Mental Health Legal Centre Inc.

Pro Bono Justice Project

 

Legal representation at Mental Health Review Board hearings

Melbourne Metropolitan Region

Introduction and overview:

The Mental Health Legal Centre is a twenty-two-year-old statewide service providing legal assistance to users of mental health services (“consumers”). Through casework and advice, policy and law reform and community legal education the Centre commits itself to furthering the rights of people with a mental illness in Victoria.

The Pro Bono Justice Project (“Project”) aims to address the alarmingly low level of legal representation for people subject to enforced psychiatric treatment in their hearings before the Mental Health Review Board (“the Board”).

Specifically, the Project engages pro bono lawyers in private practice who are trained, supervised and supported by the Centre to represent involuntary patients in the Melbourne metropolitan region who are subject to Community Treatment Orders (“CTOs”).

In any given year no more than 10% of Board hearings involve legal representation on the part of the person whose rights are affected.

Victoria Legal Aid provides a duty lawyer advice and representation service to inpatients on Involuntary Treatment Orders (“ITOs”) before the Board, while the Centre focuses on CTO hearings. CTO representation by its nature is more resource intensive than inpatient hearings. While CTO hearings comprise around 70% of hearings, they account for less than 30% of the total hearings with representation. Given its limited resources, however, the Centre itself is unable to fully meet this need.

With the rate of representation so low, Victoria stands in stark contrast to other parts of Australia, such as the Northern Territory, where the figure is around 90%. The availability of independent advice and advocacy for consumers is critical to a fair and participatory democracy and Victoria’s recent Charter of Human Rights and Responsibilities further enshrines the right to a fair trial, including the right to legal representation. In a jurisdiction where many, if not most, clients suffer additional financial and social disadvantage, the increased provision of free or pro bono legal advocacy through the Project is crucial.

The Project expands and refines the Centre’s existing pro bono program with Maddocks lawyers, which has run successfully since around 2003. Of all the pro bono partnerships developed between community legal centres and private firms, this is one of the most enduring and successful. Among the reasons for this, it seems, are that the work is specialised, clearly defined, quite different from the work generally performed by volunteers, involves hands on, relatively quick turnaround advocacy and exposes lawyers to fascinating issues and wonderful clients.

Encouraging private law firms and solicitors in private practice to commit their energy and resources to the Project not only increases the number of people represented, but also generates a broader awareness of mental health law issues in the legal community.

The Mental Health Legal Centre

The Mental Health Legal Centre is a specialist community legal centre which provides a free and confidential legal service to anyone who has experienced mental illness in Victoria where their legal problem relates to their mental illness.

The Centre provides a three-tiered approach to the law, through casework, community legal education and law reform/policy. All Centre activities aim to promote the rights of people who experience mental illness. The Centre is a non-profit organisation run by an independent, voluntary Committee of Management.

Objectives of the Centre

• To provide legal services of advice, representation, advocacy and referral to people having or labeled as having a psychiatric disability who otherwise would not have access to those services.

• Through community legal education, to achieve knowledge of and attainment of rights for people with psychiatric disability.

• To advocate with and for people with a psychiatric disability on policy and law reform issues, facilitating Consumer participation and basing Centre positions on Consumer views.

• To be responsive to the needs of service users and staff (paid and unpaid), facilitate a maximally effective and participatory management structure and ensure the Centre is as well equipped as possible in terms of resources to meet its Objectives.

We receive the majority of our funding from the Victorian Department of Human Services and Victoria Legal Aid.

The Mental Health Act

The Mental Health Act 1986 (Vic) (“the Act”) governs the provision of mental health services in Victoria and authorises involuntary detention and involuntary treatment in circumstances where a person meets the criteria for involuntary treatment under the Act.

An Involuntary Treatment Order (ITO), obliging a person to accept treatment for mental illness, can apply to both inpatients in hospital, or to people living in the community who are subject to a Community Treatment Order (CTO). The Act states that treatment should always be provided in the least restrictive way. A CTO is considered to be less restrictive than being an inpatient in hospital, however a person subject to a CTO is still an involuntary patient.

A person’s legal rights are affected by their status under the Act as either an inpatient on an ITO, or a person subject to a CTO. Involuntary treatment restricts an individual’s liberty and in particular their freedom to make decisions regarding their treatment. Treatment is broadly defined under the Act and includes the administration of medication, restraint, psychotherapy, monitoring and case management. The Act also authorises the provision of seclusion, restraint and electroconvulsive therapy (ECT) in certain circumstances.

