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Law Society Northern Territory; PublicationNT; E-Journals




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Law -- Northern Territory -- Periodicals.; Law Society of the Northern Territory -- Periodicals.

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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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13 contact with law-enforcement make up the vast majority of mentally impaired clients.4 Such clients are more likely to be female and non-violent,5 highly vulnerable and at risk of homicide, suicide and self-harm.6 Indigenous Australians are especially vulnerable to serious mental and behavioural disorders. The Centre for Rural and Remote Mental Health finds that the higher rates of serious mental disorders and problems experienced by remote communities are associated with social disadvantage, affecting children particularly hard,7 with data indicating that morbidity and mortality rates, including suicide, are double that of non-Indigenous Australians.8 Practical issues The legal profession is not immune to this growing epidemic and needs to develop skills and knowledge, although achieving proficiency in mental impairment matters can be challenging. Firstly, the concept of mental impairment is broad with no universally accepted definition. Secondly, most practitioners would not possess the specialised training to readily identify manifestations; and thirdly, clients with mental illness are unlikely to disclose their illness or treatment due to self-denial of their illness, embarrassment or fear of discrimination.9 Stakeholders have recognised this shortfall and have called for practitioners to have a better understanding and awareness of mental impairment issues. While the Duty Lawyer Handbook calls for awareness in the interest of providing personalised instructions and case management,10 the NT Law Reform Committee declares the need for additional resourcing, training and materials in the interest of effective communication with the wider community.11 Such an attitude is especially appropriate given that pro bono practices and community law centres are seeing and servicing a record number of mentally impaired clients.12 Various unique circumstances lead a client into contact with the criminal justice system and invariably the already complex lawyer-client relationship is compounded when a client is mentally ill and especially so in combination with alcohol or substance abuse. With mental illness, the clients often lack objective reasonableness and behaviour can range from aggressive and nasty to vulnerable, attractive and even seductive.13 In many cases, client behaviour may be irrational, polarising, disorganised, delusional or even paranoid and their ability to understand and give instructions may be affected. For example, by frequently changing or providing conflicting instructions, or even instructing against self-interests. It may even be difficult to assess capacity to give instructions due to communicational and social-skill deficiencies such as rejection or misconstruction of advice. Ultimately, wherever possible, the defendant should have the benefit of a full trial in the interests of transparency and fairness. In Eastman (2000), the High Court proclaimed a duty to raise such issues, where a well-founded belief exists, overriding any other professional duty.14 Although mental illness is a broad concept, practitioners should learn to recognise the potential legal and problem issues, and how to identify resources to deal effectively with these