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Law Week 2020: Mental health legal experts shine the light on criminal injustice

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Shayla Strapps

People with mental health conditions need better support in WA’s criminal court system and lawyers are often acting as social workers to stop them landing in prison, according to WA’s mental health criminal law experts.

Mental Health Law Centre CEO Shayla Strapps said lawyers were often left to find transport, accommodation and counselling to prevent clients with mental health conditions being incarcerated for very minor offences.

“Lawyers whose clients don’t have these complex problems can appear in court, then shake their client’s hand and move on, but the situation is very different if your client is mentally unwell or experiencing homelessness.

“Once their court appearance is over, if they have nowhere to go and don’t know what to do, you can’t just leave them. But finding the right help quickly can be incredibly difficult and it is not what lawyers are trained to do.”

Ms Strapps said people with mental health issues would reoffend less if they had better access to services to help change the circumstances leading to their offending, such as homelessness or lack of medication or treatment. But often these services simply weren’t available.

“In some situations, the lack of support means people with mental health problems are being sent to prison without having been sentenced or found guilty,” she said.

“If we want to be fair and treat people in the community, we must have sufficient support services in place working closely alongside lawyers. It is one thing for a lawyer to successfully argue that the accused should get treatment, not a prison term, but what happens next?

“The fact is, if a person doesn’t have anywhere to go, being in prison with a bed, food and medication is preferable to having to fend for themselves on the streets. It simply shouldn’t be the case that serving time is an unwell person’s best option.

“As well as denying people their basic human rights, and the medical treatment they desperately need, this also puts an enormous burden on resources in the prison system. There is also no access to treatment for their mental health conditions if someone is on remand, and so often we will see their mental health deteriorate even further.

“These kinds of situations come up all the time. Although lawyers are well equipped to help people with their legal problems, when it comes to the other help these people need, it’s not our area of expertise. That’s why MHLC took the innovative step of merging with Ruah Community Services late last year because, working together, we can provide a more integrated service for clients who are needy, desperate, defensive, scared and struggling.

“The merger is allowing us to have lawyers and social workers planning and working together before a client comes to court. It is a seamless process that is hard to replicate when you have professionals employed by separate organisations with different timeframes and priorities.

“Unfortunately, it is not as common as it should be to have lawyers and social workers working together in the same team.  However, it makes complete sense because lawyers and social workers are a resource to people in their times of greatest need.”

The merger recognises the huge connection between mental health, trauma and homelessness and the challenges lawyers face accessing suitable psycho-social support for mentally impaired clients, particularly accommodation.

MHLC and Ruah are currently seeking funding to pilot a world-class model in Perth that will provide a holistic legal service for people facing care and protection courts in WA.  Currently, there is almost no funding for people who need representation in these kinds of proceedings and requests for funding have been repeatedly refused by both legal and health portfolios.

“We need to get to a place where we realise that we can’t help people unless governments recognise that the burden lays across portfolios and that a shift in thinking is required,” Ms Strapps said.

WA Law Week – 18-22 May 2020