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Legal services for mental health patients
International Journalof Law and Psychiatry. PrInted I” the U.S.A. All rights reserved.
VoI 4, pp. 171-180.1981
0160.2527/81/010171-10$02.00/O CopyrIght tf 1981 Pergamon Press Ltd
Legal Services for Mental Health Patients Some Commonwealth Developments Robert Gordon*
Although developments in the United States have tended to dominate analyses of the growth and practise of legal advocacy for mental health patients, a significant amount of activity has been occurring in some British Commonwealth countries. In Canada, special legal services’ are available in the provinces of British Columbia, Alberta, Manitoba and Ontario, and general legal services2 in the provinces of Newfoundland, Nova Scotia and Quebec. In addition, national legal services are also provided, particularly by the National Institute on Mental Retardation (N.I.M.R.) and the Canadian Mental Health Association (C.M.H.A.). In England, special legal services are provided on a national basis by the Legal Department of the National Association for Mental Health (MIND), while general legal services are offered by several community law centres. Australian developments have been slower although general legal services are now available in the states of New South Wales, South Australia and, to some extent, Victoria.3 While these legal services have been influenced by activities in the United States, the fundamental differences that exist between Commonwealth and United States jurisdictions have led to localised variations in emphasis and approach. Such variations have been conditioned by the content of legislation dealing with mental health and related issues (e.g., competency, trusteeship, guardianship) in the different Commonwealth jurisdictions; the absence of a concise *Fitzroy Legal Service, Melbourne, Australia, currently graduate fellow, Department of Criminology, Simon Fraser University, Burnaby, British Columbia V5A lS6, Canada. The author wishes to acknowledge the research support of the Canadian Commonwealth Scholarships Committee and the assistance of Professor Simon Verdun-Jones of the Department of Criminology, Simon Fraser University. ‘The term “legal services” refers to the organisations, agencies or branches of agencies designed and established to deliver legal assistance to a community, whether a geographical community or a community of people sharing an interest, such as mental health patients. Special legal services are those designed and established to answer the specific legal needs of mental health patients whether or not they are residing in institutions. Although they may be part of a general legal aid plan or system in a particular jurisdiction, such services concentrate on or actively seek out, mental health patients as a particular client group. In their ideal form, special legal services take a “proactive” approach to service delivery and extend their services to include reformative actions. General legal services can be distinguished from special legal services in that while every effort is made to cater for the needs of mental health patients, service delivery is simply a part of the general legal aid facilities esisting in a particular jurisdiction. General legal services adopt a “reactive” stance, relying upon the clients to seek out the resource and define their legal needs. ‘For a full exploration of the evolution of patients’ legal services in the British Commonwealth see, R. GOKDO\.
LEGAL
SER\
AIDIPWERT)
L&N
Thesis,
Fraser
Simon
ICES FOR MENTAL
DELI\,ERI
WITH
HEALTH
PARTICULAR
P.&TIENTS: BIPHASIS
University. 171
A SELECTIVE
REVIEW
02’ COIIMONWEALTH
OF DE~EL~P~IENTS JURISDICTIONS
IN LEGAL
(1981) M.A.
172
ROBERT
GORDON
and accessible body of mental health law; the varying amounts of interest in the legal needs of mental health patients amongst the community at large and legal workers in particular; the degree of interest shown by mental health authorities and practitioners in reforming relevant legislation and protecting patients’ rights; and finally, the extent to which legal aid systems have evolved and cater to the special needs of the client group. Clearly these factors are closely related; however, major developments in relation to two of them appear to have been primarily responsible for encouraging legal advocacy in Commonwealth jurisdictions: (1) legislative change as a result of the combined efforts of mental health associations, patients’ organisations, lawyers interested in mental health issues, and, to some extent, mental health practitioners; and (2) the creation and operationalisation of modern legal aid systems. In particular, legislative changes have provided a more clearly defined role for legal workers especially where such changes have created or expanded review procedures for involuntarily committed patients.l The development of legal aid systems has granted financial, organisational and conceptual support to provide: (1) an impetus to pre-existing but ad hoc legal services (notably those available through patients’ organisations); (2) a selection of different legal service delivery modes; and (3) personnel interested in uncovering and answering the legal needs of disadvantaged groups such as mental health patients. As much as these factors have encouraged growth so they have also tended to determine the emphasis, approach and probably to some extent, the impact of existing services. Specifically, they have determined the physical delivery mode, the delivery style and delivery objectives of legal services. Legislation, in company with existing, conventional avenues of legal redress, has set the parameters of the operations of services. Legal aid systems, which are affected by prevailing government or law society policies, have provided a framework in relation to coverage (the types of cases that will be undertaken), client eligibility (the application of means tests), and remuneration for legal workers. As such, both legislative and legal aid developments have tended to restrain the work of legal services, principally by imposing limitations on the amount of effective, partisan advocacy that can be applied. Restraints have been both procedural (legislative reform has been guarded) and economic; they also tend to reflect the problems encountered in the mainstream of conventional legal aid delivery where the aspirations of the pioneers of the 1960s and 1970s have been tempered by the realities of political, economic and judicial caution. The impact of legal services for patients is difficult to determine with precision, principally because of a dearth of evaluations in Commonwealth jurisdictions. A notable exception is the Department of Justice (Canada) assessment of the Mental Patients’ Advocate Project in British Columbia. Some limited activi4Review procedures include review tribunals, judicial review or both. Review tribunals, now exist in the following Commonwealth jurisdictions: England and Wales, South
panels or boards Australia, West
Australia, Queensland, Tasmania, British Columbia, Alberta, Saskatchewan, Nova Scotia, Quebec, Prince Edward Island, New Brunswick, Ontario, and Newfoundland. Review procedures by way of precommitment hearings before Magistrates or their equivalent are provided in Scotland, New Zealand and New South Wales. The reasons for the selection of the different procedures in the different jurisdictions (particularly between the years 1958 to 1963) and, where no review facilities are provided, the use of Official Visitors, calls for closer investigation.
