On the edge of justice: the legal needs of people with a mental illness in NSW    Cite this report

Executive Summary

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:

• obtain legal assistance (including legal information, basic legal advice, initial legal assistance and legal representation)
• participate effectively in the legal system (including courts and tribunals)
• obtain assistance in legal processes from non-legal advocacy and support agencies (including non-legal early intervention).

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:

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

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:

• A lack of awareness of their legal rights, whereby individuals do not realise that their problem has a legal element and potential remedy.
• Being disorganised, which may make it difficult for people to prioritise their legal problem and keep appointments with legal service providers.
• Being overwhelmed, and therefore too frightened, or lacking the motivation, to seek legal assistance.
• Being mistrustful of, or frightened of, divulging personal information to legal service providers. This may prevent the service provider from adequately assisting the client.
• Difficult behaviour. Some people with a mental illness may exhibit difficult behaviour, making it challenging for service providers to assist them.
• Communication problems, which can hinder a solicitor in assisting their client effectively.
• Lack of mental health care and treatment, the absence of which, it was noted, resulted in the exacerbation of the above barriers.

• The limited availability of affordable legal services. Given that people with a mental illness tend to have lower levels of income, they are likely to be reliant on increasingly stretched services such as the Legal Aid Commission of NSW (Legal Aid), community legal centres (CLCs), Aboriginal legal services and pro bono legal service provision.
• Time constraints placed on legal service provision. Stakeholders argued that while people with a mental illness often require longer appointment times with lawyers, the limited resourcing of Legal Aid and CLCs make this extremely difficult.
• Remote, rural and regional issues. Stakeholders suggested that the lack of affordable legal services is even more pronounced in rural and regional areas. The organisation and cost required to travel large distances to access services create additional barriers.
• Difficulties in identifying mental illness. Legal service providers may not always be able to identify that a client has a mental illness, which may result in a person not receiving the time, assistance and understanding they need to resolve their legal issue. While mental illness is often considered by Legal Aid and CLCs to determine whether a person is eligible for legal representation, this is impossible if the illness remains unidentified.
• A perceived lack of credibility. Stakeholders observed that some lawyers find people with a mental illness less credible, and are less inclined to believe what they say, and more ready to dismiss their claims.
• Physical environment. It was noted that certain aspects of the physical environment and office procedures of a legal service may act as barrier to individuals with a mental illness using the service.

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

• Stress, which may deter people with a mental illness from initiating or continuing with legal proceedings.
• Cognitive impairment. While not always a symptom of mental illness, this can create barriers in understanding legal documents and processes.
• Problems with time management. When present, these can lead to difficulties in managing documents and appointments, and complying with timeframes.
• Communication problems associated with the symptoms of mental illness. Such problems may be exacerbated when a person does not speak English as a first language and when complicated legal terminology is used.
• Features of the courtroom environment, such as the formality and structure of courtrooms, can intimidate people with a mental illness and at times even exacerbate their symptoms.
• Features of alternative dispute resolution (ADR). Certain benefits of ADR for people with a mental illness were noted. However, concerns about ADR were raised where people with a mental illness are unrepresented during the dispute resolution process, and where there is an imbalance in power between parties.
• A lack of legal representation. Stakeholders argued for the importance of legal representation in facilitating effective participation in the legal system.
• A perceived lack of credibility. 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.
• Failure to identify or recognise a person’s mental illness, resulting in no allowance being made to cater to the individual’s needs, or the illness not being taken into consideration in determining the outcome of the matter.

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:

• the identification of a legal issue and the provision of preliminary legal information
• referral to legal service providers
• helping a client when they seek legal assistance
• advocacy
• education, training and awareness-raising about mental illness.

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.