Final Task 1B - Autumn 2020, 1200 word essay with question PDF

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1200 word essay
Autumn 2020 essay question: Critically assess the obstacles that make it difficult (or in some cases, perhaps, impossible) for people with psychiatric disabilities to secure legal representation and/or justice. Consider also the degree to which measures that have been introduce...

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70103

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Ethics Law and Justice

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1290

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26/04/2020

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QUESTION (Autumn 2020): Critically assess the obstacles that make it difficult (or in some cases, perhaps, impossible) for people with psychiatric disabilities to secure legal representation and/or justice. Consider also the degree to which measures that have been introduced or proposed with a view to overcoming these obstacles have been successful and whether (and what) more needs to be done.

In our society, people with mental illnesses are among the most disadvantaged. 1 They face ‘inequality of experience’ in most aspects of daily life, in particular when securing legal representation. 2 Mental illness is defined as ‘serious impairment (of) mental functioning … either temporarily or permanently’ influencing how one feels, interacts, behaves with others in society. 3 Major types include; bipolar and personality disorders, schizophrenia, clinical depression, anxiety disorder, post-traumatic stress disorder, and obsessive-compulsive disorder all requiring diagnosis by a psychiatrist, hence the encompassing term ‘psychiatric mental illnesses’.4 Whilst several measures have been introduced to combat the disadvantages faced by people with psychiatric mental illnesses securing legal representation, they still remain a highly vulnerable minority within society, especially when attempting to access justice. This notion is further explored through; their individual adversity in securing legal representation; intrinsic, systemic barriers stemming from detrimental prejudice, and their engagement in the legal process persistently impacted by the law’s complex nature and a deficit of accessible, auxiliary services. It is imperative adjustments are made to the current social context, supporting experience equality and wholesome, legal representation for people with psychiatric disabilities.

1 Maria Karras et al, On the Edge of Justice: the legal needs of people with a mental illness in NSW (Report, May 2006) vol 4, 4 [4]. 2 Pascoe Pleasence et al, Reshaping legal assistance services: building on the evidence base, (Report, April 2014) 5. 3 Mental Health Act (No 8) 2007 (NSW) s 4, Department of Health, What is mental illness? (Web Page, May 2007) [2] . 4 Department of Health (n 3) [3].

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Individual adversity experienced by people with mental illnesses attempting to secure legal representation is prevalent in society due to several factors. These include little or no knowledge of their legal rights, communication and behavioural issues associated with their illness, and willingness to speak and divulge personal information to legal services. 5 Further, they characteristically have low socio-economic status, thus a compounding disadvantage of affordability of legal services. 6 Evidently, leaving time and financially strained, public services such as Legal Aid NSW and community legal centres to manage the symptomatic behaviour of people with mental illnesses. 7 Cognitive impairments and behavioural problems pose a highly challenging environment for which legal services are not trained or equipped to provide adequate provisions to people with mental illnesses. 8 Divulging personal information to a stranger is daunting for the average person, however, those with a mental illness are more vulnerable, finding the process extremely stressful and overwhelming thus, often unwilling to do so, due to scepticism and symptoms of paranoia. 9 The Mental Health Review Tribunal in NSW, legislated under the Mental Health Act 2007 (NSW) s140, has jurisdiction in civil hearings conducting inquires and reviews the cases of forensic patients deemed ‘unfit for trial’ or ‘not guilty by reason’ of their mental illness. 10 This is beneficial post-trial. Conversely, pre-trial, there is no legal service in NSW that provides tailored assistance to people with mental illnesses seeking justice. Victoria has established the Mental Health Legal Centre who educate their ‘multi-disciplinary’ staff on mental illnesses, to deliver justice to people with psychiatric disabilities. 11 If this type of free, public legal centre were introduced

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Karras (n 1) 90. Law Council of Australia The Justice Project (Final Report, August 2018) 184 [2]. 7 Abigail Gray, Suzie Forell and Sophie Clarke Cognitive impairment, legal need and access to justice (Report No 10, March 2009) 9 [6]. 8 Senate Select Committee on Mental Health, Parliament of Australia, A national approach to mental health – from crisis to community (First Report, March 2006) 340 [13.48]. 9 Ibid. 10 Mental Health Review Tribunal, The Tribunal (Web Page) [5] , Mental Health Act (No 8) 2007 (NSW) s 140. 11 Mental Health Legal Centre, Our Purpose, (Web Page) . 6

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in NSW, it will be a proactive measure, substantially reducing obstacles to secure legal representation.

