MHCC Mental Health Rights Manual

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Chapter 10 Section F : Legal help

10F.1: TYPES OF LEGAL HELP

Practising lawyers in NSW are either solicitors or barristers. Barristers mainly appear as advocates in Court, on 'instruction' from a solicitor. To get initial advice or to start a legal action you first should approach a solicitor, solicitor, although in limited situations a Barrister may be willing to accept your case directly.

Solicitors work:

There are different types of legal services available in NSW, depending on your needs as a client.

Initially, you may just want some legal advice, to find out your options and possible outcomes from these options.

Once you decide what you are going to do and how the solicitor can help you, then the solicitor may need to take further action. This may be, for example, advising you about your legal rights, and if your claim is worth pursuing, writing a letter on your behalf, or arranging for an expert report. 

If you decide to take legal action in the courts or decide you need a lawyer to defend you in existing legal action in a court, further work such as preparing court documents and officially asking through the courts for relevant documents from other people or organisations (using a document called a subpoena or a summons) will have to be organised. Further information is also likely to be needed from you at this stage, in order to complete these tasks.

The solicitor may represent you in court or you might decide to have the solicitor instruct a barrister to be your advocate in the courtroom.

For information about who pays for legal services, click here.

10F.2: Who pays for legal services?

Legal Aid NSW can pay for some legal services through a grant of legal aid. A grant of legal aid is not always made totally without a cost to the client. Legal Aid NSW can, and often does, ask for a contribution to its costs.

Community Legal Centres do not usually charge for their services, but sometimes they can get paid by Legal Aid NSW to represent you in a particular legal case, and in such cases, Legal Aid’s contribution requirements can apply.

Generally, private lawyers charge their clients for their services. (There is regulation of solicitors' fees in NSW and you can complain to the Legal Services Commission if you think you have been overcharged. 

Click here to go to the Legal Services Commission website for more information.

However, the services they provide sometimes come at no charge or a reduced charge. This could be because:

Click here for information about where to go if you can’t afford to pay for legal services.

10F.3: Where to go if you can't afford to pay for legal services

There are four main ways that legal help is available for no or reduced cost:

In NSW, there are both generalist legal assistance providers, that is, organisations that provide legal assistance to a local community, and specialist legal assistance providers. There are several specialists that deal with disability rights issues, including legal issues affecting people with mental illness.

It is often best to contact LawAccess first to find out which service is most appropriate for you 

10F.4: LawAccess

For information about your legal rights and to find out where to get legal help, you should call LawAccess on 1300 888 529*.

LawAccess NSW is a free government telephone service that provides legal information, advice and referrals for people who have a legal problem in NSW.

In particular, LawAccess helps people:

  • who live in regional, rural and remote areas of NSW
  • who are Aboriginal or Torres Strait Islander People
  • with disability
  • who are from a culturally and linguistically diverse (CALD) background
  • who are at risk of harm
  • who have an urgent legal problem

LawAccess can help by giving you legal information over the phone, sending you information, giving you the contact details for appropriate legal service providers as well as for other related services, and in some cases giving you legal advice over the phone.

LawAccess also has a lot of legal information available on its website.

To contact LawAccess:

Phone: 1300 888 529*
Teletypewriter (TTY): 1300 889 529*

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

10F.5: LEGAL AID NSW

There are three ways in which Legal Aid NSW may be able to help you:

  • Giving you initial free legal advice
  • Providing you with legal representation from a Legal Aid NSW lawyer
  • Granting you legal aid to pay a private lawyer or a Community Legal Centre (CLC) lawyer to represent you

You can get initial free legal advice from Legal Aid NSW by ringing and making an appointment to see a lawyer in one of the Legal Aid Offices in Sydney suburbs or in regional areas of NSW.

Family law advice is available without an appointment at the head office of Legal Aid NSW in Sydney (Ground Floor, 323 Castlereagh Street, Sydney) in normal business hours, Monday to Friday). This office is located near Central Railway Station, across Belmore Park from Eddy Avenue.

Legal Aid NSW's Parramatta office has clinic days for family law advice on Monday, Wednesday and Friday, 9.30 am–12.30 pm and 2.00 pm–4.00 pm. The Parramatta Legal Aid office is at Level 5, 91 Phillip Street, Parramatta, phone: (02) 9891 1600.

Click here to find the contact details for all legal aid offices in NSW.