LEGAL
SERVICES
FOR MENTAL
HEALTH
PATIENTS
173
ty has been occurring in the courts in England and Canada, as a result of the work of special legal services5 and they have, in addition, been active in handling individual cases of injustice.6 Similarly, special legal services have been involved in major overhauls of mental health and related legislation.’ However, the gains that have been made have been largely restricted to the jurisdictions in which they occurred. Nevertheless, it is possible, at this stage in the evolution of patients’ legal services in the Commonwealth, to make some useful observations in relation to the objectives sought by such services and their associated modes and styles of delivery. Legal Service Objectives
The objectives of the different legal services are related to the wider goals of the legal aid, poverty law and mental health law movements. However, they are strictly limited by the perceived or legislatively prescribed, legal needs of patients and the conflicts that exist in relation to different perceptions of need held by lawyers, mental health professionals and patients. In particular, objectives are determined by what is possible within the confines of existing legislation dealing with mental health issues and the types of avenue for legal redress that are available in Commonwealth jurisdictions. For example, the aggressive pursuit of civil rights evident in the United States cannot be matched in the Commonwealth because of the absence of constitutionally entrenched Bills of Rights, the lack of an adequate mechanism for pursuing the protection of those rights and the continued dominance of the doctrine of parliamentary supremacy. In addition, at least in Australia and England, the lack of any facility for undertaking class actions for the client group further limits the types of objectives that can be realistically sought. These problems are simply a reflection of the general situation prevailing in the legal aid, public interest and poverty law areas as a whole, in Commonwealth jurisdictions. In general, legal service objectives have fallen into two groups: (1) the provision of assistance in the area of institution-related matters (e.g., disputes over treatment modalities, commitment, review, release, etc.); and (2) the provision of assistance in relation to the more general, conventional legal needs of patients found in most legal aid/poverty law settings (e.g., matters relating to accommodation, employment, debt, family relationships, etc.). In addition, considerable effort is expended in lobbying for the reform of mental health and related legislation, particularly with a view to establishing or improving patients’ rights.
‘See, e.g., the British Columbia cases of Rosandik v. Manning [1978] 5 BCLR 347; and Re Dewing [1976] WWD 21. In England, MIND has initiated several cases before the European Commission of Human Rights; see X v. United Kingdom app. 6998/75; Y v. United Kingdom app. 6870175; and Z v. United Kingdom app. 7099175. 6For example, in Canada, the National Legal Resources Service of the N.I.M.R. have been vigorously pursuing the case of Emerson Bonnar, a mentally handicapped person who, until recently was detained in a New Brunswick institution under a Lieutenant-Governor’s Warrant. -An excellent example of this type of work is provided by MIND, which played a central role in the review, of the England and Wales, Menral Health Acr, 1959. See the United Kingdom Government White Paper, A RE\,IE\\OF THE MENTAL HE.~LTHACT, 1959 (1979).
ROBERT
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GORDON
Within this classification of objectives several specific and current goals are apparent. 1. The provision of representation for patients appearing before review tribunals and similar bodies dealing with commitment, continued detention and other matters, including appearances before higher courts. 2. Attempting to effect changes in the structure, powers and procedures of such bodies particularly where current activities suggest that the principles of natural justice may be ignored.8 3. The removal of limitations on the rights of mental health patients to seek redress for wrongs committed by persons acting under mental health legislation, or in other circumstances. 4. The entrenchment of patients’ rights in mental health legislation and the provision of mechanisms for the protection of such rights. 5. The provision of special legal services dealing with the legal needs of patients, in particular legal services that follow the Mental Patients’ Advocate Project model; such services to answer the conventional legal needs of patients as well as their needs in relation to institution-related matters. 6. Attempting to effect changes in relation to legislation dealing with competency, trusteeship and guardianship, particularly where existing legislation does not properly acknowledge that competency varies according to the condition of the individual patient and the nature of the “affairs” that are placed under supervision. 7. The pursuit of individual cases of injustice or the protection of patients’ rights as they arise in the different jurisdictions. 8. The development of expertise in mental health law. This list is by no means exhaustive and merely highlights what seem to be the major objectives at the moment. It will be apparent, especially if they are compared with developments in the United States, that in many ways they involve elementary issues. That is, the objectives sought are quite modest and designed simply to redress decades of the erosion of patients’ rights under the benign hand of those who have allocated priority to the health, rather than civil rights, needs of patients. Modes of Delivery
Special legal services have followed either the general trend towards nonalienating, easily accessible, “store-front” premises favoured by most community law centres, or the pattern associated with general “duty counsel” schemes. The Mental Patients’ Advocate Project, for example, maintained until recently an on-site law centre at the Kiverview Hospital in British Columbia. The centre had full-time staff who were available to clients at any time, much like other conventional, community law centres (e.g., Parkdale Community Legal Services in Toronto and Fitzroy Legal Service in Melbourne). This scheme was supported *For a comprehensive
discussion of this issue see. L. G~STIN & E. RASSABY. REPRESENTING THE MENT,~LLY
IILL AND HANDICAPPED (1980),
M. SHONE. CONFLUENCE OF THE MENTAL HEALTH ,~ND LEGAL SYSTENS IN THE
PROCESS FOR COMPULSORY CIVIL COMMITMENT IN ALBERTA (1976)
LLM
Thesis, University
of Alberta.
