienced by people who are separated or divorced (27.7% of men and 29.9% of women). This is followed by the rates in people who have never been married (as per the national statistics). Similar patterns exist for the type of mental illness by marital status in NSW as for the rest of Australia.

Employment

After adjusting for age, rates of mental disorder across Australia were highest for men and women who were unemployed or not in the labour force.52 People employed part-time were more likely to have mental disorders than their full-time counterparts. Unemployed people had relatively high rates of substance use disorders (19% of men and 11% of women). Unemployed women also had a high rate of anxiety disorders (20%).

In NSW, similar patterns emerge in regard to unemployed people, who have the highest rates of mental illness in the state, with 43.9% experiencing some form of mental disorder. However, rates for people not in the labour force (15.5%) are not as high as for those in part-time employment (19.4%).53 People in part-time employment experience rates of mental illness of 16% and 20.7% for males and females, respectively, as compared to rates of 12.9% and 17% for people not in the labour force. Interestingly, while the national pattern applied to women in NSW—females in part-time employment being more likely to have mental disorders than their full-time counterparts—the figures were different for NSW men. The survey found that NSW males in full- and part-time employment experienced equivalent rates of mental illness (16.2% and 16.0%, respectively).

The rates of substance use disorders for unemployed people in NSW were substantially higher than the national average, with 34.6% of unemployed men and 18.3% of unemployed women in NSW experiencing substance use disorders, compared to 19% and 11% of the national sample. Rates of anxiety disorders in unemployed people were also higher in NSW than nationally.

Education

These statistics for labour force status dovetail with those relating to a person’s highest educational qualification. According to the literature,54 mental illness can often be most debilitating in the years when a young person is finishing school or beginning post-school study. Mental illness can therefore have a negative impact on a person’s ability to attain the highest educational qualification possible. This argument is supported in the ABS figures,55 which show that in NSW the rate of mental illness (15.6%) is lower in people who have completed some post-school qualification than in those who have either failed to complete school, or completed only secondary school (21.1% and 18.5%, respectively). A similar pattern is found in data for the whole of Australia.56

Non-English speaking background

According to the ABS figures, people born in Australia and people born in other countries whose main language is English have equivalent rates of mental illness (18.4% of adults), while people born in non-English speaking countries tend to have lower rates of mental illness (12.5%).57 While these figures suggest that there may be lower incidence of mental illness in people of non-English speaking background, research conducted using qualitative methods has raised some other concerns around this issue.58 It is also possible that the survey instruments used to assess prevalence may not be trans-culturally sensitive.

Indigenous Australians

As noted above, the key Australian studies collected only very limited statistics on the mental health of Indigenous Australians. Both Andrews et al.59 and Jablensky et al.60 indicated that separate studies, investigating the mental health of Indigenous Australians, and using culturally appropriate survey methods and interview schedules, are required and should be conducted.

On the issue of obtaining data on Aboriginal mental health, the South Australian government’s final submission to the Bringing Them Home inquiry noted:


Despite the lack of data, the Human Rights and Equal Opportunity Commission (HREOC) nevertheless characterised the incidence of mental illness in Aboriginal and Torres Strait Islander communities as a “widespread”, “common and crippling problem which goes undiagnosed, unnoticed, and untreated”.62 The NSW Department of Health has also raised concern over the high rates of depression, suicide, substance misuse and mental illness-related hospitalisation for Indigenous Australians.63

The best available data illustrating these concerns can be found in the report by the AIHW, which relies on information regarding hospitalisations and deaths in custody.64 The report states that Indigenous Australians were twice as likely to be hospitalised for mental and behavioural disorders as other Australians. In particular, hospitalisations due to psychoactive substance abuse among male and female Indigenous Australians were around four and three times those for other male and female Australians, respectively. The report also states that as incarceration separates Indigenous people from their communities, many Indigenous prisoners experience depressive symptoms that can result in suicide attempts.

It is worth noting that the 2004–05 National Aboriginal and Torres Strait Islander Health Survey collected information relating to the health of Indigenous Australians. The survey has been carried out by the ABS in urban, rural and remote areas of Australia and results are expected to be available in 2006.

Welfare status

Drawing on data from the NSMHW on high prevalence mental illnesses, Butterworth estimated the prevalence of mental disorders among income support recipients.65 The key findings were striking, in that almost one in three (more than 30%) income support recipients have an anxiety, affective or substance use disorder. This is 66% more than the prevalence of mental illness among Australians not receiving income support. The prevalence of clinical anxiety and depressive disorders among sole mother income recipients is between three and four times the national average, with 45% of these experiencing a diagnosable mental disorder. The report noted that mental illness can be a significant barrier to workforce participation and that people with mental illness are among the most disadvantaged in our society.

Demographic characteristics of adults with psychotic disorders66

As noted above, the low prevalence/psychotic disorders component of the NSMHW did not collect any data in NSW; therefore, only national data are outlined here. Jablensky et al. report that the extreme disadvantage experienced by people with a psychotic mental illness is evidenced in the disproportionately high prevalence of unemployment and relative poverty, which “are widespread among people with psychotic disorders”.67 Interestingly, almost half of those with psychotic illnesses had not completed their schooling or gained any post-school qualification, and 72% were unemployed. In the 12 months prior to the interview, only one in five had been involved in part-time work and less than 10% had been in full-time employment. Of those who reported some occupation, including housework or studying, almost half had experienced a serious or moderate degree of dysfunction in the performance of such activities. The majority of those surveyed were living in relative poverty: 85.2% were recipients of a pension or other form of welfare benefits, and only 15.5% had any income from employment or other independent sources.

In terms of accommodation, the majority of those surveyed (44.7%) were


Almost one-third of participants (31%) were living alone. As to marital status, the majority (64%) were single and had never married (77% of men and 44% of women) and 21% reported to be separated, divorced or widowed.


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


The criteria for choosing the disadvantaged groups that would be examined individually in the Access to Justice and Legal Needs Program were:
The quantitative legal needs assessment was conducted by way of a telephone survey of households in disadvantaged regions in NSW. It was not the purpose of the study to obtain representative sub-samples of specific disadvantaged groups such as people with a mental illness; rather the purpose was to survey six disadvantaged communities as a whole. Nonetheless, a small sample of people who responded to the survey indicated that they did have a mental illness. This small sample, however, was unlikely to be a representative group, given the varied living arrangements of people with a mental illness, which can include shelters, refuges and boarding houses.69 It was also expected that many people may not self-identify as having a mental illness in the telephone survey. This expectation was realised with only 5% of the sample indicating that they had a mental health problem.70

As was mentioned above and will be further evidenced later in this chapter, people with a mental illness have been identified as among the most vulnerable and disadvantaged in our community.71 The relationship between mental illness and other forms of social and economic disadvantage make this a group of particular interest for the Access to Justice and Legal Needs Program.

We turn next to examining the final consideration, that is, the extent to which the legal needs and access to justice issues for people with a mental illness have been addressed in previous literature.



Key literature


While there has been some research conducted—and indeed, is ongoing—into certain legal issues for people with a mental illness, the discussion below outlines the gaps in this literature, and where the Project will accordingly be focused to provide original information.

Before discussing the literature specifically relating to legal and access to justice issues faced by people with a mental illness, it is important to consider two related bodies of literature. These are, first, the literature on the ability of people with a mental illness to access services such as health and housing, and secondly, the human rights issues faced by people with a mental illness. Although access to health services and human rights issues do not always constitute legal issues, these two intertwined areas provide an important backdrop to the subject matter of our report. When denied basic human rights and access to health services, we expect people with a mental illness to be further hindered in having their legal needs addressed. Following a discussion of the literature on access to health services and human rights, we will outline the point of departure for the Project, as well as our precise definition of access to justice and legal needs.

Access to health and related services in NSW

Several sources highlight a “crisis” in mental health services in NSW.72 In 2001–02, the NSW parliamentary Select Committee on Mental Health conducted an inquiry into the condition of the state’s mental health services since the adoption of the Richmond Report 20 years earlier.73 The scope of the inquiry was to provide an analysis of mental health services in NSW, and to address specific recommendations to the government where issues of concern were identified. In particular, it sought to investigate the success of the “deinstitutionalisation” policy, looking at issues such as the quality and availability of services in NSW, funding and staffing comparisons with other jurisdictions, and aspects of quality control and outcome measures.

The committee received a total of 302 submissions. Of these 53% were from private citizens, and 41.7% were from private organisations or interest groups (including university research centres and local government). State and Commonwealth government agencies made up the remaining 5.3%. In addition, 12 hearings, with 91 witnesses, were conducted at Parliament House, and a public forum was held in August 2002, at which 27 private citizens were chosen by ballot to speak to the committee of their experiences with the mental health system as carers or people with a mental illness.

The speakers’ concerns tallied with other repeated criticisms of mental health service provision in NSW, namely, in terms of “lack of”, “restrictions”, and “gaps” in mental health services; the emotional and financial toll on families; the inadequacy of supported housing and rehabilitation options; and the need for carer input into discussions about reform. The committee also conducted two site visits to correctional facilities (Long Bay Hospital, and the Metropolitan Remand and Reception Centre and Mulawa Correctional Centre at Silverwater). Overall, the select committee found:


It has been argued that the gaps in mental health service delivery are attributable to poor coordination at the level of both the Commonwealth–state division of responsibilities, as well as between NSW government agencies, such as the NSW Department of Health (NSW Health) and the Department of Ageing, Disability and Home Care (DADHC).75 Recently there have been some efforts made to address this lack of coordination in service delivery, notably with the Housing and Support Initiative, a partnership between NSW Health, DADHC, the Department of Housing, and non-government organisational service providers.76

Following the events surrounding the wrongful detention of Cornelia Rau, and allegations of severe mishandling of mental health issues in Australia’s immigration detention system, a Senate select committee on mental health was appointed in March 2005, and accepted submissions until May 2005. While the committee’s final report is not due until later in 2006, a number of important submissions are publicly available. Among the most significant is that of the Mental Health Council of Australia (MHCA), which tied in with its recent wide-ranging report, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia.77

Not for Service reports on the extent to which the Australian health care system adequately meets the needs of people with a mental illness, “some of the most vulnerable people in the community”.78 Responding to continuing community criticism of the mental health care system, the MHCA and the Brain and Mind Research Institute at the University of Sydney, in association with HREOC, initiated this national review into experiences of mental health care. The review aimed to “capture the current critical themes in mental health care from the perspective of those who use and deliver its services on a daily basis”.

Throughout 2003–05, data were collected through open forums (there were 1180 participants), written submissions (351 were received), two community surveys, and individual meetings with specific community, professional, and non-government groups. Further, all Australian governments—that is, state and Commonwealth—were given the opportunity to respond to the primary data and highlight recent policy responses to the issues raised. The vast amount of information in the report, which is mostly presented as accounts of personal experiences, is organised according to the National Standards for Mental Health Service (the Standards) agreed to by all governments in 1996–97.

The majority of submissions highlighted recurrent themes, including poor resources, inadequate facilities, reduced safety, and the lack of respect and dignity for people with a mental illness—all of which were underpinned by difficulties in obtaining redress or registering complaints when dealing with authorities. While the report was not intended as a systematic assessment of the extent to which there is compliance with the Standards, it nevertheless found that “the volume and consistency of the information demonstrates the gaps and the difficulties governments have had in meeting these”,79 as well as emphasising a series of pervasive systemic weaknesses. Like the MHCA’s submission to the senate committee, this report notes that while funding has remained at comparable levels since the introduction of the National Mental Health Strategy—and has indeed increased in some areas—the mental health system is failing carers and people with a mental illness, and placing an unacceptable level of strain on mainstream health services.

The “cumulation of personal experiences” presented in Not for Service suggests that, despite the Standards, it remains the case that “any person seeking mental health care runs the serious risk that his or her basic needs will be ignored, trivialised or neglected”.80 The report notes the “substantial gaps between the aspirations expressed in these documents and the reality of Australia’s mental health care system”.81 The short-term, long-term, and systemic costs of mental illness for the wider community—ranging from basic failures of care provision, to suicide, homelessness, poverty and wider rights abuses—are identified. Not for Service reports that, more often than not, the financial and emotional burden of systemic failures falls on the families and friends of people with mental illness, rather than being alleviated in any broad-based way. It sets out a list of mental health reform priorities identified by professionals, people with a mental illness and their families, and calls on Australia’s state and Commonwealth governments to work together and commit to a process of genuine and adequately resourced reform.

Despite the slow pace of reform, the report does highlight some notable examples of political leadership, including a 128% increase in Commonwealth investment, new organisations such as beyondblue that work to destigmatise mental illness, and significant primary care sector reforms. However, given the likelihood that every family in Australia will be affected by mental illness at some point, the report states that these steps are positive but insufficient. Likewise, it is noted that such an ad hoc review can only present the “tip of the iceberg”, and should as such be “superseded by systematic annual reviews of experiences in the mental health care system”.82

A number of issues reported were specific to NSW, which, with low per capita expenditure and low confidence amongst clinicians, fared poorly across all measures of mental health care quality. NSW is particularly criticised in relation to forensic patients (discussed below), as well as in relation to its perceived focus on law and order issues at the expense of enhanced clinical care. Where clinical care does exist, the NSW model tends overly towards the “old models of acute and hospital-based services” as opposed to “genuine service innovation or new partnerships with non-government or primary care service providers”.83

In both its Senate submission and in Not for Service, the MHCA drew on and reiterated the findings of a 2003 report by Groom, Hickie and Davenport, Out of Hospital, Out of Mind!,84 which argued that the gaps in planning, delivery and evaluation of mental health services stem not from a “failure of policy” but from “a failure of implementation”.85 This report outlined the widespread failure of community-based care models to provide adequate care: specific criticism centred on restricted access, variable quality, poor continuity, and lack of support for recovery from illness and protection against human rights abuses. The report pointed to several factors identified by people with a mental illness and stakeholders alike, those being poor administration, lack of accountability, lack of ongoing government commitment to genuine reform, and a failure to support the degree of community development required to achieve high quality mental health care outside institutional settings.86

While it has been reported that the absence of suitable supported accommodation is one of the major obstacles to recovery and effective rehabilitation,87 the availability of such housing is not always assured. Under the 2003 Commonwealth State Housing Agreement (CSHA, effective until June 2008),88 the Commonwealth, states and territories are to provide funding for those people whose housing needs cannot be met by the private market. However, in the last decade, opportunities to rent public housing have fallen by 20%.89 As discussed by NSW Health in a policy paper, “waiting lists for social housing in NSW are long and priority waiting lists are highly competitive. Alternatively, the private rental market is both expensive and competitive.”90 A 1998 report by the Richmond Fellowship noted that the average waiting period for appropriate services was 12 months, with people forced to remain in hospital until suitable places were available.91

At the same time, the Commonwealth has shifted its focus from funding under the CSHA to a preference for Commonwealth Rental Assistance as the primary form of housing support.92 This has manifested in a decline of just over 1% each year, which “raises questions of at what point public housing is reduced to unsustainable levels and whether the present stock profile and management is adequate to its changing role and focus”.93 Further, it has been reported that little new stock has been added to public housing recently, meaning that the current stock is ageing and often inappropriate.94

Human rights of people with a mental illness

HREOC’s landmark report Human Rights and Mental Illness (published in 1993 and also known as the Burdekin Report)95 first raised many of the issues now frequently addressed in the literature. It did so, however, from a rights perspective, going one step further in the analysis of poor service delivery for people with a mental illness, to frame these problems as human rights violations. Importantly, these issues are often non-justiciable: that is, they rarely have a corresponding legal remedy.

The Burdekin Report was compiled after a wide-ranging and in-depth inquiry. The inquiry involved a vast number of submissions from and interviews with people with a mental illness, carers, stakeholders, and members of the community, as well as visits to mental health facilities all over Australia. The Burdekin Report’s enduring achievement lies in the sheer breadth of coverage it was able to give to mental illness issues. The report continues to be frequently cited and relied upon in the recent literature, which suggests that many of the problems it identified in 1993 remain unsolved.

The Burdekin Report offers strong anecdotal evidence on a range of legal and human rights issues that confront people with a mental illness. This approach, which frames the information from the perspective of people with a mental illness, is important in demonstrating the influence of perceived or subjective barriers to accessing legal services. One significant example is in relation to housing: while many people with a mental illness technically qualify for supported housing, a lack of confidence in dealing with bureaucracy or filling in forms, or simply a lack of knowledge about eligibility, means that in reality, the proportion of people actually benefiting from such housing is small. As mentioned above, the decreasing availability of public housing stock96 has meant that low-income tenants who would otherwise be living in such housing are forced into the private rental market. This presents a scenario that the Burdekin Report associated with numerous difficulties, including discrimination.97

Under the original Commonwealth–State Disability Service Agreement (1991) and its more recent extension into the third Commonwealth–State Territory Disability Agreement (2002–07), the Commonwealth takes responsibility for funding employment programs for people with disabilities, while the states administer accommodation services, respite care, information, and non-vocational daytime activity.98 Advocacy, research and development are accepted as joint responsibilities. However, in terms of meaningful delivery of these services, the Burdekin Report noted in 1993 that despite the agreement, there is strong evidence that basic needs are not being met. The report suggested that many professionals—lawyers, government employees, police and ambulance officers—need better training to deal appropriately with people affected by mental illness. The report also highlights the vital role played by non-government organisations in the provision of services to people with a mental illness, but notes the dire lack of funding actually available to these organisations.

The second half of the Burdekin Report identifies groups within the mentally ill population that are particularly prone to missing out on services. The homeless are routinely denied vital services for a number of reasons (discrimination, bureaucratic barriers, identification requirements, inadequate or inappropriate service provision, poor administration by trustees). Further, children and young people with mental illnesses, Aboriginal or Torres Strait Islander people and those from isolated areas may find themselves in the justice system by default, due to a lack of appropriate mental health services.

An illustration of a serious non-justiciable human rights issue cited in the report was the fact that access to tribunals or judicial review is systematically denied to forensic patients in custodial arrangements. “Governor’s pleasure” detention, indeterminate in length, is theoretically reviewed regularly by an advisory body, but the report states that in reality, the executive government makes the relevant decisions. While many jurisdictions have remedied this situation in the wake of the Burdekin Report, it has been observed that NSW still lags behind in many areas. With the exception of decisions about fitness to stand trial, where the Mental Health Review Tribunal’s decision is determinative, decisions in regards to forensic patients are still made at the political level in NSW. Further, appropriate care and detention capacity in NSW remains largely inadequate, particularly for female forensic patients who are often treated in a men’s hospital or men’s prison due to the lack of facilities.99

The extent to which Australian mental health legislation and policy conforms to international human rights obligations has been a recurrent theme in the literature—both before and since the Burdekin Report—and continuing efforts are made to evaluate this empirically. One such initiative was the “rights analysis instrument” developed by Watchirs and Heesom, which aimed to quantify compliance with international obligations by categorising rights and rating legislation accordingly.100 This approach has received some criticism for its emphasis on the quantitative as opposed to the qualitative, as well as for presenting a “sanitised” account of its findings.101 Rees and Carney suggest the need for a more nuanced, qualitative approach to the intersection of human rights and mental health law, which contemplates medical dimensions as well as rights outcomes.

Many of the human rights concerns referred to in the Burdekin Report were starkly revisited earlier this year with the release of the Palmer Report, from the inquiry into the circumstances of the wrongful immigration detention of Cornelia Rau.102 The Palmer Report recognised that Ms Rau’s case brought to light a number of systemic failures in the delivery of mental health services in Australia: not only deficiencies in the immigration detention system, but also the “perceived poor performance” of services in the broader community.103

In making its findings, the inquiry pointed to a “serious cultural problem” within the Department of Immigration’s compliance and detention sectors,104 which manifested in inadequate training and education of staff; un-linked, “siloed” information systems;105 inappropriate vesting of power; and little qualitative review. These aspects were compounded by what the report described as an “assumption culture”, which limited efforts by individuals within the departments to provide adequate health care,106 as well as “a disconnect in planning, experience and communication” between the administration of the detention facilities and other bodies such as police, missing persons lists, missing patients lists and hospitals.107 The result was a “lack of arrangements for effective communication, poor coordination and consultation, and a failure of management responsibility and oversight”.108

Access to justice and legal needs

As noted earlier in this chapter, for the purposes of this project ‘access to justice’ and ‘legal needs’ involve more than access to formal legal representation and the courts. However, the terms are not interpreted in such a broad fashion as to consider contested political issues concerning broader notions of rights and justice, where the law is clear—thus avoiding duplication of HREOC’s work. The Project therefore endeavours to investigate issues of access to justice according to current Australian law.

In considering these specific terms of reference, it is important to note the Disability Council’s A Question of Justice report. This report used qualitative methods to gather information about the barriers experienced by people with disabilities accessing the NSW justice system. The researchers conducted consultations with service providers, stakeholders and, importantly, people with a disability who had had contact with the justice system. Fourteen of the 61 participants had a psychiatric disability. The report uncovered a number of issues experienced by people with a disability in dealing with the justice system:


The Burdekin Report raised a number of issues that can be characterised as legal needs. These were primarily in terms of abuse of people with a mental illness, the experience of discrimination and concerns about the ability of people with a mental illness to participate effectively in the criminal justice system. The report provided the following examples where an individual’s ability to participate effectively in the legal system is impaired directly or indirectly by mental illness. First, although NSW under statute requires statements of rights to be made available to people facing involuntary detention, the Burdekin Report noted that people in this situation nevertheless lack basic information about their rights and roles. Secondly, abuse during detention is reportedly prevalent. Thirdly, mental illness frequently raises evidentiary problems in terms of witness credibility. The report noted that this issue is often experienced by women with a mental illness, particularly domestic violence victims.

Just as prisoners, forensic patients, and the criminal justice system were a particular focus of the Burdekin Report, most of the literature dealing with legal needs has been focused on the criminal justice system. The high number of people with a mental illness in custody has provided an impetus for this research:109 many of the key reports listed earlier,110 along with other more specific studies,111 have considered the over-representation of people with a mental illness in the criminal justice system, and related issues.

Many of these reports raised concern about the ability of people with a mental illness to participate effectively in legal processes when their mental health needs—among other basic needs—are not being met. A lack of training in disability awareness and mental health issues for staff such as magistrates, police, lawyers and custodial officers was another common theme.112 For example, the Burdekin Report noted that mentally ill people may be less likely than others to be released on bail—perhaps because they are too poor to raise bail, because they have no fixed address, or because they do not understand the bureaucratic requirements. Thus, the report notes, people with a mental illness who commit relatively minor offences will often go to jail where they might otherwise have received a non-custodial sentence.

Further, the report indicated that people with a mental illness will often enter, or remain longer in, jails due to poor quality legal representation, or poor communication with their lawyers. The Burdekin Report argues that many lawyers lack appropriate communication skills, and are simply too uncomfortable or unskilled to deal helpfully with mentally ill clients.

As a response to some of these concerns, the NSW Statewide Community and Court Liaison Service was introduced by the Corrections Health Service to provide psychiatric assessment for people with a mental illness who commit minor offences and appear at court.



Other diversionary options for mentally ill offenders are a topic of discussion in current literature.114

Apart from criminal justice system issues, some other areas of legal need have been raised in the literature. As yet, however, these areas have not been extensively investigated in Australia and NSW. For example, recent literature has raised concerns about service provision to people with a mental illness in the family law system.115 The Productivity Commission’s recent review of the Disability Discrimination Act 1992 (Cth) also presents a noteworthy contribution to understanding the barriers faced by people with mental illness and other disabilities, with respect to enforcing their rights under that Act.116 These and other references regarding specific legal issues will be raised throughout the body of the report in the context of our findings.