If you want further help from Legal Aid NSW, for example even if you just want them to send a letter on your behalf, you will have to make an application for a grant of legal aid. You can also make an application for a grant of legal aid to pay for a private lawyer to represent you or, in some cases, if you are being represented by a Community Legal Centre.

Representation by a Legal Aid lawyer and a grant of legal aid are both usually subject to a means test, an assets test and sometimes a merits (reasonable prospects for success) test. All the legal aid policies and guidelines are on the Legal Aid NSW website.There is an internal review process if your application for legal aid is not granted and you want to challenge the decision.

10F.6: Specialist legal service providers

In NSW, there are several legal assistance providers that specialise in providing services to people with disability including mental illness:

10F.6.1: The Mental Health Advocacy Service

The Mental Health Advocacy Service (MHAS) is part of Legal Aid NSW.

The main role of the MHAS is to provide free legal representation to patients in mental health inquiries held by the Mental Health Review Tribunal under the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW).  The MHAS can also give you information over the phone about the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW).

The MHAS employs a social worker and Lay Advocate who can also give you advice on non-legal matters and advocate on your behalf in some circumstances.

Lawyers from the MHAS act on your instructions (that is, what you tell them you want in relation to your treatment and care, etc). The MHAS can, for example, help you to challenge involuntary treatment or financial management orders sought by a hospitably the authorised medical officer or social worker at a Mental Health Facility.

Representation by the MHAS is free of charge and without a means or merit test in the following situations:

  • to patients in mental health inquiries held by the Mental Health Review Tribunal
  • to patients in initial reviews of Involuntary Patient Orders held by the Mental Health Review Tribunal which involve an application for the extension of the Involuntary Patient Order. Legal Aid is not usually provided for subsequent reviews of an involuntary patient order (that is for people who have been involuntary patients for more six months or more)
  • to forensic patients appearing before the Mental Health Review Tribunal
  • to people with disability appearing before the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)

The amendments to the Mental Health Act 2007 (NSW) were assented to on the 28 November 2014 by way of the Mental Health Amendment (Statutory Review) Act 2014 (NSW). These changes are now in force.The Mental Health Act 2007 (NSW), now requires that persons under 16 years of age are provided with legal representation for all Mental Health Review Tribunal hearings, unless the young person refuses such representation or the MHRT determines that it would be in the young person’s best interest to proceed with the hearing without representation.

In all but the last situation, a lawyer from the MHAS may contact the patient before the hearing and offer representation.

Representation is available free of charge from the MHAS, subject to a merit test, for:

  • appeals against a refusal by the Authorised Medical Officer to discharge a patient
  • to patients asking the Mental Health Review Tribunal to cancel a Community Treatment Order
  • applications for cancellation of a Protected Estates Order
  • appeals to the Supreme Court

A grant of legal aid is also available, subject to a means and merit test, for representation for people, other than a person with disability, before the Guardianship Tribunal. A grant of legal aid allows the recipient to get a private lawyer to represent them.

For a detailed list of the legal aid policies for representation in inquiries held under the Mental Health Act 2007 (NSW), click here or phone the MHAS on (02) 9745 4277.

The policy of Legal Aid NSW is that, where possible, people who are getting legal assistance in mental health matters are represented by a lawyer from the MHAS. Some representation is, however, provided by private solicitors acting on a grant of legal aid.

The MHAS will accept reverse charge telephone calls from people with enquiries outside the Sydney area, and will arrange for interpreters where necessary.

You can contact the MHAS by calling 02 9745 4277, or click here to go to the MHAS website

10F.6.2: Australian Centre for Disability Law (ACDL) 

The Australian Centre for Disability Law (ACDL) is a Community Legal Centre that provides free legal advice, and sometimes legal representation, in disability discrimination cases and disability and human rights cases only.

For information on the right to equality and discrimination laws, click here.

You can get legal advice by phone from the ACDL on Tuesdays, Wednesdays and Fridays from 9.30 am to 12.30 pm.

The Australian Centre for Disability Law (ACDL) is a Community Legal Centre that provides free legal advice, and sometimes legal representation, in disability discrimination cases only.

For information on the right to equality and discrimination laws, click here.

You can get legal advice by phone from the ACDL on Tuesdays, Wednesdays and Fridays from 9.30 am to 12.30 pm.