The Mental Health Review Board

The Mental Health Review Board is an independent tribunal formed pursuant to the Act. Its key function is to conduct hearings to determine whether a person should continue to be treated as an involuntary patient under the Act.

Involuntary patients must have their status reviewed by the Board initially within eight weeks of becoming involuntary (“automatic review”), and thereafter every 12 months while still involuntary. Involuntary patients may also challenge their involuntary status by appealing to the Board at any time. There is no limit to the number of times a person can appeal.

Board hearings are conducted at the various Area Mental Health Services and hospitals around Melbourne. Board hearings at each Service are conducted by and large on a fortnightly basis. There are around 25 Area Mental Health Services within metropolitan Melbourne which conduct hearings for people subject to CTOs.

The Board has the power to, amongst other things, discharge a person from the Order, confirm the Order, vary its length or remove/vary a residence condition if there is one as well as to order revision of the Treatment Plan to ensure it conforms with the requirements in the Act.

Pro Bono Justice Project – Melbourne Metropolitan Region

Encouraging private law firms and solicitors in private practice to commit their energy and resources to the Project not only increases the number of people represented, but also generate a broader awareness of mental health law issues in the legal community.

Consumers routinely suffer discrimination and disempowerment through the infringement of their rights and the social stigma of the label “mental illness”. One of the most frequent concerns of consumers is that their views are routinely disregarded, or their complaints passed off as being merely a “symptom of the illness”.

The Board’s determination in respect of a person’s involuntary status, by definition, impacts significantly on that person’s rights and freedoms.

All involuntary patients have a right to legal representation, which is articulated in the Act, consistent with the right to a fair trial - a principal enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”). However, whilst some are able to access representation through private solicitors, the reality is that many suffer from social and economic disadvantage and are therefore unable to access such representation.

An advocate can help to focus a client’s instructions on the relevant aspects within the purview of Board’s decision-making power. This can positively influence the outcome for the client, both in terms of the likelihood of discharge from the Order, and also the level of engagement of the Board with the client’s views about their treatment. The overall rate of discharge from CTOs by the Board is, on average, under 5%. The average rate of discharge for clients who are legally represented ranges from 10-16%.

The Centre also recognises the important role that an advocate can play in empowering a client and increasing their feeling that the hearing process is fair and participatory, irrespective of the outcome in terms of discharge from or variation of the Order or direction for a Treatment Plan to be revised. A crucial tenet of advocacy in mental health law is to rigorously adhere to an instructions-based model, as distinct from a “best interests” approach. Lawyers advocate the client’s wishes and not what may be perceived as their best interests. Simply having their views clearly articulated and seriously considered by an independent authority can be a rare and empowering experience for many involuntary patients.

Structure of the Project

The Project is an expansion of the pro bono program established with lawyers from Maddocks and thus far has attracted lawyers from numerous city-based law firms.

Firms commit a minimum of two pro bono lawyers to the Project who each represent clients before the Board on either a monthly or bi-monthly basis, depending upon their firm’s agreed commitment.

Requests for representation are coordinated by the Centre’s Pro Bono Coordinator, who has an initial discussion with the client. The Pro Bono Coordinator outlines the Centre’s procedure and advises the client that they will be represented by a pro bono lawyer, who is acting in a volunteer capacity for the Mental Health Legal Centre.

Pro bono lawyers at all times act for and on behalf of the Centre and, once a matter is allocated, are essentially responsible for the client’s case. This involves:

Pre-hearing & interview:

• arranging any adjournments as appropriate;
• liaising with the client and the clinic (and interpreters as required) to organise the client interview and file review;
• Attending the Area Mental Health Service where the client attends approximately one week before the date of the hearing to interview the client and review the client’s clinical file.
• Facilitating access for the person to their file is an important part of the process – for many people it will be the first time they have accessed this information.
• Seeking instructions about what the client hopes to achieve at the hearing and taking detailed instructions from the client,
• Advising the client about the Board process, including the five criteria under the Act which must be met to satisfy the order for involuntary treatment, the scope of the Board’s powers to make decisions and the factors the Board considers in making its decision.
• Photocopying any relevant documents from the clinical file.

The interview typically takes around one and half hours to two hours.

