Legal advocacy for people who have a cognitive impairment

1. Legal advocacy for people who have a cognitive impairment Philip Grano Legal Officer Office of the Public Advocate

2. Overview • Client - lawyer relationship • Capacity to instruct - • standard required depends on the jurisdiction

3. Client - lawyer relationship

4. Client - lawyer relationship • To tell the client’s story • Client instructs the lawyer what that story is • Lawyer advises the client regarding the legal impact of that story • Minimise loss • Maximise gain • Loss and gain analysed in terms of fines / detention (civil or criminal) / damages • Therapeutic jurisprudence - different vision

5. The case of RM (1) • Representation of a patient at Larundel • Writ of habeas corpus sought • Eames J • Solicitor “was quite needlessly confrontational…I find it difficult to understand how the tone of disputation, which he undoubtedly fostered, could have been thought to be of assistance to his client”

6. The case of RM (2) • Eames J • “…notwithstanding the very important concerns to protect the civil rights of individuals from arbitrary abuse of power, there remains a very real and legitimate concern for the mental well being of the individual…”

7. Harry v Mental Health Review Tribunal • Mahoney JA of the NSW Supreme Court on role of lawyer • To ensure that the law is observed • To ensure that the protections provided to the client under law are available • Not to take mere technical deficiencies when the taking of these may harm the client

8. Professional requirements • Legal Practice Act 1996 - s 64 (a) • (i) honestly and fairly in the client’s best interests; • (ii) so as not to engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

9. Barrister’s rules (1) 10. A barrister has the privilege of asserting and defending a client’s rights and of protecting the client’s liberty or life by the free and unfettered statement of every fact and the use of every argument and observation that can legitimately lead to that end according to the principles and practice of the law.

10. Barrister’s rules (2) 11. A barrister must seek to advance and protect the client’s 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, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules.

11. Tensions • Client’s instructions v. best interests • Mouthpiece of client v. concern for the mental well-being of the client • Use the free and unfettered statement of every fact & use of every argument v. not to take mere technical deficiencies when the taking of these may harm the client • Barrister’s personal view of client v. view that client needs protection

12. Capacity to instruct

13. Jurisdictions • Specialist jurisdictions • MHRB • Guardianship & Administration • IDRP • Inquisitorial jurisdictions • Responsibility to act in best interests • Expectation to hear a person’s story

14. To tell a story… • Does the client have a story to tell? • Do they want that story told?

15. Capacity to instruct • Capacity to instruct in these specialist jurisdictions is • The capacity to ask someone to tell their story or • The capacity to ask for someone to test the law for them • Capacity is different from that required in the criminal sphere or other civil spheres • Eg: making a will, entering a contract, litigation