LEGAL
SERVICES
FOR
MENTAL
HEALTH
PATIENTS
175
by the Vancouver Community Legal Assistance Society, who as part of their wider delivery system also assist patients in the community. A similar type of special legal service is also available in Ontario but with a more nationwide interest. The Advocacy Resource Centre for the Handicapped (A.R.C.H.) is funded by the Ontario Legal Aid Plan and maintains an emphasis on test case and other reformative actions. Its services are not as extensive as those formerly provided by the Mental Patients’ Advocate Project, particularly as they do not provide for the conventional legal needs of patients. Less structured and organised on-site services are provided in two Ontario hospitals - the York-Finch General Hospital in Toronto and the Hamilton Psychiatric Hospital. Also funded by the Ontario Legal Aid Plan, these services are only centres for summary advice/assistance. As such, they channel legal aid applications and provide only limited coverage. Specific “duty counsel” schemes, where lawyers, paralegals or other legal workers visit institutions at set times to deal with possible requests for legal assistance, are operating in several locations. In Canada, such schemes exist in Alberta, Manitoba and Ontario as part of provincial legal aid systems. Alberta, for example, has community legal aid interviewers who visit institutions in the province to receive applications for legal aid under the Law Society’s judicare scheme, while in Manitoba, staff lawyers from community legal services visit hospitals and provide advice and counselling. In the latter location, cases that require futher work are either dealt with by staff lawyers or are referred to private practitioners under the judicare component of the Manitoba Legal Aid Plan. In Ontario, apart from the special legal services in hospitals, private practitioners acting as duty counsel attend all the provincial psychiatric hospitals on certain days or on request. They advise and assist patients, handling applications for legal aid where more complex work is required. In other locations, legal services are available to patients on a request basis, again as part of general legal aid delivery systems. Such services tend to be concerned with specific legal needs. For example, in South Australia, New South Wales, Quebec, Newfoundland, British Columbia and Nova Scotia, representation is provided for financially eligible patients appearing before review boards and other commitment-related hearings (both those established by mental health legislation and, in the case of Canadian jurisdictions, those established under the Criminal Code). In some locations (e.g., Newfoundland, Nova Scotia and Quebec), the local legal aid organisation is automatically informed of both the involuntary hospitalization of patients and the issue of notices of hearings so that, rather than awaiting a request from a patient, the need for legal assistance can be canvassed by the organisation.9 Such specific legal needs have given impetus to other legal services within the general legal aid framework. Indeed, the provision of representation for patients appearing before review tribunal hearings has gained considerable momentum. In England, MIND now provides a representation service, consisting of both ‘This approach was favoured in Ontario but has yet to be introduced. Resistance to such a scheme included a concern that such a process of notification would breach hospital/patient confidentiality. See, STANDING SOCIM DE\,ELOPVENTCOSIZIITTEE.BILLET: THE MENTAL HEALTH AUENDMENT ACT, 1978: PROCEEDINGS (1978) Unpublished Manuscripts, Ministry of Health, Toronto.
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GORDON
lawyers and paralegals, for patients appearing before Mental Health Review TribunalslO However, this facility relies heavily upon the services of private practitioners who are restrained by the inadequacy of the legal aid system in England. In particular, financial remuneration for lawyers is poor, and nonexistent for lay representatives. In Canada, the National Legal Resource Service of the N.I.M.R. and the C.M.H.A. can both supply lawyers for mental health patients and the latter organisation has been particularly active in arranging representation. Independent community law centres/legal services have also been closely involved in meeting the legal needs of patients in both the tribunal context and in relation to more conventional legal needs. In Australia, the Redfern Legal Centre in Sydney and the Fitzroy Legal Service in Melbourne assist those in institutions, those attending community health centres and those who, because of the police powers in mental health legislation, assume the role of fugitive whenever they leave institutions prior to formal discharge. A similar situation exists in Canada and in England. For example, the Parkdale Community Legal Service in Toronto, the Dalhousie Legal Aid Service in Halifax, Nova Scotia, and community law centres in the Greater London and Manchester areas have a special interest in patients’ needs. In addition, it is probable that most independent community law centres, whether run by universities or other organisations, play some part in meeting the legal needs of patients within their communities. Delivery Styles
The delivery styles adopted by legal workers fall along a familiar continuum between the “strict instructions” approach associated with “partisan advocacy” and a more “patient welfare” approach associated with mediation in, or nonlitigous resolution of disputes. ii Legal services within the continuum assume they are operating in the “best interests” of patients/clientsi2 and to a considerable extent the operational objectives of the particular legal services determine which delivery style is adopted. In general, special legal services such as A.R.C.H. and MIND, favour the “strict instructions” approach to service delivery. This has been most adequately described by Costin and Rassaby: “a strict instructions approach assumes that the patient is competent to aid the representative in the conduct of the case and to express a preferred outcome. . . . If the patient is capable of expressing a view as to the outcome he desires and can provide minimal assistance to the this should suffice for the purpose of carrying out representative, instructions.“i3 As a general guiding philosophy this is seen as the safest approach to adopt. In particular, a legal worker is able to operate within a familiar, ethically sound and traditional lawyer/client relationship. It also effectively acknowledges that “competency” is not a condition with regularly discernible LoSee, L. GOSTIN& E. RASSABY, supra note 8.
The Role of the Lawyer in the Mental Health Field, 2 AM. BAR Fo. RES. J. (1977); A. Woody, The Lawyer in the Mental Health Field, 1 AM. BAR Fo. RES. J. (1979). IsThe “patient welfare” approach is often incorrectly described as a “best interests” approach. 13Supra note 8, at 5. “See,
e.g.,
Brakel,
STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION(1975);
LEGAL
SERVICES
FOR MENTAL
HEALTH
PATIENTS
177
parameters and is thus consistent with the efforts that are being made to reform legislation dealing with trusteeship, guardianship and related matters. Although this approach could lead to many problems, not least of which is a waste of legal service resources through vexatious litigation, it acknowledges and supports the principle of “normalisation.” The delivery style is not necessarily to be correlated with aggressive, partisan advocacy for, in theory at least, it can involve adopting a conciliatory rather than adversarial approach to an issue if that is requested by a patient. However, the “strict instructions” approach is closely associated with the vigorous pursuit of patients’ rights and other legal needs, in an adversarial context. On the other hand, agencies approaching a “patient welfare” delivery style take a more conciliatory stance. Again, as Gostin and Rassaby argue, with this approach, “the traditional brief of the representative is considered . . . to be inappropriate in the context of mental health (issues). . . . A successful outcome is a decision which best promotes the health and safety of the patient
\VEIHOFEZ.LECAL lhD. ROW\THAI.
LANKER
'-See.S. BOTHV~YX&
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~\~)CLIENT: M/HOI I\ CH%RC;E? (1977).
