THE LEGAL profession’s calls for clearer guidelines on how to deal with clients suffering from mental illness were answered last week in a joint initiative of the NSW Young Lawyers and the Law Society of NSW.
Created as a “quick reference guide”, the brochure aims to promote the issue of mental illness and educate the profession ahead of legislation to come into force next year.
The guide tells lawyers what to do when they suspect their client has a mental illness, how to assist such clients in coping with the justice system or with their care and treatment, as well as where to find relevant resources.
Justice Greg James, former judge of the NSW Supreme Court and Royal Commissioner in South Australia, and current president of the Mental Health Review Tribunal of NSW, helped to launch the brochure last week. He told Lawyers Weekly that the guide is “not the first [of its kind], but it’s far and away the best presently available”.
It is “to be used by lawyers, in a field which does affect a surprisingly wide number of people, and an awful lot of families, so that the solicitors are in a position, there and then, to know what to say and where to go,” Justice James said.
Although a long time in the making, the current law — the Mental Health Act and the Mental Health Criminal Procedure Act — is set to be reviewed, with an exposure draft of a Mental Health Bill waiting on submissions until the middle of November.
Justice James has prepared a draft consultation as part of a review of the forensic provisions of the mental health legislation. He plans to “embark on a massive public consultation process”, and has called on the legal community to get involved.
“Solicitors need to know about … the medical and legal context for that legislation, and they need to know what they can do for their clients, or their clients’ families, if there are mental health issues, since most mental health issues affect status, capacity, liability, criminality and so forth,” Justice James said.
Speaking for the Law Society, Shauna Jarrett, chair of the Society’s human rights committee and senior associate at Griffiths Nicholson Lawyers, believes the current law is incomprehensive.
“When you deal with criminal clients, there is quite a well-developed area of information and support, but not so much when you’re dealing with clients in a civil matter,” she said.
The need for the brochure “came from lawyers themselves, and generally a growing awareness in the community, and in the profession, of dealing with people with a mental illness,” Jarrett said.
“We’re all trained with respect to saying whether or not a client has capacity, to sign a will, or a power of attorney, but that’s different to a client who may have a mental illness. And we just recognised a gap in the information that’s available to solicitors.”
In the current age of anti-terrorism and refugee regulations, mental health issues are as important as ever, Justice James said.
“Questions of detention have assumed quite a deal of public importance, not only from the human rights viewpoint, but also from the point of view that, if we’re going to detain people, we must make sure that they are treated properly,” he said.
“The High Court has looked at the status of people being detained as refugees [and within] the corrective services system, it’s going to look at…control orders [with regard to Jack Thomas, and] it has looked at mental health detentions — and the Young Lawyers are very conscious of all that.”
According to Justice James, the Young Lawyers is uniquely placed to address these sorts of issues, “particularly because there is a degree of public spiritedness and idealism, which allows Young Lawyers to do, not only individual cases of pro bono, but also to look at the wider institutional implications, such as the mental health system, and to advise their members about areas that people wouldn’t normally have come across in their studies”.