Lost and found in translationCross-disciplinary conversations between lawyers and doctors

Jo SampfordCoordinator, Mental Health Legal Service

Queensland Advocacy Incorporated

Presentation at ANZAPPL 201823 November 2018

Hobart

Introduction

About our service

QAI is a community legal centre that pursues systems and individual advocacy to protect the fundamental rights and needs of people with disability in Queensland.

QAI’s mental health legal service has since 2010 offered free independent legal advice and advocacy to people receiving involuntary treatment for mental illness in Queensland. We have provided representation in over 3000 separate matters during this time and over 600 MHRT hearings this year.

QAI also offers legal and non-legal services to people with mental illness, intellectual disability and other disabilities in the areas of guardianship and administration, restrictive practices, NDIS appeals and justice support.

This is not legal advice

This PowerPoint presentation contains general information about legal matters.

The information is not legal advice and should not be treated as such.

2

Queensland

Advocacy

Incorporated

Overview

◉ Context behind changes to the MHA and introduction of legal reps

◉ Legal representation – overview, duties, practice guidelines

◉ Results of a recent survey into lawyers and clinicians views towards one another

◉ Ethical tensions and lessons

◉ Questions and contributions

But first, a story…

3

Queensland

Advocacy

Incorporated

4

Meeting William

But first some context

◉ Only State with a separate Mental Health Court

◉ Much higher numbers of forensic orders than other states, low rates of revocation

◉ Reported higher per capita rates of electro-convulsive therapy*

◉ Lowest rates of attendance by patients at Tribunal Hearings (39%) and the lowest levels of legal representation (2.9%) Australia-wide.

5

Queensland

Advocacy

Incorporated

Source:

Rights in Action,

Representation for

people attending

the MHRT –

Final Consultation

Report 2015

Link

Changes under the new Mental Health Act 2016

◉ Main objects reflect emphasis on patient, rights, recovery, and least restrictive practice

◉ Amended legal tests and criteria, including the definition of capacity

◉ Requirement for Tribunal to appoint free legal representation for certain types of hearings:

Forensic Orders where the Attorney-General elects to appear

Treatment Authorities were the person is under 18

Applications to perform Electroconvulsive Therapy and non-ablative neurosurgery

◉ Introduction of Independent Patient Rights Advisers

◉ Additional policies, procedures and paperwork6

Queensland

Advocacy

Incorporated

7

Legal representation 1

8

Queensland

Advocacy

Incorporated

Legal Representation

◉ Provided by Legal Aid or preferred suppliers (criminal lawyers, community legal centres

◉ Increased rates of representation from 2.3% to around 13%

◉ Grant of aid for hearing only – 6 hours preparation and attendance

◉ Release of case management standards and best practice guidelines

◉ Training – 1 hour mandatory

9

Queensland

Advocacy

Incorporated

Lawyers’ roles and responsibilities

◉ Contact the client, guardian and advise parties of appointment

◉ Obtain all relevant material

◉ Conference with the client, including

Assessing capacity (to give views, wishes and preferences), otherwise, best interests.

Offering advice

Taking instructions

◉ Consider whether second opinion report required

◉ Preparing client for hearing, including obtaining supporting material

◉ Attend hearing

◉ Advise of outcome, further rights and avenues of appeal

10

Source:

Legal Aid Case

Management

Standards - MHRT

Link

Queensland

Advocacy

Incorporated

Guidelines for lawyers in the MHRT

Principle 1: Improve your understanding of mental illness

◉ Develop and maintain your knowledge of types of mental illness, including symptoms, treatment and treatment effects

Principle 2: Communicate effectively

◉ Assess client capacity and take steps to enhance capacity and engagement

◉ Build rapport and maintain flexibility to enhance communication

Principle 3: Deliver quality legal services

◉ Recognise the importance of the recovery framework and deliver legal services in a way that promotes client engagement and recovery

◉ Understand and apply the Principles of the MHA to preparation and representation

◉ Maintain professional boundaries: clarify your role and its limitation

◉ Ensure there is appropriate liaison with the client’s appointed guardian and/or support network

◉ Respond collaboratively wherever possible and make appropriate referrals to improve access to justice, health and wellbeing 11

Source:

Legal Aid

Guidelines for

Lawyers working

with clients in the

MHRT Link

Queensland

Advocacy

Incorporated

So what do lawyers and clinicians think of each other?

2

12

Queensland

Advocacy

Incorporated

A short survey…

◉ Practice-led, informal qualitative

◉ Conducted in October/November 2018

◉ Clinicians – 41 respondents

◉ Lawyers – 8 respondents

◉ 6 questions

◉ All anonymous

13

Queensland

Advocacy

Incorporated

What is your role?

What were your first impressions/experiences with the introduction of Tribunal-appointed lawyers in March 2017?

Have your impressions/experiences changed since then?

How would you rate your interactions with lawyers practising in mental health?

Do you feel you have a good grasp of lawyers’ professional roles?

If yes, what aspects are important for clinicians to understand? If no what do you feel you need to know more about?

If there is one tip or piece of advice you would like to give lawyers, what would it be?

How clinicians see lawyers

14

Queensland

Advocacy

Incorporated

What were your first impressions when Tribunal-appointed lawyers were introduced in March 2017?

How would you describe your

interactions with lawyers?

