University of Western Sydney Law Review
MICHAEL BARNETT[*], ROBERT HAYES[†], MATTHEW LARGE[‡], OLAV NIELSSEN[*]*
This article is concerned with the ethical, legal, professional and practice management dilemmas involved in situations such as the following:
A young accident victim began his relationship with a law firm as the perfect client, but progressively became increasingly aggressive and abusive, bombarding the lawyer and staff with constant email and phone calls. The lawyer has just received a psychiatrist’s report in connection with the client’s case, which opines that the client could be at risk of seriously assaulting his parents, with whom he lives.
How should the issues raised in this kind of situation be addressed and resolved? The questions are important. There is an increasing incidence of psychotic illness in New South Wales prisons, generating an increasing proportion of mentally ill clients, particularly for pro bono practices within law firms, and community law centres servicing a growing marginalised population.
The relationship between a lawyer and client is often complex and multifaceted, involving fiduciary, financial and psychological elements. Obtaining instructions from clients and acting on those instructions may raise a variety of ethical and psychological issues for lawyers. For example, in family law, lawyers may be faced with acting on an apparently disturbed client's instructions that appear contrary to the best interests of the children of the relationship. In criminal law, some lawyers may face psychological and ethical difficulties in appearing for clients who may have committed serious crimes. Across the spectrum of professional practice, clients may be aggressive or unpleasant or, at the other extreme, very pleasant, attractive, vulnerable or sometimes seductive. Lawyers involved in a professional relationship may have strong personal feelings about their clients, either positive or negative, which consciously or unconsciously, may influence their professional responsibilities.
These psychological and ethical issues may be made even more complex or problematic when a client is mentally ill. Some clients also have alcohol or other substance addictions sometimes in combination with a mental illness. Such clients may act irrationally some of the time or all of the time, or they may suffer from mood swings, disorganised thinking, hallucinations or paranoia. The intensity of their symptoms may fluctuate and its effect on their functioning may also vary. There may be issues as to their capacity to give instructions or they may frequently change their instructions or give conflicting instructions. It also may be difficult for a lawyer to assess their legal capacity because the symptoms of their illness may manifest in deficits in their ability to communicate and in social, literacy and numeracy skills.
Mentally ill clients may reject a lawyer’s professional advice or misconstrue such advice because of irrational thoughts and feelings. They may come to believe that a lawyer can solve all of their problems, that the lawyer is part of a conspiracy against them, or that a lawyer’s advice and conduct are further evidence of persecution. From the lawyer’s perspective, mentally ill clients may become fixated on irrelevant or minor aspects of their circumstances and ignore important issues. Some mentally ill clients may be aggressive or hostile or alternatively feel frightened and overwhelmed as a result of their illness, or lack motivation or interest because of ‘negative symptoms’ of mental illness. Some clients may miss appointments or take a long time to give instructions or complete forms and procedures because of disorganisation arising from their illness.
It is also important to point out that mentally ill clients may not exhibit many, or even any, of these behaviours or symptoms during the course of their being represented by a lawyer, while non mentally ill clients could well present difficult challenges for lawyers because of their personality traits, attitudes, behaviour and addictions. It is sometimes the case that mentally ill clients are model clients because of their rather literal adherence to advice and instructions. Evans has suggested that there are numerous myths and stereotypes about mental illness that can affect the legal system and its operation. They include the following: that the mentally ill consistently lie or are not credible; that they cannot make decisions for themselves; that they are likely to be violent; and that they have reduced intellectual capacity. As with all clients, when dealing with those who are mentally ill, lawyers should consider their clients’ situation individually and not apply stereotyped ideas.
The social conditions endured by many people living with a mental illness may present particular difficulties in obtaining and maintaining legal assistance. They are more likely to have lower levels of education and employment, to have unstable housing conditions and to live in poverty. They may also face problems arising from community ignorance about mental illness, and stigmatisation and discrimination on the basis of their illness. They are more often the victims of violence and abuse. Apart from any individual barriers in accessing legal services, they face systemic difficulties arising within the legal system itself, including the limited availability of affordable legal services, time constraints placed on legal service provision, lack of services in remote and regional areas, and the difficulties of service providers in identifying mental illness and managing it in a manner which advances the client’s interests.
The issue of dealing with clients with a mental illness is potentially immense. The National Survey of Mental Health and Well Being estimates that around 18% of adult Australians experienced an anxiety, affective or substance use disorder, or a combination of these, in the 12 months preceding the 1997 survey. The rates mean that at any one time nearly two and a half million adult Australians have one of these high prevalence mental disorders and about one in every five Australians will at some stage in their lives suffer from a mental illness. The National Action Plan on Mental Health 2006-2011 estimates that the annual cost of mental illness in Australia is approximately $20 billion, including the costs from loss of productivity and participation in the workforce.
The high level of disability caused by mental illness and the irrational conduct associated with many forms of mental illness give rise to a range of situations in which a lawyer may come to represent a mentally ill client. These include: civil commitment under mental health law; guardianship; family law and care and protection; discrimination in relation to employment, education and insurance; welfare entitlements; tenancy matters; when a mentally ill patient is pursuing damages as a result of perceived persecution; where mental illness such as Post Traumatic Stress Disorder (PTSD) is the result of the negligent actions of others; while representing refugees and those seeking rights of residency; and a wide variety of criminal matters. In addition, as mental illness is common within the community, it may be a factor coincidental to legal proceedings.
Although there is little empirical evidence outside the area of criminal law, it would be reasonable to conclude that people with a mental illness are more likely to need legal representation at various moments in their lives than those without such an illness. This is so because of the impact of illness on the mentally ill which may bring into play quite frequently, for example, civil commitment, guardianship, housing and welfare issues and discrimination issues. Moreover, many of these issues are likely to be crucial in the lives of a large number of people with a mental illness. For example, civil commitment and the criminal law may well involve the deprivation of liberty, and guardianship, the deprivation of financial and economic freedom. In summary then, people with a mental illness are more likely to become involved in legal matters. These matters are likely to be of high importance. For these reasons, the need for high quality, effective and ethical legal representation is more pressing.
This paper examines some of the major challenges that lawyers face in dealing with mentally ill clients, including the psychological process of counter-transference, risk assessment, and a lawyer’s duties in acting for mentally ill clients. The paper discusses a number of strategies and approaches that will assist lawyers in acting for such clients. These strategies include: lawyers understanding the psychological processes that may arise in their relationships with clients, such as counter-transference; improved education and training for lawyers and their staff in identifying and dealing with mentally ill clients; improving the interpersonal and communication skills generally of lawyers and their staff; adopting, where appropriate, effective risk management strategies; adapting case management procedures to deal with mentally ill clients; and giving greater guidance to lawyers about ethical issues when dealing with mentally ill clients.
II. PSYCHOLOGICAL AND SAFETY ISSUES
Lawyers, like doctors and social workers, often have knowledge of aspects of a client’s life of which others may be unaware. Lawyers may be even more likely than doctors to have dealings with clients in very stressful circumstances. In the course of representing some clients, lawyers may find themselves being affected by an emotional reaction to their client in a process known as counter-transference, which may interfere with their ability to perform their professional duty. Counter-transference is well recognised in medicine and related disciplines and the ability to recognise these reactions is an important clinical skill in the medical profession.
Counter-transference has been defined as the sum of the thoughts, feelings and behaviour that a client elicits in a care-giver. Counter-transference can be considered to have two aspects. The first aspect, referred to in this paper as objective-counter-transference, is the responses that arise because of the patient's history and presentation. Examples of this are the fear induced by clients who are threatening or aggressive and the sympathy that is felt for bereaved clients. Any other professional dealing with the same client is likely to have a similar reaction.
The second type of counter-transference is subjective and relates to the pre-existing beliefs and experiences of the professional and the more subtle forms of communication between the patient and doctor. It can be assumed that these responses and their origins are not always obvious to those experiencing them and they are less likely to be experienced by another professional in the same way. Consciously felt subjective-counter-transference will typically arise, for example, when a professional who had an alcoholic parent has a client who is a substance-abusing parent. A less consciously experienced counter-transference might arise from subtle similarities between a patient and important people from the professional’s earlier life.
So called ‘positive’ transferences (experienced by the patient) and counter transferences (experienced by the doctor) that lead to inappropriate sexual relationships and other boundary violations have been the subject of a large number of publications. Less attention has been paid to ‘negative’ or antipathetic counter-transferences that may also hinder the performance of professional duties.
This article addresses the need for effective management of aspects of the lawyer-client relationship with respect to several types of client who are likely to evoke negative feelings in most lawyers who act for them. We then give some guidelines, such as are possible, in how to recognise when personal feelings may begin to hinder optimal legal advice and advocacy.
B. Frightening and aggressive clients
Aggression can be defined as threatening or causing physical injury to another person. It is most commonly seen in association with rage or anger which are emotional states involving alteration in physiology, for example, increased heart rate, change in muscle tone, or sweating, or behaviour such as fist clenching and other threatening gestures, changes in posture, shouting, or actual violence, accompanied by thoughts about inflicting harm.
