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