Before concluding this chapter, it is also important to note two relevant areas currently under investigation. First, the Law and Justice Foundation is currently partnering the Universities of Sydney and Canberra and the mental health tribunals in NSW, the Australian Capital Territory and Victoria in a project investigating mental health tribunals. The principal aim of the study is to assess the ‘fairness and justice’ of tribunal hearings, and to identify best practice reforms that enhance the fairness of hearings and the therapeutic outcomes for participants.

Secondly, it is important to note that the Mental Health Act 1990 (NSW) is currently under review. The NSW parliamentary Select Committee on Mental Health, which was established to consider the functionality and effectiveness of the Mental Health Act, has released two discussion papers. One of these dealt with issues concerning carers and access to information under the Act; the other dealt with operational and treatment issues contained in the Act.117 Each paper raises access to justice issues, some of which are due to inadequacies in the drafting and operation of the legislation. Others, the committee suggests, are more to do with the ongoing education and awareness gaps of mental health professionals. The first paper raises a number of areas where the main issue is competition between rights: the right of a person with a mental illness to privacy weighed against the right of their family to make decisions in an emergency; the need to establish a relationship of trust and confidence, as against the scenarios in which breaching that confidence might be justified. Of necessity, this discussion overlaps with carer concerns, with issues of who has a right to access information, and the fact that the Mental Health Act in many instances fails to include carers, while including family members.

The second discussion paper is far more extensive, dealing with each chapter of the Act in turn to determine its continuing appropriateness.118 Justiciable issues, or problems for which a legal remedy exists,119 often turn here upon definitions—of mental illness, of voluntariness, of mental health facility—which may have significant repercussions upon the validity of a person’s incarceration. There are many concepts in the Mental Health Act 1990 (NSW) that are simply too grey in their ambit, and the inadequacy of some of these provisions leads to justiciable problems. In several instances clearer wording is recommended by the committee.

As noted above, the Project has avoided duplicating existing literature on areas that are currently under investigation by others. Ultimately, however, we allowed those we interviewed to guide us in focusing on the most pressing and poorly recognised areas of legal need and access to justice issues.



Summary


Many people in NSW experience mental illness, and this is often associated with other social and economic disadvantage. The extensive literature focusing on the crisis in mental health care and concerns about the human rights of people with a mental illness alert us to the vulnerability of this group and the difficulties they are likely to face in seeking to have their legal needs addressed. Given the focus of previous literature on mainly human rights and criminal justice issues, this report will focus primarily on civil issues for people with a mental illness. Importantly, in accordance with the design of this study, we were guided by the service providers and people with a mental illness that we interviewed, in determining the most pressing access to justice and legal needs issues.

Structure of this report

Chapter 2 of this report outlines the methodology used in this study.

Chapters 3–6 report on the findings of this study, bringing together the data collected through consultations and interviews. Pre-existing data sources and literature are also drawn on to place these findings within a broader context:


Chapter 7 presents a synthesis of the report’s major findings regarding the legal issues and barriers to accessing legal assistance and processes that people with a mental illness in NSW experience.


Ch 2. Methodology


As outlined in Chapter 1, many areas of legal need and access to justice issues for people with a mental illness have not been addressed in the literature. A research design that involved few assumptions about the nature and range of legal needs experienced by this group was, therefore, deemed most appropriate. Accordingly, this study employed qualitative techniques in both the collection and analysis of data. The overall purpose was to gain insight into the broad range of legal issues experienced by people with a mental illness and the barriers they face in accessing the justice system and having these issues addressed.

Literature review

The first necessary step in this study was to identify relevant literature. Literature that focused on the nexus between mental health issues and the justice system, written in the last 20 years, was considered key. Health and legal databases were both investigated for the Project. The focus was on literature relating to mental illness and access to justice in NSW and Australia; however, international literature was also drawn on where it described innovative models for enhancing access to justice for people with a mental illness.

Methods

Roundtable discussions with service providers, advocates and other stakeholders

The next significant step in framing the focus of the Project was the conduct of two half-day roundtable discussions with legal and non-legal service providers, advocates and other stakeholders. A total of 16 people attended these discussions, held on 3 June and 16 June 2004. Those who attended included solicitors from CLCs, advocates, mental health service providers and workers from community organisations who support people with a mental illness.

Roundtable attendees were asked to provide insights on the following issues:


The information provided through the roundtable discussions and the results of the literature review were used to frame the interview schedules in the following stages of the Project, namely, consultations with stakeholders and interviews with people who have a mental illness.

Consultations/interviews with stakeholders

A key component of this study was individual interviews conducted with stakeholders. These stakeholders were chosen because of their experience in working with people with a mental illness and their informed perspectives on the barriers their clients face in accessing the justice system.

Those interviewed included academics, government policy staff, private legal service providers, CLC solicitors, Legal Aid staff, mediators, counsellors, court staff, tenancy workers, advocates and trainers in disability awareness issues. Most interviews took place between August 2004 and March 2005. A complete list of the agencies consulted for the Project is included in Appendix 1. Twenty-nine were from legal service providers, 24 were from non-legal services, 14 were from government departments and agencies and 10 were from courts or tribunals. Four academics were also consulted. Interviews were conducted with individuals and in groups. Most interviews were face-to-face although a small number were conducted by telephone. Interviews lasted between 30 and 90 minutes.

The interview schedules included a number of open-ended questions, a subset of which was covered in all interviews. Other questions were tailored to the particular expertise of the interviewee. An example of the interview schedule for legal service providers and the schedule for non-legal service providers are attached in Appendices 2 and 3.

Interviews with people who have a mental illness

Thirty semi-structured interviews were conducted with people who have a mental illness (see Appendix 4 for the interview schedule).1 The term ‘participants’ is used in the following chapters to describe these interviewees. Participants were contacted through a range of organisations providing services to people with a mental illness in NSW (see Appendix 5). Of the 30 people interviewed, 17 were men and 13 were women. One participant was Indigenous, and five were living in rural or regional NSW at the time of the interview. Six participants were young people (under the age of 25).

Interviews were conducted at the contact organisation and, in one case, at the Foundation’s office. Each of the researchers who conducted these interviews had an honours degree in psychology and/or sociology and had received additional training from St Vincent de Paul Learning Services in interviewing people with complex needs.

Interviewers introduced themselves to participants providing a short description of the Foundation and the research project. In order to ensure informed consent, participants were provided with an information and consent form (see Appendix 6). The form outlined that participation was anonymous and voluntary, that the participant could choose not to answer any questions, and they could stop the interview at any time. The interviews were to be recorded with the permission of the participants and transcribed material would be kept securely, and the tape erased once transcribed. All participants were reimbursed $20 for their time.

Once both the participant and interviewer signed the consent form, the interviewer commenced the interview by asking participants if they had a recent legal problem or issue in their life. If the participant indicated that they had a legal problem, they were asked what had happened, whether they sought help, who they had sought help from, if they had not done anything about it, why this was the case, and what happened in the end.

It was important to allow for the likelihood that participants would not necessarily be able to identify problems they had experienced as being legal. Therefore, whether or not participants nominated a legal issue in response to the first question, they were then asked a series of questions regarding different areas of the law and legal problems that had been identified by stakeholders as being particularly relevant to people with a mental illness in NSW. These included housing, income and employment, debt, fines, family issues, crime and victim of crime issues, relationships with police and health issues. If the participant indicated that they had any of these legal issues, they were asked the same questions listed above regarding whether they sought help and the outcome of the problem.

Use of other data sources

As noted in Chapter 1, data reported by agencies such as the ABS and AIHW on the prevalence and the correlates of mental illness provide an important backdrop for this study and have been drawn upon in our report.

Another source of data utilised for the Project was the data collected by the Foundation for the Legal Needs Survey conducted in late 2003.2 This household survey involved a quantitative telephone survey of 2400 people in six regions in NSW. It was not the purpose of the study to obtain representative sub-samples of specific disadvantaged groups such as people with a mental illness; rather the purpose of the region survey was to survey six disadvantaged communities as a whole. Nonetheless, 56 people who participated in this study indicated that they had a mental health problem. It was determined, however, that this small sample of people with a mental illness was unlikely to be a representative group, given the varied living arrangements of people with a mental illness, which can include shelters, refuges and boarding houses.3 Therefore, rather than use the information quantitatively, the responses provided by these participants were investigated as individual case studies. Where these cases provide information relevant to our report they have been incorporated.

It was hoped that additional data could be provided by the agencies consulted for our study. Unfortunately, legal agencies were unable to provide data to us on the mental health status of their clients, and non-legal agencies were unable to provide data on legal issues experienced by their clients with a mental illness.

Data analysis

The transcripts of all consultations for the study were entered into the qualitative software analysis program QSR NUD*IST Vivo (NVivo). NVivo is commonly used by qualitative researchers to organise rich data from interviews. Information is categorised under particular ‘nodes’ (or themes) that can be developed prior to coding or as the analysis progresses. In this case, most nodes were developed before data was entered into the NVivo database. Nodes were based on themes identified in earlier research, particularly as part of the Foundation’s Access to Justice and Legal Needs Program (e.g. areas of law/legal issue, types of barriers to accessing legal assistance). New nodes were added where required.

Strengths and limitations of the study’s design

The range of experience of the stakeholders we interviewed, and the depth of their understanding of legal and other issues experienced by people with a mental illness, are key strengths of this study. Another key strength is the perspective and insights provided by people who have a mental illness themselves. The barriers they perceived and experienced in addressing their legal issues add great richness to this study’s results.

Another important component in this study’s design was the inclusion of people with a mental illness (often referred to as ‘consumers’ in the literature) as advisors at key stages of the research processes. Advocates, researchers and trainers in the area of mental illness, who had a mental illness themselves, provided input into roundtable discussions, sampling methods and interview schedule design.

It is important to note that the purpose of this study was not to use quantitative sampling techniques that would provide a representative sample and would therefore allow us to generalise our results to all people with a mental illness in NSW. Such a design would have been appropriate if more were known about the legal needs and access to justice issues experienced by people with a mental illness at the outset of the study.

Given that key data collected for this study was based on consultations, it is also important to note the inherent weaknesses of self-report data—that is, data that is based on the subjective experiences of those interviewed. In interviewing people with a mental illness and stakeholders we were interested in gaining insight into their experiences, recognising that perceived barriers can be as insurmountable as actual barriers. We were also mindful, however, that at times interviewees may not fully understand or be aware of laws, legal and bureaucratic processes or legal services. Therefore, we have, where possible, sought to further investigate and verify some of the statements made by interviewees.

Reporting of findings in the following chapters

In line with the aim of this study, reporting in the following chapters will focus on presenting the range of issues and experiences raised by those we consulted. This report does not seek to quantify legal needs experienced or to generalise to all people with a mental illness. Where supporting literature is strong or where many of those we interviewed raised a particular issue, more weight will be given to this issue and the possibility of extrapolating this finding more broadly will be suggested.



Ch 3. Legal issues


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


Mental health care system-related legal issues


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

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


Although involuntary patients do not have the right to refuse medication under NSW law (unlike the situation in North America), they must be told what the medication is. One participant alleged that she was forcibly injected with medication without being told what it was:
Service providers argued that people from a non-English speaking background (NESB) face difficulties understanding their rights because of language barriers. On arrival at hospital, involuntary patients must be read their rights under the Mental Health Act 1990 (NSW).9 If a person does not speak English the medical superintendent who is responsible for informing the patient of their rights must arrange for an interpreter.10 However, service providers argued that people from NESBs are not being properly informed of their rights upon being involuntarily admitted to hospital, because an interpreter was not always available.11 The need for interpreters was also raised as an issue by the Official Visitors Programme.12


Adult guardianship


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

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

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

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


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

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



Disability discrimination


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

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



Employment


Discrimination in employment was the most common type of discrimination reported by participants and stakeholders.36 Consultations and the literature suggested that people with a mental illness are susceptible to discrimination when they are merely looking for work and once they are in the workforce.37 For example, people with a mental illness may also have to take time off work because of their illness and as a result, they may face discrimination while they are away or when they return.38
Or as one solicitor indicated, people with a mental illness may be dismissed from employment as a result of the manifestation of their illness, where this affects their work performance and relationship with other employees. For example:
As a result, service providers reported that people are unwilling to disclose their illness for fear of being discriminated against when they are looking for a job and once they are employed.42 A conciliation officer from HREOC provided a case study of a woman who after disclosing that she had a mental illness had had an offer of employment withdrawn:
People are not required by law to disclose their disability. However, if they don’t disclose their mental illness, they may not be able to request that certain adjustments be made in the workforce.44 In addition, if a person does not disclose that they have a mental illness, then their mental illness may not be taken into account if they have trouble fulfilling the job requirements.45

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



Other areas of discrimination


Reported in both the literature and by service providers consulted for this study, people with a mental illness also face discrimination in the area of insurance, whereby they are refused access to various types of insurance including travel, income and mortgage protection insurance, on the basis of a past or existing psychiatric disability.50
A solicitor from People with Disability Australia (PWD) reported that despite work being done in this area by SANE, beyondblue and the Insurance Council of Australia, insurance companies are still able to deny people with a mental illness access to insurance, because they are thought to have a higher risk of harming themselves.52

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



Occupational health and safety


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

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

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

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



Criminal legal issues


Criminal legal issues that were raised during consultations included:
Consultations indicated that people with a mental illness may be charged with offences relating to behaviour arising from their illness (such as offensive language and conduct, assault, resisting arrest and assaulting police).64
The Burdekin Report noted that the behaviour of people with a mental illness who are untreated can bring them to the attention of the police:
A couple of legal service providers said that behaviour may also be drug- and alcohol-related.67 For example:
Consultations also indicated that people with drug and alcohol problems may experience particular legal issues specifically related to drugs (such as possession) or to their financial situation (such as stealing).69
A number of participants reported that they had fines that ranged in amount and seriousness. For example, one participant had a fine for riding a pushbike without a helmet.73 Another had a parking fine.74 Another had received a fine for smoking at a train station.75 Two other participants had received fines and lost their drivers’ licences as a result of speeding.76 One older participant reported that he had $12 000 in unpaid fines from another state.77

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



Housing issues



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

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



Private rental accommodation


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

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



Department of Housing (DOH) accommodation


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

Eligibility

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

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


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

Eviction and debt

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


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

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


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

Neighbourhood disputes

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

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


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

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

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


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

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


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


Boarding houses


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

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


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

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



Social security issues



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

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

DSP eligibility

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

Proving the seriousness of mental illness

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


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

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


Failure to identify the mental illness

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

The exclusion of particular categories of applicants

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

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


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

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

Breaching and debt

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

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

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

DSP

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

A manager from Centrelink acknowledged that people with a mental illness who are on the DSP may have problems complying with information requests, or informing Centrelink of changes to their circumstances.162 However, he said that if Centrelink knows that the person has a mental illness, they will investigate whether that person was experiencing problems at the time the debt was incurred:
Job seekers
Consultations revealed that job seekers with a mental illness who are on Newstart Allowance or Youth Allowance are very vulnerable to incurring breaches and debt. Pearce et al. note that these are
That people with a mental illness can find it hard to comply with social security requirements was reported by a number of service providers: One participant interviewed for this study talked about some of the difficulties he had experienced in complying with his Newstart requirements:
The new social security compliance framework, introduced as part of the 2005–06 Budget and commencing in mid-2006, will also impose stricter participation requirements on job seekers. If a job seeker does not meet a participation requirement (such as attending a job interview), their payment will be suspended until they do so. For repeated and more serious breaches, job seekers will be suspended without payment for eight weeks.169 Although the government did announce that there would be an at-risk list of vulnerable people for whom the Job Network agencies would not have to suspend payments,170 this does not recognise those people who may not, as discussed above, be identified as particularly vulnerable. Therefore, these changes may have an effect on those people with a mental illness who are not eligible for the DSP, but who have difficulties in complying with their Newstart or Youth Allowance requirements.

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

Sole parents and students

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

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

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



Consumer issues



That consumer debt is an issue affecting people with a mental illness has been raised in the literature and by both service providers and participants interviewed for this study. The literature suggests that people with a mental illness are in many instances financially disadvantaged,184 which may place them at risk of accruing debt. This was also raised in the consultations:
First, a number of participants in this study appeared to have accrued debt as a result of general financial disadvantage:
Secondly, a number of service providers suggested that people may be particularly unwell (e.g. in a manic state), or have an addiction, which influences their capacity to make sensible decisions about purchasing items or entering into contracts:
For example, a solicitor from the Consumer Credit Legal Centre believed that the biggest financial issue for people with a mental illness concerns credit cards, with people over-committing themselves while they are unwell:
A British study on mental illness and social exclusion reported that people with a mental illness can experience problems with credit and debt after they go on “sprees” while unwell. The same study also found that many people with a mental illness who had accumulated such credit-related debt were on very low incomes.192

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


Thirdly, a couple of service providers suggested that some people with a mental illness appear to be vulnerable to high pressure sales tactics. For example:
Finally, consultations also indicated that people with a mental illness can be vulnerable to financial exploitation and fraudulent activity by other people. The following are examples of this:


Family law issues


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

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


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

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

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


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

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


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


Care and protection issues



Consultations indicated that care and protection under state child welfare law can be an issue facing parents who have a mental illness. In particular, a number of service providers believed that if DoCS is notified about the child of a person with a mental illness, that parent’s mental illness may be taken into account when assessing the wellbeing and safety of the child.210
If DoCS is notified about a child whose wellbeing is at risk, they have a legislative duty of care to do what is in the best interests of the child at risk. A manager from DoCS stated that when they are notified about a child at risk, they do a risk analysis on the current situation facing the child. They use the expertise of a variety of experts (such as psychiatrists and psychologists) to inform their decisions.213 She also argued that although mental health issues do figure very heavily in the risk analysis of children at risk, care and protection issues usually arise out of a combination of factors (such as domestic violence and mental health issues):
In addition to removing children, DoCS also has a wide range of other options available to it, including referring families to other services for assistance. However, service providers argued that DoCS is not always able to take up the option to refer people to services for assistance because it is limited by a lack of available services for people with a mental illness.215 A manager from DoCS said:
In this study, four participants who had children had come into contact with DoCS. One participant said that when she was hospitalised, the hospital had notified DoCS about her children, although they were not removed.217 Three other parents, who were also homeless, had their children previously removed by DoCS.218


Victim of crime issues


People with a mental illness are often depicted in the media and in popular culture as violent, dangerous and aggressive.219 Yet the literature shows that overwhelmingly, people with a mental illness are themselves the victims of assault, sexual assault, domestic violence and child abuse.220 For this study, 12 participants reported having been the victim of a crime: three reported sexual assault, five reported general assault, five reported having been victims of child abuse, and one reported being the victim of severe domestic violence. For example:
Many service providers interviewed for this study, particularly mental health workers and solicitors who undertake domestic violence and victims compensation matters, reported having clients with past histories of abuse, sexual assault and domestic violence:224
Not only do some people with a mental illness have prior histories of trauma, but the experience of mental illness can also lead to people being more vulnerable to abuse and trauma. Consultations indicated that people with a mental illness are very vulnerable to sexual exploitation and sexual assault:
People with a mental illness are vulnerable to homelessness,228 and are often forced to live on the streets and in boarding houses, where it is reported they are further exposed to abuse. A 1998 study of homeless people living in inner-city Sydney found that “75% of all homeless people using inner-city hostels and refuges had had a mental disorder (including schizophrenia, alcohol use disorders, drug use disorders, and mood and anxiety disorders) in the previous 12 months”.229 This 1998 study also found that “93% of homeless people in the inner city have experienced at least one major trauma event” (such as serious physical assault, rape and witnessing someone being killed) in their lives.230 A caseworker interviewed for this study reported having received
Service providers also reported that people can be vulnerable to abuse in psychiatric institutions.232 An official visitor alleged that instances of theft, assault and general aggressive behaviour committed by other patients are reported, more so in public mental health facilities than in private hospitals.233 The Burdekin Report stated that there had been many submissions to the inquiry about the abuse of people with a mental illness, by both staff and other patients in hospital. HREOC maintained that the rate of sexual assaults among patients was particularly disturbing.234 One participant in our study articulated her fears of being assaulted in hospital:
A recent study conducted by the Victorian Disability Discrimination Legal Service found that women with cognitive impairment (including women with cognitive impairment from mental illness) are particularly vulnerable to abuse, particularly those who are homeless or living in boarding houses or institutional settings.236


Summary


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

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

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

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

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



Ch 4. Barriers to accessing legal assistance



As discussed in the previous chapter, people with a mental illness face particular legal issues, including those relating to the Mental Health Act 1990 (NSW), discrimination, housing, social security, debt and consumer issues. Legal issues concerning family law, domestic violence, victims of crime, and care and protection were also raised in consultations, and are supported by the literature.

This chapter will look at the barriers faced by people with a mental illness in accessing legal assistance.2 For the purpose of this report, the term ‘legal assistance’ includes the provision of legal information, legal advice and legal assistance (see Appendix 7 for definitions of each of these).

Consultations for this study revealed that people with a mental illness experience both individual and systemic barriers to accessing legal services. The first part of this chapter will look at the individual barriers that people with a mental illness confront in accessing and using legal services, while the second part will discuss the systemic barriers to accessing legal services. This chapter will also consider the ways in which access to legal assistance for people with a mental illness can be improved.



Individual barriers to accessing legal assistance



Consultations with stakeholders and participants revealed that symptoms or manifestations of a mental illness may affect a person’s ability to access legal services. These symptoms or manifestations included:
Legal service providers reported that the degree to which having a mental illness can act as a barrier to accessing legal services will vary according to the individual’s specific circumstances, the severity of their illness, where they are in the cycle of their illness and their particular personality.4

It should also be noted that recent studies, including Genn (2004) and the Foundation’s Bega Valley Pilot Study (2003) and Justice Made to Measure (2006), found that the majority of people don’t access legal services when they have a legal problem.5 This suggests that this may also apply to people with a mental illness.



Lack of awareness of legal rights


A number of stakeholders and two participants suggested that people with a mental illness often lack awareness that their problem—for instance, housing, family, debt—has a legal element to it.6 Because people do not recognise that they have a legal problem, they may be unaware of their legal rights in a particular situation and may therefore not seek legal assistance.
Several service providers were of the opinion that because people with a mental illness tend to have lower levels of participation in education and employment, they lack basic knowledge of legal issues and the legal process, and they may also lack the ability to find this information.9 This is supported by the Disability Council in A Question of Justice, which found:
It was also reported that loss of education is a particular issue for young people with a mental illness who, as a result, lack knowledge about legal issues and the legal system.11


Being disorganised


A number of legal and mental health workers were of the opinion that some people with a mental illness tend to be disorganised, which can make it difficult for them to remember to keep appointments with legal service providers.12 For example, in consultation for this study, one pro bono solicitor described how a person’s illness can make it difficult for them to keep appointments and prioritise their legal matter:
A family law solicitor argued that substance abuse can also make it difficult for people to be organised and keep appointments:
A non-legal service provider argued that the side-effects of medication can make it difficult for some people to get up early in the mornings, which may result in them missing appointments with legal services providers.15 This is supported by Cullen:
A Department of Family and Community Services study on barriers to service provision for young people with substance abuse and mental illness found that not turning up to appointments with health professionals was a particular problem for this group.17


Being overwhelmed


It was raised in consultations that people with a mental illness can become overwhelmed by their legal issues, and that as a result, they may avoid addressing them and accessing legal assistance.18 A few stakeholders reported that people with depression may be overwhelmed by their problems and so may not be motivated to access a legal service provider.19
In addition, a couple of service providers argued that people with a mental illness may be so frightened by having a legal problem that they will avoid addressing it:
Roundtable attendees suggested that situating legal services in places where people with a mental illness would normally go in the course of their day-to-day activities might increase the accessibility of these services.24 This could also address the barriers caused by a lack of motivation and fear of the problem.


