What happens when a young lawyer with no experience of mental health law finds herself suddenly drafted to work at the mental health and advocacy coalface? Mia La Burniy reports.
“Terrified” is one word to describe how I as a junior lawyer from Herbert Smith Freehills felt when told I was going to spend the next five months on secondment at Queensland’s Public Interest Law Clearing House’s (QPILCH) Mental Health Law Practice (MHLP).
I didn’t know what mental health law was and, to be quite honest, I had never turned my mind to the possibility that there was a whole area of law set aside for mental illness. Little did I know that the Mental Health Act 2000 (Qld) (MHA) would become my bible for the next five months.
The QPILCH MHLP is a rapidly expanding service that provides advocacy for clients in the Mental Health Review Tribunal (MHRT); civil law advice to clients with mental illness and their families; caseworker training for mental health practitioners in identifying legal issues; and referral pathways and telephone advice and assistance to clients throughout Queensland on issues under the MHA.
At any one time the service can have 100 active files. All of this is done on a shoestring budget and with the assistance of wonderful student volunteers.
What I needed to learn – and quickly
An important distinction to make is that there are voluntary patients (those who recognise they have a mental illness and accept treatment) and involuntary patients (those who do not recognise they have a mental illness and refuse treatment).
The MHA allows for the involuntary treatment of involuntary patients. The concept of forcing treatment on someone inevitably raises a number of human rights issues. Taking this into consideration, the MHA established an independent body, the MHRT, to protect the rights of these patients. Its purpose is to balance the rights of patients with the rights of others and the protection of the community.
My main experience with the MHRT was as a legal representative in Involuntary Treatment Order (ITO) review hearings.
Patients are placed on ITOs by psychiatrists because they meet all the treatment criteria outlined in section 14 of the MHA. Namely, they have a mental illness which requires immediate treatment; the treatment is available at a mental health service; because of the person’s illness there is an imminent risk of harm to self or others, or the person is likely to suffer serious mental or physical deterioration; there is no less restrictive option for treatment; and the person lacks the capacity to consent to treatment or has unreasonably refused treatment for their illness. A patient’s ITO is reviewed by the MHRT every six months (or more frequently at the request of a patient).
The MHRT is made up of three sitting members – a lawyer, a psychiatrist and a community member with experience in mental health. This process is designed to be as informal as possible for the patient’s benefit. The patient, their advocate and a member of the treating team are all invited to attend the hearing to discuss the patient’s current mental health and wellbeing.
The MHRT takes the time to hear both the patient’s and the treating team’s views. The purpose of the review hearing is for members to review whether all the treatment criteria continue to apply to the patient and access whether a patient’s ITO should be confirmed, revoked or the category should be changed.
Patients are encouraged to attend their MHRT hearings – however attendance rates are extremely low. The purpose of the MHLP’s advocacy service is to arm clients with knowledge about the review process, assist them to understand their clinical report (a report prepared by their treating team about why they believe they meet the criteria), and advocate on their behalf at the review hearing. Mental health lawyers, however, are hard to come by and many patients do not have the means of obtaining assistance.
While this process is intended to be patient-focused, it is still a legal process that many patients fail to understand – and, in fact, many fear it.
Listen, listen, listen
It might appear clichéd to say, but no two days of my secondment were ever the same and no day was ever like my ordinary ‘day job’.
I could have been representing a client at the MHRT on a couple of hours’ notice, facilitating communication between a client and their treating team, assisting a client to understand their rights under the MHA, or driving between hospitals in South-East Queensland to take urgent instructions. I quickly learnt that the only way to get through it was to be as flexible as possible
As part of my secondment, I quickly learnt that listening to my clients’ stories was equally as important as providing them with appropriate legal advice. In a number of circumstances I had to grapple with the reality that despite however terrible a client’s story was, there was no legal answer to their issues and there was nothing the practice could do to assist them.
Looking back over the last five months, I really do wonder what I was terrified of! My secondment gave me new opportunities to develop a number of key skills that I will continue to use and grow.
I encourage all junior lawyers to consider a pro bono secondment. Embrace the unknown, learn about new things and most of all, be flexible. You will be surprised how much you know.
Mia La Burniy (pictured) is a solicitor with Herbert Smith Freehills in Brisbane