People Who Have a Mental Illness (HSC SSCE Legal Studies): Revision Notes
People With Mental Illness and the Law
Legal responses
Legal responses to mental illness in Australia involve healthcare access, criminal justice procedures, and rights protection. These responses aim to balance the care needs of individuals with mental illness against community safety and individual rights.
Access to the health system
The Australian Charter of Healthcare Rights
In July 2008, all Australian Health Ministers agreed to the Australian Charter of Healthcare Rights. While this Charter is not legally enforceable, it represents an important first step towards establishing binding healthcare rights. The agreement across all levels of government makes it a strong foundation for guaranteeing rights within the healthcare system.
health care system: the network of facilities and other agencies that organise and meet the health care needs of people
Under the Charter, everyone living in Australia has the right to:
- Access health care
- Receive health care that is safe and of high quality
- Be shown respect, dignity and consideration when receiving health care
- Be informed about health care services, treatment, options and costs in a clear and open way
- Be included in decisions and choices about their health care
- Privacy and confidentiality of their personal information
- Comment on the health care they receive and to have their concerns addressed
Legislative framework in New South Wales
In New South Wales, the Charter is embodied in the Public Health Act 2010 (NSW), which came into force in September 2012 and is supported by the Public Health Regulation 2012. People with mental health issues are also covered by the provisions of the Mental Health Act 2007 (NSW).
The main aim of the Mental Health Act 2007 (NSW) is to ensure the 'care, treatment and control' of people in New South Wales who are 'mentally ill' or 'mentally disordered'. The Act covers hospital treatment (both voluntary and involuntary) and how individuals and their carers are involved in decisions about care, treatment and control.
What is meant by 'control'?
In the Mental Health Act 2007 (NSW), the word 'control' refers primarily to when and how compulsory treatment and care can be given to a person with a mental illness. It also allows authorities to suspend some of the rights of the patient.
If it is decided that a person has a 'mental illness' or is 'mentally disordered' as defined in the Act, that person can be:
- Taken to a hospital or psychiatric unit against their will for further assessment
- Treated in hospital without their consent
- Stopped from leaving a hospital, including being kept behind locked doors and forcibly returned if they leave
- Placed on a Community Treatment Order when not in hospital care, requiring regular treatment (usually medication)
Problems with healthcare access
While educated individuals of 'sound mind' may understand their healthcare rights, those with limited literacy or mental illness face significant barriers. They may not be able to demand their rights as set out in the Charter or seek resolution if problems arise.
This highlights a critical gap between the existence of rights on paper and the practical ability of vulnerable individuals to exercise those rights.
Access to the law
Criminal proceedings
The Mental Health (Forensic Provisions) Act 1990 (NSW) establishes how courts manage criminal proceedings where the defendant is suffering from a mental disorder. This Act covers:
- Mental illness as a legal defence in criminal cases
- Management of forensic and correctional patients
- The role and powers of the Mental Health Review Tribunal
forensic patient: a person who is confined in an institution such as a mental health facility or correctional centre, or who is released from custody subject to conditions
correctional patient: someone on remand, or serving a term of imprisonment, who is transferred to a mental health facility, who is not a forensic patient, and who the Mental Health Review Tribunal has not classified as an involuntary patient
Courts and mental illness
Different courts deal with mental illness in different ways:
District and Supreme Courts
These courts can decide that the accused is:
- 'Not guilty due to mental illness'
- 'Not fit to plead'
If questions arise about fitness to stand trial or if a person is found 'not guilty by reason of mental illness', the court may refer them to the Mental Health Review Tribunal. The court may also determine that they become a forensic patient.
Local Court
The Local Court in New South Wales does not have a process for dealing with a person who is 'not fit to plead' in criminal cases. This means an accused person cannot plead guilty because of mental illness. However, magistrates typically deal with defendants with mental illness through orders under section 32 or section 33.