Mistrust of service providers


It was raised in several consultations that some people with a mental illness are reluctant to access or contact a legal service provider, either because they are mistrustful of them, or because they are frightened of divulging personal information.25 Personal information required by legal services usually includes contact details and full name, but may also include other information about a person’s life, which may be relevant to the legal issue. This reluctance or fear about divulging personal information may mean that a legal service provider is unable to ascertain the client’s full circumstances and details, which may prevent them from adequately assisting the client. For example, one caseworker said:
A solicitor from a CLC gave an example of how this fear may prevent people from getting the legal support they need:
A disability awareness trainer provided an example of how this type of mistrust can act as a barrier to accessing services. She commented that some people experiencing paranoia believe that government computer systems and legal service providers’ computer systems are linked to one overall monitoring system.28 This may increase a client’s reluctance to divulge personal information:
This same stakeholder also argued that a fear of being recorded over the phone can prevent people with a mental illness from accessing legal services by phone. This trainer, who has experienced mental illness herself, gave an example of where her own fear of being bugged prevented her from using a telephone:
The national program manager from Multicultural Mental Health Australia (MMHA) thought that in addition to having a great fear of legal issues, refugees with a mental illness also have a great fear or mistrust of “authority”. This might act as one barrier (among others) to such refugees accessing legal assistance.31


Difficult behaviour


It was suggested in three consultations that some mentally ill clients can be difficult, and in some circumstances exhibit quite threatening behaviour, which can make it difficult for legal service providers to assist them.32 If a legal service provider does not feel physically safe with a client, they may not be able to provide them with legal assistance. For example:
A disability awareness trainer commented that training for legal services staff may be useful to overcome this barrier.35


Communication problems



Consultations indicated that the symptoms of mental illness can make it difficult for a person to communicate easily with others and that it was difficult in some circumstances for lawyers to understand what their client’s problem was and what their instructions were.37 Communication problems can act as a barrier to accessing legal assistance, as a solicitor may not be able to gather the right information from a client and therefore may not be able to assist them effectively.
The difficulties people can have communicating with legal service providers were also reported by the Disability Council in A Question of Justice:
A senior solicitor from the Mental Health Advocacy Service (MHAS) argued that it can be difficult for some clients with a mental illness to communicate the most (legally) relevant details about their situation:
People with a mental illness may also have difficulties comprehending information relayed to them, particularly if it is complex. A mental health caseworker and a CLC worker reported that clients with a mental illness can have problems absorbing and understanding legal advice given to them.
One participant argued that communication problems can be exacerbated by the effects of medication:
In consultation for this study, a senior solicitor from the MHAS also argued that communication problems are exacerbated for people from NESBs with a mental illness, because they have to rely on the use of interpreters:
In A Question of Justice, the Disability Council argued that using interpreters may be harder for people with a mental illness whose first language is not English, particularly when interpreters are not trained to work with people who have disabilities.47

Communication over the telephone

Many legal services provide legal advice and information over the phone—for example, some CLCs, particularly those based in capital cities, will have a telephone advice service at particular times of the day. LawAccess is a free telephone advice service that provides people with legal information and advice on where to seek additional legal assistance.48 Telephone advice lines are invaluable ways of providing advice to people who have difficulty accessing legal assistance face-to-face, such as people living in rural and regional areas and people with very specific mental illnesses, such as agoraphobia and serious depression.49 However, several service providers interviewed for this study commented that people with a mental illness often have difficulties communicating with lawyers over the phone, and prefer face-to-face communication.50 For example:


Commenting on the lack of support services available in rural and regional areas, a solicitor from a regional CLC made the following remarks:
A caseworker reported that a reliance on the telephone can act as a barrier for people with a mental illness who are from a culturally and linguistically diverse background and, in particular, those who are from a small community and who rely on the Translating and Interpreting Service.55 She was of the opinion that fear of stigma within their own community may make it difficult for some people to disclose their illness to a legal service provider through a telephone interpreter:


Lack of mental health care and treatment


The impact of the above barriers on those people with a mental illness who receive appropriate mental health care and treatment might be reduced. Three stakeholders and one participant indicated that if a person is taking appropriate medication, and/or receiving appropriate support or treatment, they may be more stable and therefore better able to access a legal service provider.57 For example:
The reported crisis in mental health care in NSW is likely to reduce the chances of many people with a mental illness to receive the treatment and care they need to access and communicate with legal service providers.59


Systemic barriers to seeking legal assistance


This section will look at some of the systemic barriers confronting people with a mental illness in accessing legal assistance. These include:


Availability of affordable legal services


Consultations for this study and previous literature indicate that people with a mental illness tend to have low levels of income.60 People with a mental illness are therefore less likely to be able to afford private legal representation:
As a result, many people with a mental illness are likely to be dependent on legal assistance and advice from Legal Aid, CLCs and pro bono legal service provision.62 However, service providers interviewed for this study were of the opinion that the limited availability and resources of these types of legal services can act as a barrier to accessing legal assistance for people with a mental illness.63

A number of studies and submissions have documented that Legal Aid is under-resourced.64 In its submission to the Access to Justice and Legal Needs Program, the Law Society of NSW suggested that it was much harder for people to obtain a grant of legal aid now than it would have been several years ago.65 Furthermore, Legal Aid services at court, such as the Duty Solicitor Scheme, are only found in the criminal jurisdiction and in some family courts. Several service providers interviewed for this study commented that the limited availability of legal aid may prevent some people with a mental illness from accessing legal advice and representation.66


Roundtable attendees argued that the eligibility criteria for obtaining legal aid is also very confusing, which can deter people with a mental illness from even trying to obtain a Legal Aid grant.68

Similarly, CLCs’ resources are constrained. In its Submission to the Review of NSW Community Legal Service Funding Program, the Council of Social Services of NSW (NCOSS) commented in relation to one specific CLC that “existing resources are woefully inadequate to meet demand”.69 CLCs therefore focus on providing legal assistance and advice and community legal education. Representation is not usually available except in cases of unusual disadvantage or if the case is in the public interest.70



Time constraints



Policy and legal officers suggested that people with a mental illness benefit from having more time during interviews with lawyers, in order to overcome some of the problems listed at the start of this chapter.72 However, they also argued that this can place extra pressure on CLC and Legal Aid staff, who already face constraints on resources. Stakeholders reported that clients with a mental illness may need substantially longer appointments than what is already allowed for.73 It was argued that present funding levels of CLCs and Legal Aid prevent these services from having enough time to spend with clients who have a mental illness:
For example, the Duty Solicitor Scheme at the Local Court is a Legal Aid service available to people who need representation for criminal matters. Generally, people access the duty solicitor at court on the day their matter is being heard.75 This leaves the duty solicitor with only a short amount of time to gather the details of their client’s case, which may not be sufficient for clients who have a mental illness. Commenting on people with a mental illness accessing the Duty Solicitor Scheme, a local court registrar reported:
The time constraints on duty solicitors were also raised by one mental health worker as a particular issue for young people with a mental illness.77 This worker was of the opinion that the stretched resources of the legal service may mean that a client must repeat their story to several different lawyers throughout the case. The client’s communication difficulties, combined with the time constraints of the service, may mean that only pieces of the client’s situation are conveyed each time.78 This could mean that particular details of a client’s case are not discussed.
Furthermore, a few stakeholders indicated that clients with a mental illness may need more support while accessing legal assistance.80 Lawyers may need to write letters, make calls and set up appointments on a client’s behalf, all of which places extra strain on legal service providers’ time.

It was reported that in some instances, CLCs have to refer people with a mental illness on to other services because they do not have the resources to assist these clients themselves. This can act as an additional barrier to accessing legal services for people with a mental illness, as they may be more easily deterred by having to make contact with and explain their situation again to another service.


Genn et al. discuss the phenomenon of “referral fatigue”, which refers to a state of affairs whereby the “likelihood of people actually obtaining advice after having been referred on by an adviser declines with each adviser who makes a referral”.84 In light of the individual barriers discussed in the first part of this chapter, it would seem that people with a mental illness may be particularly prone to experiencing referral fatigue. This is supported by Cullen:


Remote, rural and regional issues


Consultations for this study indicated that there are even less affordable legal services available in rural and regional areas than elsewhere.86 This is supported by the Senate Legal and Constitutional References Committee:
In addition, where services do exist, they may not have the capacity or funding to take on clients with more complex needs. In country towns throughout NSW, Legal Aid pays local solicitors to do legal aid work for the local population. One solicitor commented that because many of these solicitors are running their own business as well as doing legal aid work, they may not feel they are adequately compensated for the time it takes to work with clients with a mental illness, who may need more time and support than other clients.88 CLC workers from Women’s Legal Services NSW (WLS) also commented:
A lack of accessible local legal services may therefore mean that people with a mental illness living in rural and regional areas face additional barriers to accessing legal services, including having to travel long distances to obtain legal advice. It was indicated that the organisation and motivation required to travel large distances to attend appointments is often beyond the capacity of someone who is mentally unwell.90 This is compounded by both the cost of travel and the lack of available regular public transport in rural and regional areas.91

In addition, one regional CLC worker suggested that often, people with a mental illness need to access a lawyer immediately, as they may not have the capacity to plan ahead. This CLC worker argued that this can be a problem for people living in rural and regional areas who do not have a lawyer based in their town:

I think the main barrier is it being available right when they need it. I think people that suffer from a mental illness require the assistance when they need it. And that is a great difficulty in terms of the provision of legal services, because there just isn’t a solicitor that is based in Bourke that will assist people and be there all the time … So you have to wait a fortnight to get an appointment, and often in a fortnight things could have completely changed.92

Accessing telephone-based legal services is an option for people with a mental illness living in rural and regional areas. However, as discussed earlier in this chapter, communication difficulties can be made worse over the phone, and it was therefore suggested that people with a mental illness tend to prefer communicating face-to-face with solicitors.93

In recognition of the lack of available legal services in rural and regional areas, Legal Aid is trialling the Cooperative Legal Service Delivery Model. The aim of this model is to organise coalitions of legal services (including government, private, community and quasi-legal service providers) to work together to identify gaps in service delivery, develop service delivery priorities, and develop a referral network in the area to better assist disadvantaged people to access legal services.94 A family law solicitor described the model:


Finally, a lack of available mental health services in rural and regional areas can mean that people with a mental illness have far less support and treatment options to assist them in stabilising their illness. This can further compromise their ability to access and use legal services, as discussed earlier.96


Identifying mental illness


Stakeholders were of the opinion that a lack of awareness by legal service providers that a client has a mental illness may compromise that client’s ability to access legal assistance.97 If a legal service provider is aware that a client has a mental illness, they may take the time to cater to their needs, including allowing more time for the client to give instructions, adopting an appropriate communication style, and providing additional support and flexibility. If a client’s illness is not identified, their needs may not be catered to, making it harder for clients with a mental illness to access and use legal assistance effectively.

Furthermore, mental illness is often considered by CLCs and Legal Aid in determining whether a person is eligible for legal representation.98 For example, to be eligible for a grant of legal aid in a wide range of matters, including personal injury and employment, it needs to be established that a client has an “unusual or special disadvantage” which includes having “difficulty in dealing with the legal system by reason of a substantial psychiatric condition”.99 A family law solicitor argued that if a person is not identified as having a mental illness, they may not be eligible for special consideration for a grant of legal aid, and may therefore miss out on legal representation.100

Stakeholders reported that people may not be identified by a legal service provider as having a mental illness for either of two reasons:


Non-disclosure

A couple of stakeholders suggested that people may not reveal to a legal service provider that they have a mental illness because of the associated stigma. For example:


This is supported by the Disability Council, which reported in A Question of Justice that participants with psychiatric disabilities spoke of being negatively stereotyped as “crazy”, “mad”, “dangerous” and “violent” and, as a result, felt that the “stigma and consequences of disclosing a psychiatric disability were such that it was better not to”.102

In consultation for this study, solicitors from Shopfront Youth Legal Centre argued that young people may be embarrassed to disclose to a lawyer that they have a mental illness, particularly young male clients who may also be in denial about their illness.103

Different cultural groups may have different approaches to mental illness, which may prevent them from disclosing that they have a mental illness. A court liaison worker was of the opinion that Aboriginal people tend to see mental illness as highly stigmatic, and would rather go to prison than to a psychiatric hospital.104 Further, the national program manager from MMHA argued that some people whose first language is not English may not recognise the label or concept of mental illness.105

A Sydney barrister interviewed for this study argued that people with a mental illness may not disclose their illness because they are not aware they have one.106 This may be due, as one CLC solicitor suggested, to the fact that inadequate levels of mental health care have resulted in some people with a mental illness going undiagnosed.107 The same solicitor suggested that this is a particular problem in rural and regional areas, where the availability of mental health services is even more limited.108

Failure to identify

Consultations for this study indicate that if a person does not disclose that they have a mental illness, it may be difficult for legal service providers to identify that a person has a mental illness.109 Several legal and non-legal service providers suggested that this may be because it is not overtly apparent that a person has an illness. For example:


A couple of legal service providers suggested that it can also be difficult for lawyers to distinguish between people with a mental illness and people who were just being “difficult”:
A solicitor and a case manager were of the opinion that identifying that a person has a mental illness is even more difficult over the telephone:
One solicitor acknowledged the difficulties faced by legal service providers in asking people directly whether they have a mental illness:
However, service providers referred to ways in which lawyers can attempt to ascertain whether a person has a mental illness. For example, a case manager suggested that if a legal service provider suspects a client may have a mental illness, they could attempt to encourage the client to disclose their illness.114
One CLC worker believed that a lack of clarity in legal instructions was often taken as an indicator of mental illness.116


A perceived lack of credibility


As discussed above, clients may not disclose that they have a mental illness, due to a fear of stigma. One manifestation of the stigma surrounding mental illness raised in this report is that people with a mental illness are often viewed as being less credible. Stakeholders interviewed for this study reported that some lawyers find people with a mental illness less credible, and are therefore less inclined to believe what they say.117 This may act as a barrier, if a solicitor dismisses a client’s claim because they don’t believe them.
Two non-legal service providers felt that it is sometimes difficult for lawyers to determine what part of their client’s version of events is reality, and what part is fictitious.120 The difficulty faced by some people with a mental illness in communicating their issues in a coherent and logical manner can further impact on how seriously they are taken by lawyers.121

A disability awareness trainer who provides training on working with people with a mental illness argued that it is important for legal service providers to be aware that people with a mental illness are not necessarily deliberately lying or being misleading, but that what they are saying is an honest reflection of their current reality.122 One CLC worker argued that it is important for lawyers to deliver a legal service to their client, to the best of their ability, regardless of how much of the client’s story seems “real”:


This was reiterated by a solicitor from PWD, who commented that people who are mentally ill sometimes just need lawyers to give them a chance and attempt to understand their situation and provide them with legal assistance:


Physical environment


In consultation for this study, one stakeholder believed that the physical environment of a legal service, and its day-to-day office procedures, may act as a barrier to using legal services for someone who has a mental illness.125 For example, seemingly small things, such as fluorescent lighting and extraneous noise, may be distracting to people with a mental illness and prevent them from engaging effectively with legal service providers.126 She also argued that simple office procedures, such as, for example, putting someone “on hold” with no explanation or warning, may be confusing and stressful for a client with a mental illness. These concerns identify an additional barrier to accessing a service.


Suggestions to increase the accessibility of legal services to people with a mental illness


A specialist mental health legal centre

A number of service providers felt that a specialist legal service for people with a mental illness would help address some of the barriers encountered in accessing legal assistance.127 Although there are a few services that do cater to people with a mental illness (such as the Legal Aid MHAS and the Disability Discrimination Legal Centre (DDLC)), while extremely beneficial, these services are limited by their jurisdictional requirements in the advice they can give. The MHAS acts on legal issues arising from the Mental Health Act 1990 (NSW), including compulsory hospitalisation and treatment orders, guardianship, community treatment orders and community counselling orders.128 The DDLC assists in cases of disability discrimination under either the Disability Discrimination Act 1992 (Cth) or the Anti-Discrimination Act 1977 (NSW).

Thus, roundtable attendees felt that there are currently gaps in legal service provision to people with a mental illness.129 They felt that there is a role for a specialist mental health legal centre that deals with all areas of law, with the capacity to undertake test case litigation and law reform.130 Another roundtable attendee proposed the establishment of a national system of disability legal services.131

It was suggested that ideally, such a service would employ solicitors that had the communication skills necessary to work with people who have a mental illness. This would allow more time during appointments and more flexibility around the needs of people with a mental illness.132 The service would be aware of the barriers—such as those discussed earlier in this chapter—facing people with a mental illness.

A possible model for this is the Mental Health Legal Centre in Victoria, a specialist legal centre for people with a mental illness that provides legal advice and representation for people who have a legal matter related to their mental illness, as well as a referral service, legal education and telephone advice.133 The centre acts on issues dealt with in NSW by the MHAS and the DDLC, as well as criminal (fitness to plead), family law (child protection in particular, but also resident and contact order arrangements) and debt issues.134

Another example of a specialist legal service for people with a mental illness is the Springfield Advice and Law Centre that operates out of Springfield University Hospital in the United Kingdom. This London-based centre offers independent, free advice, as well as casework and legal representation, to local users of the national mental health system, and operates in regards to hospitalisation, housing, debt and community care matters.135

One case manager interviewed for this study expressed some concern that not all people with a mental illness would access a specialist mental health legal centre, because they do not believe or know that they have a mental illness, or because they are afraid of experiencing the stigma associated with mental illness.136 For this reason, people with a mental illness may be more likely to access more generalist legal service providers, which, as a result, will need to be aware of and have the capacity to assist people with a mental illness.



Training and awareness-raising


It was proposed that some of the barriers raised in this chapter might be addressed by providing training on mental health issues to those legal service providers who have clients with a mental illness. Training could include how to communicate effectively with people with a mental illness, what their needs are, what it is like to have a mental illness, indicators of mental illness, referral and resource information, strategies to work effectively with people with a mental illness, stress management and general awareness-raising in order to combat stigma and discrimination.137 A number of stakeholders suggested that legal service providers would benefit greatly from training on mental health issues.138
A disability awareness trainer made the further suggestion that training on mental illness could also be provided to law students at university.140 This is supported by Lee.141

A number of legal service providers (including Legal Aid and various CLCs) provide training on mental illness to their solicitors. For example:



Support for lawyers


A few stakeholders were of the opinion that people with a mental illness can place great emotional demands on legal service providers.148 These same stakeholders commented that the personal circumstances of some of their clients can be quite distressing to listen to, and that legal service providers do not usually have the training to cope with this. In addition, some mentally ill clients can be quite demanding and time-intensive, requiring an unusual amount of contact and reassurance. This can lead to lawyers reaching “burn-out” with a particular client, and therefore having to refer them on to another lawyer.149

A case manager commented on the need for support services for legal service providers who work with clients with a mental illness, so that they are better able to look after themselves as well as their clients.150



Summary


Consultations with stakeholders and participants for this study revealed that having a mental illness can affect a person’s ability to access and use legal services. The symptoms of mental illness that may act as a barrier to accessing legal services include a lack of awareness of legal rights, being disorganised, being overwhelmed, mistrust, difficult behaviour, and communication problems. These barriers are compounded by current inadequate levels of mental health care. The above symptoms may mean that a person with a mental illness has difficulty keeping appointments, or does not feel able to even attempt to seek legal assistance—or feel that it is worthwhile to do so. Further, an inability to divulge relevant personal details may mean that service providers are unable to assist the client. Difficult behaviour may also prevent a client from receiving legal assistance.

Communication problems may mean that the client’s situation is not properly understood. Consultations revealed that if a client is unable to give a reasonably coherent account of their situation, the legal service provider may not have enough relevant information to assist them. In addition, service providers argued that communication problems can mean that the client may not understand the advice they receive. They reported that communication issues for clients with a mental illness were often exacerbated by use of the telephone.

Consultations and the literature indicate that there is a link between serious mental illness and financial disadvantage. The cost of obtaining legal assistance is therefore a barrier for people with a mental illness, and suggests that they are more reliant on Legal Aid, CLCs and pro bono legal advice. Stakeholders reported that there is a lack of availability of these services, and that those that do exist are overstretched and underresourced. This has particular implications for people with a mental illness, who may require more time to communicate their situation, and more support in general.

Consultations indicate that a lack of availability of free legal services is even more pronounced in rural and regional areas. The organisation and cost required to travel large distances to access legal services create additional barriers for people with a mental illness.

Stakeholders indicated that legal service providers may not always be able to identify that a client has a mental illness. This can be important, as the client themselves may not divulge that they are ill, either because they have not been diagnosed or because they fear being stigmatised. If a client’s illness is not known, they may not receive the time, assistance and understanding they need to access legal assistance. In addition, someone with a mental illness may be eligible for legal aid—however, if their illness is not identified, they may not receive this support.

On the other hand, service providers believed that people with a mental illness may be taken less seriously if they do divulge that they have a mental illness. It was reported that some lawyers find people with a mental illness less credible, are less inclined to believe what they say, and are more ready to dismiss their claims. Certain aspects of the physical environment of legal services were also raised as potential barriers.

These barriers indicate that people with a mental illness may need greater understanding, assistance, flexibility and time than other clients when accessing legal services. If legal service providers do not understand these issues, then the specific needs of clients with a mental illness may not be catered to, and their legal needs not met.

Service providers revealed a need for more training in identifying symptoms of mental illness, and in determining a client’s level of functionality. The need for greater awareness amongst legal service providers of how people with a mental illness experience accessing and using legal assistance was also raised. This could potentially assist legal service providers in identifying clients who have a mental illness, and in better understanding their behaviour.



Ch 5. Participation in the legal system



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:


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


Barriers to participating in the legal system


Stress
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:
Legal and policy officers interviewed for this study also argued that legal processes can be stressful for people with a mental illness:
Commenting on the experience of a mentally ill person being discriminated against at university, one solicitor argued:
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:
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:
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:
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:
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:


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:


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:
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:
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:
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
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:
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:
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:
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:
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:


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
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:


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


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:
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:
One participant provided an example of this:
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 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



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



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:
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:
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:


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:


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
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:


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
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:


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


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:
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:


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 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.



Ch 6. Non-legal support



Data for this and other studies indicate that when people have a legal problem, they tend to turn to friends or family, social workers, health workers, church-based organisations and other non-legal service providers for information and advice.2 Consultations with service providers and participants for this study indicated that this was also often true for people with a mental illness.
People with a mental illness access a number of non-legal services, ranging from mental health workers, youth and social workers, financial counsellors, church groups, tenant advocates and other housing workers, to government departments (such as the NSW Police, Centrelink, DOH, the OPG and the OPC). People with a mental illness may access non-legal services for a variety of reasons, including mental health treatment, financial assistance, housing assistance, other welfare assistance and recreation. People may approach a service voluntarily or be referred by another service provider. Others may be involuntarily taken by the police to hospital for mental health assessment where they come into contact with other service providers (such as social workers). People with a mental illness may also turn to other support networks including their carers and family and friends for assistance with their legal problems.

Consultations for this study and other studies indicate, however, that some people with a mental illness do not access non-legal assistance. This can be due to a range of reasons, including a lack of awareness of services, a lack of available services and fear of stigma.7

The type of assistance provided by non-legal service providers to a client with a mental illness, who has a legal problem, will vary according to the role of the service, their level of resources, the client’s problem and the level of support required by that particular client.8

This chapter will look at the ways in which non-legal services assist people with a mental illness with their legal problems. This chapter will also look at the barriers that people with a mental illness face in accessing non-legal assistance and the support that non-legal service providers need to assist their clients with legal issues.



