Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Improving Court Reform for People with Disabilities & Mental Health Needs
In many post-conflict countries, mental health concerns can be widespread, severe, and often unaddressed. Programs for people with developmental disabilities may also be lacking because it is poorly understood, and as a result, sometimes ignored entirely. In 2010, the UK Ministry of Justice released a report which provided an overview of the court experience for adults with mental health conditions, learning disabilities, and limited mental health capacity. It also provided some interesting recommendations. As developed countries are just learning how to adapt to these needs, I thought this report may be useful to keep in mind for future programming in developing countries as well!
Credit: Manoocher Deghati/IRIN
There is limited research literature specifically concerned with the experiences of court users with mental health conditions, learning disabilities and limited mental capacity. People with mental health conditions and learning disabilities tend to experience greater difficulties in accessing justice than other groups, and also to experience greater discrimination and disadvantage. In this project, both victims and witnesses in criminal cases and parties in civil cases were included in the research.
Identification of Mental Health Needs, Limited Mental Capacity & Learning Disabilities
Early Identification
Early identification of a court user’s mental health condition, learning disability or limited mental capacity increased the likelihood of satisfaction with their court experience, as it became a catalyst for the subsequent provision of support throughout their court case. This support included referrals to support organisations, the provision of special measures or requirements, and awareness on the part of the judiciary and legal representatives of the need to tailor communication. When identification occurred later on in the process, it could delay applications for special measures until it was too late for the court to process them according to the Code of Practice for Victims of Crime. This could interrupt proceedings and cause additional unnecessary stress to the court user.
If a court did not identify a court user’s mental health condition, learning disability or limited mental capacity and did not put any support in place, it could result in the court user deciding not to pursue the case. For example, in non-family civil cases litigants in person might withdraw their application if they did not understand what was required of them prior to appearing in court and did not have access to any support.
Identification Most Likely in Family Law Cases
Identification of court users’ mental health conditions, learning disabilities or limited mental capacity was perhaps most likely in public family law cases, where a court user’s difficulty would probably be relevant to the case, already known to the agencies involved in the hearing, or more likely to be identified because of the nature and range of agencies involved and the protracted nature of proceedings. There is also potential for extra support in public family law cases thanks to the high level of involvement of public agencies, in particular social services.
Barriers to Self-Disclosure
Lack of reassurance
Some court users were self-conscious about their condition and would try to hide their disability to avoid embarrassment. Several, particularly those with mental health problems, were concerned that disclosure of their condition would have a negative impact on the outcome of their case. Court users therefore appeared to lack reassurance that the court would deal with their condition sympathetically, that appropriate support would be in place, and that court officials would take steps to prevent any barriers to with achieving a fair and just hearing.
Being unsure of relevance
Court users explained that they were not always aware whether their mental health condition, learning disability or limited mental capacity was relevant to the case and therefore did not consider disclosing until someone asked them about it directly. This implies a lack of advice on the issue throughout the court process, although police, legal representatives and in-court support organisations all had opportunities to inform court users of the option of disclosing any vulnerability and the support that was in place to help them.
Concerns about being discredited
Court users who felt they could effectively manage their mental health condition, learning disability or limited mental capacity and that it was therefore not relevant to the case were unlikely to want to disclose their condition. Several felt it would result in the court unjustifiably discrediting their evidence. Those with mental health conditions involved in family cases were least likely of all to want to inform the courts of their condition, as they believed it would be detrimental to their case.
Having a familiar person to disclose to
In criminal cases, self-disclosure was more likely when court users felt that they ‘knew’ the person to whom they were disclosing their condition and were more comfortable with them. This tended to occur where victims and witnesses maintained contact with the same Investigating Officer throughout a case, or where they had the support of a Family Liaison Officer, or had developed good relationships with Witness Service staff.
Training Police to Recognize Mental Health and Other Needs
Police sometimes found it difficult to identify support needs, perhaps because of the often complex conditions of court users, such as a combination of drug or alcohol misuse alongside a mental health condition or learning disability, or alternatively because of their limited training in the field. In criminal cases, the police and the Witness Care Unit were clearly tasked with responsibility for identifying court users with mental health conditions, learning disabilities and limited mental capacity. This encouraged these practitioners to focus on this aspect of their work, and improved accountability.
