Legal Aid should be available to all people and especially those experiencing serious mental illness, if they are charged with serious legal offences who cannot afford their own representation. Community Legal Services should be available to all people with serious legal issues who cannot afford their own representation to vindicate their rights.
MHCN is concerned about the impact that inadequate funding to legal assistance services has on consumers of mental health and their families and carers. Legal aid for people with legal difficulties is crucial to proper legal processes. “The ability of individuals to enforce their rights can have profound impacts on a person’s wellbeing and quality of life” (Productivity Commission, 2014). However, Carers are often left responsible for covering debilitating legal expenses for events which have taken place during critical states of vulnerability for their loved one, or leaving them to take their chances unrepresented. It seems this is often after the consumer has been failed by mental health or other support services, resulting in their legal difficulties. Consumers of mental health are more vulnerable to a range of civil, family and criminal legal problems. For example, consumers with a mental health impairment can find it more difficult to follow instructions or adhere to rules. If they are charged or seek to pursue a legal matter, access to the correct legal aid services is crucial to vindicate their legal rights. But consumers often find it difficult to articulate their evidence or their problem in a limited amount of time under distressing circumstances. The stigma attached to mental ill-health in the community means that consumers are sometimes perceived as less credible witnesses and potentially violent offenders. In criminal cases legal advice is crucial when a client has a mental illness and in assisting them to identify and access appropriate support services and available and appropriate diversionary programs.
MHCN welcomes the decision of the federal government to provide $55.7 million over 3 years which will reverse shortfalls from the funding cuts to legal assistance services delivered through Community Legal Centres due to take place on July 1st 2016. The NSW government has also agreed to provide an additional $6 million to legal assistance services in anticipation of these funding cuts. However more is needed to address underfunding of legal assistance services and particularly Legal Aid, with current funding inadequate to meet demand. This is reflected in the restrictive means test for legal aid and the number of turn-aways by community legal centres. When people cannot afford to pay for a lawyer and they are also ineligible for legal aid they must make the difficult decision whether to represent themselves or drop their case or defence (Doussa, 2005). Both options can be a violation of rights as access to a fair trial and, in criminal cases, the provision of legal assistance is a human right that is included in a number of international treaties (the International Covenant on Economic, Social and Cultural Rights). Unresolved legal issues often lead to other problems such as family violence and poor health outcomes which come at a significant cost to society, with unresolved civil legal problems sometimes escalating into criminal charges. The cost of the adverse effects of legal problems for mental health consumers are often borne by carers.
Multiple studies show that funding legal assistance services is cost effective (Stubbs and associates, 2012) (PwC, 2009). When consumers cannot afford legal assistance, carers will often take on the responsibility to cover financial costs which is a great burden upon not only their financial circumstances but their own mental health and wellbeing. The means test for legal aid includes the assets and income of any ‘financially associated person’ such as a carer, whether or not they happen to live with the person or whether they are adult. This places the responsibility of ensuring that mental health consumers have access to legal assistance onto carers.