Section 32 order
A s 32 order allows a magistrate to release the defendant. Key features include:
- The magistrate receives a treatment plan designed by a health care professional or other suitably qualified person
- Release normally requires the defendant to agree to attend a specified facility for treatment or go into the care of a guardian
- No conviction is recorded
- The magistrate can also release the defendant with no attached conditions
- If the defendant fails to follow the s 32 order, they can be brought back before the court to face the original criminal charges
guardian: a person who is legally responsible for another person who is unable to take care of themselves
Section 33 order
A s 33 order only applies if the defendant is found to be mentally ill as defined by the Mental Health Act 2007 (NSW). Key features include:
- The defendant is referred to a psychiatric unit or hospital for further assessment
- Depending on the assessment result, they may become an involuntary patient
- If found not to be mentally ill, they may be returned to the Local Court
Plea in mitigation
If the magistrate does not use s 32 or s 33, details of the mental illness can be used as part of a plea in mitigation. Health care professionals and community mental health services can provide reports for inclusion in the plea. Before sentencing, the magistrate may request a pre-sentence report (usually prepared by the Probation and Parole Service), which can include information from health care professionals and community mental health services.
plea in mitigation: any type of information that can help the court decide on an appropriate sentence
Legal advice and representation
People with mental illnesses who face criminal charges have access to the same legal advice as everyone in theory. However, they may face significant barriers:
- Limited funds
- Homelessness
- Mental illness affecting rational thinking
- May reject legal advice
Free or low-cost legal help is available through:
Legal Aid
- Offers advice and some representation in criminal matters
- All NSW Local Courts have Legal Aid 'duty solicitors' to help people who have a matter at court that day and do not have their own lawyer
Aboriginal Legal Service (ALS) NSW/ACT
- Available for Aboriginal and Torres Strait Islanders
- Provides advice and representation in criminal matters
- Handles apprehended violence order (AVO) matters
- Deals with care and protection matters
Pro bono services
- Some law firms provide legal services at no or low cost to the client
- Access available through the Public Interest Law Clearing House (PILCH) NSW
- Focuses on issues affecting disadvantaged, vulnerable and marginalised groups
pro bono: Latin term meaning 'for the public good', used to describe work that is done by a lawyer or barrister on a voluntary basis and without payment
Community Legal Centres (CLCs)
- Provide free legal advice and representation to the local community
- Focus on the disadvantaged and people with special needs
Specialist Community Legal Centres
Several specialist CLCs work with legal problems related to mental illness:
- Australian Centre for Disability Law
- Intellectual Disability Rights Service (IDRS)
- Mental Health Legal Services Project (at the Public Interest Advocacy Centre [PIAC])
- Homeless Persons' Legal Service (HPLS)
- Aged Care Rights Services (TARS)
Protection of individual rights
Discrimination
People with mental health issues are protected by the same laws that protect all members of the community. Discriminating against someone because of their mental health is against the law under:
- Australian Human Rights Discrimination Act 1986 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Anti-Discrimination Act 1977 (NSW)
discrimination: the unjust treatment of a person or a particular group of people based on their race, sex, sexuality, marital status, disability and other factors
Those who feel they have been discriminated against can take legal action. Free legal advice is available from:
- Community Legal Centres
- Legal Aid NSW
- Law Access (a free NSW government telephone service providing legal information, advice and referrals)
Centrelink
People with mental illness often need to deal with Centrelink, the Commonwealth Government agency that manages social security payments and benefits. Some people with mental illness are entitled to a Disability Support Pension.
Disability Support Pension: financial support for people who suffer from mental illness and/or intellectual disability
However, symptoms of mental illness may make it difficult for people to follow the rules for receiving pensions or other benefits.
Review process
If someone is unhappy with a Centrelink decision, they can request a review:
-
Internal review: The original decision-maker explains the decision. This provides a chance to address misunderstandings, provide new information and potentially change the decision.
-
Authorised Review Officer review: If still unhappy, a senior Centrelink officer (separate from the Regional Office) can review the decision. They will talk to people involved and consider any new evidence. They will then provide the outcome and explain appeal rights if necessary.
Although these procedures exist, it can be difficult for someone with an illness, limited funds or education to see them through to a successful conclusion.
NSW Civil & Administrative Tribunal – Guardianship Division
People with mental health issues can be placed in the care of a guardian. The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) (established in 2014, taking over functions from the Guardianship Tribunal of NSW established in 1989) ensures fairness in this area.