The role of non-legal service providers in assisting clients with a legal problem


Consultations for this study suggest that non-legal services provide the following types of assistance to people with a mental illness:
Identifying legal issues and the provision of preliminary legal information
Consultations for this study indicate that non-legal service providers play an important role in identifying legal issues for their clients and providing their clients with preliminary information about a legal issue and the process of resolving it.10 This is important as lack of awareness of legal rights was raised as a barrier to accessing legal assistance in Chapter 4. For example, a solicitor commented that youth workers play an important role in identifying whether one of their clients may have a potential claim for victims compensation:
One participant interviewed for this study was told by a community worker that she may be eligible for victims compensation.12

Stakeholders and participants also reported that non-legal service providers can play an important role in the provision of legal information, both on an individual and group level to people with a mental illness.13 For example, a social worker commented that when a person is hospitalised they tend to have access to social workers, and that once someone is placed on a compulsory treatment order they are usually allocated a case manager from a community health centre or mental health team. These non-legal service providers can become an important source of information about the legal system.14

An example of where non-legal workers had provided legal information on a group level was given by a mental health worker from Maroubra Mental Health Centre. This person talked about how Maroubra Mental Health Centre had organised a legal education day for Aboriginal women in partnership with WLS:


Referral

It was suggested in consultations that people with a mental illness may not be aware of available legal services.16 Non-legal workers therefore play an important role in assisting clients with a legal problem by referring them to a legal service provider.17 This is supported by Genn et al. who found:
Service providers were of the opinion that if clients were in contact with non-legal services they had a better chance of finding out about legal services and being referred on.19
Two participants reported having been referred by a non-legal service provider to a lawyer:
Two non-legal services providers commented that assistance to a client may also involve referral to another non-legal service provider who can assist a person with their legal problems (such as a debt problem) or a complaint handling body:
Recognising that disadvantaged consumers are more likely to contact a “shop-front agency” (such as Legal Aid or a community organisation) to make a complaint about a consumer issue, the Australian Competition and Consumer Commission (ACCC) has produced a referral guide for both legal and non-legal community centres on how to make a complaint on behalf of a vulnerable client (which includes people with a mental illness). The referral guide, which has been distributed to over 200 agencies across Australia and is available upon request, allows an agency to refer trade practices conduct that is affecting their clients (such as debt collection or telecommunications selling practices) to the ACCC for regulation and enforcement.26

Supporting a client when they seek legal assistance

As discussed in Chapter 4, people with a mental illness face a number of barriers that may prevent them from being able to contact a legal service and make an appointment to see a lawyer. People with a mental illness may have difficulties keeping appointments or communicating, they may be overwhelmed and/or appear threatening and/or difficult, and they may be affected by the physical environment, which may contribute to feelings of ill-ease and/or agitation. This may be exacerbated by the side effects of medication, which can make a person feel sleepy and cloud their thinking.27 In addition, legal service providers may not be aware of the effects of a mental illness and/or medication on a client and, as a result, may not be aware of their particular needs.

This may mean that, for those clients who require a higher level of support, simply giving them the telephone number of a lawyer is not enough. A lawyer may need to be contacted and an appointment made on their behalf.


In addition, people with a mental illness may benefit from someone attending an appointment with them to ensure that they actually get to the appointment, and once there, assist the client in overcoming anxiety and communication problems.29 Consultations for this study suggest that this role depends on the objectives and resources of the non-legal agency (or support person), the capacity of the client and, in some respects, the relationship between the non-legal agency and the legal service provider.

A number of legal services (including CLCs, pro bono services and Legal Aid) interviewed for this study believed that legal services benefit greatly when a non-legal service provider assists a person with a mental illness to have contact with a lawyer.30 First, having a non-legal worker involved can also help to ensure that the client actually makes it to their appointments.31 In addition, non-legal services can provide legal services with information about the client’s illness, the effects of medication, their general life circumstances (including how much support they have, what other services are involved) and what their current legal issue is. This information can assist legal service providers to make important judgments about how much support the person may require to remain in the process and how best to work with that particular client. This can be particularly important in cases where a client may not divulge themselves what is going on in their lives and in particular the fact that they have an illness.32


One pro bono solicitor commented that mental health professionals can also assist legal services in determining the most appropriate ways to work with a traumatised client.
In turn, this pro bono solicitor suggested that it was important for lawyers to be aware of support networks to which they could refer clients:
Advocacy

Consultations for this study indicate that non-legal service providers also advocate on behalf of their clients with a mental illness to other services and to government departments such as Centrelink and DOH.38 The role of advocacy generally “involves the caseworker directly engaging with other service providers on the client’s behalf”.39


Consultations for this study indicate that non-legal service providers engage in advocacy in a variety of ways and to varying degrees depending on the complexity of the issue, the role of the service, the resources available to the service, the needs of the client and the individual worker’s background and experience. Advocacy undertaken by non-legal services ranged from calling Centrelink to sort out a payment problem, trying to negotiate with DOH, to advocating on behalf of a client to the police:
One participant made the following comment about the assistance provided by caseworkers to people with a mental illness to support them in sorting out their debt problems:
Another mental health worker discussed the ways in which she had assisted a client who had had their child removed by DoCS:
In some specific cases, non-legal services will advocate on behalf of a mentally ill client at tribunal hearings. Caseworkers from the OPC and specialist tenancy workers will advocate on behalf of their clients with a landlord or real estate agent or appear on their behalf at the CTTT if the person is facing eviction.46 In cases of discrimination, the OPC may take a complaint to HREOC, or attempt to resolve it directly with the “perpetrator”.47

One mental health worker commented that she would also advocate on behalf of a client before the Mental Health Review Tribunal (MHRT) to keep them out of hospital:


A number of service providers reported that due to the presence of an advocate, the client had a more successful outcome.49 For example:
Education, training and awareness raising about mental illness

A couple of non-legal service providers reported conducting general community education about mental illness with community members, the courts and legal services. For example, a consumer advocate participated in an education forum with the local court to inform court staff and magistrates about the effects of mental illness and medication on the ability of a person with a mental illness to participate effectively in the court process.


In order to help combat and, indeed, prevent licensed boarding house residents from accruing debt with local shop keepers, one community worker spoke to local shop keepers to educate them about the effects of extending credit to some of the people in the area with mental illnesses.


Challenges facing non-legal service providers


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

Lack of legal knowledge and knowledge of referral networks

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


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

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

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


Similarly, a Scottish study found that non-legal agencies are not always able to identify that a client has a legal issue and may not know when to refer a client to a solicitor:
Consultations for this study indicated that a non-legal service provider’s knowledge of available legal services is also an important factor in how well the referral role works.60 Roundtable attendees were of the opinion that non-legal service providers have varying levels of awareness about legal services they could refer their clients to.61 One solicitor suggested that a greater awareness of referral networks to specialist legal centres and financial counsellors would assist non-legal service providers in finding appropriate assistance for their clients.
The same CLC solicitor felt that community workers may not contact a legal service provider on behalf of a client because they are intimidated by solicitors.
Lack of resourcing of non-legal agencies
Service providers reported that non-legal agencies are not always adequately funded to provide the level of assistance required by people with a mental illness. In particular, mental health services, which provide a great deal of assistance to people with a mental illness, face a general lack of resources across all sections of mental health service provision, including preventative services, outpatient services, emergency care, rehabilitation services and specialist services for people with dual diagnosis.65 This is supported by the literature and by submissions to the current Senate inquiry into mental health care in Australia.66 There is also evidence that other non-legal agencies that provide services to people with a mental illness are under-funded.67

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

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


It was suggested that a lack of resources may also mean that services are unable to provide a client with support in actually getting to and from a legal service.69 As discussed in Chapter 4, actually getting to a legal service can be a serious problem for people with a mental illness. Two CLC solicitors also reported that, in their experience, it was not very common for a non-legal service provider to stay involved with a client once they had accessed a legal service.70
Two legal service providers commented that if mental health and community services are under resourced they may not be able to act as advocates on behalf of a client.72

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

People not accessing services


It is also evident that people with a mental illness may not be accessing non-legal services, particularly mental health services for a number of reasons. A CLC worker from WLS commented that people with a mental illness may not be accessing mental health services because of the stigma of being identified as mentally ill. This is supported by the recent work of Kamieniecki, Cullen and Szirom.75 A study into the barriers young people with dual diagnosis (mental illness and drug and alcohol issues) face in accessing mental health services found that stigma was a particular issue for young people and acted as a barrier to them accessing services:
A legal service provider consulted for this study commented:
A few service providers indicated that clients with a mental illness from a NESB don’t tend to access mental health services because of language difficulties, lack of awareness of services and cultural factors relating to stigma.78 This is supported by both the Burdekin Report and the more recent Not for Service report.79

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


Conflict of interest

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

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

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


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


Supporting non-legal agencies



Stakeholders made a couple of suggestions to improve the ability of non-legal service providers to provide support to clients with a mental illness who have a legal problem. A few non-legal service providers commented that if they were going to help their clients with legal problems, then they needed to be able to access legal information and advice.90 A couple of non-legal service providers commented that they would like access to a centralised call centre that provides legal information and advice:91
Two non-legal service providers and one roundtable attendee suggested that it would be useful to be able to access a service that could provide information about legal referral networks so that they can better support their clients who have legal problems.93

Several stakeholders also stressed the importance of building relationships between non-legal and legal service providers.94 Such a relationship may mean that non-legal services are more comfortable calling a legal service to ask about potential legal issues. For example, Maroubra Mental Health Centre and Shopfront work together to assist disadvantaged young people. The availability of a service like Shopfront allows social workers and counsellors from Maroubra to have access to information about legal issues and the legal process. It also allows Shopfront solicitors to benefit from support provided by Maroubra Mental Health Centre to the client, through the legal process.


As part of their commitment to community legal education and as a way of raising their profile in the local community, both Marrickville and Kingsford Legal Centres run a program of legal workshops for community workers. Subjects covered include victim’s compensation, legal problem-solving and referral, social security, anti-discrimination laws, tenancy, powers of attorney and enduring guardianships, family law/domestic violence and employment. These workshops are in recognition of the need for relationship building between legal and non-legal service providers and of the latter’s need for legal education in order to better assist their clients with their legal problems.96


Summary


Consultations for this and other studies indicate that people with a mental illness are likely to be in contact with a range of non-legal service providers for a variety of reasons, including mental health treatment, financial assistance, housing assistance, other welfare assistance and recreation. Consultations for this study also indicate that non-legal services are often the first point of call for disadvantaged people when they have a legal problem and that non-legal service providers often assist their clients with their legal problems and can be important pathways to legal services.

Non-legal services may support clients with a mental illness who have legal issues, first by assisting them to identify that they have a legal problem and by providing them with legal information. They may refer clients to solicitors and accompany them to appointments with solicitors. Non-legal services can assist legal service providers by communicating the client’s situation, including the client’s illness, the effects of medication, their general life circumstances (including how much support they have) and what their current legal issue is. Non-legal service providers may provide support to people through the legal process and also advocate on a client’s behalf to government departments such as Centrelink and DOH and in some cases, before tribunals.

This assistance can be very important in helping clients to overcome the barriers to accessing legal assistance that were raised in Chapter 4. However, consultations for this study suggest that non-legal workers may not always possess the legal knowledge and knowledge of legal assistance required in order to give a client information about a legal issue or refer them onto a lawyer. A few non-legal service providers suggested that it would be useful to be able to access legal advice and information as issues arise. Legal and non-legal service providers also suggested that relationships between non-legal and legal agencies could be further developed to improve gaps in knowledge.

Furthermore, non-legal agencies may not be equipped in terms of resources and availability of staff. The reported crisis in mental health care and constraints on resources may mean that non-legal agencies are not always able to provide support to clients with a mental illness who have a legal problem, or if they can it may need to be of a more limited nature (e.g. a referral to a legal service rather than accompanying the client to the appointment).

In addition, for a number of reasons, some people with a mental illness may not be accessing non-legal services. Again, lack of services as a result of the reported crisis in mental health care, lack of resources, lack of awareness of services and the stigma associated with having a mental illness may be preventing people with a mental illness from accessing non-legal services and agencies. This suggests that some people with a mental illness may be isolated from both legal assistance and non-legal assistance. This creates a major barrier to accessing justice for this group of particularly marginalised people, who could benefit greatly from some form of assistance with their legal problems.



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:


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.


References




Appendices


Appendix 1: Agencies

Legal


Non-legal
Courts and tribunals
Government
Academics

Appendix 2: Legal Service Questions

General

1. Can you tell us briefly about your role?

2. Who do your clients tend to be? (specific type of mental illness, specific demographics)

Legal needs

3. From your experience, what are the legal issues facing people with a mental illness? (e.g. criminal law issues, family law issues, credit and debt, social security law issues, housing-related issues)

4. Are there any particular issues facing people with a mental illness from particular demographics (e.g. rural/regional, indigenous, women, culturally and linguistically diverse)

5. Are there any particular issues facing people with particular mental illnesses (e.g. schizophrenia vs. depression vs. substance abuse disorders) that you are aware of?

Legal services

6. What barriers do people with a mental illness face in accessing legal information?

7. What barriers do people with a mental illness face in accessing legal services?

8. What gaps (if any) are there in relation to the general provision of legal services to people with a mental illness?

9. What support do you need to better assist your clients with a mental illness?

10. In your experience, what are some of the more effective initiatives that have been implemented in delivering legal services to people with a mental illness?

11. Do you have any other suggestions or comments concerning appropriate models for providing legal services to people with a mental illness?

Participation in the legal process

12. In your experience, what are some of the barriers facing people with a mental illness in accessing and participating in the legal process?

13. What features exist within the courtroom setting that operate to present barriers to people with a mental illness?

14. What are the barriers facing people with a mental illness in accessing and participating in alternative dispute resolution?

15. What barriers do people with a mental illness face in accessing and participating in complaints mechanisms processes (e.g. through Centrelink, Department of Housing)

16. Are you aware of any initiatives that have been put in place to overcome these barriers to participation in the legal process?

17. Could you make any suggestions on ways to improve participation for people with a mental illness in the legal process?

18. Can you think of any examples where access to justice has been improved for people with a mental illness?

Data

19. Do you have any particular case studies that highlight some of the issues we have discussed here today?

20. Do you have any data (such as statistics, annual reports, other reports) that would be relevant to our project?

Is there anything that we have discussed today that you would not like quoted or used in our report?

Appendix 3: Non-legal Questions

Background information

1. Can you briefly tell us about the services that your organisation provides to people with a mental illness?

2. Can you briefly tell us about your role?

3. Who do your clients tend to be? (specific type of mental illness, specific demographics)

Legal needs

4. What are the legal issues facing people with a mental illness (e.g. criminal law issues, family law issues, credit and debt, social security law issues, housing-related issues)?

5. What barriers do people with a mental illness face in obtaining legal information?

6. What barriers do people with a mental illness face in obtaining legal advice?

7. What barriers do people with a mental illness face in accessing legal representation?

8. What are the gaps in legal service provision to people with a mental illness?

9. Do you have a role in assisting your clients with obtaining legal information and advice?

10. If so, what do you need to better support your clients in accessing advice and information?

Participation in the legal process

11. What barriers do people with a mental illness face in going to court?

12. What barriers do people with a mental illness face in going to tribunals (e.g. the Mental Health Review Tribunal or the Consumer, Trader and Tenancy Tribunal)?

13. What barriers do people with a mental illness face in accessing and participating in internal complaints mechanisms processes (e.g. through Centrelink, Department of Housing)?

14. What barriers do people with a mental illness face in accessing and participating in alternative dispute resolution mechanisms (e.g. mediation)?

15. Do you have a role in assisting clients in preparing for and participating at court, tribunals or mediation?

16. If so, what do you need to better support your clients?

17. Are you aware of any initiatives that have been put in place to overcome barriers to participation in the legal process?

18. Could you make any suggestions on ways to improve participation for people with a mental illness in the legal process?

Data

19. Do you have any particular case studies that highlight some of the issues we have discussed here today?

20. Do you have any data (e.g. statistics, annual reports, and other reports) that would be relevant to our project?

Is there anything that we have discussed today that you would not like quoted or used in our report?

Appendix 4: Interview Schedule

Introduction

Hi, thanks for agreeing to chat with me. I really appreciate your time.

I’m .......................What is your name?

I work at a place called the Law and Justice Foundation. This is an independent organisation that is doing research about peoples’ access to legal information and legal services.

Go to participant information and consent form.

This must be signed by both the interviewer and participant before continuing …

1. So thinking about life recently, has there been a particular legal problem or issue you have had to deal with?

2. So when … happened, what did you do?

If nothing/nowhere—go to Q. 5

3. Did you seek help regarding this problem?

4. If yes, who did you seek help from?

5. If did nothing/nowhere—why was that? (prompt for other reasons)

6. Has the problem been sorted/resolved? How?

7. Has there been any other major issue you have faced recently—perhaps where you think a lawyer may have been able to help you out? (if yes, 1–6 again)

8. If there was a legal issue—did you end up getting any advice from a lawyer on this issue? If no, why was that?

9. If no legal problem mentioned—If you did have a legal problem, where do you think you might go for help?

If the issue has been addressed above—skip any repetitive questions below.

I would like to ask you about other aspects of your life at the moment, starting with housing and accommodation issues.

Housing

10. What types of places have you lived in the last three months?

11. Have you had any problems staying in your accommodation in the last three months? (e.g. rent increases, eviction, disputes with the landlord, disputes with other tenants or neighbours)

If there was a problem—

12. a. What happened?

b. What did you do about it/where did you go?

c. If something—did they/that help?

d. Was it sorted/is it still an issue for you?

e. If nothing—why is it still a problem?

13. If you did have a problem with housing, where would you go for help with that?

Employment and income

14. What has been your major source of income in the last three months?

Work (type?)

Benefits/payments (type?)

Other

15. If employment—Have you had any problems with your employment recently?

16. If ceased work recently—what happened there?

17. If benefits—Have you had any problems with your government benefit recently? (e.g. eligibility, calculation of benefit level, breaches, review on change of circumstances, allegation of fraud)

If no government benefit is mentioned—have you applied for any benefits in the last three months?

18. If you did have a problem with your pension/at work, where could you go for help?

19. If no other income—why not?

Education

20. Are you currently studying?

21. Have you had any problems relating to your study? (e.g. unfair exclusion or suspension, bullying or harassment)

Credit and debt

22. Have you had any financial problems recently? (e.g. debt, mobile phones, bills, banks, credit cards, someone owing money to you, insurance, unfair contracts, money owed to you)

If there was a problem—

23. a. What happened?

b. What did you do about it/where did you go?

c. If nothing, why was that?

d. If something, did they/that help?

e. Was it sorted/is it still an issue for you?

f. If you did have a legal problem with a debt, where could you go for help?

Family

24. Have you been married/defacto?

25. Do you have kids?

If never married/de facto and no kids, go to Q. 28

26. Have you had legal problems related to your family—divorce, custody, problem with paying or receiving child support?

If there was a problem—

27. a. What happened?

b. What did you do about it?

c. If nothing, why was that?

d. If something, did they/that help?

e. Was it sorted/is it still an issue for you?

Before I move on, I just want to remind you that this is confidential and we will not be identifying any one in the report.

Victim of crime

28. Have you been the victim of a crime recently? (e.g. assault, robbery, stealing?)

If yes to assault—

29. Was that by:

a. A family member

b. Someone else you know

c. Another person

d. Don’t know

30. Did you report that to the police?

31. What happened then?

32. If not reported, why not?

Discrimination

33. Do you feel that you have been unfairly treated by somebody recently? (e.g. at work, school/university, accommodation, in a public place).

Police

34. Have you had any contact with the police in the last three months?

35. If yes, what type of contact have you had with the police?

a. Reported a crime

b. Been asked to “move on” by police

c. Charged with a criminal offence

d. Been taken somewhere by the police

36. Have you had particular problems with police or the law?

a. A problem about unfair treatment by the police, e.g. harassment, assault, false imprisonment, wrongful arrest, malicious prosecution, searches

b. A problem with bail or remand

c. Police failing to respond or investigate a crime

d. Police not identifying/catching/arresting someone who committed a crime against you.

If a problem—

37. a. What happened?

b. What did you do about it?

c. If nothing, why was that?

d. If something, did they/that help?

e. Was it sorted/is it still an issue for you?

38. If you did have a problem with the law or police, who would you go to for help?

39. Have you had any fines—say for fare evasion or littering—in the last three months?

Your health

40. Have you had any injuries or accidents in the last 12 months? (e.g. an injury caused by a car accident; a work-related injury; an injury caused by something else occurring outside the home, e.g. a problem with medical treatment, accident in shopping mall or other public place)

If an injury—

41. a. What happened?

c. If nothing, why was that?

d. If something, did they/that help?

e. Was it sorted/is it still an issue for you?

42. In the last 12 months, have you had any of the following problems:

a. Involuntary hospitalisation

b. Other problems with mental health care

43. Are you Aboriginal or a Torres Strait Islander?

44. Record ethnicity

45. Record gender

46. Record age

25 or less

Over 25

Record any communication issues

47. Nature/type of mental illness experienced (only ask if not clear)

That is all I wanted to ask you. Are there any other particular legal issues that we may have missed?

Thanks very much for talking with me about your experiences.

Appendix 5: Participant Contacts

Mentally ill participants were contacted through the following services:



Appendix 6: Consent Form

Access to Justice and Legal Needs Research Program
Participant Information and Consent Form

The Law and Justice Foundation is undertaking a major research program to examine the legal needs of people in NSW. The Foundation is exploring where people go for help and how to make it easier for people to get legal information and legal services when they need it. We are collecting this information to inform service providers and policy makers about the types of legal problems faced by different people in NSW and to discuss ways to improve the access people have to legal information and legal services. I will not be recording your name on any copy of your interview. All the information you provide will be held securely and confidentially, within the law. If you want us to stop asking questions at any stage or if you want a break, that is not a problem. Please just say so and we will stop. If you decide during the interview that you do not want us to use anything you say in our report, please tell us and we will not use it.


1. Do you have any questions about the research or this interview?

YES/NO

2. Are you happy to talk with us for this research?

YES/NO

3. May I tape record our chat, so I am not writing things down while we are talking? I will erase the tape as soon as I have written up the interview.

YES/NO

Signed:

Date:

If you have any concerns about the way this interview was conducted, please contact the LJF Principal Researcher Dr Christine Coumarelos, Ph: 9221 3900.

Appendix 7: Service Definitions

Plain language legal information

Plain language legal information is generic material written about legal issues that people might face. It is available in the form of pamphlets, comic books, by telephone or on the internet. It may be distributed directly to clients or passed on orally through support workers. Plain language legal information provides ‘jargon free’ information about specific laws, legal problems or legal processes, or about where to get legal advice or representation.

Legal advice

Legal advice involves the application of legal information to the individual circumstances a person is facing. Legal advice can be given face-to-face, by telephone or, in some cases, by email. An example of legal advice is when a community legal centre lawyer tells a client what her options are after she has received a letter of demand to pay a debt.

Initial legal assistance

Initial legal assistance is when a lawyer advocates or negotiates a matter for a client, without having to lodge formal court proceedings or commence litigation. An example of legal assistance is when a solicitor writes a letter on the client’s behalf in response to a demand to pay a debt. The vast majority of legal problems are resolved either through direct negotiations or correspondence from a legal professional to the other party.

Legal representation

Legal representation covers services provided by legal professionals that go beyond initial legal advice. These services may include drafting documents (e.g. wills, contracts) and representing a person in a legal matter (e.g. negotiating child residency and contact agreements). Legal representation also includes preparing documents for court appearances (e.g. statements of claim, affidavits), and representing people in court and tribunal processes.

Appendix 8: Legal Services in NSW

These are some of the key services providing free assistance to people with legal problems. There are also a range of specialist services such as the Tenants’ Union for people with tenancy issues and the Welfare Rights Centre for people with social security issues. If you need help in finding an appropriate service, contact LawAccess NSW on 1300 888 529.

Law Access NSW

What: legal information, advice and referral

Who: information and referral is available to anyone. Priority for legal advice is given to clients with urgent inquiries, with disabilities, from non-English speaking backgrounds or from rural and regional areas.

