KEY ELECTION ISSUES
Vulnerable people need better legal protection in guardianship matters JENNIFER CORKHILL
I
n South Australia applications may be made to the South Australian and Administrative Tribunal (SACAT) pursuant to the Guardianship and Administration Act (the G&A Act) and the Mental Health Act 2009 (the MH Act) for various orders including: • Inpatient Treatment orders which provide for long term involuntary detention and involuntary treatment in a psychiatric hospital (MH Act); • Community Treatment Orders which provide for involuntary medical treatment in the community (frequently by injected medication) (MH Act); • Orders that a person be given involuntary electro-convulsive therapy (ECT). (MH Act); • Administration Orders which provide for the management of a person’s finances by another person or Public Trustee (G&A Act); • Guardianship Orders which allow a guardian, sometimes the Public Advocate to make lifestyle decisions (G&A Act); • Special powers under Section 32 which can be used to require a person to reside in a particular place/detain the person in a particular place using force if necessary (G&A Act). All of these orders have the potential to result in orders which abrogate the civil liberties most of us take for granted. All have the potential to have a significant
28 THE BULLETIN February 2022
impact upon the life of the person the subject of the order. Whilst legal representation is provided free of charge for reviews of these orders, there is no provision for free legal representation for the initial hearings before the SACAT where evidence is taken and where the initial decision is made. In the majority of cases, the person who is the subject of the application will be suffering from mental illness or some form of mental disability. In addition, they may be psychiatrically unwell at the time of the hearing. This will clearly affect their ability to understand the case against them or call evidence or make representations on their own behalf. Most applicants for these hearings are health professionals or family members who have the support of health professionals and involve the presentation of medical evidence from hospital or community health medical case notes along with other evidence from interested parties. The majority of those the subject of the application are unaware in advance of the hearing of the nature of the evidence against them or that they can challenge the evidence and few bring their own expert evidence for reasons of ignorance and/ or cost. The majority are simply unable to present a compelling case against the orders which are being sought if they cannot afford to pay for legal
representation. The power imbalance between a mentally ill or disabled person and applicants is obvious and most find the whole process extremely intimidating. All other states except Western Australia provide at least some legal assistance for first instance applications. The failure to provide free legal representation for those the subject of initial applications to the SACAT is contrary to International Principle 18(1) of the United Nations “Principles for the Protection of Persons with Mental Illness and For The Improvement of Mental Health Care” which provides as follows: The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint or appeal. If the patient does not secure such services, a counsel shall be made available without payment to the patient to the extent that the patient lacks sufficient means to pay. In 2017 and 2018 the Law Council of Australia conducted a comprehensive review (the Justice Project) into the state of access to justice for people experiencing significant disadvantage. The Law Society of SA made submissions to this review and the following case study was included in the final report drawn from the writer’s experience.1 ‘Glenda is an Aboriginal woman who