Equivalents of anger and aggression can be observed in all primates and are thought to be stereotyped responses to actual or threatened harm, frustration or insult. However, a propensity to anger and aggression is also a feature of a range of psychiatric conditions, most notably alcohol intoxication, some forms of psychosis, and maladaptive personality traits.
Aggressive behaviour occurs on a continuum from threatening or aggressive language where there is no real risk of acting on that behaviour at one end, and sudden unprovoked and disproportionate violence at the other end.
Angry and threatening clients will provoke fear, particularly if the person who is afraid is in a vulnerable situation. When confronted with an extremely aggressive or violent client there are a number of factors that need to be considered. The experience of fear in relation to a client should not be ignored and may be the first consciously experienced signal of real danger from that client.
At the rare and extreme end of the spectrum of behaviour, if a weapon is involved or if actual violence has occurred, the task of the professional is to escape, or if that is not possible, to alert others of the danger. If escape is not possible one should endeavour to as far as possible follow the instructions of the aggressor. In this situation attempts by the victim to negotiate are probably fruitless. But it is important for the professional to do all they can to let the aggressor know that they have succeeded in threatening them. For example, generally the professional should assume a submissive posture, averting direct gaze with the aggressor. The professional should inform the aggressor that he or she is frightened. Generally speaking, a person who has the primary intent of frightening the professional may become less dangerous if it is communicated to them that they have succeeded.
If no violence has occurred, and the aggression is limited to verbal threats, many of the same steps should be taken, but it may also be possible for the professional to de-escalate the situation by clarifying the client's concerns and communicating that the professional may potentially be of some assistance to the client.
As a general rule, a lawyer should try to avoid representing a client if they have real concerns for their own safety. A lawyer should, where they consider that there is a real risk, ensure their own safety by withdrawing from the matter or by ensuring that there are adequate measures taken to secure their safety, such as interviewing through protective screens, in the company of security personnel, or via video or telephone. Such protective options should be regarded as a last resort because they are likely to undermine the lawyer-client relationship and a lawyer who has to use such mechanisms may find it difficult psychologically to make their best endeavours on behalf of such a client.
Lawyers usually do not have the expertise to make clinical or empirical judgments as to the risk of violence. Indeed prediction of violence is a notoriously complex and challenging task even for experts in the area. Nevertheless, as discussed later in this article, there are some broad indicia that can assist a lawyer to identify when there is real danger, other than merely relying on instinct or a purely emotional response.
For lawyers working in high risk settings such as in criminal law, where a significant proportion of clients are known to be violent, and drug abuse and serious mental illness are more common, it is advisable to undertake some specific training in the management of the threatening client, such as is available to professionals working in high risk areas in the health industry.
C. Clients who stalk
A small proportion of clients will develop personal fixations with their lawyers and may attempt persistent unwanted contact with them, known as stalking. The most common form of this is when a female client becomes obsessed with an older male professional, but clients of either sex may become fixated on professionals of either sex. Generally, male stalkers may be regarded as more dangerous than females.
There is a range of motivations of stalkers: from a wish for a relationship in a person who is socially inept, to harassment deliberately aimed at upsetting the person being stalked. [With respect, this sentence is confusing] The most dangerous situation arises when the client has a delusional belief that the professional has strong positive (or sometimes negative) feelings about them. Maintaining a polite and professional attitude towards clients at all times can minimise the chances of being stalked, but delusional beliefs about a professional often occur after very slight contact and rarely arise in response to behaviour that could be said to have provoked such feelings in the client.
Once the client is identified as a stalking risk, the professional should immediately cease any involvement in that client's case. If stalking behaviour is identified, an Apprehended Violence Order (AVO) or other such restraining order and the involvement of community mental health services may be indicated.
A more common situation is when an unknown stalker leaves anonymous and threatening and/or sexual messages. Generally, in this situation the police should be involved. The personal impact of such a stalker on the professional should not be underestimated, and it is important for the professional to have the support of their colleagues. The propensity of colleagues to avoid thinking about the possibility of such an event ever happening to them, by blaming the victim, is a recognised and unfortunate phenomenon.
D. Mentally ill clients
A threshold issue for a lawyer is to identify that a client does have a mental illness. This in itself may be a very challenging task for a number of reasons. First, mental illness is a broad concept with no universally accepted definition. Secondly, many lawyers will not have the skills or training to readily identify all the manifestations of mental illness. Thirdly, some clients with a mental illness will not disclose aspects of their illness or treatment because they do not believe they have an illness or because they are embarrassed and fear discrimination.
It must be stressed that a client having a mental illness does not in itself mean that the illness will be an issue or at all relevant, or that it should necessarily affect the lawyer-client relationship. It will be a question of the lawyer appropriately responding to the particular person in the circumstances of the case. However, lawyers should be aware of the potential issues and problems and have access to the skills, training and resources required to deal effectively with the range of issues that can arise.
Sometimes it will be clear to a lawyer from the circumstances of the case, or the jurisdiction that the issue of mental illness is directly relevant, as in mental health proceedings, or in relation to guardianship. However, in other cases the relevance of the question of mental illness may not be clear. Lawyers generally need to make an initial assessment of the client’s mental state. They may be assisted in this process by information available on the public record, on lawyer’s files, and by information provided by the client or from family and friends. If the client’s mental state is at issue, lawyers may obtain medical and psychiatric assessments. Such independent assessments may be of particular use if the lawyer has doubts or concerns about the client’s instructions and history provided by the client.
As discussed in more detail later in this article, the behaviour and attitudes of the client may also raise the issue of their mental state.
Although some overtly aggressive and over-familiar clients may have a mental illness, most aggressive clients will not have such an illness but will simply be frustrated, intoxicated, or will have personality traits that leave them with the habitual inability to deal with stressful situations in a calm manner. Furthermore, as discussed further below, the vast majority of people with even severe mental illness are not dangerous, particularly if they are receiving appropriate treatment.
There are a number of practical and ethical reasons for lawyers developing elementary skills in recognising severe mental illness. First, the presence of mental illness may affect the advice given to a person who is using the courts to defend themself against a falsely perceived persecutor. Secondly, mental illness is likely to substantially affect the patient's understanding of legal advice. Thirdly, the person's criminal conduct, if any, may have been substantially affected by their mental illness thus reducing criminal responsibility.
Another reason why a lawyer should be able to detect a probable case of mental illness is that it is now known that people with mental illness are somewhat more dangerous than members of the general community. The most potentially dangerous situation involves clients with first episode psychosis and to a lesser extent, those with established psychosis who are not taking treatment. In these instances there is a small but significant risk of assault.
The most dangerous mental illness is probably schizophrenia, particularly when it is untreated or coexists with substance abuse. The cardinal feature of psychotic illnesses such as schizophrenia is the presence of a delusional belief. Delusional beliefs, especially those that lead the person to believe they are in danger, are the main cause of violence in patients with psychotic illness.
A delusion can be defined as a fixed false belief that is held despite evidence to the contrary and is not a normal cultural or religious belief for that individual. In general, delusions place the person experiencing them at the centre of events and involve some sort of threat to the person who experiences them. For example, even the person who has the superficially expansive belief that they have won the lottery or are Jesus Christ will usually have a persecutory component that explains why their good fortune or true identity has not been recognised.
The most easily recognised delusions are those that cannot possibly be true, such as the common delusion that one person is stealing another person’s thoughts or that there are special messages for the patient in the text of car registration plates. It is more difficult to identify a delusion that may be true (or may have been true at some point) such as the false belief that a person is in danger from criminals or that their spouse is unfaithful. In the case of plausible beliefs, establishing that the beliefs are delusional depends on the basis of the beliefs and the presence of other symptoms and circumstances that indicate the belief is false.
Psychotic illnesses such as schizophrenia are usually accompanied by symptoms such as hallucinations (false perceptions, typically auditory hallucinations of voices) disorganisation of thought processes or abnormally severe depression or elation.
Often the manifestation of severe mental illness that will be most evident to a lawyer attempting to take instructions or give advice is impaired communication arising from disorganised speech and illogical thinking. In its more extreme forms, disorganised speech can be impossible to follow. Less severe forms can manifest in repetitive, discursive speech that may fail to reach the point. Growing frustration within the professional at their inability to comprehend the client, and the client's misinterpretation of their advice, are clues to the presence of an underlying mental illness. However, it is important to realise that disorganised thinking alone may not always indicate mental illness or that the client may be dangerous.
Hallucinations are another common manifestation of mental illness. Generally, these can only be ascertained by direct enquiry, or by the patient’s account of the experiences. It is probably outside a lawyer's responsibility and expertise to enquire about hallucinations, but sometimes it may be obvious that the patient is hallucinating as where, for example, the client reports hearing messages from the radio or television. Auditory hallucinations are usually experienced as voices heard out loud, making comments on the person’s activities or discussing them in the third person. Only rarely do voices command the patient to perform a violent or self-destructive act. The client often has a delusional explanation for the hallucinations, especially before they have received treatment. For example, a patient who is hearing a voice commenting on their actions may believe there are hidden cameras in their home. Later in the illness most patients recognise voices to be a manifestation of mental illness. Evolving hallucinations prior to treatment and in patients who are distressed and have no insight regarding their illness can lead to violent behaviour.