Where: via a central call centre and the internet

Website: http://www.lawaccess.nsw.gov.au

Legal Aid Commission of NSW

What: legal advice and minor assistance in all areas of law, legal representation and dispute resolution

Who: free legal advice and minor assistance is available to anyone and is usually limited to 15 minutes: more complex assistance and representation in court is means-tested. Many people have to pay a contribution for legal representation.

Where: head office and 19 regional offices around NSW

Website: http://www.legalaid.nsw.gov.au

Legal Aid NSW Duty Solicitor Service

What: a free legal service available in criminal courts on list days for matters where a possible penalty could include a jail sentence (or the equivalent of). Means-tested (except if someone is applying for bail). Some courts which hear family matters also have a duty solicitor service as do the Children’s Courts.

Who: legal advice and representation

Website: http://www.legalaid.nsw.gov.au

Community legal centres

What: legal information, referral, advice and limited representation. Community legal centres have a particular focus on civil law. Centres vary in the areas of law they cover.

Who: anyone is able to use the service, and services are not means-tested, but there is a focus on providing services to disadvantaged sectors of the community. Representation is usually limited to those matters that are determined to be in the public interest.

Where: there are 19 generalist community legal centres around NSW and more than 11 specialist community legal centres.

Website: http://www.naclc.org.au/centres.html

Chamber registrar service

What: basic legal information and referral. Provides guidance on Local Court procedures and with the drafting of simple documents used in the Local Court.

Does not represent clients in court, determine cases or draft documents of a complex legal nature or documents for use in other tribunals or courts.

Who: anybody is able to use the service

Where: all local courts across NSW

Website: http://www.lawlink.nsw.gov.au/lawlink/local_courts/ll_localcourts.nsf/pages/lc_newwebsitecr

Mental Health Advocacy Service, Legal Aid NSW

What: the primary role of this service is to provide representation at Mental Health Act hearings. The two main legal issues the service deals with are compulsory hospitalisation and Compulsory Treatment Orders. Once someone is hospitalised the Mental Health Advocacy Service provides advice on appeals, rights regarding medication and treatment, financial affairs, the Mental Health Review Tribunal, Guardianship Community Treatment Orders and Community Counselling Orders.

Where: Burwood office NSW or via phone statewide.

Pro bono services

Pro bono legal services are provided by private solicitors, legal firms and barristers free or at a reduced fee to clients. Services may offer legal advice, court representation, and other legal work, including drafting documents. Services may also conduct community legal education and provide legal assistance to non-profit organisations. Pro bono services may be provided on a relatively ad hoc basis by individual lawyers or law firms, or in a more coordinated way through the Law Society Pro Bono Scheme.

Aboriginal Legal Services NSW

What: there are six regional Aboriginal Legal Services in NSW. Their role is to provide legal assistance, advocacy and representation to Aboriginal people in the areas of criminal, civil and family law. Some of the services have a larger role involving broader social advocacy for the rights of Aboriginal Australians.



Acknowledgements


The authors of this report are Maria Karras, Emily McCarron, Abigail Gray and Sam Ardasinski of the Law and Justice Foundation of New South Wales (the Foundation).

The authors acknowledge the assistance of the staff of the Foundation in the production of this report: Jenny Kaldor for her assistance in compiling the report; Geoff Mulherin, Christine Coumarelos and Suzie Forell for their reviewing of the final text; and Simon Miller for the production of this report. We would also like to thank Misia Temler, Lisa Bernstein and Emma Barrett, students from the UNSW Forensic Psychology Masters Program who worked as interns on this project; their assistance with literature searching and arranging and conducting consultations is appreciated.

The Foundation is also grateful to Terry Carney, Phillip French and Rogelia Pe-Pua for reviewing this report pre-publication.

Finally, the authors especially wish to thank all the people and agencies who contributed their time and insights to the current study. Each has made a significant contribution to this report. We particularly appreciate the willingness of the 30 people with a mental illness who spoke with us about their legal issues and experiences of the legal system.



Access to justice and legal needs research program: Terms of reference


Program aim

To identify the particular legal and access to justice needs of economically and socially disadvantaged people in NSW.

Program objectives

The program examines the ability of disadvantaged people to:


The program involves both qualitative and quantitative investigations into:
Program components


Publishing details


ISSN 1832-2670

This report is part of the Access to Justice and Legal Needs monograph series published by the Law and Justice Foundation of New South Wales. The Foundation seeks to advance the fairness and equity of the justice system, and to improve access to justice, especially for socially and economically disadvantaged people.

The series is aimed at researchers, policy-makers, government, the legal community and others interested in legal need and access to law and justice. It is a scholarly, refereed series. Monographs are refereed by at least two appropriate external referees who are independent of the Foundation and any other organisations/authors involved in the publication.

Managing Editor: Geoff Mulherin

© Law and Justice Foundation of New South Wales, May 2006

This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Foundation.

Any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Foundation’s Board of Governors.

National Library of Australia Cataloguing-in-Publication data:

Karras, Maria.
On the edge of justice : the legal needs of people with a mental illness in NSW.
Bibliography
ISBN 0 909136 90 4 (pbk).

1. Legal assistance to people with mental disabilities - New South Wales.
I. Karras, Maria. II. Law and Justice Foundation of New South Wales.
(Series : Access to justice and legal needs ; vol. 4).

346.9440138

Law and Justice Foundation of New South Wales
Level 14, 130 Pitt Street
Sydney NSW 2000
GPO Box 4264, Sydney NSW 2001
Phone: +61 2 8227 3200
Fax: +61 2 9221 6280
TTY: +61 2 9223 4229
Email: publications@lawfoundation.net.au
<http://www.lawfoundation.net.au>

Cover photo: Catriona Stanton, Coiled Track (detail), 2006, courtesy of the artist.



Executive Summary
1  The Access to Justice and Legal Needs Program is described in the preface to this report.
2  World Health Organisation, ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines, World Health Organisation, Geneva, 1992, p. 5.
3  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.
4  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.
5  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.
6  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.
7  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.
8  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).
9  See Chapter 5 for an explanation and discussion of the therapeutic jurisprudence-based approach.

Foreword

Shortened forms

Ch 1. Introduction
1  The Access to Justice and Legal Needs Program is described in the foreword to this report.
2  Law and Justice Foundation of NSW, Access to Justice and Legal Needs Program, Background Paper, 2002, <http://www.lawfoundation.net.au/access/background.html> (accessed July 2005).
3  B Wilson, Legal Straitjackets: When Reason Fails: Law and Mental Illness, in H Selby (ed.), Tomorrows Law, Federation Press, Sydney, 1995, pp. 295316 at p. 312.
4  Australian Health Ministers, National Mental Health Plan 20032008, Australian Government, Canberra, 2003, p. 5.
5  K Freeman, Mental Health and the Criminal Justice System, Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, no. 38, 1998, p. 8.
6  Mental Health Act 1990 (NSW), sch. 1.
7  Mental Health Act 1990 (NSW), s. 9.
8  Freeman, Mental Health and the Criminal Justice System, p. 8. According to Carney, conditions such as addictions and co-morbidities have always taxed the law and service systems, and the lack of coordination in many jurisdictions fails both people with a mental illness and the community. While the NSW model in regards to such complex needs clients is broader and well grounded ethically in comparison to many others, there remains a need for greater linkages and accountability as between service providers, perhaps through a legislative regime like Victorias Human Services (Complex Needs) Act 2003. See T Carney, Complex Needs at the Boundaries of Mental Health, Justice and Welfare: Gatekeeping Issues in Managing Chronic Alcoholism Treatment?, in Current Issues in Criminal Justice, (in press), 2006.
9  World Health Organisation, ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines, World Health Organisation, Geneva, 1992, p. 5.
10  American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR, 4th edn, American Psychiatric Association, Washington, DC, 2000.
11  Australian Bureau of Statistics (ABS), National Health Survey: Summary of Results, cat. no. 4364.0, Canberra, 2001.
12  Australian Health Ministers, National Mental Health Plan 20032008.
13  Department of Health and Aged Care (now the Department of Health and Ageing), National Action Plan for Promotion, Prevention and Early Intervention for Mental Health, Mental Health and Special Programs Branch, Commonwealth Department of Health and Aged Care, Canberra, 2000.
14  M Oliver, Understanding DisabilityFrom Theory to Practice, MacMillan Press, London, 1996, p. 32.
15  M Oliver and C Barnes, Disabled People and Social PolicyFrom Exclusion to Inclusion, Addison Wesley Longman, New York, 1998, p. 17.
16  Disability Council of NSW (Disability Council), A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System, Disability Council, Sydney, 2003, p. 19.
17  For a comprehensive overview of this shift in policy imperatives see T Carney, Disability and Social Security: Compatible or Not?, in Australian Journal of Human Rights, vol. 9, no. 2, 2003, pp. 139172.
18  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.
19  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.
20  World Health Organisation, ICD-10, p. 5.
21  Oliver, Understanding Disability.
22  Due to the limited data specifically available on NSW, this section will include national data. Where NSW data is available, Australian data will be reported alongside this to alert the reader to any noteworthy consistencies or differences.
23  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.
24  M G Sawyer, F M Arney, P A Baghurst, Mental Health of Young People in Australia: Child and Adolescent Component of the National Survey of Mental Health and Well-being, Mental Health and Special Programs Branch, Commonwealth Department of Health and Aged Care, Canberra, 2000.
25  Jablensky et al., People Living with Psychotic Illness.
26  ABS, Mental Health and Wellbeing: Profile of Adults: New South Wales 1997 (Profile of Adults: NSW), cat. no. 4326.1.40.001, Canberra, 1998.
27  ABS, Profile of Adults: NSW.
28  Australian Institute of Health and Welfare (AIHW), Australias Health 2004: The Ninth Biennial Health Report of the Australian Institute of Health and Welfare, AIHW cat. no. AUS 44, Canberra, 2004.
29  ABS, National Health Survey: Summary of Results.
30  Andrews et al., The Mental Health of Australians.
31  Disability Council, A Question of Justice, p. 28, 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, p. 13.
32  Andrews et al., The Mental Health of Australians.
33  ABS, Profile of Adults: NSW, Andrews et al., The Mental Health of Australians.
34  Jablensky et al., People Living with Psychotic Illness.
35  Jablensky et al., People Living with Psychotic Illness, p. 88.
36  Jablensky et al., People Living with Psychotic Illness, p. 12.
37  See American Psychiatric Association, DSM-IV-TR.
38  Jablensky et al., People Living with Psychotic Illness, p. xv.
39  Dual diagnosis is a primary diagnosis of a psychotic disorder and a co-morbid diagnosis of a disorder due to substance use. See Jablensky et al., People Living with Psychotic Illness, p. 3.
40  Jablensky et al., People Living with Psychotic Illness, p. xvi.
41  AIHW, Australias Health 2002: The Eighth Biennial Health Report, AIHW cat. no. AUS 25, Canberra, 2002, p. 62.
42  Andrews et al., The Mental Health of Australians, p. 37.
43  The Kessler Psychological Distress Scale-10 (K10) is a 10-item scale of current psychological distress. The K10 records the negative emotional states in the four weeks prior to interview. The results from the K10 are grouped into four categories: low (indicating little or no psychological distress), moderate, high, and very high levels of psychological distress (which may indicate a need for professional help). See ABS, National Health Survey: Summary of Results.
44  Sawyer et al., Mental Health of Young People in Australia.
45  Andrews et al., The Mental Health of Australians, p. 15.
46  ABS, Profile of Adults: NSW.
47  ABS, Mental Health and Wellbeing: Profile of Adults, Australia 1997 (Profile of Adults, Australia), cat. no. 4326.0, Canberra, 1998.
48  ABS, Profile of Adults, Australia.
49  See also M Teesson & L Byrnes, National Comorbidity Project, National Drug and Alcohol Research Centre, Sydney, 2001, p. 8, NSW Health, The Management of People with a Co-existing Mental Health and Substance Use DisorderDiscussion Paper, State Health Publication No. (CMH) 000050, NSW Department of Health, Sydney, 2000, p. 6.
50  Andrews et al., The Mental Health of Australians.
51  ABS, Profile of Adults: NSW.
52  Andrews et al., The Mental Health of Australians.
53  ABS, Profile of Adults: NSW.
54  Disability Council, A Question of Justice, p. 77.
55  ABS, Profile of Adults: NSW, p. 6.
56  Andrews et al., The Mental Health of Australians.
57  ABS, Profile of Adults: NSW, p. 7.
58  HREOC, Human Rights and Mental Illness, p. 730.
59  Andrews et al., The Mental Health of Australians.
60  Jablensky et al., People Living with Psychotic Illness.
61  South Australian government submission, cited in HREOC, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997.
62  HREOC, Human Rights and Mental Illness, at pp. 69395.
63  HREOC, Human Rights and Mental Illness, at p. 698ff.
64  AIHW, Mental Health Services in Australia 20022003, Mental Health Series No. 6, AIHW, HSE 35, Canberra, 2005.
65  Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients.
66  The sections above on demographics and high prevalence disorders outlined the rate of high prevalence disorders experienced by different demographic groups. Given the much lower prevalence of psychotic disorders, this section will instead present the demographic characteristics of those who have psychotic disorders.
67  Jablensky et al., People Living with Psychotic Illness, p. 91.
68  Jablensky et al., People Living with Psychotic Illness, p. 91.
69  HREOC, Human Rights and Mental Illness, Jablensky et al., People Living with Psychotic Illness, NSW Parliament Legislative Council Select Committee on Mental Health (Select Committee on Mental Health), Mental Health Services in NSW: Final Report, Parliamentary Paper No. 368, NSW Parliament, Sydney, 2002.
70  C Coumarelos, Z Wei & A Zhou, Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas, Law and Justice Foundation of NSW, Sydney, 2006.
71  Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients, HREOC, Human Rights and Mental Illness, Jablensky et al., People Living with Psychotic Illness, 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, Select Committee on Mental Health, Mental Health Services in NSW: Final Report.
72  The term crisis in mental heath care has been used in this report, given the weight of evidence provided, and the use of this and similar terms in the key reports that will be highlighted in this section. For example, the Select Committee on Mental Health, in Mental Health Services in NSW: Final Report, refers to endemic problems in the provision of mental heath services (p. 15). The MHCA, in Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia, MHCA, Canberra, 2005, refers to the crumbling mental health care system (p. iii). See also HREOC, Human Rights and Mental Illness, as well as G Andrews, The Crisis in Mental Health: The Chariot Needs One Horseman, The Medical Journal of Australia, vol. 182, no. 8, 2005, pp. 37273.
73  The inquiry into mental health services and resources headed by David Richmond was set up in August 1982. Its findings were contained in the Richmond Report, released in 1983. The report is primarily known for beginning the process of deinstitutionalisation, or the shift away from psychiatric hospitals and towards community-based care. The chief recommendations contained in the report concerned decreasing the size and number of psychiatric hospitals, expanding integrated community networks, separating developmental disability services from mental health services, and making changes to funding arrangements.
74  Select Committee on Mental Health, Mental Health Services in NSW: Final Report.
75  For example, see NSW Health, Planning Better Health, NSW Department of Health, July 2004, <http://www.health.nsw.gov.au/pbh/overview> (accessed March 2006), NSW Health, NSW Government Response to the Select Committee Inquiry into Mental Health Services in NSW, NSW Department of Health, 2003, <http://www.health.nsw.gov.au/pubs/g/pdf/inquiry_mhs.pdf> (accessed February 2006), Mental Health Co-ordinating Council, Submission to the Senate Community Affairs Committee Inquiry into Aged Care, 2004, <http://www.aph.gov.au/Senate/committee/clac_ctte/aged_care04/submissions/sub75.pdf> (accessed February 2006).
76  A Morris, K Muir, A Dadich, D Abello & M Bleasdale, Housing and Accommodation Support Initiative: Report 1, Social Policy Research Centre, Sydney, 2005.
77  Not for Service. See also MHCA, Submission to the Senate Select Committee on Mental Health.
78  See Executive Summary, MHCA, Not for Service.
79  Not for Service, p. 14.
80  Not for Service, pp. 14 and 239.
81  Not for Service, p. 15.
82  Not for Service, p. 15.
83  Not for Service, p. 62.
84  G Groom, I Hickie & T Davenport, Out of Hospital, Out of Mind! A Report Detailing Mental Health Services in Australia in 2002 and Community Priorities for National Mental Health Policy for 20032008, MHCA, Canberra, 2003.
85  Groom et al., Out of Hospital, Out of Mind!, p. 1.
86  Groom et al., Out of Hospital, Out of Mind!, p. 1.
87  HREOC, Human Rights and Mental Illness, p. 338.
88  Department of Family and Community Services, Commonwealth State Housing Agreement, <www.facs.gov.au/internet/facsinternet.nsf/AboutFaCS/programs/house-csha.htm> (accessed February 2006).
89  Tenants Union of NSW, Secure, Affordable Housing for All, <www.tenants.org.au/about/about_projects.html> (accessed February 2006).
90  NSW Health, Framework for Housing and Accommodation Support for People with Mental Health Problems and Disorders, NSW Department of Health, Sydney, 2002, pp. 132 at p. 3.
91  NSW Health, Framework for Housing and Accommodation Support for People with Mental Health Problems and Disorders, p. 6.
92  M Powall & G Withers, National Summit on Housing Affordability: Resource Paper, National Summit on Housing Affordability, Canberra, 2004, p. 30.
93  Powall & Withers, National Summit on Housing Affordability, p. 29.
94  Powall & Withers, National Summit on Housing Affordability, pp. 2930.
95  HREOC, Human Rights and Mental Illness.
96  For example, from 246 800 to 177 400 between 1986 and 1996. See Powall & Withers, National Summit on Housing Affordability, p. 31. See also Tenants Union of NSW, Secure, Affordable Housing for All.
97  HREOC, Human Rights and Mental Illness, p. 346.
98  Department of Family and Community Services, Commonwealth State/Territory Disability Agreement 20022007, <http://www.facs.gov.au/internet/facsinternet.nsf/disabilities/policy-cstda.htm#1> (accessed August 2005) (the past as well as the current agreements are found at this site).
99  For a detailed overview of progress in the treatment and care of forensic patients in Australian jurisdictions since the Burdekin Report, see D Chappell, Protecting the Human Rights of the Mentally Ill: Contemporary Challenges for the Australian Criminal Justice System, in Psychiatry, Psychology and Law, vol. 11, no. 1, 2004, pp. 1322, also D Chappell & T Boyd-Caine, The Forensic Patient Population in New South Wales, in Current Issues in Criminal Justice, vol. 17, no. 1, July 2005, pp. 527.
100  H Watchirs & G Heesom, Report on a Rights Analysis Instrument for Use in Evaluating Mental Health Legislation, Human Rights Branch, Attorney-Generals Department, Canberra, 1996.
101  See in particular N Rees, International Human Rights Obligations and Mental Health Review Tribunals, in Psychiatry, Psychology and Law, vol. 10, no. 1, 2003, pp. 3343, and T Carney, Mental Health Law in Postmodern Society: Time for New Paradigms?, in Psychiatry, Psychology and Law, vol. 10, no. 1, 2003, pp. 1232.
102  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau.
103  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 6.
104  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 173.
105  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 189.
106  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p 120.
107  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 53.
108  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, pp. 119120.
109  T Butler & S Allnutt, Mental Illness among New South Wales Prisoners, NSW Corrections Health Service, Sydney, 2003.
110  HREOC, Human Rights and Mental Illness, Select Committee on Mental Health, Mental Health Services in NSW: Final Report, Disability Council, A Question of Justice.
111  S Henderson, Mental Illness and the Criminal Justice System, Mental Health Co-ordinating Council, Sydney, 2003, <http://www.mhcc.org.au/projects/Criminal_Justice/contents.html> (accessed August 2005), P Mullen, Mental Health and Criminal Justice: A Review of the Relationship Between Mental Disorders and Offending Behaviours and on the Management of Mentally Abnormal Offenders in the Health and Criminal Justice Services, Criminology Research Council, Melbourne, 2001, <http://www.aic.gov.au/crc/reports/mullen.pdf> (accessed August 2005), H Syme, Mental Health and the Criminal Justice System: A NSW Local Court Perspective, AIJA Magistrates Conference, Brisbane 2002, <http://aija.org.au/Mag02/Helen%20Syme.pdf> (accessed August 2005).
112  See, for example, Disability Council, A Question of Justice, MHCA, Submission to the Senate Select Committee on Mental Health.
113  Henderson, Mental Illness and the Criminal Justice System.
114  D M Greenberg, Interaction between Mental Health and Criminal Justice System, Mental Health and the Criminal Justice System: A Public Seminar, Institute of Criminology, University of Sydney, Sydney, 2002.
115  E Robinson & D B Rodgers, Depression and Changing Families: A Scoping Study of Mental Health and the Family Law System, Centre for Mental Health Research, Australian National University, 2004, B Rodgers et al., Mental Health and the Family Law System, Journal of Family Studies, vol. 10, no. 1, April, 2004, pp. 5070.
116  Productivity Commission, Review of the Disability Discrimination Act 1992, Report No. 30, Commonwealth of Australia, AusInfo, Melbourne, 2004.
117  See NSW Health, Review of the Mental Health Act 1990. Discussion Paper 1: Carers and Information Sharing, Legal and Legislative Services, NSW Department of Health, Sydney, 2003, also NSW Health, Review of the Mental Health Act 1990: Discussion Paper 2: The Mental Health Act 1990, NSW Department of Health, Sydney, 2004.
118  See earlier reference (at note 100) to another such evaluation, conducted by Watchirs et al.
119  This definition is based on Hazel Genns study, Paths to JusticeWhat People Do and Think about Going to Law, Hart Publishing, Oxford, 1999, p. 12. Genn makes the important point that the person experiencing the issue does not have to recognise it as legal in order for it to be a justiciable issue.

Ch 2. Methodology
1  Ten of these interviews with people with a mental illness were conducted as part of the Foundations study of homeless people. Given the high rate of mental illness among homeless people, we identified 10 people who had a mental illness among this group. The interview schedules used for both studies were close to identical, further enabling the use of this data.
2  C Coumarelos, Z Wei & A Zhou, Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas, Law and Justice Foundation of NSW, Sydney, 2006.
3  HREOC, Human Rights and Mental Illness, Jablensky et al., People Living with Psychotic Illness, Select Committee on Mental Health, Mental Health Services in NSW: Final Report.