R. GORDOY.PRACTISII(~
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178
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the continuum. A notable exception is the research conducted in New South Wales for the Edwards Committee, a body set up to review the New South Wales Mental Health Act, 19X+.18In a series of experiments at Rozelle Hospital, Sydney, different types of patient representatives were employed during Magistrates’ pre-commitment hearings and an attempt made to measure their impact. A duty solicitor scheme, a full-time legal officer scheme and a full-time non-legal representation scheme were introduced at separate stages, each scheme having a distinctly different delivery style. The duty solicitor and non-legal representatives tended towards a “patient welfare” approach while the full-time legal officer adopted a “strict instructions,” partisan advocate role. Results indicated that any patient representation scheme had a demonstrable effect on commitment proceedings by increasing discharges and deferments.19 Indeed, it was felt that the impact of representation was far greater than the impact of the different delivery styles. From this it could be argued that the antagonism that seems to be generated between mental health staff and legal workers adopting the “strict instructions” approach20 may be unnecessary, as the outcome of a less adversarial “patient welfare” approach is likely to be much the same. It should be noted, however, that the attitude of Magistrates towards the partisan advocacy approach, may well have affected the impact of the full-time legal officer. During the experiments, Magistrates presiding at pre-commitment hearings were vocal in their condemnation of the delivery style. As a consequence, it is feasible that they were less prepared to accept the arguments of counsel, thereby undermining any assessment of their true effectiveness. With the increasing number of evaluations of the impact of partisan advocacy in the United States and the doubts that are raised in relation to whether or not such a method is serving the best interests of patients, we may expect a trend, in Commonwealth jurisdictions, towards the “patient welfare” approach. This may seem to be something of a moderated return to the primacy of the old parens patriae power and its attendant paternalism on the part of “helping professionals” so vigorously rejected in the early days of mental health advocacy. However, such a trend should not be perceived as a retreat or as a critique of the work of aggressive, partisan advocates. Rather than a reversal to a former, undesirable state of affairs, such a development represents a phase in an evolutionary process affecting the provision of patients’ legal services. This, in turn, reflects patterns that seem to have appeared in the provision of legal services in general. Such a process involves, first, the aggressive assertion of needs and, secondly, either an establishment of rights or an informal recognition and acceptance of rights on the part of relevant parties or agencies. Finally, this situation is followed by a process of moderation in demands once the power of the client group is equitably established. For the latter condition to be maintained, however, it is necessary for the group involved to ‘aSee, PROCEEUINCS OF THE INSTITUTEOF CRIMINOLOGY. RIGHTS OF THE MENTAI I Y 1~I REPRESENTING PsTIENTS AT MENTAL HEALTH ACT bk4RINGS (1978). lPAlthough discharges may be a desired outcome, deferments are not. During a period of deferment, patients’ rights are restricted and an individual can be detained and treated against his or her will. loSee, PROCEEDINGS OF THE INSTITUTE OF CRIMINOI WY, suprunote 18. This conflict was also discussed in the Department of Justice (Canada) evaluation of the Mental Patients’ Advocate Project in British Columbia.
LEGAL
SERVICES
FOR MENTAL
HEALTH
PATIENTS
179
continue to have access to visible, aggressive advocates so that no attempt is made to dissolve their power. In this sense, partisan advocates continue to play an important deterrent role. In the specific context of mental health patients, the partisan advocacy approach has currency. By working to establish rights for patients, encouraging the reform of relevant legislation and otherwise pursuing the interests of the client group they have done and are doing much to improve mental health systems and the conditions surrounding patients, despite considerable opposition. In this sense, their principal objective can be seen to be providing patients with power in their relationships with mental health professionals and agencies, just as advocates in the legal aid/poverty law area at large have been attempting to establish power for other disadvantaged groups. However, such an approach has to moderate once an effective compromise is established in the conflict between the mental health and civil rights needs of patients. Once basic rights are attained and acknowledged by relevant parties, a different delivery style, with an emphasis on the “patient welfare” approach, might become more appropriate. Of course, the moment at which any effective compromise is estabiished may be hard to determine as, in the final analysis, it is bound to the situation prevailing in relation to individual patients. However, where patients’ rights are still absent from or restrained by, legislation and seemingly ignored by mental health professionals/agencies, it will be necessary to continue to adopt a partisan advocacy approach until recognised standards are obtained and acknowledged as legitimate. Future Developments The evolution of patients’ legal services will be tied to events that occur in the general area of mental health care. In particular, the apparent trend towards deinstitutionalisation in favour of community care and treatment settings should encourage legal service planners. Given the current situation and the possibility of a continuing role for partisan advocates, there is a need to develop legal services to deal with civil rights issues (notably the provision of representation at review tribunal and other related hearings) separately from those answering the conventional legal needs of patients. Special legal services in hospitals could take on the role of channelling patients to a representation service, perhaps structured along the lines of that provided by MIND (but with full-time, salaried staff), thereby removing the major source of conflict between legal workers and hospital staff. This should lead to enhanced communication between professionals, to the ultimate benefit of the client group. As a complement to the development of community health centres, there seems to be scope for experimentation with the “patient welfare” approach. In particular, such research should test the proposition that legal intervention can assist patients, and indeed the treatment team, by reducing stress factors in a patient’s social circumstances and by assisting patients discharged from institutions to establish themselves in the community. In attempting to determine the best delivery mode and in assessing the impact of those delivery modes that currently exist, there is an immediate need for an evaluation of the types of service available throughout the Commonwealth. Such an evaluation should involve an
180
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examination of the review procedures that have been established in the different jurisdictions including reviews that occur in relation to criminal law matters. Finally, it is suggested that there is scope for the establishment of a Commonwealth Clearing House, dealing with mental health law issues. One of the major problems facing legal workers, particularly in those jurisdictions where patients’ legal services are only just starting, seems to be the absence of any concise and accessible body of (and any substantial expertise in) mental health law. There also appears to be a lack of dialogue between mental health law practitioners across jurisdictions. A Clearing House could redress this situation and act as a back-up centre providing a legal research service. The provision of legal services to mental health patients has evolved as a challenging and dynamic area of sub-specialisation within the general field of legal aid/poverty law practice. The client group suffer multiple disadvantage being, as a general rule, not only people with limited financial means but also people struggling with ill-health, social stigma and extreme vulnerability. Legal services in Commonwealth jurisdictions have, in comparison with similar bodies in the United States, been slow to develop and are still wrestling with many basic issues. It is hoped that the efforts of legal workers so far will not wither on the vine, particularly in the current economic climate. Similarly, it is important that in the contest between competing perceptions of what is in the “best interests” of patients, legal workers and mental health professionals are not overwhelmed by their own needs and interests. The impact of the doctrine of pat-ens patriae may be dwindling but care must be taken that alternatives are more than passing substitutes.