The fourth common manifestation of severe mental illness is a severe disturbance of mood. Severe depression is a well-known precipitant of suicide and occasionally murder/suicide if delusional beliefs are also present. Mania, which is the opposite to depression, usually presents with abnormally elevated mood accompanied by behaviour causing serious disruption to a patient’s life, through grossly impaired judgment, overspending and inappropriate relationships. Mania rarely poses any significant danger to others, other than perhaps from over-confident driving or on some occasions where the person is prevented from doing what they zealously wish to do.
In addition to the acute symptoms of delusions, hallucinations, thought disorder and mood disturbance are disabling chronic symptoms that manifest in impairment in mental performance. These ‘negative’ symptoms of schizophrenia include a reduced emotional expression, apathy, an inability to experience enjoyment, poverty in the content of speech and cognitive deficits such as impaired attention, impaired ability to retrieve information and difficulty in planning. In contrast to positive symptoms, the presence of negative symptoms are believed to reduce the likelihood of assault, but may cause considerable frustration for a lawyer in taking and acting upon instructions and are probably one of the more important causes of being unfit to participate in legal proceedings.
It is important to put the known risks associated with mental illness into context. Patients with schizophrenia are five to 10 times more likely to commit homicide than those without mental illness. However, homicide itself is a very rare event affecting fewer than one in fifty thousand people per year in NSW. In addition, much of the risk of homicide in schizophrenia can be attributed to patients who have never received any psychiatric treatment. Internationally, the risk of a patient committing homicide during the first episode of psychotic illness is in the order of 1 in 500 new cases. However, between 1993 and 2003 in NSW the figure has been calculated to be one in 220. The risk of homicide by a schizophrenic patient who has previously been treated is of the order of one in 10 000 per annum. The risk to strangers from patients with treated schizophrenia is even lower, of the order of one in 100 000 per annum.
One statistic that is worth considering is that in Australia, in recent years, only one psychiatrist has been killed by a patient, although a second psychiatrist was killed by another psychiatrist who had an untreated first episode psychosis, and in NSW in the past fifteen years, and probably for much longer, no lawyer has been killed by a mentally ill client.
Likewise, the risk of serious non lethal violence (defined as any assault with a weapon, any sexual assault and any assault causing injury) is greater in untreated illness as it is part of the presentation in about 10% of first episode psychosis patients.
Thus the prevailing view that the mentally ill population is not more dangerous than the mentally well needs qualification. If the patient has never received treatment and suffers from psychosis they are somewhat more dangerous and the stereotype of a mentally ill eccentric for whom treatment is generally worse than the cure is probably best regarded as the exception rather than the rule. As a result, a lawyer representing an untreated, actively psychotic client without informing the local community mental health team is putting themselves and others in some danger. In contrast, if the patient is receiving treatment and does not abuse alcohol or illicit drugs the dangers involved are very slight.
One difference in detecting imminent danger between psychotic and non-psychotic clients is that while non-mentally ill clients who are dangerous often show signs of aggression and anger prior to the assault, psychotically motivated violence often results from frightening delusions and the client may not appear threatening or angry because the principal emotion that they are experiencing is fear.
E. Attitudes towards clients who have committed heinous crimes
Lawyers are often placed in the position of representing clients who have sexually abused children, murdered others, or have committed other crimes that would generally be considered repugnant. Furthermore, lawyers are certain to be privy to details and photographs that would be illegal or subject to censorship in any other context. Thus it would not be surprising if these experiences did not affect the professional in a way that might influence their professional conduct.
Only very general strategies can be advanced in this area. The first is that if a lawyer believes that the conduct of a matter would be compromised by their feelings about a client, the least they should do is discuss this with a colleague or seek advice from a professional association. It might be reasonable to refer some clients to colleagues and it would certainly be reasonable to limit the number of similar cases in the future.
While lawyers who deal with disturbing cases may experience varying levels of stress, such stress is unlikely in itself to be a cause of a mental disorder, but may exacerbate an underlying state of depression. Debriefing as a strategy in response to significant stress has it limitations. Continual reliance on debriefing in a practice area which is constantly stressful is unlikely to prove an effective means of dealing with such stress and in some circumstances it may be harmful. Lawyers who experience considerable stress from certain types of cases should have some respite from such cases, stop that sort of work altogether or seek appropriate medical assistance.
F. Personal reactions to clients
A lawyer should reflect on any case where an individual client has come to loom large in their thoughts. In itself, strong involvement in a case may be evidence of nothing more than the client receiving good legal representation. However, if the lawyer feels the need to step outside the usual legal responsibilities then this should alert the lawyer to possible over-involvement in the case of a client who may (often unconsciously) be playing on the lawyer’s vulnerabilities. More worrying for the client is when a lawyer neglects legal avenues that could assist the client because of feelings of antipathy towards the client.
When considering the two classes of reaction to clients discussed, if on reflection the counter-transference is objective and would be experienced by any other lawyer, there is probably little reason for a lawyer withdrawing from a particular case on the sole grounds that it is distasteful. On the other hand, where the lawyer feels uncomfortable about a heavy involvement with a class of cases generating strongly adverse feelings about the clients, that lawyer should be supported by colleagues and managers if they decide to move out of the area.
III. ETHICAL AND OTHER DUTIES
Having discussed some of the key psychological issues in the relationship between lawyer and mentally ill client, we now turn to the impact of such factors on lawyers’ performance of their principal duties.
A. Principal duties of lawyers
In its broadest terms, ethics concerns issues of right and wrong and the morality of acting or failing to act in particular circumstances. Lawyers’ professional ethics and practice codes provide general provisions about permissible and prohibited conduct.
Some general observations need to be made about the ethical standards required of lawyers, their professional duty of care, the requirement that instructions must be received from the client who is competent or from a lawful substitute if the client is incompetent, the rules for legal representation, and the general duties of legal representation.
Lawyers in Australia are bound by sets of rules and regulations as to their general conduct. Each State and Territory has a particular set of rules that generally require similar standards of conduct. This paper will focus on the position in NSW but the general issues and principles are applicable across all State and Territory jurisdictions.
The NSW Barristers Rules provide that barristers are to act ‘honestly, fairly, skilfully, diligently and bravely’. A barrister ‘must seek to advance and protect the client’s best interests to the best of the barrister’s skill and diligence, uninfluenced by the barrister’s personal view of the client or the client’s activities’. Further, a barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations.
The NSW Law Society Solicitors Rules are in similar terms. Practitioners must ‘act honestly, fairly, and with competence and diligence in the service of a client’. Practitioners must seek to advance and protect their client’s best interests free of the influence of any conflicting interest.
Both barristers and solicitors have a fundamental obligation as officers of the court to serve the administration of justice.
There are no specific rules or regulations in NSW dealing with the conduct of matters concerning people with a mental illness
B. Conflicts between a client’s instructions and their apparent ‘best interests’
Complex ethical issues may arise when barristers or solicitors attempt to apply the variety of rules and regulations as to their conduct and ethics in situations in which the ‘best interests of the client’ are unclear or appear to conflict with their instructions. It may be extremely difficult for a lawyer to remain free of influence by their personal view of the client or the client’s activities, particularly if these activities are a direct result of mental illness. The lawyer may well believe that the instructions given by the client are contrary to the client’s best interests and indeed the lawyer may have strong grounds for such a belief. Friends and family or medical practitioners might also be putting a contrary view to that of the client’s instructions. However, the guiding principle for lawyers should be that they must act according to the instructions of their client unless the client lacks capacity to give instructions or those instructions breach obligations owed by lawyers to the administration of justice. Thus, lawyers as a matter of legal principle and ethics are as much obliged to follow a mentally ill client’s instructions as they are those of a non-mentally ill client subject to the requirements of their duties to the administration of justice.
The following are examples in which the application of the ethical code and basic legal principles may be complicated by severe mental illness.
• The client gives the lawyer instructions which the lawyer proceeds to subvert out of a belief that they are against the client’s best interests or the public interest.
• The client seems to lack capacity to give instructions but the lawyer formulates a strategy thought to be in the best interests of the client and proceeds to implement it anyway.
• The client seems capable but the instructions require action which seems misconceived to the lawyer, who proceeds to implement the instructions anyway.
• The client’s instructions seem to the lawyer to be dictated by the client’s illness and their implementation would not in the lawyer’s view be in the best interests of the former, but the latter proceeds to implement them anyway.
• The client insists on doing whatever the solicitor thinks best, with little regard to the actual advice.
• The client rejects the lawyer’s advice and insists upon a course of action which in the opinion of the lawyer is undoubtedly against his or her best interests.
• The client changes his or her mind frequently.
• The client is preoccupied with the likely result to the exclusion of other considerations.
Examples illustrating these dilemmas are discussed in Appendix 1 to this paper.