Ch 3. Legal issues
1  See Mental Health Co-ordinating Council (MHCC), The Mental Health Rights ManualA Legal Guide to the NSW Mental Health System, 2nd edn, MHCC, Sydney, 2004, p. 25.
2  See MHCC, The Mental Health Rights Manual, p. 29.
3  Interviews nos. 3, 4, 6, 8, 10, 12, 13 and 19.
4  Interviews nos. 1, 2, 18 and 20.
5  Consultation with official visitor, October 2004, roundtable consultation, 16 June 2004. Patients may apply to the medical superintendent to be discharged. If they are refused, they can then apply to the Mental Health Review Tribunal.
6  Roundtable consultation, 16 June 2004. If the hospital believes that it is in the interests of the patient to stay in hospital, voluntary patients may be reclassified as involuntary patients. In these circumstances, patients are afforded the same rights as involuntary patients with the exception that an initial schedule is not required. See MHCC, The Mental Health Rights Manual, p. 30.
7  Consultation with community legal centre (CLC) workers, Mental Health Legal Centre (MHLC), Victoria, March 2004.
8  Interview no. 6.
9  Mental Health Act 1990 (NSW), s. 30(1).
10  Mental Health Act 1990 (NSW), s. 30(4).
11  Roundtable consultation, 16 June 2004.
12  Consultation with official visitor, October 2004.
13  Guardianship Tribunal NSW, Planning Ahead. Enduring Power of Attorney, http://www.gt.nsw.gov.au/information/doc_44_enduring_power_of_attorney.htm#whatis (accessed October 2004).
14  Guardianship Tribunal, Planning Ahead.
15  MHCC, The Mental Health Rights Manual, p. 64.
16  Office of the Public Guardian (OPG), Common Questions, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_faq> (accessed August 2005).
17  Office of the Protective Commissioner (OPC), What We Do, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_whatwedo> (accessed August 2005).
18  OPC, What We Do.
19  The Independent Social Security Handbook, National Welfare Rights Network, Sydney, 2005, <www.welfarerights.org.au/issh> (accessed November 2005), para 9.3.4.
20  Interviews nos. 3, 9, 10 and 27 (taken from the Foundations study into homeless people).
21  Consultation with solicitor, OPC, September 2004.
22  Consultation with social worker, Mental Health Advocacy Service (MHAS), August 2004.
23  MHCC, The Mental Health Rights Manual, p. 73.
24  Interview no. 3.
25  Interview no. 10.
26  Interview no. 27 (taken from the Foundations study into homeless people).
27  NSW Parliament Public Bodies Review Committee, Personal Effects: A Review of the Offices of the Public Guardian and the Protective Commissioner, Parliament of NSW, Sydney, 2001, p. 57. Also T Carney, Challenges to the Australian Guardianship and Administration Model, Elder Law Review, vol. 2, 2003, pp. 113 at p. 4.
28  NSW Parliament Public Bodies Review Committee, Personal Effects, p. 59.
29  NSW Parliament Public Bodies Review Committee, Personal Effects, p. 66.
30  NSW Auditor General, Performance Audit: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 1999, NSW Auditor General, Follow-up of Performance Audits: Office of the Protective Commissioner and Office of the Public Guardian Complaints and Review Processes, NSW Audit Office, Sydney, 2003.
31  OPG, Making a Complaint, <http://www.lawlink.nsw.gov.au/lawlink/opg/ll_opg.nsf/pages/OPG_forms#appeal> (accessed February 2006), OPC, Feedback, Complaints and Reviews of Decisions, <http://www.lawlink.nsw.gov.au/lawlink/office_of_the_protective_commissioner/opc_ll.nsf/pages/OPC_feedbackcomplaints> (accessed February 2006).
32  NSW Administrative Decisions Tribunal, Administrative Decisions TribunalGuardianship and Protected Estates List, General Division, <http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_guardianship#PE2> (accessed February 2006).
33  Under the Disability Discrimination Act 1992 (DDA) it is unlawful to discriminate against someone on the basis of employment, education, access to premises, goods and services, facilities, accommodation, land, clubs and incorporated associations, sport, Commonwealth laws and programs, disability standards, and requests for information. Under the Anti-Discrimination Act (ADA) it is unlawful to discriminate against someone on the basis of disability in relation to employment, education (but not private schools), provision of goods and services, accommodation, registered clubs and local government.
34  For a complete list of the differences between the ADA and the DDA, see NSW Disability Discrimination Legal Centre (DDLC), Using Disability Discrimination Law in New South Wales, DDLC, Sydney, 2004.
35  See also MHCA, Not for Service, p. 134. Daily experiences of stigma and discrimination were reported repeatedly in the submissions and consultations.
36  Interview nos. 2, 9, 10, 14 and 18. See also HREOC, Human Rights and Mental Illness, pp. 40608.
37  Consultation with policy officer, HREOC, June 2004. See also Productivity Commission, Review of the Disability Discrimination Act 1992, HREOC, Human Rights and Mental Illness, pp. 40608.
38  Consultation with policy officer, HREOC, June 2004.
39  Interview no. 2.
40  Interview no. 10, also interview no. 18.
41  Consultation with solicitor, People with Disability Australia (PWD), August 2004.
42  Consultations with HREOC, August 2004, senior solicitor, PWD, August 2004. See also Productivity Commission, Review of the Disability Discrimination Act 1992, p. 131, HREOC, Human Rights and Mental Illness, p. 407.
43  Consultation with HREOC, August 2004. Also consultation with solicitor, PWD, August 2004.
44  Consultation with solicitor, PWD, August 2004.
45  Consultation with clinical psychologist, Sydney, July 2004.
46  NSW DDLC, Using Disability Discrimination Law in New South Wales.
47  NSW DDLC, Using Disability Discrimination Law in New South Wales.
48  NSW DDLC, Using Disability Discrimination Law in New South Wales.
49  NSW DDLC, Using Disability Discrimination Law in New South Wales, p. 15.
50  Roundtable consultations, 3 and 16 June 2004. Consultations with conciliator, HREOC, August 2004, policy officer, HREOC, June 2004, solicitor, PWD, August 2004. See also beyondblue, Discrimination in InsuranceImplications for General Practice, 2003, <http://www.beyondblue.org.au/index.aspx?link_id=4.62> (accessed February 2005), HREOC, Draft Revision: Guidelines for Providers of Insurance and Superannuation, 2004, <http://www.humanrights.gov.au/disability%5Frights/standards/Insurance/draft_rev.htm> (accessed December 2005), HREOC, Human Rights and Mental Illness, p. 449.
51  Case study provided by HREOC.
52  Consultation with solicitor, People with Disability Australia (PWD), August 2004.
53  Consultation with conciliator, HREOC, August 2004.
54  Case study provided by HREOC. See also HREOC, Human Rights and Mental Illness, p. 347.
55  Purvis v New South Wales (Department of Education and Training) [2003] HCA 62. This case involved a young boy (who had brain damage and an intellectual disability) who was expelled from his school for violent behaviour. The High Court ruled that a comparison should be made with the treatment of a person without a disability in the same circumstances. The High Court found that the school would have acted in the same manner (expelling a person for such behaviour) if a person did not have a disability.
56  Consultation with solicitor, PWD, August 2004.
57  Productivity Commission, Review of the Disability Discrimination Act 1992, Finding 8.1, p. 96.
58  Consultation with solicitor, PWD, August 2004.
59  Productivity Commission, Review of the Disability Discrimination Act 1992, p. 193.
60  Department of Family and Community Services, Supported Accommodation Assistance Program, <http://www.facs.gov.au/internet/facsinternet.nsf/aboutfacs/programs/house-nhs_saap.htm> (accessed October 2005).
61  S Forell, E McCarron & L Schetzer, No Home, No Justice? The Legal Needs of Homeless People in NSW, Law and Justice Foundation of NSW, Sydney, 2005.
62  NSW Ombudsman, Assisting Homeless People: The Need to Improve Their Access to Accommodation and Support Services, NSW Ombudsman, Sydney, 2004, p. 14.
63  Substance use disorders were included in the definition of mental illness used for this report.
64  Roundtable consultation, 3 June 2004, consultations with CLC workers, Shopfront Youth Legal Centre (Shopfront), September 2004, mental health worker, Sydney, September 2004.
65  Consultation with NSW Police inspector, South Coast, November 2004.
66  HREOC, Human Rights and Mental Illness, p. 757.
67  Consultations with CLC worker, Western NSW, September 2004, CLC workers, Womens Legal Services NSW (WLS), October 2004.
68  Consultation with CLC workers, WLS, October 2004.
69  Consultations with mental health worker, Sydney, September 2004, NSW Police inspector, South Coast, November 2004. See also HREOC, Human Rights and Mental Illness, p. 757, D MacKenzie & C Chamberlain, Homeless Careers: Pathways in and out of Homelessness, Counting the Homeless 2001 Project, Hawthorn, 2003.
70  Case study provided by the OPG.
71  Interview no. 28 (taken from the Foundations study into homeless people).
72  Interview no. 25 (taken from the Foundations study into homeless people).
73  Interview no. 23 (taken from the Foundations study into homeless people).
74  Interview no. 8.
75  Interview no. 4.
76  Interviews nos. 5 and 18.
77  Interview no. 25 (taken from the Foundations study into homeless people).
78  Consultations with mental health worker, Sydney, September 2004, CLC workers, Shopfront, September 2004. See also Forell et al., No Home, No Justice?, J Sanders, Fines and Young people (or, All You Need to Know about the SDRO), 2004, <http://www.legalaid.nsw.gov.au/data/portal/00000005/public/48109001084410066281.doc> (accessed November 2004).
79  Interview no. 15.
80  Interview no. 14.
81  Interview no. 29 (taken from the Foundations study into homeless people).
82  Consultation with social worker, MHAS, August 2004.
83  Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health Inquiry into and Report on Mental Health Services in NSW, Sydney, 2002, p. 3, <http://www.shelternsw.infoxchange.net.au/docs/sub02mhinq.pdf> (accessed March 2006), also A Reynolds, S Inglis & A OBrien, Effective Programme Linkages: An Examination of Current Knowledge with a Particular Emphasis on People with Mental Illness, Australian Housing and Urban Research Institute, Melbourne, 2002, HREOC, Human Rights and Mental Illness, MHCA, Not for Service, pp. 27071.
84  Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health Inquiry, p. 4, HREOC, Human Rights and Mental Illness, Select Committee on Mental Health, Inquiry Into Mental Health Services in NSW, T Hodder, M Teesson & N Buhrich, Down and Out in Sydney: Prevalence of Mental Disorders, Disability and Health Service Use among Homeless People in Inner Sydney, Sydney City Mission, Sydney, 1998.
85  Consultation with Terry Carney, Faculty of Law, University of Sydney, January 2004.
86  Consultation with psychiatrist, Sydney, August 2004, see also Select Committee on Mental Health, Inquiry into Mental Health Services in NSW, p. 135.
87  Consultation with psychiatrist, Sydney, August 2004, see also Jablensky et al., People Living with Psychotic Illness, p. 91.
88  Reynolds et al., Effective Programme Linkages, p. 10.
89  Consultation with caseworker, South Coast, NSW, November 2004.
90  NSW Health, Framework for Housing and Accommodation Support for People with Mental Health Problems and Disorders, pp. 34, Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health, p. 3.
91  NSW Department of Housing (DOH), Department of HousingPolicy ALL0030A: Eligibility for Public Housing, <http://www.housing.nsw.gov.au/> (accessed January 2006).
92  DOH, Policy ALL0030A.
93  DOH, Policy ALL0030A.
94  Consultation with legal officer, Tenants Union, September 2004.
95  Consultation with mental health worker, Sydney, September 2004.
96  DOH, Policy ALL0030A
97  Consultation with legal officer, Tenants Union, September 2004.
98  DOH, Policy ALL0030A
99  Consultation with CLC workers, WLS, October 2004.
100  Consultation with CLC workers, WLS, October 2004.
101  Consultations with legal officer, Tenants Union, September 2004, solicitor, PWD, August 2004, disability awareness trainer, August 2004.
102  Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health, p. 3.
103  Interview no. 22 (taken from the Foundations study into homeless people).
104  NSW Health, Joint Guarantee of Service for People with Mental Health Problems and Disorders, NSW Department of Health, Sydney, 2003, p. 3.
105  NSW Health, Joint Guarantee of Service, p. 3.
106  NSW Health, Joint Guarantee of Service, p. 4.
107  Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health, p. 4.
108  Consultation with policy officers, DOH, June 2004.
109  Consultation with policy officers, DOH, June 2004.
110  Consultation with legal officer, Tenants Union, September 2004.
111  See DOH, Policy ALL0040A: Priority Housing, 2003, <http://www.housing.nsw.gov.au/phop/all0040a.htm> (accessed November 2004).
112  K Hulse & T Burke, Social Housing Allocation SystemsHow Can They Be Improved?, AHURI Research and Policy Bulletin, no. 64, September 2005, pp. 23.
113  A OBrien, S Inglis, T Herbert & A Reynolds, Linkages between Housing and SupportWhat is Important from the Perspective of People with a Mental Illness, Australian Housing and Urban Research Institute, 2002, p. 61.
114  Consultation with HREOC, August 2004, also consultation with caseworker, Blue Mountains, July 2004.
115  Interview no. 10. Also interview nos. 12 and 14, Shelter NSW, Submission to the NSW Legislative Council Select Committee on Mental Health, p. 3.
116  Interview no. 5.
117  Interview no. 11. Also interview no. 21 (taken from the Foundations study into homeless people).
118  Residential Tenancies Amendment (Public Housing) Act 2004 (NSW) sch. 1, cl. 5new s. 64 (2A)(a).
119  Residential Tenancies Amendment (Public Housing) Act 2004 (NSW) sch. 1, cl. 5new s. 35A (2), 64 (2A)(b).
120  Consultation with disability awareness trainer, Sydney, August 2004. Also consultations with legal officer, Tenants Union, September 2004, solicitor, PWD, August 2004.
121  MHCC, Improved Attitudes to Acceptable Behaviour Agreements Achieved, 2005, <http://www.mhcc.org.au> (accessed June 2005). See also PWD, Acceptable Behaviour Agreements: Update, PWD E-Bulletin, no. 20, February 2005, <http://www.pwd.org.au/e-bulletin/pwd_e-bulletin_20.html#nsw4> (accessed March 2006).
122  Consultation with legal officer, Tenants Union, September 2004.
123  DOH, Policy REN0020A: Consumer Trader and Tenancy Tribunal, <http://www.housing.nsw.gov.au/> (accessed November 2005).
124  Forell et al., No Home, No Justice?.
125  Roundtable consultations, 3 and 16 June 2004. Also consultations with community worker, Sydney, October 2004, Terry Carney, Faculty of Law, University of Sydney, January 2004.
126  NSW Ombudsman, Report under Section 26 of the Ombudsman Act. Department of Ageing, Disability and Home Care. Investigation of the Monitoring and Enforcement of Licensing Conditions for Residential Centres for Handicapped Persons, NSW Ombudsman, Sydney, 2004, para 8.13.
127  Consultation with investigation officer, NSW Ombudsman, September 2004.
128  Consultation with community worker, Sydney, October 2004.
129  NSW Ombudsman, Report under Section 26 of the Ombudsman Act, para 7.3.58.
130  Consultation with case manager, Welfare Rights Centre (WRC), Sydney, November 2004.
131  Australian Council of Social Services, Ten Myths and Facts about the Disability Support Pension (DSP), ACOSS Info. Paper 362, Sydney, 2005, <http://www.acoss.org.au/upload/publications/papers/info%20362%20dsp. pdf> (accessed February 2005).
132  Butterworth, 2003.
133  Consultations with case manager, WRC, Sydney, November 2004, convener of the National Council of Single Mothers and their Children (NCSMC), December 2004, director, Social Security Appeals Tribunal (SSAT), September 2004.
134  Centrelink, Who Can Get Disability Support Pension, <http://www.centrelink.gov.au/internet/internet.nsf/payments/qual_how_dsp. htm> (accessed November 2005).
135  Centrelink, Who can get Disability Support Pension.
136  Consultation with case manager, WRC, November 2004.
137  MHCC, Centrelink, Breaches and Implications for Welfare Recipients Living with Mental Health Problems, <http://www.mhcc.org.au/projects/centrelink.htm> (accessed May 2004).
138  Department of Employment and Workplace Relations, Welfare to Work$554.6 Million to Help People with Disabilities into Work, media release, 10 May 2005.
139  Interview no.20.
140  Consultations with Terry Carney, Faculty of Law, University of Sydney, January 2004, convener of the NCSMC, December 2004. See also MHCC, Centrelink, Breaches and Implications for Welfare Recipients Living with Mental Health Problems.
141  Consultation with manager, Centrelink, June 2004.
142  Consultation with manager, Centrelink, June 2004.
143  Consultation with case manager, WRC, Sydney, November 2004.
144  Centrelink, Payments If You Have a Temporary Protection Visa or a Return Pending Visa, <http://www.centrelink.gov.au/internet/internet.nsf/individuals/settle_pay_tempreturn.htm> (accessed August 2005).
145  T Carney, Social Security, Laws of Australia, vol. 22.3, para. 389. It should be noted that compensation does not include victims compensation or compensation arising from unlawful dismissal, sexual harassment, or racial discrimination (The Independent Social Security Handbook, para 26.1.6).
146  Consultation with case manager, WRC, Sydney, November 2004.
147  Carney, Social Security, para. 386.
148  Carney, Social Security, para. 390.
149  Consultation with case manager, WRC, Sydney, November 2004.
150  Case study provided by Genderlight.
151  Carney, Social Security, para. 392.
152  Carney, Social Security, para. 392.
153  Consultation with case manager, WRC, Sydney, November 2004.
154  The Independent Social Security Handbook, Chapters 15 and 33.
155  The Independent Social Security Handbook, para 35.1.
156  The Independent Social Security Handbook, para 35.6.
157  The Independent Social Security Handbook, para 35.7.
158  The Independent Social Security Handbook, para 36.3.
159  The Independent Social Security Handbook, para 15.1.
160  Interview no. 13.
161  Interview no. 10. Also interview no. 9.
162  Consultation with manager, Centrelink, June 2004.
163  Consultation with manager, Centrelink, June 2004.
164  Welfare Rights Centre, Sydney, Submission to the Senate Select Committee on Mental Health, 2005, <http://www.aph.gov.au/senate/committee/mentalhealth_ctte/submissions/sub256.pdf> (accessed October 2005).
165  D Pearce, J Disney & H Ridout, The Report of the Independent Review of Breaches and Penalties in the Social Security System, Sydney, 2002, at 15, <http://eprints.anu.edu.au/archive/00001515/01/index.html> (accessed May 2005). See also Productivity Commission, Independent Review of the Job Network, Commonwealth of Australia, AusInfo, Canberra, 2002, para. 6.2.1, T Eardley, J Brown, M Rawsthorne, K Norris & L Emrys, The Impact of Breaching on Income Support Customers, Social Policy Report 5/05, Social Policy Research Centre, Sydney, 2005, p. 109. In this report, the authors chose to conduct in-depth interviews with breached customers who they expected to be representative of particular demographic groups, including people with a mental illness.
166  Consultation with case manager, WRC, Sydney, November 2004.
167  Consultation with mental health worker, Sydney, September 2004, also consultations with Terry Carney, Faculty of Law, University of Sydney, January 2004, director, SSAT, September 2004.
168  Interview no. 14.
169  Department of Employment and Workplace Relations, Welfare to WorkA Better Compliance Framework, media release, 10 May 2005.
170  P Karvelas, Dole Threat Watered Down, The Australian, 7 June 2005.
171  A Vanstone, Breaching Rules Change to Protect the Vulnerable, media release, 19 February 2002, <http://www.vanstone.com.au/default.asp?Menu=19.02> (accessed October 2005).
172  Consultation with director, SSAT, September 2004
173  Consultation with case manager, WRC, Sydney, November 2004.
174  Consultation with case manager, WRC, Sydney, November 2004.
175  Butterworth, 2003, p. 47.
176  Butterworth, 2003, p. 33.
177  Consultation with the convener of the NCSMC, December 2004. People on parenting payments have requirements to satisfy according to the age of their children. For example, a parent whose youngest child is between the ages of 13 and 16 is currently required to undertake a total of 150 hours of agreed activities over a six-month periodsee The Independent Social Security Handbook, para 7.1. Also consultation with case manager, WRC, Sydney, November 2004.
178  Department of Employment and Workplace Relations, Welfare to Work$389.7 Million to Help Parents into Work, media release, 10 May 2005.
179  Department of Employment and Workplace Relations, Welfare to Work$389.7 Million to Help Parents into Work.
180  See The Independent Social Security Handbook, para 13.4.4.
181  Consultation with case manager, WRC, Sydney, November 2004.
182  Consultation with mental health worker, Sydney, September 2004.
183  Consultation with psychiatrist, Sydney, August 2004.
184  P Cameron & J Flanagan, Thin Ice: Living With Serious Mental Illness and Poverty in Tasmania, Social Action and Research Centre, Anglicare Tasmania, Hobart, 2004, p. 10, Jablensky et al., People Living with Psychotic Illness, p. 91, C Robinson, Understanding Iterative Homelessness: The Case of People with Mental Disorders, Australian Housing and Urban Research Institute, Sydney, 2003.
185  Consultation with solicitor in charge, MHAS, December 2004.
186  Consultation with community worker, October 2004.
187  Interview no. 17.
188  Interview no. 16. Also Interview no. 15.
189  Interview no. 19.
190  Consultation with public servant, Commonwealth regulatory body, May 2004, roundtable consultation, 16 June 2004. Also consultations with private solicitor, Sydney, March 2004, community worker, Sydney, October 2004, solicitor, Consumer Credit Legal Centre (CCLC), September 2004, consumer advocate, Sydney, August 2004.
191  Consultation with solicitor, CCLC, September 2004.
192  L Cullen, Out of the Picture: CAB Evidence on Mental Health and Social Exclusion, Citizens Advice Bureau, 2004, pp. 5762, <http://www.citizensadvice.org.uk/outofthepicture.pdf>.
193  Consultation with solicitor, OPC, September 2004.
194  Consultation with solicitor in charge, MHAS, December 2004.
195  Consultation with public servant, Commonwealth regulatory body, May 2004.
196  Consultation with solicitor, OPC, September 2004. Also consultation with registrar, Local Court, August 2004.
197  Interview no.16.
209  Consultation with family law solicitor, October 2004.
210  Consultations with CLC workers, WLS, October 2004, manager, Department of Community Services (DoCS), December 2004, solicitor, PWD, August 2004, convener of the NCSMC, December 2004, CLC workers, Kingsford Legal Centre, Sydney, August 2004, family law solicitor, October 2004, mental health worker, Sydney, September 2004, CLC workers, MHLC, Victoria, March 2004, investigation officer, NSW Ombudsman, September 2004, solicitor, Legal Aid, December 2004, roundtable consultations, 3 and 16 June. See also D McConnell, G Llewellyn & L Ferronato, Parents with a Disability and the NSW Childrens Court, Family Support and Services Project, University of Sydney, Sydney, 2000, MHCA, Not for Service, p. 273.
211  Consultation with mental health worker, Sydney, September 2004.
212  Consultation with investigation officer, NSW Ombudsman, September 2004.
213  Consultation with manager, DoCS, December 2004.
214  Consultation with manager, DoCS, December 2004.
215  Consultation with manager, DoCS, December 2004, solicitor, Legal Aid, December 2004, roundtable consultation, 16 June 2004.
216  Consultation with manager, DoCS, December 2004.
217  Interview no. 18.
218  Interviews nos. 26, 27 and 28 (taken from the Foundations study into homeless people).
219  SANE, Mental Illness and Violence: Factsheet 5, 2005, <http://www.sane.org/index.php?option=displaypage&Itemid=317&op=page> (accessed September 2005).
220  T Ryan, Abuse Issues Relating to People with Mental Health Problems, in Pritchard, J (ed.) Good Practice with Vulnerable Adults, vol. 9, Jessica Kingsley Publishers, Philadelphia, PA, 2001, C Robinson, Cycles of Homelessness, in AHURI Research and Policy Bulletin, no. 39, March 2004, A Taft, Promoting Womens Mental Health: The Challenges of Intimate/Domestic Violence Against Women, Australian Domestic and Family Violence Clearinghouse, no. 8, 2003, L A Teplin, G M McClelland, K M Abram & D A Weiner, Crime Victimization in Adults with Severe Mental Illness: Comparison with the National Crime Victimization Survey, Archives of General Psychiatry, vol. 62, 2005, pp. 91121.
221  Interview no. 1.
222  Interview no. 19.
223  Interview no. 7.
224  Roundtable consultation, 3 and 16 June 2004, consultations with CLC workers, Shopfront, September 2004, CLC workers, WLS, October 2004, mental health worker, Sydney, September 2004, pro bono solicitor, Sydney, September 2004, caseworker, Blue Mountains, July 2004.
225  Consultation with CLC workers, WLS, October 2004.
226  Consultation with caseworker, Blue Mountains, July 2004.
227  Consultations with CLC workers, WLS, October 2004, mental health worker, Sydney, September 2004.
228  Robinson, Understanding Iterative Homelessness, NSW Select Committee on Mental Health, Mental Health Services in New South Wales, p. 133.
229  Hodder et al., Down and Out in Sydney, p. 2.
230  Hodder et al., Down and Out in Sydney, p. 7.
231  Consultations with community worker, Sydney, October 2004, CLC workers, WLS, October 2004.
232  Consultations with CLC workers, WLS, October 2004,official visitor, October 2004,
233  Consultation with official visitor, October 2004.
234  HREOC, Human Rights and Mental Illness, pp. 27174, J Davidson, Every Boundary Broken: Sexual Abuse of Women Patients in Psychiatric Institutions, Women and Mental Health Inc, Rozelle, Sydney, 1997.
235  Interview no. 6.
236  See also J Goodfellow & M Camilleri, Beyond Belief, Beyond Justice: The Difficulties for Victim/Survivors with Disabilities When Reporting Sexual Assault and Seeking Justice, Disability Discrimination Legal Service, Melbourne, 2003, p. 42.