Police officers who specialise in domestic violence cases were often likely to be more aware of the behavioural indicators of mental health conditions and learning disabilities, compared to police from non-specialist departments. Victims of more serious criminal offences are also more likely to be assessed at hospital or offered counselling, which will increase the likelihood of an accurate diagnosis of mental health conditions, learning disabilities or limited mental capacity.
Court users, carers and practitioners alike stated that they believed that agencies involved in the court process, such as the police and legal representatives, could not be relied upon to accurately identify court users’ mental health conditions, learning disabilities and limited mental capacity. Often such practitioners lacked the time, skill, and level of contact with court users to be able to make identification, and protocol was not always in place to assist them in the task.
However, practitioners further along the court process, including court staff, the Judiciary and legal representatives, regarded the identification and communication of mental health conditions, learning disabilities and limited mental capacity as the police’s responsibility. As a result, they tended to be less inclined to consider identification to be within their remit. Any misidentification at the earliest stage of the court process could therefore potentially have a major impact on the court user’s subsequent court experience.
Training Lawyers on Mental Health Needs
Some solicitors might also benefit from training to increase their awareness, as very few had any in-depth knowledge of mental health conditions, learning disabilities and limited mental capacity. Instead they relied on common sense and previous experience to identify any special needs. However, this meant they often failed to identify conditions accurately and had no real knowledge of what constituted appropriate support.
Lack of Awareness among Court Staff on Mental Health & Other Needs
Across all three courts, few court staff or legal representatives were aware of any support organisations that specialised in working with court users with mental health conditions, learning disabilities or limited mental capacity to which they could refer court users.
Court staff felt that the easiest way to identify cases of learning disability would be to ask whether a court user was able to read or write, despite this being just one indicator of a learning disability. Few seemed aware of the lengths that some court users would go to disguise their condition, or of other potential indicators. This indicated that court staff needed more training in methods of identification. Court staff also felt they would find it harder to identify mental health problems that they regarded as ‘mild’, such as depression or anxiety, compared to those they perceived as more serious, e.g. schizophrenia. This attitude reflected a general misunderstanding of mental health among many court staff, although they did accept that because mental health can fluctuate even schizophrenia could be difficult to identify unless a court user was actually experiencing a schizophrenic episode.
While court staff across all courts, such as ushers, front of house and court managers, as well as members of the Witness Service, were aware of the importance of meeting the needs of vulnerable court users, they were generally not specifically trained in identifying or working with those with mental health conditions, learning disabilities and limited mental capacity. They therefore did not feel comfortable dealing with the needs of court users who presented with more complex needs such as severe communication problems, or mental health conditions that required careful management or medication.
Lack of Awareness of Available Support after the Trial
Court users felt they needed support after outcomes had been received to help them to cope with the results of their case and to access further support that they may need. Even in criminal cases where support was available before and during a hearing, this support tended to end abruptly as the case came to a close.
Local Courts & The Use of Multi-Disciplinary Teams to Address Health Issues
Some local courts have implemented small multi-disciplinary teams, including agencies such as the Probation Service, Family Liaison Officers, Community Mental Health Teams, the police and Witness Service. These teams work well together and are familiar with the individual roles of the different agencies. As a result there appears to be a greater awareness within the agencies of the support available for court users, making it more likely that a user will receive the support they need. Also, as the agencies are working closely together, they appear to communicate more regularly and smoothly about case progression and wider partnership issues.
Mental Health Needs Are Often More Focused on Defendants than Victims
Interviews with practitioners working in the criminal justice system revealed a tendency to focus more strongly on support for defendants than on victims and witnesses, in relation to mental health conditions, learning disabilities and limited mental capacity. This imbalance was observed throughout the course of the primary research phase.
A Defined Pathway for Court Users
All courts lacked a defined pathway through the criminal, civil or family courts for court users with mental health conditions, learning disabilities and limited mental capacity. Such a pathway would describe the route that a court user should take from their initial contact with the justice system to completion of the trial or hearing and communication of the verdict. Pathways are multi-disciplinary, locally agreed, evidence-based plans which detail essential steps in the care of the patient, describing expected progress and facilitating evaluations. Their value as a means of reducing variation in care between cases, empowering patients and staff, and providing previews of care which guide expectations makes them an ideal model for the provision of support for court users.
To read the entire report and learn what recommendations were provided, you can click here.
Reinventing the Rules 