C. Testing capacity to give instructions
Lawyers dealing with mentally ill clients on some occasions may need to consider the client’s capacity to give instructions. To assess capacity properly and ethically, lawyers need the following knowledge and skills: an awareness of the law and professional guidelines concerning capacity; an understanding of the potential effects of mental illness on capacity; and communication skills and rapport with clients to explore the issues and options in an open and facilitative manner.
Mental capacity is not easy to define nor necessarily easy to apply. In broad terms, to give instructions, clients need to understand what they are telling the lawyer to do on their behalf, and the lawyer needs to make a preliminary assessment as to whether the client does understand. The issue of legal capacity arises from that of the client’s cognitive capacity. A person may be very ill mentally but retain sufficient cognitive capacity to instruct. In many cases, people with a mental illness will be able to give instructions. One view is that if a person has initiated the hearing by applying for it, then the person ordinarily demonstrates sufficient capacity to give instructions and as such there is a presumption of capacity. Lawyers should be aware that research indicates that many people with a mental illness are capable of decision making within an acceptable or normal range. Lawyers experienced with mentally ill clients can generally communicate with them in a manner which overcomes any cognitive deficits, so that valid instructions are obtained. How they might do this is discussed below.
General principle would suggest that while the lawyer’s duty of care with respect to the client and third parties does not arise from the contractual retainer, the power to act for the client does. The mentally ill client must therefore have the contractual capacity to instruct pursuant to the retainer.
The lawyer who acts for a client whom an ordinary skilled legal practitioner would have assessed as incompetent to give instructions, and the lawyer who acts for a client whom the lawyer has actually assessed as incompetent, without obtaining instructions from an appropriate substitute authority, would it is suggested, on general principle, thereby be exposed to discipline for professional misconduct, and liability to damages for the foreseeable consequences of what would be regarded on general principle as a breach of the duty of care.
Where incapacity is suspected, it would it is suggested constitute a breach of the duty of care and professional misconduct to neglect to follow any guidelines established by the practitioner’s professional body setting out the appropriate procedure to be adopted in such a situation.
The exact standard to apply for capacity to give instructions will vary according to the nature of the proceedings and the area of law involved. As Dixon CJ, Kitto and Taylor JJ said:
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation … the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
The general legal test for capacity to give valid instructions to a lawyer is set out in Masterman-Lister v Brutton & Co where Chadwick LJ said:
the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law — whether substantive or procedural — should require the interposition of a next friend or guardian ad litem.
Debelle J in Dalle-Molle (By His Next friend Public Trustee) v Manos approved the test provided by Chadwick LJ. His Honour also stated that the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including costs. However, the person only has to understand an explanation of that information in broad terms and simple language. Further, as noted above, the test for capacity to give instructions is issue-specific, that is, it is related only to the proceedings in question and not capacity to make any other decisions.
If the lawyer is aware that a client has a mental illness which is affecting their capacity to give instructions, then the lawyer should assess whether the illness only temporarily affects the client's capacity, or permanently impairs capacity. In the former case, proper medication may enable the client to regain capacity. A client with a mental illness may become more lucid over a period of a few days and may be able to give proper instructions on a later occasion. Some people with mental illness need to take medications that may affect their behaviour or comprehension. This can sometimes be confused with the effects of the person’s illness upon their capacity.
Fickleness, unwise decisions or eccentricity in themselves do not establish mental incapacity. If the condition which the person suffers renders them vulnerable to exploitation or at risk of making rash or irresponsible decisions, it does not necessarily follow that the person is unable to give sufficient instructions. The fact that the person is vulnerable to exploitation or prone to rash or irresponsible decisions may be relevant to a determination of the question whether they are able to give sufficient instructions but it must be considered with other relevant evidence.
As stated above, the lawyer has a professional responsibility to be alert to incapacity and to act only pursuant to substitute authority where appropriate. It is where a client’s illness has a significant impact on their comprehension and thought processes – or cognitive capacity – that there may be an impact upon their ability to give valid instructions.
If a lawyer does not thoroughly investigate different means of establishing communication, it is possible that they could unlawfully discriminate against the client under the Disability Discrimination Act 1992 (Cth). A determination of incapacity is a very drastic step as it means that the person loses some autonomy. Before taking any steps to have a substitute decision-maker appointed, it is therefore most important to be reasonably satisfied that a client is in fact unable to give proper instructions.
The lawyer should make reasonable efforts to secure a level of communication with the client, notwithstanding the disability, that will allow the lawyer to properly assess whether the client has sufficient cognitive capacity to instruct. It is thus important to frame questions to the client very carefully and seek feedback to determine whether the client can understand sufficient aspects of the particular transaction or proceedings to give competent instructions.
Reasonable steps must be taken to ensure communication can take place before assuming a client's incapacity. A medical or psychological assessment, or the assistance of a local disability support service, might appropriately assist in this regard. For example, in relation to a person suspected to be suffering from some form of senile dementia, a geriatrician or old-age psychiatrist will usually be able to prepare a more accurate one-off report than a general practitioner. There are a number of mechanisms in particular statutes to compel a person to submit to an assessment for the purposes of that Act. Notwithstanding the fact that the client's ability to consent to any proceeding or transaction is at issue, it is preferable that the client cooperate in the assessment of their capacity.
If a lawyer determines that the client appears to lack capacity to give instructions then there are three main options, each of which raise legal and ethical issues.
One option is for the lawyer to act without full formal instructions in certain limited circumstances. This might occur, for example, where a relative or friend or welfare worker can properly assist with instructions by explaining the client’s problems and assisting the client to express their wishes. The lawyer must be satisfied that this process is in the client’s best interests.
It should be noted, for example, that the Guardianship Tribunal usually makes an order to appoint a financial manager and/or guardian only if there are no appropriate informal support arrangements in place. A lawyer must be comfortably satisfied that the support person's interests are not in competition with those of the client. The nature of the matter on which a solicitor is asked to act may be such that the support person's interests are not really involved, or are sufficiently remote as to allay concern. The lawyer must give careful consideration to the ramifications of acting without a formal appointment. There is a range of matters where this may be appropriate, generally of a minor and short-term nature, or involving a fairly small claim. While most litigious proceedings require the appointment of a substitute decision maker, there are a number of legislative schemes that allow claims to be made on behalf of otherwise incapable people where a substitute decision-maker need not be appointed.
The second option for a lawyer where the client lacks capacity to instruct is to consider having a substitute decision maker formally appointed. Obtaining and providing legal services pursuant to substitute authority can be a frustrating process and can protract matters. It should be seen as a last resort where attempts at effective communication seem unlikely to succeed. The substitute instruction-giver may be the Public Guardian, the Protective Commissioner or an appropriate private manager or guardian. The issue of who makes the application can be particularly difficult where the family of an incapable client opposes the appointment of a financial manager or guardian. Disinterested family friends may be appropriate applicants, as may be health care professionals or social workers who are involved with the client. A solicitor may make such an application in rare situations where there is no other person to do so, as Powell J found in McD v McD.
The third option, to cease to act for the client who may lack capacity, raises very difficult issues. It can put a lawyer in the position of being forced to choose between leaving a client unrepresented or taking steps that could upset and anger the client, such as requiring an assessment, and having a substitute decision-maker appointed. A lawyer must consider all reasonable options before ceasing to act. The lawyer may terminate the retainer for just cause, and on reasonable notice to the client. The basis for termination of the retainer is that he or she is unable to obtain proper instructions, which would, for example, constitute ‘just cause’ for termination under rule 5.1.3 of the NSW Law Society Revised Professional Conduct and Practice Rules.
D. Cases in which the person appears fit to plead but gives unrealistic instructions
Some mentally ill clients give instructions that are at complete odds with the objective facts of a case, for example, denying any involvement in an offence despite strong physical evidence connecting them with the offences for which there is no other explanation. There are many reasons for denial of offences, especially sexual offences. However, a common reason for totally unrealistic denial is the presence of psychotic illness.
In some cases unrealistic instructions may be the only clear manifestation of a suspected psychotic illness. Reports obtained from psychiatrists or psychologists supporting the possibility that the client is unfit for trial may not be of assistance in determining capacity to give instructions, as other aspects the person’s reasoning ability and understanding of the court procedure may be intact.
This provides particular difficulty for the legal representative for several reasons. Informing the client that they believe the case is without hope may cause the client to accuse the lawyer of betraying their trust, or even involvement in a conspiracy against them. Raising the issue of instructions that cannot be acted on to the court would be a direct betrayal of the relationship with the client. However, in some cases, the issue of fitness to plead hinges on the evidence of the solicitor regarding the quality of the instructions provided.
In some instances it may be necessary for the practitioner to raise the issue of fitness to plead while continuing to represent the client. A finding that a client is unfit because of an underlying psychosis may be helpful, as instructions may change after a period of treatment and discovery of psychotic illness would usually open up the possibility of mitigation.
E. Dealing with cases that are the result of symptoms of a mental illness
How does the lawyer deal with the situation where a person’s legal problem seems to be a symptom of a mental illness? It is important to remember that mentally ill people can have real legal problems and it should not be assumed that the client’s claims lack any substance or merit.