Ch 4. Barriers to accessing legal assistance
1  Consultation with CLC workers, Shopfront, September 2004.
2  A description of legal services generally used or referred to by participants and stakeholders can be found at Appendix 8.
3  Consultation with pro bono solicitor, Sydney, September 2004.
4  Consultation with family law solicitor, October 2004. Also consultations with CLC workers, Kingsford Legal Centre (KLC), August 2004, solicitor, CCLC, August 2004, August 2004, pro bono solicitor, Sydney, September 2004.
5  H Genn, P Pleasance, N J Balmer, A Buck, A OGrady, Understanding Advice Seeking Behaviour: Further Findings from the LSRC Survey of Justiciable Problems, Legal Services Research Centre, London, 2004, <http://www.lsrc.org.uk/publications/advice.pdf> (accessed March 2006), Law and Justice Foundation of NSW, Access to Justice and Legal Needs: A Project to Identify Legal Needs and Barriers for Disadvantaged People in NSW. Stage 2: Quantitative Legal Needs Survey, Bega Valley (Pilot), Law and Justice Foundation of NSW, Sydney, 2003, Coumarelos et al., Justice Made to Measure.
6  Consultations with caseworker, South coast, NSW, November 2004, consumer advocate, Sydney, August 2004, Aboriginal mental health worker, Sydney, September 2004, mental health worker, Western NSW, August 2004, community worker, Sydney, October 2004. Also iInterviews nos. 18 and 14.
7  Consultation with pro bono solicitor, Sydney, September 2004.
8  Consultation with caseworker, South Coast, NSW, November 2004.
9  Consultations with solicitor in charge, MHAS, Legal Aid, December 2004, caseworker, Blue Mountains, July 2004, convener of the NCSMC, December 2004, registrar, Local Court, Sydney, August 2004, Manager, Anti-Discrimination Board (ADB), November 2004, Aboriginal mental health worker, Sydney, September 2004, registrar, Local Courts & Sheriff, July 2004. This is also supported by Cameron et al., Thin Ice. See also Jablensky et al., People Living With Psychotic Illness, Andrews et al., The Mental Health of Australians.
10  Disability Council, A Question of Justice.
11  Consultations with mental health worker, Sydney, September 2004, CLC workers, Shopfront, September 2004.
12  Consultations with pro bono solicitor, Sydney, September 2004, family law solicitor, October 2004, consumer advocate, Sydney, August 2004, CLC workers, KLC, August 2004.
13  Consultation with pro bono solicitor, Sydney, September 2004.
14  Consultation with family law solicitor, October 2004.
15  Consultation with consumer advocate, Sydney, August 2004.
16  Cullen, Out of the Picture, p. 9.
17  T Szirom, D King & K Desmond, Barriers to Service Provision for Young People With Presenting Substance Misuse and Mental Health Problems, National Youth Affairs Research Scheme, Department of Family and Community Services, Canberra, 2004.
18  Consultations with senior public servant, NSW Centre for Mental Health, April 2005, family law solicitor, October 2004, solicitor, CCLC, August 2004, disability awareness trainer, August 2004, also roundtable consultation, 16 June 2004.
19  Consultations with senior public servant, NSW Centre for Mental Health, April 2005, family law solicitor, October 2004, also roundtable consultations, 3 and 16 June 2004.
20  Consultation with senior public servant, NSW Centre for Mental Health, April 2005.
21  Consultation with family law solicitor, October 2004.
22  Consultation with solicitor, CCLC, August 2004.
23  Consultation with disability awareness trainer, August 2004, also roundtable consultation, 3 June 2004.
24  Roundtable consultations, 3 and 16 June 2004.
25  Consultations with national program manager, Multicultural Mental Health Australia (MMHA), July 2004, disability awareness trainer, August 2004, CLC workers, WLS, October 2004, case manager, WRC, Sydney, October 2004.
26  Consultation with case manager, WRC, Sydney, October 2004.
27  Consultation with CLC workers, WLS, October 2004.
28  Consultation with disability awareness trainer, August 2004.
29  Consultation with disability awareness trainer, August 2004.
30  Consultation with disability awareness trainer, August 2004.
31  Consultation with national program manager, MMHA, July 2004.
32  Consultations with disability awareness trainer, August 2004, case manager, WRC, Sydney, October 2004, also roundtable consultation, 3 June 2004.
33  Consultation with family law solicitor, October 2004.
34  Consultation with case manager, WRC, Sydney, October 2004.
35  Consultation with disability awareness trainer, August 2004.
36  Consultation with pro bono solicitor, Sydney, September 2004.
37  Consultations with solicitor in charge, MHAS, Legal Aid, December 2004, executive officer, Human Services CEOs Forum, March 2005, CLC workers, WLS, October 2004, pro bono solicitor, Sydney, September 2004, family law solicitor, October 2004, barrister, Sydney, January 2005, caseworker, Blue Mountains, July 2004. See also Cullen, Out of the Picture, paras.1.10, 4.10 and 6.22.
38  Consultation with family law solicitor, October 2004.
39  Consultation with solicitor, CCLC, August 2004.
40  Consultation with pro bono solicitor, Sydney, September 2004.
41  Consultation with family law solicitor, October 2004.
42  Disability Council, A Question of Justice, p. 86.
43  Consultation with solicitor in charge, MHAS, Legal Aid, December 2004.
44  Consultation with caseworker, South Coast, NSW, November 2004. Also consultation with CLC workers, KLC, August 2004.
45  Interview no. 11.
46  Consultation with solicitor in charge, MHAS, Legal Aid, December 2004.
47  Disability Council, A Question of Justice, p. 83.
48  LawAccess Online, <http://info.lawaccess.nsw.gov.au/lawaccess/lawaccess.nsf/pages/about_us> (accessed September 2005).
49  Roundtable consultation, 16 June 2004
50  Consultations with solicitor, CCLC, August 2004, CLC worker, Western NSW, September 2004, family law solicitor, October 2004, caseworker, South Coast, NSW, November 2004, CLC workers, KLC, August 2004, case manager, WRC, Sydney, November 2004. See also Combined CLCs Group (NSW) Inc (CCLC NSW), Submission to the Senate Select Committee on Mental Health, Sydney, 2005, p. 7, <http://www.aph.gov.au/Senate/committee/mentalhealth_ctte/submissions/sublist.htm> (accessed October 2005).
51  Consultation with solicitor, CCLC, August 2004.
52  Consultation with family law solicitor, October 2004.
53  Consultation with caseworker, South Coast, NSW, November 2004.
54  Consultation with CLC worker, Western NSW, September 2004.
55  The Australian government, through the Department of Immigration and Multicultural and Indigenous Affairs, provides the Translating and Interpreting Service for people who do not speak English and for English speakers needing to communicate with them. The service is available to any person or organisation in Australia requiring interpreting services 24 hours a day, 7 days a week, and is accessible from anywhere in Australia.
56  Consultation with case manager, WRC, Sydney, November 2004.
57  Interview no. 25 (taken from the Foundations study into homeless people). Also consultations with solicitor, CCLC, August 2004, manager, Centrelink, June 2004, investigation officer, NSW Ombudsman, September 2004. See also CCLC NSW, Submission to the Senate Select Committee on Mental Health, p. 8.
58  Consultation with solicitor, CCLC, August 2004.
59  For example, the Select Committee on Mental Health, in Mental Health Services in NSW: Final Report, refers to endemic problems in the provision of mental heath services (p. 15). The MHCA, in Not for Service refers to the crumbling mental health care system (p. iii). See also HREOC, Human Rights and Mental Illness. Also case study 1617 taken from Coumarelos et al, Justice Made to Measure.
60  Consultations with solicitor in charge, MHAS, Legal Aid, December 2004, caseworker, Blue Mountains, July 2004, convener of the NCSMC, December 2004, registrar, Local Court, August 2004, manager, ADB, November 2004, Aboriginal mental health worker, Sydney, September 2004, Local Courts & Sheriff, July 2004. See also Andrews et al., The Mental Health of Australians, Butterworth, 2003, Jablensky et al., People Living With Psychotic Illness, Cameron et al., Thin Ice.
61  Interview no. 8.
62  In its Submission to the Senate Select Committee on Mental Health (p. 6), CCLC NSW estimated that a substantial proportion of their clients have mental health problems.
63  Consultations with Aboriginal mental health worker, Sydney, September 2004, President, Mental Health Review Tribunal, June 2003, executive officer, Human Services CEOs Forum, March 2005, consumer advocate, Sydney, August 2004, investigation officer, NSW Ombudsman, September 2004.
64  Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and Access to Justice, Final Report, LSCRC, Canberra, 2004, pp. 48.
65  Law and Justice Foundation of NSW, Access to Justice Research Program: A Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW. Stage 1: Public Consultations, Law and Justice Foundation of NSW, Sydney, 2003, p. 37.
66  Consultations with President, Mental Health Review Tribunal, March 2005, consumer advocate, Sydney, August 2004, mental health worker, Sydney, September 2004, Aboriginal mental health worker, Sydney, September 2004, executive officer, Human Services CEOs Forum, March 2005, investigation officer, NSW Ombudsman, September 2004.
67  Consultation with consumer advocate, Sydney, August 2004.
68  Roundtable, 3 June 2004.
69  Council of Social Service of NSW (NCOSS), Submission to the Review of NSW Community Legal Service Funding Program, NCOSS, Sydney, 2004, p. 6. Note that while this statement relates specifically to the work of the WLS, Indigenous Womens Unit Violence Prevention Units, the tone of this submission indicates that NCOSS is of the view that the under-resourcing of publicly funded legal services is widespread in NSW.
70  CCLC NSW, Submission to the Senate Select Committee on Mental Health.
71  Consultation with pro bono solicitor, Sydney, September 2004.
72  Consultations with CLC workers, WLS, October 2004, barrister, Sydney, January 2005, policy officer, HREOC, June 2005.
73  Roundtable consultation, 3 June 2004. Also consultations with pro bono solicitor, Sydney, September 2004, CLC workers, KLC, August 2004, disability awareness trainer, August 2004. Also roundtable consultation, 16 June 2004.
74  Consultation with CLC workers, WLS, October 2004.
75  Legal Aid, Duty Solicitor Scheme, <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=375> (accessed September 2005).
76  Consultation with registrar, Local Courts & Sheriff, July 2004.
77  Consultation with mental health worker, Sydney, September 2004.
78  Also roundtable consultation, 3 June 2004.
79  Consultation with mental health worker, Sydney, September 2004.
80  Consultation with solicitor, CCLC, August 2004. Also consultation with disability awareness trainer, August 2004, and roundtable consultation, 16 June 2004.
81  Consultation with solicitor, PWD, August 2004.
82  Consultation with caseworker, South Coast, NSW, November 2004.
83  Consultation with disability awareness trainer, August 2004.
84  Genn et al., Understanding Advice Seeking Behaviour, p. 31. See also Figure 11 in this study.
85  Cullen, Out of the Picture, p 79.
86  Consultations with CLC worker, Western NSW, September 2004, family law solicitor, October 2004, with mental health worker, Western NSW, August 2004.
87  Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and Access to Justice, Final Report, p. 114.
88  Consultation with family law solicitor, October 2004.
89  Consultation with CLC workers, WLS, October 2004.
90  Consultations with family law solicitor, October 2004, mental health worker, Western NSW, August 2004, CLC worker, Western NSW, September 2004.
91  Consultation with mental health worker, Western NSW, August 2004.
92  Consultation with CLC worker, Western NSW, September 2004.
93  Consultations with solicitor, CCLC, August 2004, CLC worker, Western NSW, September 2004, family law solicitor, October 2004, caseworker, South Coast, NSW, November 2004, CLC workers, KLC, August 2004, case manager, WRC, November 2004.
94  Law and Justice Foundation of NSW, NSW Legal Referral Forum, <http://www.lawfoundation.net.au/information/referral/together.html> (accessed September 2005).
95  Consultation with family law solicitor, October 2004.
96  Steering Committee for the Evaluation of the Second National Mental Health Plan 19982003, Evaluation of the Second National Mental Health Plan, Commonwealth of Australia, Canberra, 2003, p. 30.
97  Consultation with senior public servant, NSW Centre for Mental Health, April 2005. Also consultations with CLC workers, Shopfront, September 2004, case manager, WRC, Sydney, November 2004, family law solicitor, October 2004.
98  CCLC NSW, Submission to the Senate Select Committee on Mental Health Inquiry.
99  Legal Aid, Policies in Brief, <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=242> (accessed September 2005).
100  Consultation with family law solicitor, October 2004.
101  Consultation with the convener of the NCSMC, December 2004. Also consultation with CLC workers, Shopfront, September 2004. Also case study 1065, taken from Coumarelos et al., Justice Made to Measure.
102  Disability Council, A Question of Justice, p. 60.
103  Consultation with CLC workers, Shopfront, September 2004.
104  Consultation with NSW Statewide Community & Court Liaison Service workers, Justice Health, August 2004.
105  Consultation with the national program manager, MMHA, July 2004.
106  Consultation with barrister, Sydney, January 2005.
107  Consultation with CLC worker, Western NSW, September 2004.
108  Consultation with CLC worker, Western NSW, September 2004.
109  Consultations with solicitor, CCLC, August 2004, case manager, WRC, Sydney, November 2004, CLC workers, KLC, August 2004, CLC workers, Western NSW, September 2004, family law solicitor, October 2004.
110  Consultation with case manager, WRC, Sydney, November 2004.
111  Consultation with family law solicitor, October 2004, also consultation with CLC workers, KLC, August 2004.
112  Consultation with solicitor, CCLC, August 2004, also consultation with case manager, WRC, Sydney, November 2004.
113  Consultation with family law solicitor, October 2004.
114  Consultations with case manager, WRC, Sydney, November 2004, CLC workers, KLC, August 2004, solicitor, CCLC, August 2004.
115  Consultation with case manager, WRC, Sydney, November 2004.
116  Consultation with CLC workers, KLC, August 2004.
117  Roundtable consultation, 16 June 2004. Also consultations with public servant, Centre for Mental Health, March 2005, Executive Officer, Human Services CEOs Forum, March 2005, pro bono solicitor, Sydney, September 2004.
118  Consultation with solicitor in charge, MHAS, Legal Aid, December 2004.
119  Consultation with pro bono solicitor, Sydney, September 2004.
120  Case study obtained in consultation with caseworker, Blue Mountains, July 2004, also consultation with official visitor, October 2005.
121  Consultations with caseworker, Blue Mountains, July 2004, disability awareness trainer, August 2004, solicitor in charge, MHAS, Legal Aid, December 2004. See also MHCA, Not for Service, p. 275.
122  Consultation with disability awareness trainer, August 2004.
123  Consultation with CLC workers, WLS, October 2004.
124  Consultation with solicitor, PWD, August 2004.
125  Consultation with disability awareness trainer, August 2004.
126  Consultation with disability awareness trainer, August 2004.
127  Roundtable consultation, 16 June 2004. Also consultation with solicitor, PWD, August 2004.
128  In addition it was argued that the MHAS has limited resources and is already overwhelmed by existing levels of demand within its jurisdiction: roundtable consultation, 16 June 2004, consultation with CLC workers, WLS, October 2004.
129  Roundtable consultation, 16 June 2004.
130  Roundtable consultation, 16 June 2004.
131  Roundtable consultation, 16 June 2004.
132  Consultation with solicitor, PWD, August 2004.
133  Consultation with CLC workers, Mental Health Legal Centre, Victoria (MHLC), March 2004.
134  Consultation with CLC workers, MHLC, Victoria, March 2004.
135  Springfield Advice and Law Centre, <http://homelesslondon.org.uk/services/projinfo.asp?session=googlebot&crumb=pPBI&b=01AR24&p=02PP11&s=&id=UK5734> (accessed March 2006).
136  Consultation with case manager, WRC, Sydney, November 2004.
137  Consultations with disability awareness trainer, August 2004, CLC workers, KLC, August 2004, solicitor, PWD, August 2004. See also Disability Council, A Question of Justice, p. 129.
138  Consultations with CLC worker, Western NSW, September 2004, solicitor, CCLC, August 2004, CLC workers, KLC, August 2004, case manager, WRC, Sydney, November 2004, consumer advocate, Sydney, August 2004, mental health worker, Sydney, September 2004, CLC workers, Shopfront, September 2004, barrister, Sydney, January 2005, disability awareness trainer, August 2004.
139  Consultation with CLC worker, Western NSW, September 2004.
140  Consultation with disability awareness trainer, August 2004.
141  S H Lee, Report on Justice and People with Disabilities in Western Australia, People with Disabilities (WA) Inc, 2001, p 10.
142  Consultation with case manager, WRC, Sydney, October 2004.
143  Consultation with NSW Statewide Community & Court Liaison Service workers, Justice Health, August 2004.
144  Consultation with social worker, Legal Aid, October 2005.
145  Law and Justice Foundation, Referral Forum, Minutes, 11 November 2004.
146  Law and Justice Foundation, Referral Forum, Minutes, 11 November 2004.
147  Law and Justice Foundation, Referral Forum, Minutes, 11 November 2004 and 15 March 2006.
148  Consultations with case manager, WRC, Sydney, October 2004, CLC workers, WLS, October 2004, solicitor, PWD, August 2004.
149  Consultations with CLC workers, WLS, October 2004, solicitor, PWD, August 2004.
150  Consultations with case manager, WRC, Sydney, October 2004, disability awareness trainer, August 2004.