VoI 4, pp. 171-180.1981
0160.2527/81/010171-10$02.00/O CopyrIght tf 1981 Pergamon Press Ltd
Legal Services for Mental Health Patients Some Commonwealth Developments Robert Gordon*
Although developments in the United States have tended to dominate analyses of the growth and practise of legal advocacy for mental health patients, a significant amount of activity has been occurring in some British Commonwealth countries. In Canada, special legal services’ are available in the provinces of British Columbia, Alberta, Manitoba and Ontario, and general legal services2 in the provinces of Newfoundland, Nova Scotia and Quebec. In addition, national legal services are also provided, particularly by the National Institute on Mental Retardation (N.I.M.R.) and the Canadian Mental Health Association (C.M.H.A.). In England, special legal services are provided on a national basis by the Legal Department of the National Association for Mental Health (MIND), while general legal services are offered by several community law centres. Australian developments have been slower although general legal services are now available in the states of New South Wales, South Australia and, to some extent, Victoria.3 While these legal services have been influenced by activities in the United States, the fundamental differences that exist between Commonwealth and United States jurisdictions have led to localised variations in emphasis and approach. Such variations have been conditioned by the content of legislation dealing with mental health and related issues (e.g., competency, trusteeship, guardianship) in the different Commonwealth jurisdictions; the absence of a concise *Fitzroy Legal Service, Melbourne, Australia, currently graduate fellow, Department of Criminology, Simon Fraser University, Burnaby, British Columbia V5A lS6, Canada. The author wishes to acknowledge the research support of the Canadian Commonwealth Scholarships Committee and the assistance of Professor Simon Verdun-Jones of the Department of Criminology, Simon Fraser University. ‘The term “legal services” refers to the organisations, agencies or branches of agencies designed and established to deliver legal assistance to a community, whether a geographical community or a community of people sharing an interest, such as mental health patients. Special legal services are those designed and established to answer the specific legal needs of mental health patients whether or not they are residing in institutions. Although they may be part of a general legal aid plan or system in a particular jurisdiction, such services concentrate on or actively seek out, mental health patients as a particular client group. In their ideal form, special legal services take a “proactive” approach to service delivery and extend their services to include reformative actions. General legal services can be distinguished from special legal services in that while every effort is made to cater for the needs of mental health patients, service delivery is simply a part of the general legal aid facilities esisting in a particular jurisdiction. General legal services adopt a “reactive” stance, relying upon the clients to seek out the resource and define their legal needs. ‘For a full exploration of the evolution of patients’ legal services in the British Commonwealth see, R. GOKDO\.
LEGAL
SER\
AIDIPWERT)
L&N
Thesis,
Fraser
Simon
ICES FOR MENTAL
DELI\,ERI
WITH
HEALTH
PARTICULAR
P.&TIENTS: BIPHASIS
University. 171
A SELECTIVE
REVIEW
02’ COIIMONWEALTH
OF DE~EL~P~IENTS JURISDICTIONS
IN LEGAL
(1981) M.A.
172
ROBERT
GORDON
and accessible body of mental health law; the varying amounts of interest in the legal needs of mental health patients amongst the community at large and legal workers in particular; the degree of interest shown by mental health authorities and practitioners in reforming relevant legislation and protecting patients’ rights; and finally, the extent to which legal aid systems have evolved and cater to the special needs of the client group. Clearly these factors are closely related; however, major developments in relation to two of them appear to have been primarily responsible for encouraging legal advocacy in Commonwealth jurisdictions: (1) legislative change as a result of the combined efforts of mental health associations, patients’ organisations, lawyers interested in mental health issues, and, to some extent, mental health practitioners; and (2) the creation and operationalisation of modern legal aid systems. In particular, legislative changes have provided a more clearly defined role for legal workers especially where such changes have created or expanded review procedures for involuntarily committed patients.l The development of legal aid systems has granted financial, organisational and conceptual support to provide: (1) an impetus to pre-existing but ad hoc legal services (notably those available through patients’ organisations); (2) a selection of different legal service delivery modes; and (3) personnel interested in uncovering and answering the legal needs of disadvantaged groups such as mental health patients. As much as these factors have encouraged growth so they have also tended to determine the emphasis, approach and probably to some extent, the impact of existing services. Specifically, they have determined the physical delivery mode, the delivery style and delivery objectives of legal services. Legislation, in company with existing, conventional avenues of legal redress, has set the parameters of the operations of services. Legal aid systems, which are affected by prevailing government or law society policies, have provided a framework in relation to coverage (the types of cases that will be undertaken), client eligibility (the application of means tests), and remuneration for legal workers. As such, both legislative and legal aid developments have tended to restrain the work of legal services, principally by imposing limitations on the amount of effective, partisan advocacy that can be applied. Restraints have been both procedural (legislative reform has been guarded) and economic; they also tend to reflect the problems encountered in the mainstream of conventional legal aid delivery where the aspirations of the pioneers of the 1960s and 1970s have been tempered by the realities of political, economic and judicial caution. The impact of legal services for patients is difficult to determine with precision, principally because of a dearth of evaluations in Commonwealth jurisdictions. A notable exception is the Department of Justice (Canada) assessment of the Mental Patients’ Advocate Project in British Columbia. Some limited activi4Review procedures include review tribunals, judicial review or both. Review tribunals, now exist in the following Commonwealth jurisdictions: England and Wales, South
panels or boards Australia, West
Australia, Queensland, Tasmania, British Columbia, Alberta, Saskatchewan, Nova Scotia, Quebec, Prince Edward Island, New Brunswick, Ontario, and Newfoundland. Review procedures by way of precommitment hearings before Magistrates or their equivalent are provided in Scotland, New Zealand and New South Wales. The reasons for the selection of the different procedures in the different jurisdictions (particularly between the years 1958 to 1963) and, where no review facilities are provided, the use of Official Visitors, calls for closer investigation.