Where the instructions relate to a situation that can have no basis in reality, as where the client seeks an AVO against Lady Diana, the lawyer should not embrace the delusion and ask “what is Lady Diana doing to you”, but could say “I can see you’re upset. Have you discussed this with your doctor?”, and encourage the client to follow this suggestion.
In the kind of situation where the lawyer considers that the client needs treatment not legal advice, the lawyer should not contact the treating doctor or mental health team without the client’s consent. However, as discussed below, there might be circumstances where a lawyer would be entitled, and possibly under a duty, to inform or warn about of the lawyer’s concerns about the client’s dangerous mental state.
Where discussions with the client take place in private offices in the community, it is fair and appropriate for the lawyer to proceed only where the client is willing and able to comply with social rules. But the client is entitled to be informed in an appropriate way and at an appropriate time of what is expected if the interview is to proceed. Clients who harass others in the waiting room, abuse receptionists, stand too close to the lawyer or staff, raise their voices, or who touch the person with whom they are conversing, have the “right” to be told that this kind of behaviour makes others uncomfortable and that the relationship with the lawyer depends on it being brought under control by the client.
Further suggestions for the management of matters involving mentally ill clients are set out in Part IV of this paper.
F. Duty of care
The lawyer owes the client a duty of care according to the standard to be reasonably expected of the ordinary skilled practitioner in the area in which the legal service is sought. What is to be reasonably expected is determined by reference to the practice widely accepted in Australia by peer professional opinion as professionally competent. It is suggested that the standard of care for a lawyer dealing with a mentally ill client would be that of the ordinary skilled professional within a pro bono, or legal aid civil or criminal, or community legal centre practice with a significant percentage of cases involving mentally ill clients. Knowledge that the client is vulnerable may require steps to be taken by the lawyer which may not be required in the case of a non-mentally ill client. When giving advice the lawyer’s standard of care is measured according to that which a reasonable practitioner would provide in a like situation, taking into account the lawyer’s particular knowledge of the special characteristics, needs and expectations of the client.
G. Obligation to investigate if case is hopeless
While a lawyer must act on his or her client’s instructions, it is reasonable and indeed desirable for the lawyer to discuss with the client the consequences of any particular course of action. The lawyer must make and is entitled to charge for reasonable enquiries in order to determine if a claim or defence is hopeless. But it is not the lawyer’s duty to provide a pre-trial screen of a client’s claim or defence. If a client chooses to ignore advice that the case, while arguable, is weak, then the lawyer may proceed to act on the client’s instructions. However, a lawyer should not institute civil proceedings or prosecute a claim, or raise a defence, which is hopeless, including, we would suggest, for a client whose illness prevents their realisation of this.
Costs indemnity rules and the summary procedure to have actions struck out which disclose no reasonable cause of action, in any event operate as a filter for hopeless causes. The Legal Profession Legislation introduced through Civil Liability Acts provide for disciplinary proceedings and costs consequences including against legal practices where lawyers pursue claims or defences lacking reasonable prospects of success. But, as Barrett J observed in Degiorgio v Dunn (No 2), in a passage particularly relevant to pro bono and community legal practices:
A statutory provision denying to the community legal services in a particular class of litigation cannot be intended to stifle genuine but problematic cases.
In criminal proceedings, the “hopeless case” bar does not apply, for here, it is the Crown or other authority which initiates the proceedings, and the decision to plead guilty or not guilty is ultimately one exclusively for the client.
H. Additional role in relation to mentally ill clients
Lawyers acting for mentally ill clients, in the course of representing them in relation to a particular matter, may also play important educational, liaison and other roles that on occasions might go beyond the retainer. If such a role extends to the giving of advice then such lawyers in certain circumstances might be found liable in negligence for the consequences of failing to take extra measures in light of their knowledge of the client’s mental illness and additional needs. Such a legal obligation would arise in limited sets of circumstances with respect to non-mentally clients, but it could, it is suggested, be regarded as an appropriate expectation in a variety of circumstances involving the professional execution of a mentally ill client’s instructions.
Generally, the lawyer is under no legal obligation to step outside the retainer and provide non-legal and non-financial advice or other professional services. But if the lawyer were to do so then it is suggested that on general principle, they might be found liable for the consequences of their negligence in their performance of such further services, and that this would also be the case where such services were provided gratuitously.
Without giving advice on such matters, lawyers can assist clients to understand their problems and to seek appropriate services such as medical treatment, housing and welfare. A lawyer with suitable interpersonal skills and knowledge of mental illness can assist in informing and motivating clients about treatment. Lawyers in performing these tasks must ensure that they respect the client’s autonomy and do not step beyond their own expertise. However, if lawyers accept responsibilities going beyond the scope of the formal retainer they must accept that the potential for liability arises.
I. Balance between personal and public safety and the client’s best interests and confidentiality
In general, as discussed above, there is no additional risk of violence to a lawyer from a mentally ill client and in many instances where there might be a risk, such a risk is ameliorated by a custodial setting. In fact, representing a non-mentally ill person with a history of assault and substance abuse may pose greater risks than is the case with the majority of mentally ill clients.
A lawyer owes a duty to maintain the confidences and protect from disclosure of the confidential information of a client. There are three main reasons for such a rule: first, if lawyers were to divulge such information it would discourage people from seeking legal assistance; secondly, such disclosure would jeopardise the relationship of trust and reliance in the lawyer-client relationship; and thirdly, disclosure could prejudice the treatment and reputation of clients. The duty of confidence may, in any given situation, be established or affected by rules of contract, equity, professional standards legislation and rules, and statutory exceptions. Maintaining client confidentiality is a core responsibility for lawyers.
The issue under discussion here is whether the duty of confidence prevents disclosure to a third person of the following kind of information: Information which would lead a reasonably experienced lay person to believe that the client poses an immediate, significant risk of serious harm to self or others, derived:
• from material about the client on the file, for example, a psychiatrist report
• from information provided by the client to the lawyer or law firm staff, for example, that the client feels that the only way out of the legal predicament on which the lawyer is instructed is for the client is to suicide, or kill the spouse or children, or
• from deductions about the client’s mental state drawn from observation of the client in interviews and meetings in connection with the client’s matter.
The duty of confidence applies only to information imparted in confidence pursuant to the confidential relationship. There is very little case law on the exceptions to the duty of confidence, particularly in the context of lawyer/client relationships. It is clear that confidentiality can be overborne by a public duty to disclose in order to prevent fraud or crime, but the parameters of the exceptions on the basis of the public interest have not been settled.
A disclosure of the above kind of information in the above sets of circumstances could become the subject of a claim for equitable relief or damages for breach of confidence, or a complaint of professional misconduct before a professional disciplinary body. It is inconceivable in the minds of the writers that a client would succeed against, or that the professional body would discipline, a disclosing lawyer who acted honestly, in the interests of the client, out of a reasonable belief that the client was at risk of committing homicide, in informing the client’s psychiatrist or community mental health team of his or her concerns in such circumstances.
It is suggested that a public interest exception would be regarded as arising where the client poses a significant risk of serious harm to self or others, on the ground that disclosure is necessary to prevent the possible commission of a crime. A person who is possibly mentally ill and who is threatening suicide might possibly choose a method which involves a threat to the safety of another person.
In the event that the lawyer failed to inform or warn in the above circumstances, and the perceived risk materialised, it is suggested that, on general principle, a court might award damages for the foreseeable consequences of failing to inform or warn those whom in the circumstances a court might adjudge had a reasonable expectation of, or could reasonably be expected to rely upon, being informed or warned. Here the lawyer is in a heightened position of responsibility beyond that of, for example, the neighbour who observes over the back fence, a deteriorating family situation involving a violent member who has access to a lethal weapon.
The lawyer’s heightened position of responsibility is derived from the lawyer’s duty to the court and public to disclose fraud and crime, and the duty to protect the client’s best interests. The lawyer’s situation requires a balance of competing interests: the maintenance of confidential relationships; protection of the client’s best interests; and the public interest in preventing criminal attack. It is clearly not in the interests of a mentally ill client who is at risk of committing violent assault to succumb to the dictates of that illness, when medical intervention would have prevented it. As is apparent, it is our view that the value of the latter two interests is greater than that of the first.
It is a difficult and complex task to determine whether there is a real or genuine threat of harm to the client or another person which is such as might subsequently be regarded by a court as having required disclosure, notwithstanding the confidential relationship. In relation to the lawyer/client relationship, application of a significant risk of serious harm exception will depend on the lawyer’s knowledge of the client derived from material including the full contents of the file and records of lawyer/client discussions, and whether the client has previously threatened or carried out self harm or harm to others. From the totality of the material available, including the lawyer’s own personal observations of the client, the lawyer will have to make a risk assessment. This is an extraordinarily difficult task, even for psychiatrists. Factors relevant to psychiatric risk assessments are discussed later in this article. The standard of care would not be that expected of the psychiatrist who has for example, clinically examined a client who is a party to a family law dispute. The standard would be that appropriate of an ordinary lay person. Risk factors obvious to a psychiatrist would not necessarily be obvious to a layperson. The lawyer could not be judged negligent simply because of missing risk factors that would have been obvious to a psychiatrist.