Ch 5. Participation in the legal system
1  Consultation with disability awareness trainer, August 2004.
2  Interview no. 18
3  Interview no. 29.
4  Interview no. 11.
5  Consultation with solicitor in charge, MHAS, December 2004.
6  Consultation with policy officer, HREOC, June 2004.
7  Consultation with legal officer, Tenants Union, September 2004.
8  Consultation with solicitor, PWD, August 2004.
9  Consultation with CLC workers, Shopfront, September 2004.
10  Interview no. 18.
11  Consultation with CLC workers, Shopfront, September 2004.
12  Consultation with the convener of the NCSMC, December 2004. Also consultation with CLC workers, WLS, October 2004.
13  Consultation with CLC workers, WLS, October 2004.
14  L Kennedy & D Tait, Court Perspectives: Architecture, Psychology and Western Australian Law Reform, Western Australian Law Reform Commission, 1999, p. 1038.
15  Consultation with pro bono solicitor, Sydney, September 2004.
16  Productivity Commission, Review of the Disability Discrimination Act 1992, p. 102.
17  Disability Council, A Question of Justice, p. 141.
18  R Pollard, Poor Planning and Problem-Solving Skills Linked to Schizophrenia, Sydney Morning Herald, 18 February 2005 (accessed online), Schizophrenia fellowship of NSW Inc, <http://www.sfnsw.org.au/schizophrenia/symptoms.htm> (accessed August 2005).
19  Better Health Channel, Alcohol Related Brain Damage, 2004, <http://www.betterhealth.vic.gov.au> (accessed November 2005).
20  Better Health Channel, Depression:Different Types, <http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Depression_different_types?OpenDocument> (accessed August 2005).
21  Consultations with psychologist, Legal Aid, October 2004, NSW Statewide Community & Court Liaison Service workers, Justice Health, August 2004, roundtable consultation, 3 June 2004.
22  Interview no. 6.
23  Consultation with mental health worker, Sydney, September 2004.
24  Consultation with solicitor, regional Aboriginal Legal Service, November 2004.
25  Consultation with the OPG, August 2004.
26  Consultation with CLC workers, Shopfront, September 2004, also consultations with NSW Statewide Community & Court Liaison Service workers, Justice Health, August 2004, psychiatrist, Sydney, August 2004.
27  Roundtable consultation, 16 June 2004.
28  Consultation with registrar, Local Courts & Sheriff, July 2004.
29  Consultation with mental health worker, Sydney, September 2004. See also Disability Council, A Question of Justice, p. 77, HREOC, Human Rights of People with Mental Illness, p. 430, Jablensky et al., People Living with Psychotic Illness, Andrews et al., The Mental Health of Australians, p. 89.
30  Consultation with investigation officer, NSW Ombudsman, September 2004.
31  Consultations with psychiatrist, Sydney, August 2004, director, SSAT, September 2004, pro bono solicitor, Sydney, September 2004, disability awareness trainer, August 2004, conciliator, HREOC, August 2004, CLC workers, Shopfront, September 2004. See also Cullen, Out of the Picture, p. 9.
32  Consultation with psychiatrist, Sydney, August 2004.
33  Consultation with disability awareness trainer, August 2004.
34  Consultation with conciliator, HREOC, August 2004. Also consultations with pro bono solicitor, Sydney, September 2004, CLC workers, Shopfront, September 2004.
35  Inner City Legal Centre and Redfern Community Legal Centre, Fined Out, 2004, <http://www.iclc.org.au/fined_out/> (accessed November 2004) at 8.
36  Consultation with CLC workers, Shopfront, September 2004.
37  Consultation with CLC workers, Shopfront, September 2004.
38  Consultations with caseworker, Blue Mountains, July 2004, family law solicitor, October 2004, Aboriginal Legal Service worker, Western NSW, November 2004, CLC worker, Western NSW, September 2004, manager, ADB, November 2004. Also roundtable consultation, 3 June 2004. See also Cullen, Out of the Picture, p. 33.
39  Consultations with caseworker, Blue Mountains, July 2004, family law solicitor, October 2004.
40  Consultation with family law solicitor, October 2004. Also consultations with Aboriginal Legal Service worker, regional NSW, November 2004, CLC worker, Western NSW, September 2004. Also roundtable consultation, 3 June 2004.
41  Consultation with mental health worker, Sydney, September 2004.
42  Disability Council, A Question of Justice, p. 85.
43  Goodfellow & Camilleri, Beyond Belief, Beyond Justice, p. 64.
44  Consultation with CLC workers, Shopfront, September 2004.
45  Consultation with registrar, Local Court, Sydney, July 2004.
46  Interview no. 10.
47  Consultation with disability awareness trainer, August 2004.
48  Consultation with CLC workers, WLS, October 2004.
49  Roundtable consultation, 16 June 2004.
50  Consultation with CLC worker, Western NSW, September 2004.
51  Consultation with mental health worker, Sydney, September 2004.
52  Kennedy & Tait, 1999, p. 1018.
53  Kennedy & Tait, 1999, p. 1018.
54  Kennedy & Tait, 1999, p. 1032.
55  Kennedy & Tait, 1999, p. 1034.
56  Kennedy & Tait, 1999, p. 1048. Also consultation with disability awareness trainer, August 2004.
57  T Carney & D Tait, The Adult Guardianship Experiment: Tribunals and Popular Justice, The Federation Press, Sydney, 1997, p. 195. See also MHCC, The Mental Health Rights Manual, p. 53.
58  Roundtable consultations, 3 & 16 June 2004. Also consultations with the OPG, August 2004, solicitor, OPC, September 2004, social worker, MHAS, August 2004.
59  Consultation with CLC workers, Shopfront, September 2004.
60  Consultation with mental health worker, Sydney, September 2004.
61  MHCC, The Mental Health Rights Manual, p. 33.
62  Consultations with pro bono solicitor, Sydney, September 2004, conciliator, HREOC, August 2004, disability awareness trainer, August 2004.
63  J Simpson, Guarded Participation: Alternative Dispute Resolution and People with Disabilities, Law and Justice Foundation of NSW, 2002, <http://www.lawfoundation.net.au/resources/simpson/> (accessed June 2005), p. 3.
64  Simpson, Guarded Participation, p. 6.
65  Consultation with conciliator, HREOC, August 2004.
66  Simpson, Guarded Participation, pp. 36.
67  HREOC, The Complaints Handling Process, <http://www.humanrights.gov.au/complaints_information/lodge/index.html#9> (accessed November 2005).
68  Tenants Union, Consumer, Trader and Tenancy Tribunal, <http://www.tenants.org.au/factsheet/28.html> (accessed November 2005).
69  Family Court of Australia, Step by Step Guide to Proceedings in the Family Court, <http://www.familycourt.gov.au/presence/connect/www/home/guide/> (accessed November 2005).
70  Consultation with conciliator, HREOC, August 2004.
71  Consultation with CLC workers, Shopfront, September 2004
72  J Simpson, M Martin & J Green, The Framework Report: Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and Those at Risk of Offending, NSW Council for Intellectual Disability, Sydney, 2001, p. 7.
73  Consultation with CLC worker, DDLC, August 2004.
74  Interview no. 11.
75  Consultation with family law solicitor, October 2004.
76  Once people have initiated proceedings in the Family Court, they are required to attend a case assessment conference. The purpose of this conference is to assess what people need, although people are allowed to reach an agreement at this stage. Following this, parties are encouraged to attend mediation. If there are any family violence issues, the court states that people should notify the registrar. See Family Court of Australia, What To Expect In A Case Assessment Conference, <http://www.familycourt.gov.au/presence/connect/www/home/guide/resolution/conference/step_resolution_conference_what> (accessed September 2005). Note, however, that this information does not take into consideration those people who do not notify the court of family violence issues.
77  Consultation with CLC workers, WLS, October 2004.
78  Simpson et al., The Framework Report, pp. 910.
79  Consultation with solicitor, PWD, August 2004, also consultation with disability awareness trainer, August 2004.
80  Simpson et al., The Framework Report, p. 22.
81  Consultation with mediator, community justice centre, September 2004.
82  Consultation with mediator, community justice centre, September 2004.
83  Roundtable consultation, 3 June 2004, consultations with barrister, Sydney, January 2005, solicitor, CCLC, August 2004, Aboriginal mental health worker, Sydney, September 2004, family law solicitor, October 2004, convener of the NCSMC, December 2004. See also Goodfellow & Camilleri, Beyond Belief, Beyond Justice, pp. 6364.
84  Consultation with barrister, Sydney, January 2005.
85  Consultation with solicitor, CCLC, August 2004.
86  Consultation with family law solicitor, October 2004.
87  WRC, Submission to the Senate Select Committee on Mental Health, p. 6.
88  Consultation with family law solicitor, October 2004.
89  Interview no. 11.
90  This type of support is explored in greater detail in Chapter 6.
91  SSAT, General Appeal Information, <http://www.ssat.gov.au/iNet/ssat.nsf/pubh/generalinformation.5.0> (accessed November 2005).
92  Consultation with legal officer, Tenants Union, September 2004.
93  Consultations with official visitor, October 2004, CLC worker, Western NSW, September 2004, CLC workers, WLS, October 2004, disability awareness trainer, August 2004, clinical psychologist, Sydney, July 2004, mental health worker, Sydney, September 2004. Also roundtable consultations, 3 and 16 June 2004.
94  Disability Council, A Question of Justice, p. 76.
95  Consultation with CLC workers, WLS, October 2004.
96  Consultation with CLC worker, Western NSW, September 2004.
97  Consultation with disability awareness trainer, August 2004. Also consultation with CLC workers, WLS, October 2004, and roundtable consultations, 3 and 16 June 2004.
98  Interview no. 13.
99  Productivity Commission, Review of the Disability Discrimination Act 1992, p. 249. See also Goodfellow & Camilleri, Beyond Belief, Beyond Justice, p. 59.
100  Our Rights, Our Voices: A Forum for Women and Community Groups Working with Women to Discuss, Explore and Report on Womens Rights in NSW, NSW Council of Social Services & Womens Rights Action Network Australia, Sydney, 2004, p. 11. See also Goodfellow & Camilleri, Beyond Belief, Beyond Justice, p. 53.
101  Mullen, P, Notes on lecture entitled Persistent and Abnormal Claiming and Complaining, Department of Psychological Medicine, Monash University and Victorian Institute of Forensic Mental Health, Melbourne, 2003, p. 2.
102  Mullen, Persistent and Abnormal Claiming and Complaining, p. 3.
103  Mullen, Persistent and Abnormal Claiming and Complaining, p. 3.
104  Consultations with psychiatrist, Sydney, August 2004, CLC workers, KLC, Sydney, August 2004.
105  Consultation with registrar, Local Courts & Sheriff, July 2004.
106  Consultation with clinical psychologist, Sydney, July 2004.
107  Also G Lester, The Vexatious Litigant, Judicial Officers Bulletin, vol. 17, no. 3, April 2005, pp. 1719.
108  Consultation with community worker, Sydney, October 2004, also consultation with solicitor in charge, MHAS, December 2004.
109  Disability Council, A Question of Justice, p. 63.
110  Disability Council, A Question of Justice, p. 63.
111  Consultation with director, SSAT, September 2004.
112  Consultation with senior public servant, NSW Centre for Mental Health, April 2005, also consultation with CLC workers, Shopfront, September 2004.
113  Consultation with case manager, WRC, Sydney, November 2004.
114  Justice Health, The Statewide Community and Court Liaison Service, <http://www.justicehealth.nsw.gov.au/services/mental_health.html> (accessed August 2005).
115  Consultation with NSW Statewide Community & Court Liaison Service workers, Justice Health, August 2004.
116  Consultation with director, SSAT, September 2004.
117  Consultation with manager, ADB, November 2004.
118  Disability Council, A Question of Justice, p. 88.
119  Disability Council, A Question of Justice, p. 15.
120  See NSW Attorney-Generals Department (AGD), Disability Strategic Plan 20032005, Sydney, 2004.
121  Consultation with manager, ADB, November 2004.
122  Consultations with project officer, Family Court of Australia, September 2004, manager, SSAT, Sydney, September 2004, policy officer HREOC, June 2004.
123  Consultation with manager, SSAT, Sydney, September 2004.
124  Consultation with manager, SSAT, Sydney, September 2004. See also Forell et al., No Home, No Justice?, p. 254.
125  Family Court of Australia, The Childrens Cases Program: A New Way of Working With Parents and Others in Childrens Cases, <http://www.familycourt.gov.au/presence/connect/www/home/about/childrens_cases_program/> (accessed June 2005).
126  Consultation with the project officer Family Court of Australia, December 2005.
127  AGD, Disability Strategic Plan 20032005, p. 9 (section 2).
128  Goodfellow & Camilleri, Beyond Belief, Beyond Justice, p. 68.
129  Consultation with manager, ADB, November 2004.
130  Consultation with director, SSAT, September 2004.
131  Consultation with director, SSAT, September 2004.
132  Consultation with director, SSAT, September 2004.
133  Consultation with manager, ADB, November 2004.
134  Consultations with manager, ADB, November 2004, policy officer, HREOC, June 2004. See also Disability Council, A Question of Justice, p. 90.
135  Case Management Society of Australia, What is Case Management?, <http://www.cmsa.org.au/definition.html> (accessed August 2005).
136  Consultation with manager, SSAT, Sydney, September 2004.
137  Consultation with family law solicitor, October 2004.
138  See AGD, Disability Strategic Plan 20032005.
139  Consultation with disability awareness trainer, August 2004.
140  Consultation with consumer advocate, Sydney, August 2004.
141  Consultation with consumer advocate, Sydney, August 2004. The NSW Institute of Psychiatry is a statutory body that runs courses for professionals who come into contact with people with a mental illness. See NSW Institute of Psychiatry, Community, Consumer and Carer Programs 2005, <http://www.nswiop.nsw.edu.au/coursemenu_consumer.htm> (accessed September 2005).
142  E Robinson, Mental Health and Changing Families, Rodgers et al., Mental Health and the Family Law System, pp. 5070.
143  Consultation with the project worker, Family Court of Australia, December 2005.
144  Center for Court Innovation, Chronology, <http://www.problem-solvingcourts.org/ps_chronology.html> (accessed September 2005).
145  As noted in Chapter 1, the Law and Justice Foundation of NSW is partnering with the Universities of Sydney and Canberra and the Mental Health Tribunals in NSW, the Australian Capital Territory and Victoria in a project investigating mental health tribunals. This project draws on therapeutic jurisprudence literature and aims to assess the fairness and justice of tribunal hearings, and to identify best practice reforms.
146  D Wexler, Therapeutic Jurisprudence: An Overview, <http://www.law.arizona.edu/depts/upr-intj/> (accessed November 2005).
147  M S King & K Auty, Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction, Alternative Law Journal, vol. 30, no. 2, 2005, pp. 6974 at 73.
148  Center for Court Innovation, Principles, <http://www.courtinnovation.org/> (accessed September 2005).
149  Center for Court Innovation, Mental Health Court, <http://www.ccourtinnovation.org/demo_mhealth.html> (accessed September 2005).
150  California Courts Programs, Collaborative Justice: Mental Health Courts: <http://www.courtinfo.ca.gov/programs/collab/mental.htm> (accessed April 2005).
151  Center for Court Innovation, Manhattan Family Treatment Court, <http://www.ccourtinnovation.org/demo_05mftc.html> (accessed September 2005).
152  Drug Court Act 1998 (NSW), s. 3.
153  AGD, About the Drug Court of NSW, <http://www.lawlink.nsw.gov.au/drugcrt/drugcrt.nsf/pages/drugcrt2> (accessed September 2005).
154  AGD, About the Drug Court of NSW.
155  AGD, New South Wales Youth Drug and Alcohol Court, <http://www.lawlink.nsw.gov.au/lawlink/drug_court/ll_drugcourt.nsf/pages/ydrgcrt_aboutus> (accessed September 2005).
156  AGD, Magistrates Early Referral into Treatment Program, <http://www.lawlink.nsw.gov.au/cpd/merit.nsf/pages/index> (accessed September 2004).
157  Justice Health, The Statewide Community and Court Liaison Service.
158  Justice Health, The Statewide Community and Court Liaison Service.
159  Center for Court Innovation, Principles.
160  Magistrates Court of Victoria, Guide to Court Support Services, 2005, <http://www.magistratescourt.vic.gov.au> (accessed September 2005).
161  Homeless Persons Court Project, Improving the Administration of Justice For Homeless People in the Court Process, PILCH Homeless Persons Legal Clinic, Melbourne, 2004, <www.pilch.org.au> (accessed September 2005), p. 25.
162  See Simpson et al. for a discussion of the need for coordination between community services and the justice system to allow for diversionary options. Simpson et al., The Framework Report, para 4.20.
163  Homeless Persons Court Project, Improving the Administration of Justice For Homeless People in the Court Process, p. 29.
164  D J Farole & N Puffett, Can Innovation be Institutionalized? Problem-Solving in Mainstream Courts, 2004, <www.courtinnovation.org/pdf/can_innovation.pdf> (accessed September 2005).

Ch 6. Non-legal support
1  Consultation with Aboriginal mental health worker, Sydney, September 2004.
2  Interviews nos. 2, 8, 9, 10, 11, 14, 15, 24 and 29 (interview no. 29 taken from the Foundations study into homeless people). See also Forell et al., No Home, No Justice?, p. 181, S Scott & C Sage, Gateways to the Law: An Exploratory Study of How Non-Profit Agencies Assist Clients with Legal Problems, Law and Justice Foundation of NSW, Sydney, 2001, p. 30, Coumarelos et al., Justice Made to Measure. However, it should be noted that participants interviewed for this study were contacted through non-legal agencies and were therefore already in touch with them.
3  Interview no. 14.
4  Interview no. 24.
5  Interview no. 9.
6  Interview no. 14.
7  Consultations with CLC workers, Shopfront, September 2004, barrister, Sydney, January 2005, national program manager, MMHA, July 2004, also roundtable consultation, 16 June 2004. See also G Kamieniecki, Prevalence of Psychological Distress and Psychiatric Disorders among Homeless Youth in Australia: A Comparative Review, Australian and New Zealand Journal of Psychiatry, vol. 35, no. 352, 2001, L Cullen, Out of the Picture, Szirom et al., Barriers to Service Provision For Young People, HREOC, Human Rights and Mental Illness, pp. 73040, Nicholson et al., Critical Issues For Parents With Mental Illness and Their Families, p. 15.
8  Some non-legal services do not see assistance with legal issues as part of their role, while at the other end of the spectrum the OPC and tenancy workers have specialised workers who will advocate on behalf of a client at the CTTT.
9  Consultation with the CLC workers, Shopfront, September 2004.
10  Consultations with caseworker, South Coast, NSW, November 2004, community worker, October 2004, consumer advocate, Sydney, August 2004, Aboriginal mental health worker, Sydney, September 2004, mental health worker, Western NSW, August 2004, interview nos. 14 and 18.
11  Consultation with CLC workers, Shopfront, September 2004.
12  Interview no. 18.
13  Consultations with caseworker, South Coast, NSW, November 2004, community worker, October 2004, consumer advocate, Sydney, August 2004, Aboriginal mental health worker, Sydney, September 2004, mental health worker, Western NSW, October 2004, solicitor in charge, MHAS, Legal Aid, December 2004, interview nos. 14 and 18.
14  Consultation with social worker, MHAS, Legal Aid, August 2004.
15  Consultation with Aboriginal mental health worker, Sydney, September 2004.
16  Interview no. 8, consultations with caseworker, South Coast, NSW, November 2004, mental health worker, Sydney, September 2004, convener of the NCSMC, December 2004. See also Coumarelos et al., Justice Made to Measure. Awareness of legal services was raised by one roundtable attendee as a particular issue for people from a NESB: roundtable consultation, 16 June 2004. See also Worthington Di Marzio and Cultural Partners Australia, Access to Information about Government Services among Culturally and Linguistically Diverse Audiences, Victorian Department of Premier and Cabinet, Melbourne, 2001, <http://www.info.vic.gov.au/resources/cald_report.htm> (accessed March 2006).
17  Consultations with caseworker, South Coast, NSW, November 2004, CLC workers, Shopfront, September 2004, caseworker, Blue Mountains, July 2004, solicitor, CCLC, August 2004, investigation officers, NSW Ombudsman, September 2004, solicitor, regional CLC, September 2004, mental health worker, Sydney, September 2004, NSW Police inspector, South Coast NSW, November 2005.
18  Genn et al., Understanding Advice Seeking Behaviour, p. 35.
19  This is consistent with findings in Forell et al., No Home, No Justice?.
20  Consultation with CLC workers, Shopfront, September 2004.
21  Consultation with solicitor, CCLC, August 2004, also consultation with investigation officer, NSW Ombudsman, September 2004.
22  Interview no. 18.
23  Interview no. 25 (taken from the Foundations study into homeless people).
24  Consultation with caseworker, South Coast, NSW, November 2004.
25  Consultation with clinical psychologist, Sydney, July 2004.
26  See Australian Competition and Consumer Commission, ACCC Referral Guide, <http://www.accc.gov.au/content/index.phtml/itemId/386270> (accessed April 2006).
27  Consultations with caseworker, Blue Mountains, July 2004, CLC workers, KLC, August 2004, solicitor, CCLC, August 2004, pro bono solicitor, Sydney, September 2004, legal officer, Tenants Union, September 2004.
28  Consultation with solicitor, CCLC, August 2004, also consultations with CLC worker, Western NSW, September 2004, caseworker, South Coast, NSW, November 2004, CLC workers, KLC, August 2004.
29  Consultations with CLC workers, KLC, August 2004, Solicitor, CCLC, August 2004, CLC worker, Western NSW, September 2004, CLC workers, Shopfront, September 2004, pro bono solicitor, Sydney, September 2004, family law solicitor, October 2004. The importance of this role was also mentioned in CCLC NSW, Submission to the Senate Select Committee on Mental Health.
30  Consultations with CLC workers, KLC, August 2004, solicitor, CCLC, August 2004, CLC worker, Western NSW, September 2004, CLC workers, Shopfront, September 2004, pro bono solicitor, Sydney, September 2004, family law solicitor, October 2004. The importance of this role was also mentioned in CCLC NSW, Submission to the Senate Select Committee on Mental Health.
31  Consultation with CLC workers, KLC, August 2004.
32  The importance of non-legal services providers and non-government organisations is highlighted in A Freeman, G Hunt, E Evenhuis, D Smith & J Malone, High Support Accommodation for People with Psychiatric DisabilitiesA Survey of High Support, Very High Support and Residential Rehabilitation Services in NSW and Assessment of the Needs and Satisfaction of Consumers Residing There, Aftercare, Sydney, 2003, p. 13.
33  Consultation with CLC worker, Western NSW, September 2004.
34  Consultation with solicitor, CCLC, August 2004.
35  Consultation with CLC workers, Shopfront, September 2004.
36  Consultation with pro bono solicitor, Sydney, September 2004.
37  Consultation with pro bono solicitor, Sydney, September 2004.
38  Consultations with caseworker, Blue Mountains, July 2004, mental health worker, Sydney, September 2004, investigation officers, NSW Ombudsman, September 2004, caseworker, South Coast, NSW, November 2004, community worker, Sydney, October 2004, OPG, August 2004, solicitor, OPC, September 2004, also interview nos. 10 and 14.
39  Forell et al., No Home, No Justice?, p. 208.
40  Consultation with caseworker, South Coast, NSW, November 2004.
41  Consultation with caseworker, Blue Mountains, July 2004.
42  Consultation with Aboriginal mental health worker, Sydney, September 2004, also interview no. 10.
43  Case study provided by the OPG.
44  Interview no. 14.
45  Consultation with mental health worker, Sydney, September 2004.
46  Consultation with solicitor, OPC, September 2004.
47  Consultation with the OPG, August 2004.
48  Consultation with mental health worker, Sydney, September 2004.
49  Consultations with investigation officer, NSW Ombudsman, September 2004, Caseworker, Blue Mountains, July 2004, caseworker, South Coast, NSW, November 2004, barrister, Sydney, January 2005, mental health worker, Sydney, September 2004.
50  Consultation with caseworker, Blue Mountains, July 2004.
51  Consultation with investigation officer, NSW Ombudsman, September 2004.
52  Consultation with consumer advocate, Sydney, August 2004.
53  Consultation with community worker, Sydney, October 2004.
54  Consultation with CLC workers, Shopfront, September 2004, also roundtable consultation, 3 June 2004.
55  Consultation with CLC workers, Shopfront, September 2004.
56  Interview no. 3.
57  Roundtable consultation, 3 June 2004.
58  Consultation with CLC workers, Shopfront, September 2004.
59  Carole Millar Research, Referrals Between Advice Agencies and Solicitors, Legal Studies Research Findings No 21, The Scottish Office Central Research Unit, Edinburgh, 1999, <http://www.scotland.gov.uk/cru/resfinds/lsf21-00.htm> (accessed March 2006).
60  Consultations with CLC workers, Shopfront, September 2004, solicitor, CCLC, August 2004, clinical psychologist, July 2004, also interview no. 25 (taken from the Foundations study into homeless people).
61  Roundtable consultation, 3 June 2004.
62  Consultation with solicitor, CCLC, August 2004.
63  Consultation with solicitor, CCLC, August 2004. A psychiatrist also observed that health workers can be intimidated by solicitors. This can be exacerbated by the difference in communication styles between the sectors. He suggested that the relationship between the two sectors may be assisted by joint conferences and other activities: consultation with psychiatrist, August 2004.
64  Consultation with CLC workers, WLS, October 2004.
65  Interview no. 25 (taken from the Foundations study into homeless people), roundtable consultation, 3 June 2005, also consultations with executive officer, Human Services CEOs Forum, March 2005, social worker, MHAS, August 2004. See also Szirom et al., Barriers to Service Provision for Young People, p. 7.
66  Select Committee on Mental Health, Mental Health Services in NSW: Final Report, HREOC, Human Rights and Mental Illness, MHCA, Submission to the Senate Select Committee on Mental Health, CCLC NSW, Submission to the Senate Select Committee on Mental Health, WRC, Submission to the Senate Select Committee on Mental Health, Not for Service.
67  NCOSS, Productivity Commission Report on Government Services: Health, NCOSS News, vol. 32, no. 2, March, 2005, pp. 89.
68  Consultation with mental health worker, Western NSW, August 2004.
69  Consultations with CLC workers, WLS, October 2004, solicitor, CCLC, August 2004.
70  Consultations with CLC worker, Western NSW, September 2004, solicitor, CCLC, August 2004.
71  Consultation with solicitor, CCLC, August 2004.
72  Consultations with solicitor, regional CLC, September 2004, barrister, Sydney, January 2005.
73  See Chapters 4 and 5.
74  Kamieniecki, Prevalence of Psychological Distress and Psychiatric Disorders among Homeless Youth in Australia, see also Andrews et al., The Mental Health of Australians.
75  Kamieniecki, Prevalence of Psychological Distress and Psychiatric Disorders among Homeless Youth in Australia, Cullen, Out of the Picture, Szirom et al., Barriers to Service Provision for Young People.
76  Szirom et al., Barriers to Service Provision for Young People, p. 3.
77  Consultation with CLC workers, Shopfront, September 2004.
78  Consultations with barrister, Sydney, January 2005, national program manager, MMHA, July 2004, also roundtable consultation, 16 June 2004.
79  HREOC, Human Rights and Mental Illness, pp. 73040, Not for Service, pp. 8, 243, 259.
80  Roundtable consultation, 16 June 2004.
81  Roundtable consultation, 16 June 2004.
82  Nicholson et al., Critical Issues for Parents with Mental illness and Their Families, p. 15.
83  HREOC, Human Rights of People with a Mental Illness, p. 273.
84  HREOC, Human Rights of People with a Mental Illness, p. 271.
85  Not for Service, p 143, also interview no. 2
86  NSW Ombudsman, Report under Section 26 of the Ombudsman Act, paras 8.13 and 7.3.58, also consultation with community worker, Sydney, October 2004.
87  HREOC, Human Rights of People with a Mental Illness, p. 360.
88  Interview No. 3.
89  Consultation with CLC workers, Shopfront, September 2004.
90  Consultations with senior public servant, NSW Centre for Mental Health, March 2005, mental health worker, Sydney, September 2004, also roundtable consultation, 3 June 2004.
91  Consultations with mental health worker, Sydney, September 2004, psychiatrist, Sydney, August 2004.
92  Consultation with mental health worker, Sydney, September 2004.
93  Consultations with mental health worker, Sydney, September 2004, official visitor, October 2004, also roundtable consultation, 3 June 2004. For example, to assist its workers in their referral role, Centrelink has developed a referral database containing both legal and non-legal services.
94  Consultation with mediator, community justice centre, September 2004. Also roundtable consultation, 16 June 2004, consultations with CLC workers, Shopfront, September 2004, mental health worker, September 2004, solicitor, CCLC, August 2004.
95  Consultation with CLC workers, Shopfront, September 2004.
96  Consultation with CLC workers, Marrickville Legal Centre and KLC, January 2006.

Ch 7. Discussion and conclusion
1  Andrews et al., The Mental Health of Australians.
2  Andrews et al., The Mental Health of Australians, Jablensky et al., People Living with Psychotic Illness.
3  Jablensky et al., People Living with Psychotic Illness, Select Committee on Mental Health, Mental Health Services in New South Wales, HREOC, Human Rights and Mental Illness.
4  Farole & Puffett, Can Innovation be Institutionalized?

References

Appendices

Acknowledgements

Access to justice and legal needs research program: Terms of reference

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