LEGAL
SERVICES
FOR MENTAL
HEALTH
PATIENTS
173
ty has been occurring in the courts in England and Canada, as a result of the work of special legal services5 and they have, in addition, been active in handling individual cases of injustice.6 Similarly, special legal services have been involved in major overhauls of mental health and related legislation.’ However, the gains that have been made have been largely restricted to the jurisdictions in which they occurred. Nevertheless, it is possible, at this stage in the evolution of patients’ legal services in the Commonwealth, to make some useful observations in relation to the objectives sought by such services and their associated modes and styles of delivery. Legal Service Objectives
The objectives of the different legal services are related to the wider goals of the legal aid, poverty law and mental health law movements. However, they are strictly limited by the perceived or legislatively prescribed, legal needs of patients and the conflicts that exist in relation to different perceptions of need held by lawyers, mental health professionals and patients. In particular, objectives are determined by what is possible within the confines of existing legislation dealing with mental health issues and the types of avenue for legal redress that are available in Commonwealth jurisdictions. For example, the aggressive pursuit of civil rights evident in the United States cannot be matched in the Commonwealth because of the absence of constitutionally entrenched Bills of Rights, the lack of an adequate mechanism for pursuing the protection of those rights and the continued dominance of the doctrine of parliamentary supremacy. In addition, at least in Australia and England, the lack of any facility for undertaking class actions for the client group further limits the types of objectives that can be realistically sought. These problems are simply a reflection of the general situation prevailing in the legal aid, public interest and poverty law areas as a whole, in Commonwealth jurisdictions. In general, legal service objectives have fallen into two groups: (1) the provision of assistance in the area of institution-related matters (e.g., disputes over treatment modalities, commitment, review, release, etc.); and (2) the provision of assistance in relation to the more general, conventional legal needs of patients found in most legal aid/poverty law settings (e.g., matters relating to accommodation, employment, debt, family relationships, etc.). In addition, considerable effort is expended in lobbying for the reform of mental health and related legislation, particularly with a view to establishing or improving patients’ rights.
‘See, e.g., the British Columbia cases of Rosandik v. Manning [1978] 5 BCLR 347; and Re Dewing [1976] WWD 21. In England, MIND has initiated several cases before the European Commission of Human Rights; see X v. United Kingdom app. 6998/75; Y v. United Kingdom app. 6870175; and Z v. United Kingdom app. 7099175. 6For example, in Canada, the National Legal Resources Service of the N.I.M.R. have been vigorously pursuing the case of Emerson Bonnar, a mentally handicapped person who, until recently was detained in a New Brunswick institution under a Lieutenant-Governor’s Warrant. -An excellent example of this type of work is provided by MIND, which played a central role in the review, of the England and Wales, Menral Health Acr, 1959. See the United Kingdom Government White Paper, A RE\,IE\\OF THE MENTAL HE.~LTHACT, 1959 (1979).
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Within this classification of objectives several specific and current goals are apparent. 1. The provision of representation for patients appearing before review tribunals and similar bodies dealing with commitment, continued detention and other matters, including appearances before higher courts. 2. Attempting to effect changes in the structure, powers and procedures of such bodies particularly where current activities suggest that the principles of natural justice may be ignored.8 3. The removal of limitations on the rights of mental health patients to seek redress for wrongs committed by persons acting under mental health legislation, or in other circumstances. 4. The entrenchment of patients’ rights in mental health legislation and the provision of mechanisms for the protection of such rights. 5. The provision of special legal services dealing with the legal needs of patients, in particular legal services that follow the Mental Patients’ Advocate Project model; such services to answer the conventional legal needs of patients as well as their needs in relation to institution-related matters. 6. Attempting to effect changes in relation to legislation dealing with competency, trusteeship and guardianship, particularly where existing legislation does not properly acknowledge that competency varies according to the condition of the individual patient and the nature of the “affairs” that are placed under supervision. 7. The pursuit of individual cases of injustice or the protection of patients’ rights as they arise in the different jurisdictions. 8. The development of expertise in mental health law. This list is by no means exhaustive and merely highlights what seem to be the major objectives at the moment. It will be apparent, especially if they are compared with developments in the United States, that in many ways they involve elementary issues. That is, the objectives sought are quite modest and designed simply to redress decades of the erosion of patients’ rights under the benign hand of those who have allocated priority to the health, rather than civil rights, needs of patients. Modes of Delivery
Special legal services have followed either the general trend towards nonalienating, easily accessible, “store-front” premises favoured by most community law centres, or the pattern associated with general “duty counsel” schemes. The Mental Patients’ Advocate Project, for example, maintained until recently an on-site law centre at the Kiverview Hospital in British Columbia. The centre had full-time staff who were available to clients at any time, much like other conventional, community law centres (e.g., Parkdale Community Legal Services in Toronto and Fitzroy Legal Service in Melbourne). This scheme was supported *For a comprehensive
discussion of this issue see. L. G~STIN & E. RASSABY. REPRESENTING THE MENT,~LLY
IILL AND HANDICAPPED (1980),
M. SHONE. CONFLUENCE OF THE MENTAL HEALTH ,~ND LEGAL SYSTENS IN THE
PROCESS FOR COMPULSORY CIVIL COMMITMENT IN ALBERTA (1976)
LLM
Thesis, University
of Alberta.