Freecall: 1800 800 708*
Freecall TTY: 1800 644 419*
Fax: (02) 9370 3131
Postal address: PO Box 989
STRAWBERRY HILLS NSW 2012

E-mail: adviceline@disabilitylaw.org.au
Website: www.disabilitylaw.org.au

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

10F.6.3: Intellectual Disability Rights Service

The Intellectual Disability Rights Service (IDRS) is a Community Legal Centre that provides free legal advice and information for people with an intellectual disability or others acting on their behalf within NSW. Initial advice is provided over the phone by appointment.

Click here to go to the IDRS website

IDRS also runs the Criminal Justice Support Network (CJSN). The Criminal Justice Support Network (CJSN) is a state-wide support and information service for people with an intellectual disability who are victims, witnesses, suspects or defendants in criminal matters. 

For more information about CJSN role in supporting people with intellectual disability who have to go to Court click here.

To get a support person or legal advice for a person with intellectual disability in police custody, please call 1300 665 908.*

For more information about CJSN role in supporting people with an intellectual disability in Police custody click here

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

10F.6.4: Homeless Persons' Legal Service (HPLS)

If you are homeless or at risk of becoming homeless, you can get initial legal advice and possibly have some other legal work undertaken by the Homeless Persons’ Legal Service. Legal advice is provided free of charge at HPLS clinics.

Click here for the location and times of the clinics.

HPLS provides advice and representation to people who are homeless or at risk of homelessness in the following matters: 

  • Civil and administrative law
  • Housing and tenancy
  • Fines and infringement/penalty notices
  • Social Security/Centrelink
  • Consumer credit, debt and bankruptcy
  • Guardianship, administration and problems with State Trustees
  • Victims of crime assistance and compensation
  • Employment
  • Discrimination
  • Mental health
  • Minor criminal cases
  • Criminal law
  • Family law
  • Immigration
  • Personal injury
  • Wills and estates

HPLS can help people who are homeless or at risk of homelessness by giving them general information about the law and a referral to another legal service provider in the following matters:

You can contact HPLS on (02) 8898 6545.

10F.6.5: Aged-care Rights Service (TARS) - Older Persons Legal Service

The Aged-care Rights Service (TARS) is a Community Legal Centre that provides advice and advocacy for the residents of Commonwealth funded hostels and nursing homes, self-care retirement villages and recipients of in-home aged care in NSW. TARS also provides information on the costs associated with entering an aged care home and gives advice on retirement village contracts.

TARS also runs the Older Persons Legal Service. This service gives legal advice to 'older people who are socially or economically disadvantaged' on the following matters:

  • Consumer issues: debt management, certain contractual matters and unfair contracts, provision of goods and services.
  • Human rights matters: age discrimination, financial abuse by relatives and carers, assistance with access to the administration of state and Commonwealth laws and programs.
  • Social security: if an interaction with the welfare systems fails.
  • Alternative decision-making: issues involving the capacity to make financial care decisions, powers of attorney and enduring guardianship.

Both services can be contacted at:

Phone: (02) 9281 3600
Fax: (02) 9281 3672
Freecall: 1800 424 079*

Address: Level 4, 418A Elizabeth St

SURRY HILLS NSW 2010

Users who are deaf or have a hearing or speech impairment can call through the National Relay Service: TTY users phone 133 677* then ask for (02) 9281 3600.

Speak and Listen (speech to speech relay) users phone 1300 555 727* then ask for (02) 9281 3600.

Internet relay users connect to the National Relay Service (see http://www.relayservice.com.au for details) and then ask for (02) 9281 3600.

Office hours are 9.00 am to 4.30 pm Monday to Friday.

Click here to go to TARS website, which also provides information about the Older Persons Legal Service

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

10F.6.6: Community Legal Centres

Community Legal Centres (CLCs) can either be local or specialist legal centres that provide free legal advice and representation to the local community or on particular areas of the law or to specific client groups, such as tenants, or people with intellectual disability.

Click here for a list of Community Legal Centres in NSW.

Many local CLCs have evening drop-in advice sessions. You should check the list of CLCs to find out if there is a local CLC near you.

You should contact CLCs by telephone before you visit them to get advice and/or representation. The CLC can then tell you whether they can help you and when, and if, they can provide a lawyer to give you advice. Sometimes Community Legal Centres have particular times when volunteer and/or staff lawyers are available to give free legal advice. Sometimes these are evening sessions.