Preparation & hearing:

• Following-up any least restrictive options or supporting evidence, such as contacting the client’s private psychiatrist, requesting a second opinion as appropriate, contacting a supportive friend/family member, also speaking with members of the client’s treating team for further information as required.
• Preparing oral submissions for hearings and, if an issue of interpretation upon which the Charter of Human Rights and Responsibilities impacts, producing a written statement in the form required under the Board’s Practice Direction.
• Representing the client at their hearing, with pre and post hearing conferences, and addressing additional legal issues which arise in some cases, such as applications for non-disclosure of some file materials;

Post-hearing:

• Drafting and sending post hearing and close file correspondence to the client and advising on appeal rights and other issues where appropriate;
• Requesting statements of reasons or making any referrals in accordance with the client’s instructions;
• Returning the file to the Centre.

Pro bono lawyers may spend around one to one and a half working days to represent a client, taking into account travel time and preparation and depending on the complexity of the matter.

Method and model for provision of legal advice and representation

Pro bono lawyers commit to each representing one client per month or every two months. To ensure continuity of advocates and the development of expertise the Centre seeks a minimum commitment from lawyers of six hearings post training and orientation. It is worth noting that two Maddocks lawyers remained committed pro bono advocates for a period of two years.

The Centre is keen to explore the best way in which to increase the number of people represented, without compromising the level of service to clients. Currently, the Centre responds to individual requests for advocacy and effectively “partners” pro bono lawyers from particular firms with hearings at those clinic/s where hearings are conducted on a particular day of the week.

The Centre acknowledges that one advantage of this “partnering” approach is that pro bono advocates will have the opportunity to develop a familiarity with the relevant Service and a relationship with its staff, which may enable greater efficiency and timely access to medical records. Further, the Centre appreciates that the regular presence of particular lawyers at a clinic may facilitate more engagement with consumers who might otherwise not initiate contact with the Centre to request legal assistance.

Once pro bono lawyers have attained a sufficient level of expertise, the Centre will consider trialling a clinic-based model for legal advice at a particular Area Mental Health Service/s.

The Centre is keen to target the Services in East Ringwood, Frankston and Dandenong who conduct Board hearings, as these have been identified as particular areas where increased representation is needed and the Centre struggles to meet demand due to geographic distance.

Training and supervision

Pro bono lawyers’ training comprises two main stages – orientation session and hands-on observations of interviews and hearings.

The Centre provides pro bono lawyers with a copy of the Centre’s Advocates’ Guide to Mental Health Review Board hearings, as well as pro forma and other reference materials. The Advocates’ Guide is produced by the Centre and details the approach to advocacy in the jurisdiction as well as the legal framework of Board hearings under the Act. It also includes relevant decisions of the Board pertaining to the five criteria, which must be satisfied for involuntary treatment.

Each lawyer’s first interview and hearing is then supervised by a Centre lawyer, after which time they are allocated their own matters and receive ongoing support from the Pro Bono Coordinator on administrative, procedural and substantive legal issues. Training sessions are run throughout the year as required.

Advocates are encouraged to provide feedback to the Pro Bono Coordinator or to voice any concerns they may have throughout the training and ongoing involvement in the Project.

Scope of the Project

The Project is in its pilot phase and its ongoing evaluation will determine whether a continuing pro bono program will be implemented and what format it will take.

The Project will be explicitly limited to the provision of advice and representation for people subject to CTOs regarding their hearings before the Board. Any other matters outside the scope of the Project which may arise in the course of such pro bono legal advice will be referred to the Centre. Pro bono lawyers should inform the client about the scope of their advice and that the Centre may be able to provide advice on any additional legal problems that relate directly to the client’s mental illness.

For example, matters involving Guardianship and Administration Orders, family law and Children’s Court matters, child welfare law, discrimination, criminal law, health complaints, Freedom of Information, State Trustees or any other legal problems that relate directly to mental illness may be referred to the Centre’s telephone legal advice line – Monday, Wednesday and Friday 3.00pm – 5.00pm and Tuesday and Thursday 6.30pm – 8.30pm.

The position of Pro Bono Coordinator is being funded by the Department of Human Services for 18 months, initially, with additional funding secured up until around the end of 2009.

Recurrent funding for the position is yet to be secured, but the Centre is hopeful that such funding is granted, based on the success of the Project.