NCAT functions:
- Appoints guardians for people over the age of 16 who are not capable of making their own lifestyle decisions
- Hears appeals from individuals unhappy with their guardian
- Generally only hears cases if there are not suitable arrangements already in place, or if no appropriate alternative to an application can be found
NCAT orders may include:
- Appointment of guardians and financial managers
- Consents to medical and dental treatment
The appointed guardian may be a family member or friend, or it could be the NSW Public Guardian, who is a statutory official within the Department of Justice.
Non-legal responses
Non-legal responses to mental illness focus on funding, support services, and community-based initiatives. These responses aim to provide practical assistance and improve quality of life for people with mental illness.
Funding of mental health issues
Despite good intentions around integrating people with mental health issues into society, adequate funding is essential for policy success. Initiatives since 2011 indicate growing awareness among policy makers that greater funding is required in mental health. Most are long-term plans, so their efficiency and effectiveness remain to be fully evaluated.
Personal Helpers and Mentors services (PHaMs)
The 2011–12 federal budget allocated $154 million over five years (2011–12 to 2015–16) for new and/or expanded PHaMs to assist around 3400 people with severe mental illness. Key features include:
- 425 new personal helpers and mentors engaged
- $50 million allocated to assist up to 1200 people with mental illness who receive government income support payments but are looking to gain employment
- Helps people overcome personal, non-vocational issues preventing them from participating in work or training
While this funding was a step forward, recent budgets have only maintained rather than increased this funding.
PHaMs program aims:
The Australian Government Department of Social Services explains that PHaMs provides increased opportunities for recovery for people aged 16 years and over whose lives are severely affected by mental illness. The program helps them:
- Overcome social isolation
- Increase connections to the community
- Achieve personal goals
- Develop better relationships with family and friends
- Manage everyday tasks
The program uses a recovery-focused and strengths-based approach that recognises recovery as a personal journey driven by the participant. PHaMs workers provide one-to-one and ongoing support to ensure individual needs are addressed. Participants are assisted to access services and participate economically and socially in the community, increasing their opportunities for recovery.
Research funding
In October 2012, the Minister for Mental Health and Ageing announced $68.2 million in new funding for research into anxiety, eating disorders, depression and other mental health conditions. This included:
- 13 specific grants totalling $13.7 million to examine mental illness among young people
- Support for the government's $2.2 billion mental health reform plan
- Building the evidence base for a stronger mental health system
The minister noted that 1 in 4 young people will experience a mental health issue each year, making it the single biggest issue facing young Australians.
The National Disability Insurance Scheme (NDIS)
In May 2013, Prime Minister Julia Gillard announced she had gained support from all states and territories for the introduction of the National Disability Insurance Scheme (NDIS), funded by an increase in the Medicare levy from 1.5% to 2% from 1 July 2014.
Key features of the NDIS:
- Provides lifetime support to people affected by disability
- Support based on individual needs
- Takes a lifetime approach to care
- Provides for early intervention, particularly when support can make a substantial difference to a person's life
- Aims to provide greater choice about care for people with disability, their families and carers
This nationwide scheme represents a significant commitment to supporting people with disabilities, including mental illness.
Non-government organisations
In Australia, much of the raising of mental health care and awareness lies in the hands of non-government charitable organisations. Some receive government funding. These organisations include:
- SANE
- beyondblue
- Black Dog Institute
These organisations play a crucial role in providing support, raising awareness, and advocating for people with mental illness.
Remember!
Key Points to Remember:
- The Australian Charter of Healthcare Rights establishes healthcare rights for all Australians, including people with mental illness, though it is not legally enforceable
- The Mental Health Act 2007 (NSW) governs the care, treatment and control of people with mental illness in New South Wales
- Section 32 orders allow magistrates to release defendants with mental illness with a treatment plan and no conviction recorded
- Section 33 orders refer defendants to psychiatric facilities for assessment when they are found to be mentally ill
- Legal Aid, Community Legal Centres, and pro bono services provide free or low-cost legal assistance to people with mental illness
- Discrimination against people with mental illness is illegal under Commonwealth and state anti-discrimination laws
- PHaMs (Personal Helpers and Mentors services) provide practical support to people with severe mental illness
- The NDIS (National Disability Insurance Scheme) provides lifetime support based on individual needs
- People with mental illness face significant barriers in accessing justice, including limited funds, homelessness, and difficulties understanding their rights
- Non-government organisations like SANE, beyondblue, and Black Dog Institute play crucial roles in mental health support and awareness