A lawyer should keep a record of any public interest disclosure made and the reasons for making such a disclosure. Lawyers should consider whether they can properly advise the client of the making of such a disclosure bearing in mind the possibilities of the personal risk to the lawyer in advising the client. Clearly, if advising the client will heighten or exacerbate any risk of harm then it should not be done. Generally speaking the lawyer should only disclose such amount of information as is necessary to prevent the risk.
IV. GENERAL STRATEGIES TO DEAL EFFECTIVELY AND FAIRLY WITH MENTALLY ILL CLIENTS
A. Training and education
Training on mental illness should be provided in law schools and in practical legal training courses. Lawyers who regularly deal with mentally ill clients should undertake training on mental illness awareness and management of mentally ill clients. Training could include matters such as communicating effectively with people with a mental illness, the indicators and symptoms of mental illness, referral and resource information and stress management.
All legal practitioners and law staff should be trained in the management of stress, bullying and aggression, not only from professional and general staff, but also, from members of the public attending for appointments. Staff training should include management of risks associated with disturbed behaviour affecting the legal practice.
At a systemic level, there should be a comprehensive module of training available in Continuing Legal Education (CLE) programs for lawyers in relation to mental illness and acting for mentally ill clients. Lawyers in many fields of practice including both criminal law and civil law are often dealing with medical concepts and issues. Such training should not be limited to mere training in terminology but should also consider ethical, medical and sociological issues as they impact on the law. Similarly, medical practitioners need ongoing training in legal issues. It is desirable for the legal and medical professions to liaise and develop appropriate training and educational modules for both of their professions particularly in areas where law and medicine interact.
B. Risk identification
One major concern for lawyers with certain classes of clients, including those with mental illness, is how they can make some assessment as to whether they face a real risk to their own personal safety or to that of their staff in acting for those clients. One major risk assessment tool which is commonly used in NSW mental health proceedings is the Historical Clinical Risk –20 (HCR-20) as contained at Appendix 2. But we do not suggest that lawyers attempt to undertake any formal risk assessment, as might a clinician with the use of such a risk assessment tool and a clinical examination. Lawyers will normally not have the expertise nor be in a position to make any comprehensive or empirically valid analysis of the risks or dangerousness of a particular person. Predicting violence is a complex, to some extent, controversial task where there may be many variables involved and where individuals may vary markedly in their propensities to violence. However, there are some indicia which could assist lawyers to decide as to whether they feel comfortable with dealing with a particular client and whether they need to implement particular strategies in dealing with such a client.
The starting point to any lawyer’s assessment of the risk of violence for a lawyer is to examine any medical reports, court or tribunal documents or other records to see whether there has been any formal risk assessment of the person or whether, for example, a court has dealt with the dangerousness of the person.
Drawing on the HCR-20 and other research tools and findings some of the broad factors that a lawyer might consider in making their own assessment of a client’s risk of violence might include:
• Does the client have a history of violence and what is the frequency and nature of that violence?
• Has the client a history of criminal law convictions, particularly where violence was involved?
• Is there a history of substance use or abuse?
• Is the client male and relatively young in age?
• Does the client have an active mental illness?
• Is the client psychotic, that is, having a condition where the client appears to have lost at least some contact with reality?
• Is the client untreated in the sense of not taking medication and seeing medical practitioners?
• Is the client homeless and without social support because of low socio-economic status?
• Is the client in conflict with their family or others?
• Has the client witnessed or experienced violence in the home or in other places?
Answering yes to any of these questions would broadly indicate a heightened potential for violence with perhaps a history of violence, substance abuse and an active and untreated mental illness being factors of a high weighting.
We would again stress that these are only some broad indicia and that the above list should not be considered in any way as a definitive or empirically reliable way in which to predict violence. None of the above indicia can be regarded as a clearly determinative factor nor could all of those factors in aggregate be said in themselves to necessarily prove a strong case for future violence. The factors are put forward only as an aid for lawyers to assess their own views on risks. Nor are we suggesting that any effort at risk assessment should be used as a convenient justification for not dealing with clients who might pose some additional challenges or who have a mental illness or who are poor. In addition to considering these factors lawyers will probably also be guided by their perceptions and sense of the client: such as the client’s presentation in interviews, for example, the content of their conversation, their language and tone, their mood, attitude and body language.
C. Risk management
Having identified risks as an issue, risk management is the process of assessing those risks to an organisation or individual (such as harm, personal injury or economic loss), estimating the likelihood and magnitude of such risks, and systematically putting in place policies and procedures to prevent, control and monitor those risks.
It is beyond the scope of this paper to provide detailed content of risk management policies for lawyers dealing with mentally ill or otherwise challenging clients. However, such a policy is likely to contain material on policies about violence and aggression, any relevant legislation, regulations and common law relating to occupational safety and harassment and bullying in the workplace, evaluating risks, accountabilities and responsibilities, recording of incidents, set-up of the physical environment to minimise risks, prioritising risks, investigating and responding to incidents, and de-briefing following manifestation of risks. A useful example of a risk management policy is provided by NSW Health’s Response to Violence in the NSW Health Workplace.
D. Interpersonal and communication skills
In general, helpful strategies will include
• remaining calm and helpful;
• not lying to the client or otherwise deceiving them;
• validating the client’s feelings without necessarily endorsing them;
• trying to reassure the client, for example, by showing the client that they are regarded as a worthwhile person and that the lawyer is trying to assist them.
• listening non-judgmentally, without criticising and moralising;
• allowing some time for clients to ventilate, to get things of their chest, before commencing a process of refocusing on the legal issues for the client;
• encouraging people to get help or additional assistance if they need it, and being aware of referral resources.
1. Dealing with clients who pose a risk of violence
One question which arises if a lawyer does have concerns about their safety is what measures, short of withdrawing from the matter, can be taken. One option is to conduct interviews in the presence of staff or other persons capable of stepping in should the client become violent.
Another strategy is to ensure that other people are within communication when the person is being interviewed, having the door open and ensuring that there is a clear and accessible exit route from the room.
As discussed above, if the person has already made a serious threat or committed an act of violence against the lawyer then, unless there are exceptional circumstances, one would expect the lawyer to have withdrawn from representation and to referred the matter to the police and, if necessary, other authorities.
2. Dealing with aggressive or hostile clients
As discussed above, where communication is being affected by the threats or aggression of one of those engaged, a useful strategy is for the other party to de-escalate the situation. Lawyers should avoid criticising, threatening or shouting. The lawyer should seek, from the outset, to establish appropriate boundaries and limits to the relationship with the client, keeping it strictly professional and conducted according to mutually acceptable and appropriate standards of behaviour. Lawyers should attempt to remain calm and objective in the face of hostility. It may be useful in some circumstances to ask a client what is making them upset, angry or afraid.
3. Dealing with clients of limited cognitive capacity
As discussed above, a mentally ill person whose cognitive capacity is affected may have a short attention span and may experience difficulty in keeping to the topic, despite the appearance of understanding and responding appropriately. There is the risk that they might not have absorbed and retained information from a previous meeting. However, such a person might nevertheless remain able to provide instructions, give evidence and make decisions about the progress of their matter to varying degrees depending on the level of their capacity, whether they are affected by their illness at the time and the quality of their lawyer’s communication with them.
Lawyers should adopt the following communication techniques when meeting with mentally ill clients who have cognitive deficits:
• allow the person to tell their story, saving questions until the end;
• do not interrupt or finish the person’s sentences for them;
• use open rather than leading questions;
• use simple words and sentences;
• present one concept at a time;
• avoid abstract concepts and jargon;
• check whether they understand by asking them to repeat back the information; in their own words or by asking follow up questions;
• be observant of their non-verbal behaviour.
4. Dealing with people who have delusions
Generally the best course of action is to try not to confront the delusion but not to agree with it or become part of it. A lawyer should express understanding and empathy for the client if they are in emotional distress. Then, it may be best to try to bring the interaction back to concrete issues and to try to keep the focus on the issues at hand.
E. Case management procedures
Lawyers should tailor their case management procedures as much as possible to meet the needs and demands of mentally ill clients. There may be a need to develop an individual plan for particularly challenging clients. It might include:
• ensuring continuity in the handling of the matter;
• allowing additional time to interview and take instructions;
• selecting a quiet, private area free of distractions and interruptions for contact with the client;
• taking a more active role in ensuring that the client undertakes certain tasks required in the matter (for example, attending at the bank or a government agency);
• keeping a written record of instructions and communications;
• formalising and regulating contact times and the method of contact;
• obtaining information about the client’s level of insight into their illness;
• confirming instructions on the day of a hearing.
A support person might be of great assistance in the lawyer’s efforts to communicate with the client and manage the case, but not if there is a risk of a conflict of interest. It may be appropriate in some circumstances to ask the support person to sign a confidentiality agreement.
F. Guidance on ethics and professional standards
As a general proposition, lawyers should enhance as much as possible the exercise of autonomy by all of their clients. This proposition is of paramount concern in dealing with mentally ill clients where there is the risk of lawyers being paternalistic and assuming that they know best for their client.
