Dec 7,2012 / News / Legal Brief

Educating the public about mental health and tackling the stigma and discrimination to which people with mental conditions are often subjected is gaining increasing attention and it is interesting to consider whether or not legal services, and in particular pro bono legal services, are accessible for people with mental health problems or mental disabilities.

As a pro bono attorney, I spend time with a range of people from all kinds of backgrounds, usually at our community based law clinics in Braamfontein and Diepsloot. Incorporated in the intake forms for potential new clients is the seemingly benign question of “list details of disability or impairment”, assumingly included for statistical purposes. It is very seldom that a mental health problem or mental disability is disclosed in response to this question, making it very difficult for one to get a sense of how many applicants for pro bono assistance have mental health problems. Usually, it is only after consulting with the client for some time that some indicators arise which could alert the practitioner to the possibility that the person may have some kind of mental problem.

In the average law student’s training, one is usually only exposed to mental health issues or disability in the context of legal incapacity. This refers to the inability of a person to manage their own affairs and the resultant need for a curator to be appointed to assist. The topic is dealt with briefly in the field of the Law of Persons, but tragically, very little attention is given to training young lawyers on how to provide legal services to people with mental health problems.

Mental illness and disability vary so vastly in severity that it is essential for legal practitioners to be aware that a person with a mental health problem does not automatically result in their incapacity to handle their own affairs or incapacity to brief legal representation. It does however imply that the legal practitioner needs to be aware of the particular circumstances of the client and adapt the manner in which they provide their services accordingly.

In 2006, the Law and Justice Foundation of New South Wales undertook a research study to examine the capacity of people with mental illness to obtain legal assistance and participate effectively in the legal justice system.

The study, which included people with mental illness as advisors and input from legal practitioners living with mental illness, revealed important insights into people with mental illness and/or disability. The findings have equal application in South Africa.

The type of legal issues experienced by the participants in the study were found to also reflect the financial and social disadvantage experienced by people with mental illness, which certainly rings true here in South Africa, where people with mental illness are some of the most vulnerable in society. Legal help was required with issues relating to adult guardianships, discrimination in employment, education and insurance, housing issues, social security issues, consumer issues and domestic violence, care and protection issues.

The areas where assistance was required were, in my experience, comparable to the major areas in which pro bono legal services are provided here in our country.

The greatest insight revealed by the study is around the barriers to accessing legal assistance. The barriers identified include:

1 “ A lack of awareness of their legal rights, whereby individuals do not realise that their problem has a legal element and potential remedy.
2 Being disorganised, which may make it difficult for people to prioritise their legal problem and keep appointments with legal service providers.
3 Being overwhelmed, and therefore too frightened, or lacking the motivation, to seek legal assistance.
4 Being mistrustful of, or frightened of, divulging personal information to legal service providers. This may prevent the service provider from adequately assisting the client.
5 Difficult behaviour. Some people with a mental illness may exhibit difficult behaviour, making it challenging for service providers to assist them.
6 Communication problems, which can hinder a solicitor in assisting their client effectively.
7 Lack of mental health care and treatment, the absence of which, it was noted, resulted in the exacerbation of the above barriers.”

Lawyers should be aware of the mentioned traits when consulting with people with mental illness. This will show sensitivity and a better understanding of their client’s behaviour. Providing legal services to a person with a mental disability may in some instances take more time to obtain clear instructions or to determine whether the client’s version of the events creating the legal issue is credible. This patience and sensitivity is equally applicable to the role players in our justice system, from police personnel to clerks staffing courts and other Government offices.

An interesting case study in this regard is the work of the Afrika Tikkun Empowerment Programme for Families of People with Disabilities. Their experience in Orange Farm, an informal settlement South of Johannesburg, was that police personnel were not comfortable with opening cases of sexual abuse or assault where the complainants had mental impairments. This, despite the fact that this is an area with a very high incidence rate of this type of abuse and the resultant increased vulnerability of these victims.

In response, Afrika Tikkun organised a march to the Orange Farm SAPS and handed over a memorandum, explaining how people with disabilities have the right to report crimes and to access police services. As a result, there is heightened awareness of this issue and a slight improvement in the response of the SAPS when these types of incidents are reported.

The Australian study also highlighted how certain features of the justice system are not user friendly at the best of times. The formality of the court room and the stress of initiating or continuing with legal proceedings can be overwhelming and prohibitive. As a consequence of their mental illness, litigants may find it problematic to manage their documents, appointments and complying with their attorney’s requests or time frames.

South Africa is a signatory to the United Nations Convention on the Rights of People with Disabilities. Under this convention, the State must “ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” (Article 13)

Conducting a study akin to that undertaken by the Law and Justice Foundation of New South Wales in a South African context would go a long way in identifying how the state and all stakeholders in the legal and justice sector can learn more about mental health and how legal services can be adapted to make access to justice more inclusive.

In the meantime, I believe we can give some thought to the issues identified and integrate these insights into the way legal services are provided.