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by the Vancouver Community Legal Assistance Society, who as part of their wider delivery system also assist patients in the community. A similar type of special legal service is also available in Ontario but with a more nationwide interest. The Advocacy Resource Centre for the Handicapped (A.R.C.H.) is funded by the Ontario Legal Aid Plan and maintains an emphasis on test case and other reformative actions. Its services are not as extensive as those formerly provided by the Mental Patients’ Advocate Project, particularly as they do not provide for the conventional legal needs of patients. Less structured and organised on-site services are provided in two Ontario hospitals - the York-Finch General Hospital in Toronto and the Hamilton Psychiatric Hospital. Also funded by the Ontario Legal Aid Plan, these services are only centres for summary advice/assistance. As such, they channel legal aid applications and provide only limited coverage. Specific “duty counsel” schemes, where lawyers, paralegals or other legal workers visit institutions at set times to deal with possible requests for legal assistance, are operating in several locations. In Canada, such schemes exist in Alberta, Manitoba and Ontario as part of provincial legal aid systems. Alberta, for example, has community legal aid interviewers who visit institutions in the province to receive applications for legal aid under the Law Society’s judicare scheme, while in Manitoba, staff lawyers from community legal services visit hospitals and provide advice and counselling. In the latter location, cases that require futher work are either dealt with by staff lawyers or are referred to private practitioners under the judicare component of the Manitoba Legal Aid Plan. In Ontario, apart from the special legal services in hospitals, private practitioners acting as duty counsel attend all the provincial psychiatric hospitals on certain days or on request. They advise and assist patients, handling applications for legal aid where more complex work is required. In other locations, legal services are available to patients on a request basis, again as part of general legal aid delivery systems. Such services tend to be concerned with specific legal needs. For example, in South Australia, New South Wales, Quebec, Newfoundland, British Columbia and Nova Scotia, representation is provided for financially eligible patients appearing before review boards and other commitment-related hearings (both those established by mental health legislation and, in the case of Canadian jurisdictions, those established under the Criminal Code). In some locations (e.g., Newfoundland, Nova Scotia and Quebec), the local legal aid organisation is automatically informed of both the involuntary hospitalization of patients and the issue of notices of hearings so that, rather than awaiting a request from a patient, the need for legal assistance can be canvassed by the organisation.9 Such specific legal needs have given impetus to other legal services within the general legal aid framework. Indeed, the provision of representation for patients appearing before review tribunal hearings has gained considerable momentum. In England, MIND now provides a representation service, consisting of both ‘This approach was favoured in Ontario but has yet to be introduced. Resistance to such a scheme included a concern that such a process of notification would breach hospital/patient confidentiality. See, STANDING SOCIM DE\,ELOPVENTCOSIZIITTEE.BILLET: THE MENTAL HEALTH AUENDMENT ACT, 1978: PROCEEDINGS (1978) Unpublished Manuscripts, Ministry of Health, Toronto.
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lawyers and paralegals, for patients appearing before Mental Health Review TribunalslO However, this facility relies heavily upon the services of private practitioners who are restrained by the inadequacy of the legal aid system in England. In particular, financial remuneration for lawyers is poor, and nonexistent for lay representatives. In Canada, the National Legal Resource Service of the N.I.M.R. and the C.M.H.A. can both supply lawyers for mental health patients and the latter organisation has been particularly active in arranging representation. Independent community law centres/legal services have also been closely involved in meeting the legal needs of patients in both the tribunal context and in relation to more conventional legal needs. In Australia, the Redfern Legal Centre in Sydney and the Fitzroy Legal Service in Melbourne assist those in institutions, those attending community health centres and those who, because of the police powers in mental health legislation, assume the role of fugitive whenever they leave institutions prior to formal discharge. A similar situation exists in Canada and in England. For example, the Parkdale Community Legal Service in Toronto, the Dalhousie Legal Aid Service in Halifax, Nova Scotia, and community law centres in the Greater London and Manchester areas have a special interest in patients’ needs. In addition, it is probable that most independent community law centres, whether run by universities or other organisations, play some part in meeting the legal needs of patients within their communities. Delivery Styles
The delivery styles adopted by legal workers fall along a familiar continuum between the “strict instructions” approach associated with “partisan advocacy” and a more “patient welfare” approach associated with mediation in, or nonlitigous resolution of disputes. ii Legal services within the continuum assume they are operating in the “best interests” of patients/clientsi2 and to a considerable extent the operational objectives of the particular legal services determine which delivery style is adopted. In general, special legal services such as A.R.C.H. and MIND, favour the “strict instructions” approach to service delivery. This has been most adequately described by Costin and Rassaby: “a strict instructions approach assumes that the patient is competent to aid the representative in the conduct of the case and to express a preferred outcome. . . . If the patient is capable of expressing a view as to the outcome he desires and can provide minimal assistance to the this should suffice for the purpose of carrying out representative, instructions.“i3 As a general guiding philosophy this is seen as the safest approach to adopt. In particular, a legal worker is able to operate within a familiar, ethically sound and traditional lawyer/client relationship. It also effectively acknowledges that “competency” is not a condition with regularly discernible LoSee, L. GOSTIN& E. RASSABY, supra note 8.
The Role of the Lawyer in the Mental Health Field, 2 AM. BAR Fo. RES. J. (1977); A. Woody, The Lawyer in the Mental Health Field, 1 AM. BAR Fo. RES. J. (1979). IsThe “patient welfare” approach is often incorrectly described as a “best interests” approach. 13Supra note 8, at 5. “See,
e.g.,
Brakel,
STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION(1975);
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parameters and is thus consistent with the efforts that are being made to reform legislation dealing with trusteeship, guardianship and related matters. Although this approach could lead to many problems, not least of which is a waste of legal service resources through vexatious litigation, it acknowledges and supports the principle of “normalisation.” The delivery style is not necessarily to be correlated with aggressive, partisan advocacy for, in theory at least, it can involve adopting a conciliatory rather than adversarial approach to an issue if that is requested by a patient. However, the “strict instructions” approach is closely associated with the vigorous pursuit of patients’ rights and other legal needs, in an adversarial context. On the other hand, agencies approaching a “patient welfare” delivery style take a more conciliatory stance. Again, as Gostin and Rassaby argue, with this approach, “the traditional brief of the representative is considered . . . to be inappropriate in the context of mental health (issues). . . . A successful outcome is a decision which best promotes the health and safety of the patient
\VEIHOFEZ.LECAL lhD. ROW\THAI.
LANKER
'-See.S. BOTHV~YX&
SER\ICEY ~wCO\I\WYITI
MENT.~L HEALTH
~\~)CLIENT: M/HOI I\ CH%RC;E? (1977).
R. GORDOY.PRACTISII(~
POVERTI
LAN
(1979).
CENTRES(I~~~).