The specialist CLCs generally provide services across NSW and it is best to contact them by telephone to find out if they are the right service to assist you. The specialist CLCs that are most likely to be able to assist with legal problems related to mental illness are:

  • The Australian Centre for Disability Law (ACDL)
  • The Intellectual Disability Rights Service (IDRS)
  • The Homeless Persons’ Legal Service (HPLS)
  • The Aged Care Rights Services (TARS)

10F.7: Aboriginal Legal Service (NSW/ACT) (ALS)

Aboriginal and Torres Strait Islander people can access the Aboriginal Legal Service (ALS) for advice and representation. The ALS in NSW almost exclusively provides this advice and representation in criminal matters, apprehended violence matters and care and protection matters.

Click here to go to their website for office locations and contact details.

10F.8: PRO BONO Legal Services

Pro bono legal services are legal services that are provided by private lawyers at no or low cost to the client. 'Pro bono' means 'for the public good'. Many private law firms do work for clients on a pro bono basis. The easiest way to find out if there is a firm or private lawyer that will help you with your legal problem on a pro bono basis is to contact one of the pro bono referral schemes that operate in NSW:

  • The Public Interest Law Clearing House (PILCH) NSW
  • The Law Society of NSW Pro Bono Scheme
  • The NSW Bar Association Legal Assistance Referral Scheme

10F.8.1: Public Interest Law Clearing House (PILCH) NSW

PILCH NSW may help you to find representation from private lawyers willing to act pro bono in public interest cases.

'Public Interest' is interpreted to include issues that particularly impact on disadvantaged, vulnerable and marginalised groups or raise matters of broad public concern.

For PILCH NSW, public interest issues can arise across a range of issues and legal topics including accountancy, corporate law, credit and debt, discrimination, employment, human rights, administrative law, homelessness, environmental matters, criminal, immigration, associations' management and international law.

PILCH NSW is not like Legal Aid. A matter could have considerable merit but still not be seen as a public interest matter.

PILCH can be contacted by:

Phone: (02) 9114 1793
E-mail: info@pilchnsw.org.au

Postal address: GPO Box 863
SYDNEY NSW 2000

10F.8.2: The Law Society of NSW - Pro Bono Scheme

If you have been refused legal aid, and you have ongoing legal work to be performed, then you should consider approaching the NSW Law Society under this scheme.

The Law Society of NSW operates the Pro Bono Scheme, which co-ordinates referrals of clients to law firms, which are willing to provide legal assistance on a pro bono basis. The Pro Bono Scheme has means, needs and merit tests.

The criteria and guidelines for pro bono referrals to law firms follow a three-step process:

  • The client must have been refused legal aid for the relevant proceedings; 
  • A means and merit test is applied; 
  • The matter must fall within the Scheme's guidelines, i.e., it must be within an area of law included by the scheme.

The case must also have a reasonable prospect of success.

Matters, in which lawyers will undertake legal work for you under the pro bono scheme, include:

  • Administrative law
  • Apprehended Violence Order applications
  • Business law in relation to non-profit organisations
  • Children's care and protection
  • Criminal law
  • Debt and credit matters
  • Discrimination matters
  • Employment and industrial law
  • Family law (limited to children's matters)
  • Immigration law
  • Tenancy matters
  • Wills and estates

Areas that are excluded from the Pro Bono Scheme include: business law, save in exceptional circumstances; child maintenance matters; defamation matters; defended apprehended violence orders; disputes about legal costs; family law property disputes; local government and planning disputes; medical negligence claims; motor vehicle accidents/traffic matters; neighbourhood disputes; personal injury claims; professional negligence claims; property and conveyancing matters; victim's compensation claims.

You can apply by calling Law Access NSW on 1300 888 529,* or you can click here to go to the Law Society of NSW website to download the application form.

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

10F.8.3: NSW Bar Association Legal Assistance Referral Scheme

If you are going to Court and cannot afford legal representation, it may be possible to get a barrister to appear for you for free under this scheme. You must have a hearing or trial date before you can make a request under this scheme.

To apply, contact the NSW Bar Association Legal Assistance Referral Scheme at Selborne Chambers:

Phone: (02) 9232 4055
Fax: (02) 9221 1149
Street address: 174 Phillip Street
SYDNEY NSW 2000

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 31 August 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.