Positive

Negative

Mixed

Didn't notice a

difference

Not applicable

Generally Positive

Generally Negative

Neither positive

nor negative

Varied

Key themes

15

Many clinicians saw the value of legal reps to consumers

…some specifically connected this to protecting consumer’s rights…

several commended legal reps for the professionalism, patience and collaboration

…though a couple reported adversarial experiences…

many identified a lack of experience in mental health and gaps in knowledge of the Act

…though over time this improved.

The key difficulty continues to be a lack of continuity in legal representation, preventing a lawyer from building rapport and understanding of the client, and effective relationships with treating teams and stakeholders.

Queensland

Advocacy

Incorporated

16

“glad to see patient advocacy being better attended to within a setting in which they are likely to feel disempowered”

“positive that patients would have legal representation where the AG representative was appearing. Reduce[s] the burden on clinicians to be ‘advocates’ for the patients and to be just witnesses which is the role of clinicians in MHRTs”

“[I thought that] hopefully this would be a good thing to assist our patients in protecting and exercising their rights”

“most were keen to be of assistance, and were very focussed on the patient’s needs”

“very positive – they have taken a collaborative rather than obstructionist approach”

“brought about an adversarial courtroom scenario which was unhelpful”

“Legal representatives have no apparent mental health training to deal with what are unique circumstances”

“intense sessions, took longer as they really scrutinized documents”

“Lots of different lawyers being used so not able to use the same lawyer for the same consumer or build up experience/specialist knowledge over time”

“my impressions have continued to improve and communication gets better and the lawyers realise that mental health clinicians also have the best interests of consumers in mind”

“the more the lawyers are involved in the process the more they understand the MH system. It is also useful for the MH system to understand the legal system”

Understanding lawyer’s roles

60% said they felt they had a good grasp of lawyer’s professional roles and responsibility

40% said they did not or were not sure.

Areas of confusion:

◉ Information sharing

◉ Where patient doesn’t have capacity to instruct

◉ Scope of lawyer’s appointment (MHA matters, and beyond?)

17

Queensland

Advocacy

Incorporated

If there was one piece of advice…

◉ Expectations and role clarity

◉ Communication and relational skills

◉ Knowledge and understanding of mental health

◉ Encouragement to ‘delve deeper’

◉ Practice good self-care

18

Queensland

Advocacy

Incorporated

19

“Being clear about what you can and cannot do”

“Gain an understanding of mental health issues, as well as the underlying philosophies of recovery, autonomy and least restrictive practice”

“Switch from thinking how to ‘win’ the case and instead think about how the patient’s bests interests are served”

Keep it simple!

“Be aware of when the situation is escalating and don’t continue to argue”

“Empathy, collaboration, curiosity and kindness with consumers and clinicians goes a long way”

“Listen to what the client has to say. They can feel very unheard and do not feel validated by treating teams.”

“Talk to case managers and FLOs to get background and collateral –they have often known the consumer the longest and know what’s going on”

“Don’t leave contacting the client til the last minute”

“Remember that people see things differently when they are ill and their preferences often change when they become well. So exercise caution”

“

I appreciate having you there as an advocate for the rights of the patient. Ours is a big and complex system with some old-fashioned views and I think law plays an

important role in bringing medicine to account. I can’t say this to my seniors!

20

Queensland

Advocacy

Incorporated

How lawyers see clinicians

21

Queensland

Advocacy

Incorporated

What were your first impressions when beginning as a Tribunal-appointed lawyer in March 2017?

How would you describe your interactions with clinicians?

Positive

Negative

Not applicable

Generally Positive

Generally Negative

Varied

Key themes

22

A key change noticed was a stronger focus on the legal criteria.

There were varied views about clinician openness to contact, some reporting excellent communication with all parties, others reporting that clinicians were difficult to contact, and appeared suspicious or even hostile towards lawyers

Over time there had been a slow process of building relationships with clinicians as they see how we can assist them and are trying to do what’s best for the client

Observed the hierarchy of mental health services and clinicians’ being bound by decisions outside of their control

Remarked at the different languages used, where specific concepts and tests in the legislation are understood differently by clinicians

Encouraged clinicians to not take things personally.

Queensland

Advocacy

Incorporated

“

“it’s important for clinicians to engage effectively with lawyers, and it’s up to both parties to make this happen”

23

Queensland

Advocacy

Incorporated

Where do some of the tensions lie? And where can we learn from each other?

3

24

Queensland

Advocacy

Incorporated

Ethical issues and tensions

◉ Privacy, confidentiality and the extent of information sharing

◉ Best interests – a space where reasonable minds can differ, where different approaches can help?

◉ Assessing capacity, understanding views and wishes and the fluctuation of both over time

◉ Strained therapeutic relationships – honouring the person’s experience while maintaining professional courtesy and supporting ongoing relationsips

◉ Litigation risk?

25

Queensland

Advocacy

Incorporated

Clinicians

◉ Different tests for capacity

◉ Different legal regimes other than MHA

◉ Best interests – from a rights basis

◉ Importance of explaining terminology

◉ Being open to respectful questioning

◉ Honouring the person’s story and strengths

Where we can learn from each other

Lawyers

◉ Spending time, slowing down, adapting your communication style

◉ Working with vulnerable people

◉ Best interests – from a therapeutic perspective

◉ Reconceptualising the ‘win’

◉ Investing in ongoing relationships

26

Queensland

Advocacy

Incorporated

“

Questions?

Experiences?

27

Feel free to contact me

Jo Sampford

Coordinator, Mental Health Legal Service

Queensland Advocacy Incorporated

jo@qai.org.au | qai@qai.org.au

0401 166 766 | (07) 3844 420028

Queensland

Advocacy

Incorporated

Thank you