Vulnerable people need better legal protection in guardianship matters

JENNIFER CORKHILL

In 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 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

was suffering from extremely severe depression and who was detained against her will under the Mental Health Act in a psychiatric institution. The treating team made an application to the Guardianship Board for Electro Convulsive Treatment (ECT).

Under [South Australian] law ECT can only be given without consent if the person lacks capacity. Glenda was taken to a Guardianship Board hearing where the Board and all of the treating team were male. No Aboriginal liaison person was appointed. Funding is not available for legal representation at these hearings.

The transcript of the hearing shows that the report of the treating team regarding Glenda’s capacity was accepted without question and the order was made.

Fortunately for Glenda she had 2 daughters who, when they found out about the order, contacted Aboriginal Legal Rights who contacted me. I was able to get the matter on urgently before the District Court and seek a stay of the order.

Glenda was so depressed that she could barely speak but I was, after careful and gentle questioning over a considerable period of time with appropriate breaks, able to obtain clear instructions and make an assessment that Glenda did in fact have legal capacity. She was terrified about the prospect of ECT and had felt powerless to do anything about it.

Had Glenda had legal representation at the first instance, her legal capacity could have been established and her daughters could have accompanied her to the hearing. She would have been able to challenge the medical team and the order could not have been made’.

The Justice Project found as follows:

“Legal representation for people facing the Mental Health Tribunal can make a noticeable difference to the outcome achieved. For instance, the Victorian Mental Health tribunal approves applications for electro-convulsive treatment in 85 per cent of cases but this approval rate drops to 50 per cent if the person is legally represented.366” 2

The Justice Project recommended as follows: • All persons who are experiencing economic disadvantage subject to applications under Guardianship and

Administration and Mental Health legislation should receive free legal assistance and representation at the first instance hearing3 .

If a scheme providing for free legal representation were to be available for those the subject of the application at the initial hearing stage it is highly likely that the number of reviews would be reduced as clients would be able to present their case properly, and at the conclusion of the hearing be advised as to the likelihood of success of a review rather than having to lodge a review application, wait for transcript and reasons and then seek legal advice. Clearly the cost of producing transcript and reasons would also be minimised as would the cost of the review hearing.

People who have been charged with criminal offences which carry a potential penalty of imprisonment are entitled to free legal representation via legal aid. The orders listed above have similar potential to deprive the person subject to the order of their liberty.

This significant impediment to access to justice for these people has been a fixture in the Law Society’s advocacy since 2005, and has been highlighted in state election submissions and a range of other submissions.

Jennifer Corkhill is a former winner of the Society's Justice Award for her work in advocating for better legal support for people with disability and mental illness. She is a member of the Society's Justice Access Committee. B

Endnotes 1 Justice Project Final Report – part 1 People with

Disability page 59 2 Justice Project Final Report – part 1 People with

Disability page 60 3 Justice Project Final Report - Recommendations and Group Priorities page 16