Practitioners should also be encouraged to seek assistance from colleagues and their professional bodies about how to deal with practical and ethical issues concerning mentally ill clients. Many legal professional organisations have ethics sections that will provide information and guidance on particular problems.
Lawyer’s professional organisations should also develop practice guidelines, principles and commentaries in relation to acting for mentally ill clients including different practices and procedures as necessary according to the types of jurisdiction.
The Australian Law Reform Commission in its report on the federal civil justice system identified a number of areas of improvement in the development of ethics and effective practice standards for lawyers. The Commission recommended that law schools in addition to teaching on the substance or content of the law, should also provide for the development of high level professional skills and ‘a deep appreciation of ethical standards and professional responsibility’. In addition, the Commission recommended that there should be a national model of professional practice rules including aspiration ideals and commentary and that various areas such as representing children should be focussed upon. We endorse those recommendations and urge their full implementation including the development of principles and commentary in relation to representing mentally ill people.
G. Development of a national approach to the mentally ill and the law
A properly funded and nationally coordinated response to the mentally ill and the law is highly desirable. This could include research, designing a best practice model for delivery of legal services including the courts and tribunals, the better co-ordination of agencies and the development of ethical and practice standards. The National Mental Health Strategy and the National Action Plan on Mental Health 2006 –2011 have a focus on the delivery of mental health services and the care system and do not specifically deal with the impact of the legal system on mental illness. A co-ordinated and integrated approach to mental health issues requires action and planning in relation to the legal system both as it operates internally and also in its interactions with non-legal services and resources in the community. This approach could inter alia, foster partnerships and co-ordination between legal service providers such as legal aid commissions, community agencies and courts and tribunals to improve client access and the referral network. A national response to mental illness and the legal system should also include improving the liaison between legal and non-legal service providers in the mental health area. One aspect of such an approach could be the establishment of a specialist mental health legal centre as mentioned in the Law and Justice Foundation’s Report.
Lawyers need to have a sufficient awareness of the potential psychological processes of their relationships with clients so that they can avoid or minimise undesirable developments that might cause distress and have a negative impact on their professional responsibilities. Lawyers may need to consult with professional bodies or seek the aid of experts if those psychological processes are causing ethical and other difficulties. Lawyers’ professional organisations need to be aware of these aspects of the lawyer/client relationship and be able to offer expert assistance or referral processes.
Of central importance for lawyers dealing with mentally ill clients is the need for those lawyers to have at least a basic knowledge of mental illness, training in dealing with such clients, a proper understanding of the lawyer’s ethical code and professional obligations, effective communication skills and risk management strategies.
While we have canvassed the need for specialist training, education, and specialised case management, this is not to suggest that dealing with mentally ill clients should be regarded as totally distinct from the skills and requirements of dealing with other clients. For example, interpersonal skills and qualities such as listening skills, empathy and patience are highly desirable for lawyers acting for all clients, not only those with a mental illness. There are also some general principles that apply in the case of all clients whether mentally ill or not, and all legal practices. Observance of these principles and practices is vital for risk minimisation. Their observance is also good for the mentally ill.
The task of acting on behalf of mentally ill clients may seem daunting on occasion but it is of prime importance for these clients and the community. Moreover, representing mentally ill people may also provide practitioners with great professional and personal rewards and satisfaction. Lawyers need to ensure that they have the personal skills and training to carry out those responsibilities. In addition, there is a need for stakeholders including those with a mental illness and their support groups, government and its agencies, professional bodies, and courts and tribunals, to ensure that there is a co-ordinated response to the interaction of the law and mental illness which reflects specific objectives and best practice strategies appropriate to the demands of the various different jurisdictions.
Problem 1. The client instructs his lawyer that he wishes to be discharged from psychiatric hospital. The lawyer knows of facts which indicate that the client is too unwell to be discharged. The client has instructed that these facts are not to be relayed to the Mental Health Review Tribunal. The lawyer’s view is that the client needs to remain in hospital for some considerable time. He confidentially informs the clinician who is presenting the applicant’s case of the confidential facts, who informs the Tribunal.
Comment: The lawyer is not a clinician. As the Tribunal is an inquisitorial body, it is a matter for it to investigate the facts, and determine their relevance. The lawyer breached confidentiality by informing the clinician of the facts. The only way that the lawyer could justify breaching confidence is if there was a real risk of harm to a person. Instead of breaching confidentiality, the lawyer should explain to the client the reasons for informing the Tribunal about the level of illness, for example, that the client might need the treatment and it that it would benefit the client.
Problem 2. The lawyer has learned of the client’s supposed situation from her case manager, who has described how she is being neglected by her abusive son, who takes her pension and board and lodging without payment. The client is unable to indicate what she wants done if anything, but the lawyer proceeds to apply for an Apprehended Violence Order (AVO) in her name, and calls welfare authorities to remove her into care.
Comment: The lawyer has no instructions to seek the AVO, and should pursue available options with the client, including an AVO. One option would be to request the case manager to investigate and pursue the matter.
Problem 3. The client has fallen into the hands of a cult and is determined to donate a kidney to a stranger as an act of faith, according to its dictates. His parents are determinedly opposed to this and have followed their son to the various hospitals where he has previously sought to make the donation, pointing out that he has a history of mental illness even though he currently seems well. The client instructs the lawyer to make application to injunct his parents against further interference. The lawyer’s view is that this application is unlikely to succeed. The lawyer believes that his client might have been brain-washed, but puts these doubts aside and proceeds to make application for the injunction.
Comment: “Brain-washing” does not necessarily remove cognitive capacity. The lawyer should explore the various options with the client, and put to the client the views of his parents. The lawyer should also discuss the desire for an injunction, including its prospects of success. If after such discussions the client still instructs the client to issue the injunction the lawyer should make the application, provided that it does not breach any obligation to the administration of justice. The fact that an application is unlikely to succeed does not mean that it is a hopeless case.
Problem 4. The client, who lives in an apartment block that she owns, wishes to evict a longstanding and very good tenant from an apartment in the block, believing that the tenant is trying to poison her. The lawyer proceeds to attend to the eviction.
Comment: Assuming that there is no truth in the accusation of poisoning, harbouring a delusion does not of itself destroy cognitive capacity. The client is entitled to have the tenant evicted for any reason, deluded or otherwise, but the lawyer should attempt to explain the consequences of such an action and also discuss whether the person might benefit from seeking some medical assistance.
The HCR-20 Violence Risk Assessment Scheme
Generally static risk factors
Young age at first violent incident
Substance use problems
Major mental illness
Prior supervision failure
Dynamic risk factors subject to change
Lack of insight
Active symptoms of major mental illness
Unresponsive to treatment
Dynamic risk management factors subject to change
Plans lack feasibility
Exposure to destabilisers
Lack of personal support
Non-compliance with remediation attempts
[*] BA LLB, LLM (Hons), School of Law, University of Western Sydney.
[†] LLB PhD, Associate Professor, School of Law, University of Western Sydney.
[‡] BSc (Med), MB BS, FRANZCP, Psychiatrist.
[*]* MB BS, MCrim, FRANCP, Psychiatrist.
 Olav Nielssen and Shavtay Misrachi, ‘Prevalence of psychoses on reception to male prisons in New South Wales’ (2005) 39(6) Australian and New Zealand Journal of Psychiatry 453-459.
 R Evans ‘Seeking Justice for the Mentally Ill’ (1995) Law Institute Journal 642, 642.
 See also M Karras, E McCarron, A Gray & S Ardasinski ‘On the Edge of Justice: The Legal Needs of People with a Mental Illness in NSW’ (2006) 4 Access to Justice and Legal Needs xxi.
 Evans, above n 2, 643-645.
 Karras et al, above n 3, xvi.
 Ibid xix.
 Ibid quoting Gavin Andrews, W Hall, S Henderson and M Teeson The Mental Health of Australians Mental Health Branch, Commonwealth Department of Health and Aged Care, Canberra (1999).
 Council of Australian Governments (COAG) National Action Plan on Mental Health 2006-2011, 14 July 2006, 1.
 Karras et al, above n 3, 47.
 J E Groves, ‘Taking Care of the Hateful Patient’ (1978) 298(16) New England Journal of Medicine 883-7.
 Paul Geltner, ‘The Concept of Objective Countertransference and its Role in a Two-Person Psychology’ (2006) 66(1) American Journal of Psychoanalysis 25-42.
 See Glen Gabbard and Eva Lester, Boundaries and Boundary Violations in Psychoanalysis (1995); Joseph Bloom, Malkah Notman and Carol Nadelson (eds), Physician Sexual Misconduct (1999).
 Eileen Munro and Judith Rumgay, ‘Role of Risk Assessment in Reducing Homicides by People with Mental Illness’ (2000) 176(2) British Journal of Psychiatry 116-20.
 Paul E Mullen, Michele Pathe and Rosemary Purcell, ‘Stalking: New Constructions of Human Behaviour’ (2001) 35(1) Australian and New Zealand Journal of Psychiatry 9-16.