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the continuum. A notable exception is the research conducted in New South Wales for the Edwards Committee, a body set up to review the New South Wales Mental Health Act, 19X+.18In a series of experiments at Rozelle Hospital, Sydney, different types of patient representatives were employed during Magistrates’ pre-commitment hearings and an attempt made to measure their impact. A duty solicitor scheme, a full-time legal officer scheme and a full-time non-legal representation scheme were introduced at separate stages, each scheme having a distinctly different delivery style. The duty solicitor and non-legal representatives tended towards a “patient welfare” approach while the full-time legal officer adopted a “strict instructions,” partisan advocate role. Results indicated that any patient representation scheme had a demonstrable effect on commitment proceedings by increasing discharges and deferments.19 Indeed, it was felt that the impact of representation was far greater than the impact of the different delivery styles. From this it could be argued that the antagonism that seems to be generated between mental health staff and legal workers adopting the “strict instructions” approach20 may be unnecessary, as the outcome of a less adversarial “patient welfare” approach is likely to be much the same. It should be noted, however, that the attitude of Magistrates towards the partisan advocacy approach, may well have affected the impact of the full-time legal officer. During the experiments, Magistrates presiding at pre-commitment hearings were vocal in their condemnation of the delivery style. As a consequence, it is feasible that they were less prepared to accept the arguments of counsel, thereby undermining any assessment of their true effectiveness. With the increasing number of evaluations of the impact of partisan advocacy in the United States and the doubts that are raised in relation to whether or not such a method is serving the best interests of patients, we may expect a trend, in Commonwealth jurisdictions, towards the “patient welfare” approach. This may seem to be something of a moderated return to the primacy of the old parens patriae power and its attendant paternalism on the part of “helping professionals” so vigorously rejected in the early days of mental health advocacy. However, such a trend should not be perceived as a retreat or as a critique of the work of aggressive, partisan advocates. Rather than a reversal to a former, undesirable state of affairs, such a development represents a phase in an evolutionary process affecting the provision of patients’ legal services. This, in turn, reflects patterns that seem to have appeared in the provision of legal services in general. Such a process involves, first, the aggressive assertion of needs and, secondly, either an establishment of rights or an informal recognition and acceptance of rights on the part of relevant parties or agencies. Finally, this situation is followed by a process of moderation in demands once the power of the client group is equitably established. For the latter condition to be maintained, however, it is necessary for the group involved to ‘aSee, PROCEEUINCS OF THE INSTITUTEOF CRIMINOLOGY. RIGHTS OF THE MENTAI I Y 1~I REPRESENTING PsTIENTS AT MENTAL HEALTH ACT bk4RINGS (1978). lPAlthough discharges may be a desired outcome, deferments are not. During a period of deferment, patients’ rights are restricted and an individual can be detained and treated against his or her will. loSee, PROCEEDINGS OF THE INSTITUTE OF CRIMINOI WY, suprunote 18. This conflict was also discussed in the Department of Justice (Canada) evaluation of the Mental Patients’ Advocate Project in British Columbia.
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continue to have access to visible, aggressive advocates so that no attempt is made to dissolve their power. In this sense, partisan advocates continue to play an important deterrent role. In the specific context of mental health patients, the partisan advocacy approach has currency. By working to establish rights for patients, encouraging the reform of relevant legislation and otherwise pursuing the interests of the client group they have done and are doing much to improve mental health systems and the conditions surrounding patients, despite considerable opposition. In this sense, their principal objective can be seen to be providing patients with power in their relationships with mental health professionals and agencies, just as advocates in the legal aid/poverty law area at large have been attempting to establish power for other disadvantaged groups. However, such an approach has to moderate once an effective compromise is established in the conflict between the mental health and civil rights needs of patients. Once basic rights are attained and acknowledged by relevant parties, a different delivery style, with an emphasis on the “patient welfare” approach, might become more appropriate. Of course, the moment at which any effective compromise is estabiished may be hard to determine as, in the final analysis, it is bound to the situation prevailing in relation to individual patients. However, where patients’ rights are still absent from or restrained by, legislation and seemingly ignored by mental health professionals/agencies, it will be necessary to continue to adopt a partisan advocacy approach until recognised standards are obtained and acknowledged as legitimate. Future Developments The evolution of patients’ legal services will be tied to events that occur in the general area of mental health care. In particular, the apparent trend towards deinstitutionalisation in favour of community care and treatment settings should encourage legal service planners. Given the current situation and the possibility of a continuing role for partisan advocates, there is a need to develop legal services to deal with civil rights issues (notably the provision of representation at review tribunal and other related hearings) separately from those answering the conventional legal needs of patients. Special legal services in hospitals could take on the role of channelling patients to a representation service, perhaps structured along the lines of that provided by MIND (but with full-time, salaried staff), thereby removing the major source of conflict between legal workers and hospital staff. This should lead to enhanced communication between professionals, to the ultimate benefit of the client group. As a complement to the development of community health centres, there seems to be scope for experimentation with the “patient welfare” approach. In particular, such research should test the proposition that legal intervention can assist patients, and indeed the treatment team, by reducing stress factors in a patient’s social circumstances and by assisting patients discharged from institutions to establish themselves in the community. In attempting to determine the best delivery mode and in assessing the impact of those delivery modes that currently exist, there is an immediate need for an evaluation of the types of service available throughout the Commonwealth. Such an evaluation should involve an
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examination of the review procedures that have been established in the different jurisdictions including reviews that occur in relation to criminal law matters. Finally, it is suggested that there is scope for the establishment of a Commonwealth Clearing House, dealing with mental health law issues. One of the major problems facing legal workers, particularly in those jurisdictions where patients’ legal services are only just starting, seems to be the absence of any concise and accessible body of (and any substantial expertise in) mental health law. There also appears to be a lack of dialogue between mental health law practitioners across jurisdictions. A Clearing House could redress this situation and act as a back-up centre providing a legal research service. The provision of legal services to mental health patients has evolved as a challenging and dynamic area of sub-specialisation within the general field of legal aid/poverty law practice. The client group suffer multiple disadvantage being, as a general rule, not only people with limited financial means but also people struggling with ill-health, social stigma and extreme vulnerability. Legal services in Commonwealth jurisdictions have, in comparison with similar bodies in the United States, been slow to develop and are still wrestling with many basic issues. It is hoped that the efforts of legal workers so far will not wither on the vine, particularly in the current economic climate. Similarly, it is important that in the contest between competing perceptions of what is in the “best interests” of patients, legal workers and mental health professionals are not overwhelmed by their own needs and interests. The impact of the doctrine of pat-ens patriae may be dwindling but care must be taken that alternatives are more than passing substitutes.