People with mental illness, intellectual disabilities and acquired brain injuries are entering criminal justice systems throughout the World at phenomenal rates. Custodial environments have become the surrogate carers for this growing cohort of people. Lawyer, Dan Toombs and his colleagues at TASC and the Queensland Criminal Justice Centre, have represented many of these people and here is the story of one family’s collision with the Queensland criminal justice system.
The TASC Disability Law Project aims to assist persons with impaired capacity who are (or might be) charged with an offence before the Court. Sometimes, a person with an intellectual disability, or a mental illness, or a brain injury is unable to fully understand the nature of the charges against them, and the reason why the charges were brought. At TASC, we listen to the client and then ensure that a TASC Lawyer is able to fully explain the issue of the client’s capacity to the Magistrate. We also arrange for a TASC Advocate, experienced in issues of disability, to assist the client with the issues that might have led to the charges brought, and to help create a positive alternative and personal solution for the client.
Here are some examples of the work done in the Disability Law Project.
CASE STUDY – MHRT
We obtained a grant of aid to represent a minor before the Mental Health Review Tribunal with respect to the review of her Treatment Authority. The client was an inpatient with a primary diagnosis of emotionally unstable personality disorder (borderline type) and a secondary diagnosis of an eating disorder. The client was hospitalised due to incidents of self-harm, suicidal ideations and not eating.
We conferenced the client on two occasions to obtain her instructions and explained the process and possible outcomes of the hearing. We also consulted the client’s Mother. We articulated the client’s views, wishes and preferences and made submissions in the client’s best interests given her lack of capacity. The client was too unwell to attend the hearing herself. We questioned the authorised psychiatrist as to least restrictive means of providing treatment to client.
The tribunal ultimately determined that the Treatment Authority should remain.
What might have been the outcome had TASC National not been involved?
TASC involvement ensured the client was appropriately informed as to the MHRT process and advised as to the possible outcomes. The client’s views, wishes and preferences were able to be presented to the tribunal in the client’s absence.
TASC was appointed to provide legal representation to a client with a matter before the Mental Health Review Tribunal. The purpose of the hearing was to review the forensic order imposed in 2009 following the commission of two relatively minor offences and a determination by the Mental Health Court that the client had been of unsound mind at the time of the commission of the offences. The client has a primary diagnosis of paranoid schizophrenia and anti-social personality disorder in addition to an acquired brain injury.
Acting independently to the Tribunal, the treating team and Queensland Health, the TASC legal representative conferenced the client in advance of the hearing to ascertain the client’s views, wishes and preferences. The legal representative provided advice as to the nature of the proceedings, the possible outcomes and information about the client’s rights under the Mental Health Act 2016 (QLD).
The TASC legal representative then appeared at the MHRT and advocated to have the forensic order removed in order to promote the client’s recovery and to ensure treatment and care is the least restrictive of the rights and liberties of the client. The TASC legal representative also highlighted the client’s progress to date and the support of the treating team.
Despite opposition from the Attorney-General’s representative the MHRT ultimately decided to revoke the Forensic Order and step the client down to a Treatment Support Order. The client was very pleased with the result given the length of time which he has been the subject of the Forensic Order.
TASC assistance, by way legal representation ensured the client was prepared, appropriately advised and successfully represented before the Tribunal.
TASC was appointed to provide legal representation to a client with a matter before the Mental Health Review Tribunal. The Treating Team had filed an Application for Electroconvulsive Therapy (ECT). The client was an inpatient on a Treatment Authority.
The Treatment Team asserted that the client did not have the capacity to consent to the treatment of her mental illness and recommended the commencement of ECT to stablise her mental state. The Treatment Team further asserted that the client declined to consent to ECT due to poor insight into her condition, being a diagnosis of depressive disorder and current psychotic symptoms.
The client was strongly opposed to the proposed treatment and although she did not accept her diagnosis she could relay the symptoms of a mental illness that she had experienced. The client had only been medicated and in hospital for a few weeks prior to the Application being made by the Treating team.
Our legal representative appeared on the matter and sought an adjournment on the basis that sufficient notice had not been provided to the client and in order for the treating Doctor to obtain a second opinion as per the recommendation of the Chief Psychiatrist’s policy.
The Application for ECT was subsequently withdrawn before the hearing of the matter and it seems, after the receipt of the second opinion. The Hospital indicated that the client’s health had improved in the interim.
What might have been the outcome had TASC not been involved?
In the absence of a legal representative the ECT Application may have been heard and determined without the client receiving sufficient notice and before a second opinion was obtained.
If the Application was approved the client may have received the treatment prematurely and against her wishes.
Mr H was a juvenile who was possibly being charged with possession of cannabis. A TASC Lawyer attended the police station with him where he agreed to drug diversion and there was no charge made by the Police.
Ms T was charged by police with drug possession under the deeming provisions of the Drugs Misuse Act 1986, even though she was not present when the search occurred and there was no evidence to prove that she was in control of the premises – it was merely the assertions of the other offenders who were present during the search that supported the allegations. Ms T had a psychiatric illness and was unable to represent herself, however she was able to provide instructions. A TASC Lawyer acted on her behalf and proceeded the hearing. The charges were dismissed after one of the crucial prosecution witnesses, the police officer who found the drugs, failed to attend the hearing.
Mr M presented to an initial interview at TASC with his father and he was clearly psychotic. He was on no form of treatment order. He had been charged with ‘Attempted unlawful entry of a motor vehicle for committing an indictable offence’. His father was worried about the offence and about his son’s illness. A TASC Lawyer represented Mr M and a TASC Advocate also gave some general advice to his father about the Mental Health System. Because of this, Mr M was placed on an involuntary treatment order, and the provisions under the Mental Health Act 2016 ensured that the charge against him was discontinued.
Mr S was referred to TASC by the office of the Adult Guardian (AG) after he was charged with Going Armed to cause fear, Enter Premises and steal and Commit public nuisance. Mr S was admitted as an inpatient at the Mental Health Unit at the hospital immediately after the offences and was an inpatient for 2 months. A TASC Lawyer arranged for a psychiatric assessment that ultimately said that Mr S was of sound mind at the time and fit for trial. The TASC Lawyer was successful in having the common assault and enter premises charges dropped – and the facts amended to remove any reference to actual violence. Mr S entered a plea of guilty to Stealing and Going armed to cause fear. He was sentenced to a 12-month good behaviour bond with a recognisance and no conviction was recorded.
Mr S presented with some issues surrounding his fitness for trial, namely that he was hard to follow and had difficulty answering direct questions. A TASC Lawyer was able to obtain Legal Aid funding for a report to examine these issues. The Doctor provided a report that Mr S was fit for trial and that he was intoxicated at the time of the offences. The report also illuminated the extent of his intellectual disability. With the assistance of the report, the TASC Lawyer was able to get a reduced fine for Mr S, and no conviction was recorded.