 Michele Pathe & Paul E Mullen, ‘The Impact of Stalkers on Their Victims’ (1997) 170(1) British Journal of Psychiatry 12-7.
 Louise Arseneault, T E Moffitt, A Caspi, P J Taylor & P A Silva, ‘Mental Disorders and Violence in a Total Birth Cohort: Results From the Dunedin Study’ (2000) 57(10) Archives of General Psychiatry 979-86; Elizabeth Walsh, Alec Buchanan and Thomas Fahy ‘Violence and Schizophrenia: Examining the Evidence’ (2002) 180 British Journal of Psychiatry 490-5.
 Runa Munkner, S Haastrup, T Joergensen et al, ‘The Temporal Relationship between Schizophrenia and Crime’ (2003) 38(7) Social Psychiatry and Psychiatric Epidemiology 347-53.
 Louis Appleby and Jenny Shaw, Five Year Report of the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (2006) The University of Manchester – Centre for Suicide Prevention <http://www.medicine.manchester.ac.uk/suicideprevention/nci/Useful/ avoidable_deaths_full_report.pdf> at 20 December 2001.
 Walsh et al, above n 17, 490-5.
 Olav Nielssen, B Westmore, M Large & R Hayes, ‘Homicide during psychotic illness in New South Wales between 1993 and 2002’ (2007) March, 186 (6) Medical Journal of Australia 301-304, 303.
 Appleby and Shaw, above n 19.
 Olav Nielssen and Matthew Large, unpublished data.
 Tilman Steinert, Christian Wiebe and Ralf Peter Gebhardt, ‘Aggressive Behaviour Against Self and Others Among First-Admission Patients with Schizophrenia’ (1999) 50(1) Psychiatric Services 85-90; Sharon Foley et al, ‘Incidence and Clinical Correlates of Aggression and Violence at Presentation in Patients with First Episode Psychosis’ (2005) 72(2-3) Schizophrenia Research 161-8.
 S Rose, J Bisson, R Churchill & S Wessely, ‘Psychological debriefing for preventing post traumatic stress disorder (PTSD)’ Cochrane Database of Systemic Reviews, 2001, (3):CD000560; Richard Mayou, ,Anke Ehlers and Michael Hobbs, ‘Psychological debriefing for road traffic accident victims: Three-year follow-up of a randomised controlled trial’ (2000) 176 British Journal of Psychiatry 589-93.
 David Kentsmith, Pamela Miya and Susan Salladay ‘Decision Making in Mental Health Practice’ in David Kentersmith , Susan Salladay and Pamela Miya (eds), Ethics in Mental Health Practice (1986) 1-11, 6.
 Barristers Rules 2001 (NSW) r 3.
 Ibid r 16.
 Ibid r 17.
 Revised Professional Conduct and Practice Rules 1995 (NSW) r 1.1.
 Ibid, Statement of Principles for rr 1-16.
 Barristers Rules, above n 28, r 5; Council of the Law Society of New South Wales, Statement of Ethics (12/2003): ‘We observe strictly our duty to the Court of which we are officers to ensure the proper and efficient administration of justice.’
 Mark Ierace, Intellectual Disability: A Manual for Criminal Lawyers (1989) 12.
 For a discussion of a patient’s competency to consent to treatment see John Devereux ‘Competency to Consent to Treatment’ in Ian Freckelton & Kerry Petersen (eds), Controversies in Health Law (1999) 76-85.
 Maria Bisogni, ‘What is the Role of a Legal Representative before the Mental Health Review Tribunal?’ (2002) 40 (10) Law Society Journal 72-74, 74; NSW Law Society, Client Capacity Guidelines Civil and Family Law Matters September 2003, 50.
 See Bruce Winick ‘A Therapeutic Jurisprudence Model for Civil Commitment’ in Kate Diesfeld and Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (2003) 23-54, 35.
 NSW Law Society, above n 36, 50.
 For example, in New South Wales, the Law Society of New South Wales or the New South Wales Bar Association.
 See, eg, NSW Law Society, above n 36, 50.
 Gibbons v Wright  HCA 17; (1954) 91 CLR 423, 437-438; also see Murphy v Doman  NSWCA 249,  (Handly J).
  EWCA Civ 1889;  3 All ER 162, .
  SASC 102, .
 Dalle-Molle (By His Next friend Public Trustee) v Manos  SASC 102, .
 Ibid, .
 Ranclaud v Cabban  ANZ ConvR 134 (New South Wales Supreme Court).
 For example, under Part 2 of the Mental Health Act 1990 (NSW), s 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW) and by the Supreme Court pursuant to proceedings under the Protected Estates Act 1983 (NSW). Such an examination cannot be compelled under the Guardianship Act 1987 (NSW) unless a guardianship order has already been made (see s 25(1) of that Act).
 The following discussion of these options draws upon NSW Law Society, above n 36, 50.
 Examples include the Anti-Discrimination Act 1977 (NSW), Victims Support and Rehabilitation Act 1996 (NSW), and the Community Services (Complaints, Review and Monitoring) Act 1993 (NSW).
  3 NSWLR 81.
 Civil Liability Acts, eg Civil Liability Act 2002 (NSW) s 5O.
 Cf Rogers v Whitaker  HCA 58; (1992) 175 CLR 479.
 Cf Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642; Hawkins v Clayton (1988) 164 CLR 539; Micarone v Perpetual Trustees (1999)75 SASR 1; Curnuck v Nitschke  NSWCA 176.
 Cf Hawkins v Clayton (1988) 164 CLR 539; Paris v Stepney Borough Council  UKHL 3;  AC 367 and see Civil Liability Acts, above n 51.
 See, eg, Legal Profession Act 2004 (NSW) s 346.
 Ashby v Russell  ANZ Conv R 321.
 Ibid 323.
 Re Cooke (1889) 5 TLR 407, 408; A159 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 1087, .
 CT Bowring and Co (Insurance) Ltd v Corsi Partners Ltd  2 Lloyd’s Rep 567, 580; Steindl Nominees Pty Ltd v Laghaifar  QCA 157;  2 Qd R 683.
 See, eg, Legal Profession Act 2004 (NSW), above n 55, Pt 3.2, Div 10.
  NSWSC 3; (2005) 62 NSWLR 284, .
 Meissner v R  HCA 41; (1995) 184 CLR 132, 141.
 Cf United States professional rules on this issue: US: American Bar Association, Model Rules of Professional Conduct, r 2.1: Also see Winnick, above n 34, 53.
 Cf Hawkins v Clayton (1988) 164 CLR 539; Cf Davies v Camilleri (2000) 10 BPR 18.
 Bonar v Townsend  TASSC 148,  (Blow J).
 See Tournier v National Provincial and Union Bank of England  1 KB 461,  (Scrutton LJ),  (Atkin LJ).
 See Initial Services Ltd v Putterill  1 QB 396.
 See Tournier case, above n 66.
 Also see Virginia Shirvington, ‘Confidentiality: different dilemmas’ (1996) 34(5) NSW Law Society Journal 28.
 Karras et al, above n 3, 121.
 Leanna Darvall ‘Continuing Legal Education for Medical Practitioners: A Responsive Model’ in Freckelton and Petersen (eds), above n 35, 193-201; also see Jill Peay, Decisions and Dilemmas: Working with Mental Health Law (2003) 118.
 See, eg, the ‘Violence Risk Appraisal Guide’ as discussed in Vernon Quinsey, G Harris, M Rice & C Cormier Violent Offenders: Appraising and Managing Risk (1999); also see ‘The Macarthur Violence Risk Assessment Study’ as discussed in John Monahan, H Steadman, E Silver, A Applebaum, P Robbins, E Mulvey, L Roth, T Grisso, & S Banks Rethinking Risk Assessment: The Macarthur study of mental disorder and violence (Oxford University Press, New York, 2001); ‘HCR -20’ as discussed in Kevin Douglas and Christopher Webster, ‘The HCR-20 violence risk assessment scheme: Concurrent validity in a sample of incarcerated offenders’ (1999) 26 Criminal Justice and Behaviour 3-19; also see John Monahan ‘Mandated Community treatment: The Potential Role of Violence Risk Assessment in Commitment’ in Diesfeld and Freckelton (eds), above n 37, 455-468, 465- 467.
 See Zero Tolerance Response to violence in the NSW Health workplace: Policy and Framework Guidelines (2003) NSW Department of Health <http://www.health.nsw.gov.au/pubs/z/pdf/zero_tol_guide.pdf> at 20 December 2007.
 Bisogni, above n 36, 72-74; also see Ierace, above n 31, 9-10.
 Kentersmith et al, above n 27, 9.
 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [2.89], Recommendation 2.
 Ibid, [3.67-3.128], Recommendations 13-22.
 National Mental Health Strategy, <http://www.health.gov.au/internet/wcms/publishing.nsf/Content/mental-strategy> at 20 December 2007. The National Health Strategy is a commitment by the Australian, State and Territory governments to improve the lives of people with a mental illness.
 Council of Australian Governments (COAG), above n 9.
 Karras et al, above n 3, 119.