Rough justice for mentally ill
GRAFTON’S Legal Aid system is leaving mentally ill and mentally disabled people without proper follow-through representation and many accused are opting for a guilty plea to ‘save the hassle’.
As a result, said Grafton lawyer Greg Coombes, these mentally ill accused are missing out on valuable treatment which could prevent them from committing further criminal offences.
Mr Coombes said lawyers from private firms were on a weekly Legal Aid roster in the current ‘duty solicitor’ system at Grafton Local Court.
He said the duty solicitor was only paid for his or her time actually in court so important follow-up procedures, such as applications for mental health assessments under Section 32 of the Mental Health Act, were often not pursued.
“Therefore the person is left to their own devices, unless they are refused bail and as a result in custody, which itself is an unsatisfactory situation. Otherwise they turn up at court the next time and more often than not – there is a 75 per cent chance they are going to get a different duty solicitor and possibly nothing would have happened,” Mr Coombes said. “They need funding for a lawyer to do work for them between those two court appearances.”
“Otherwise, the temptation is to enter a plea of guilty, rather than go to the trouble of obtaining reports and making submissions in order to have the court deal with them under the Mental Health Act. Pleading guilty can be seen as a more convenient way to get the matter over and done with and use their mental state as a mitigating factor in sentencing, however, if the accused is mentally ill, it fails to treat the person. Therefore, the offending behaviour will probably continue.”
Mr Coombes agrees with the Local Court Magistrate Kim Pogson that jail was not a hospital for the mentally ill, and should not be treated as such.
In Lismore and Coffs Harbour, duty solicitors are full-time employees of the Legal Aid Commission who are paid to work on cases between court appearances. The private practice duty solicitors in Grafton are not able to be paid for any additional work between court appearances.
Another problem, Mr Coombes said, was duty solicitors were often given insufficient time and information to assess whether a person could qualify for a Mental Health Assessment under Section 32.
“Sometimes we are only able to access their criminal records, and the facts of the alleged offence shortly before that person is called to appear in court,” Mr Coombes said. “It can be difficult in that environment to make an assessment.
“It would take some time, usually more than half an hour, but ... some of the different personalities you get in custody – it can frighten you just a little bit.
“You can meet a person and then they’ll show you the facts alleged and you think – how on earth could you have done this ... then, a subject that you’ve just raised with them can have the effect of flicking a switch and that’s when you think ‘okay, here’s why this person did this’.
“It can freak you out a bit.”
Mr Coombes expressed concerns about society’s expectations of the mentally ill or disabled.
“I think it’s important that this is talked about as an illness or disability, one that can often be very successfully treated, the same as any other disabilities whether it be hearing or sight or something that may require a wheelchair,” he said.
“You might expect everyone to be capable of walking up a hill but if they are in a wheelchair they are going to have obvious problems – we expect everyone to conduct themselves in an appropriate, legal manner but there are people who just have tremendous trouble doing that because of their illness. I’m not saying that there are no criminals out there, but I am suggesting that there are people who at times lack the capacity to recognise right from wrong.”
The Legal Aid Commission was unavailable for comment yesterday.
“There’s a 75 per cent chance they are going to get a new lawyer and possibly nothing would have happened.” Greg Coombes.