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Advising clients with cognitive impairments and mental health issues
Here, two senior criminal law practitioners reflect on how lawyers can provide advice to clients with mental health issues and impairments.
Jess Feyder
In October of last year, 52-year-old Sydney man Scott White unexpectedly pleaded guilty to murder, for which he was handed a 12-year jail sentence. More than 30 years after Scott Johnson’s body was discovered at the base of cliffs at North Head, Mr White surprised his lawyers by pleading guilty during a pre-trial hearing at the beginning of last year despite instructing his lawyers he wished to plead not guilty for two years.
Mr White applied to have the plea of guilty withdrawn but was refused. He was subsequently sentenced and made an appeal to the Court of Criminal Appeal. On 18 November, he was permitted to withdraw his guilty plea, with his conviction and sentence being quashed by a three-justice bench, with the matter being remitted.
Mr White’s barrister, Tim Game SC, has described his client as “a man with significant mental difficulties, to say the least”, ABC News reported in October.
The matter has drawn into the foreground the question of how lawyers can best advise clients with cognitive impairments and mental health issues, and follows Dr Hannah Korrel’s recent appearance on The Lawyers Weekly Show, during which the author and neuropsychologist discussed how best lawyers can engage such health professionals and glean the most pertinent expert opinion.
“Often clients may not have strong speaking or writing skills; they may have mental health challenges or other vulnerabilities,” explained Jahan Kalantar, managing partner at Executive Legal.
“Increasingly, lawyers must ensure that they are taking into consideration all of the factors that affect their client when providing advice and explaining the legal process,” he continued.
“To the extent possible, lawyers should ensure that these matters are properly explored, and allowances or strategies are used to make sure that these issues are properly assessed,” Mr Kalantar told Lawyers Weekly.
Mr White’s lawyers handled the matter very ethically and competently, explained Andrew Tiedt, director and principal at J Sutton Associates. Similarly, there are ways lawyers can advise clients with personal vulnerabilities, he said.
“Advice needs to be tailored to the client receiving the advice, taking into account such things as mental health, reading ability, intelligence, and legal literacy,” Mr Tiedt said to Lawyers Weekly.
“For example, if a client has a mental health issue that affects recollection, then any advice should be given in writing.
“A person with depression or anxiety may need advice given orally in the presence of a support person before the advice is confirmed in writing.
“A person with cognitive impairment will need the advice expressed in terms they can understand.”
Mr Kalantar and Mr Tiedt reflected on the need for lawyers to know personal details about a client to consider how it may impact their performance in high-pressure situations like court appearances.
“It is impossible to predict with certainty how each person will perform in a situation like a courtroom,” Mr Kalantar noted.
Lawyers are expected to give a summary to the client of what will happen during the court process, who plays what role and what they are expected to say or do, he continued, this means that “understanding your client will make it easier for you to ensure that you do this properly and that you can provide the best advice that is customised to them”.
“Whilst it is important to have background knowledge of a client, there are limitations to what you can expect a client to divulge, especially if it does not have any direct relevance to the present legal issue that they need assistance with,” Mr Tiedt commented.
Lawyers are not mental health professionals, but they are able to be sensitive to potential issues or personal vulnerabilities and do what they can to make sure advice is tailored to a client’s particular circumstances, explained Mr Tiedt.
Mr Kalantar reflected on how courts should consider plea withdrawals that relate to mental health issues or impairments.
“Courts need to carefully ensure that they properly review any case where a plea traversal is made,” he said.
“Plea traversals are complex matters, and they can occur for a large variety of reasons and with a large number of factors that play a role,” Mr Kalantar mused. “It is important that each case be judged on its merits.”