The intrinsic, systemic barriers faced by people with mental illnesses pursuing legal representation stem from detrimental prejudice associated with their disability. The underlying cause of the misconceptions associated with their illness, is attributed to poor media portrayal and power imbalances. Systemic power imbalances are intensified as those with psychiatric mental illnesses are part of an additional minority group, such as Aboriginal or Torres Strait Islanders, people living in rural areas and people from non-English speaking backgrounds.12 The degradation of the relationship between people and access to the justice system, has evolved from the preconceived notions of dangerous, unpredictability and instability associated with mental illnesses, irrespective of their type of impairment. 13 Such notions are exacerbated by the media fuelling stigma and prejudice as these victimised, powerless minority groups endeavour to secure legal representation. 14 A conscience effort from the media to review the way people with psychiatric disabilities are depicted will begin to alleviate the prejudice cast on such minority groups. The Law and Justice Foundation Act 2000 (NSW) s 4(1) enacts the Law and Justice Foundation for socially and economically disadvantaged people, to improve access to justice. 15 While the independent foundation ‘conducts research, … promotes education, … [and] sponsor projects aimed at facilitating access to justice’ it fails to physically change the environment in a court room setting where people with psychiatric mental illnesses are vulnerable. 16 Adapting the traditional courtroom setting to enable a ‘flexible service delivery’,17 recognising cognitive impairment, thus

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Law Council of Australia (n 6) 25, Pleasence (n 2) 122. Heather Stuart, ‘Media Portrayal of Mental Illness and its Treatment’ (2006) 20(2) CNS Drugs 99, 1-3, Gray (n 7) 4. 14 Stuart (n 13) 3, Senate Select Committee on Mental Health (n 8) 346 [13.81]. 15 Law and Justice Foundation Act (No 97) 2000 (NSW) s 4(1), Law and Justice Foundation, About the Law and Justice Foundation, (Web Page, 25 June 2019) . 16 Law and Justice Foundation Act (No 97) 2000 (NSW) s 5(1). 17 Karras (n 1) 149. 13

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adapting and providing experience equality, to suit the individual’s needs. 18 The inclusive nature of this ‘therapeutic jurisprudence-based approach’ involves proceedings in less formal settings such as alternative dispute resolution and tribunals, as to not overwhelm or cause stress to the individual involved. 19 Further, taking frequent breaks, and permitting more time for explanations to be communicated and understood, will aid to overcome the systemic barriers. 20 With these measures introduced, the intrinsic, systemic barriers faced by people with psychiatric disabilities will be minimised, allowing this minority group to pursue equality of experience securing legal representation.

Engaging in the legal process for people with psychiatric disabilities attempting to access justice is persistently impacted by the law ’s complex nature and a deficit of accessible auxiliary services. It is imperative that any debate of the legal necessities of people with mental illnesses, thus cognitive impairment, must appreciate the common disadvantages faced by this group when accessing justice. 21 Such disadvantages include; a perceived lack of credibility, facilitated by systemic prejudicial barriers and their lack of understanding of the law and associated legal rights, due to its complex nature. 22 Consequently, there is a minimal chance of the individual achieving a satisfactory outcome. 23 The NSW Court Liaison Service established in 2002 provides assessments of individuals ‘mental health difficulties’ across twenty-one local courts to divert severely affected individuals to appropriate psychiatric health services. 24 This program is effective in its ability to intervene once the individual reaches the court system, yet, there is a substantial deficit in auxiliary services to secure legal representation for an individual with a mental illness. Queensland’s holistic approach of the

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Pleasence (n 2) 5, Gray (n 7) 1. Karras (n 1) 150-1, John Littrich and Karina Murray Lawyers in Australia (The Federation Press, 4th ed, 2019) 384 [2]. 20 Karras (n 1) 149. 21 Gray (n 7) 2. 22 Karras (n 1) 10. 23 Senate Select Committee on Mental Health (n 8) 340. 24 Deborah Bradford and Nadine Smith An Evaluation of the NSW Court Liaison Services (Report, 2009) 11. 19

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Mental Health Court, legislated by the Mental Health Act 2016 (Qld) s 21 to determine if the individual ‘was of unsound mind’ and/or ‘unfit for trial’ of the charged ‘serious offence’.25 Matters are heard by one Supreme Court Judge on the advice of two expert psychiatrists.26 The use of expert psychiatrists who understand, to the full extent, individuals adversity of their illness is paramount for equality of experience, inclusivity, and engaging in the legal process. Introducing this type of court in NSW could incorporate the ‘flexible service delivery’ 27 as a mechanism to reduce the impact of the law’s complex nature and develop legal services accessible for people with psychiatric disabilities, seeking justice.

Despite current measures, accessibility deficiencies still exist within the NSW justice system for people with psychiatric mental illnesses. This is attributed to; individual adversity, systemic prejudicial barriers and their engagement in the legal process frequently impacted by the law’s complex nature and a deficit of accessible auxiliary services, as they endeavour to secure legal representation. Reform is an immediate necessity for experience equality of this minority group, to overcome these obstacles accessing justice.

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Senate Select Committee on Mental Health (n 8) 331, Mental Health Act 2016 (Qld) s 21. Ibid. 27 Karras (n 1) 149. 26

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