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The Duty Solicitor's role with defendants who have a mental impairment or illness

The role of the duty solicitor is not that of a social worker or a specialist psychiatrist. The duty solicitor’s job is to assist with the legal problem and to act on a defendant’s instructions if he or she is fit to instruct.

LIMITATIONS ON THE ROLE OF THE DUTY SOLICITOR

A defendant may or may not have insight into his or her mental impairment or illness, and may or may not be compliant with recommended medication, therapy and counselling. While the duty solicitor needs to be aware of any current treatment regime that the defendant is following and its effectiveness, the duty solicitor should not give any assurance to the Court on the defendant’s behalf about the defendant’s past or future compliance with treatment if that assurance is not consistent with the scope of his or her instructions.

Support systems

There may be occasions when it is helpful to be aware of current mental health support systems available in South Australia . SA Health offers a range of public mental health services for adults, children and adolescents, and older persons. SA Health’s Mental Health Triage Service provides a 24 hour, 7 day a week service for adults with serious mental illness (telephone 13 14 65). It may also be helpful to be familiar with non-government organisations which provide services and support in the mental health sector [see the SA Health website for a list of mental health services and contact details]. However, it is not the duty solicitor’s role to be the first point of contact in referring the defendant to support services - that is the role of the social worker.

Confidentiality

In practice it would be extremely rare for a duty solicitor to be requesting confidential information from a defendant’s treating psychiatrist. Where such information is considered necessary in a defendant’s interest, it is an indication that the matter is complex enough and serious enough to need an adjournment for a senior practitioner to represent that person. However, if such a request is necessary, some important considerations of confidentiality are set out below.

Appropriate instructions

Should the duty solicitor need to make submissions as to a defendant’s mental illness or impairment, they must have the defendant’s signed Medical Authority when a request for details of past or current medical or psychiatric diagnosis and treatment is made. That Authority should be forwarded to the doctor when requesting the information.

When making submissions to the Court, the duty solicitor should not disclose information thus obtained without the defendant’s clear knowledge and instructions. The defendant should read or have read to him or her any bail assessment report or psychiatric report (whether ordered by the Court or requested by the duty solicitor), and the duty solicitor should seek instructions as to any disputed aspects of such reports.

LIMITATIONS ON THE ROLE OF THE DUTY SOLICITOR

Where the defendant’s support systems appear not to be working effectively, and if the defendant so instructs, a duty solicitor may submit to the Court alternatives which might be put in place to help the defendant answer bail or avoid re-offending.

The duty solicitor should not of their own initiative propose bail or bond conditions which may simply set up the defendant to fail.

Contested psychiatric or medical reports

If a defendant disputes any aspect of a report sought independently by a duty solicitor, it should not be tendered to the Court. It may be possible to discuss the contentious issue with the author and ask whether the disputed section may be deleted, provided that such deletion would not distort the conclusions that the author has formed.

Where the report has been ordered by the Court, the duty solicitor has no control over whether or not it is tendered. If there are contentious issues in a court-ordered report, the duty solicitor should put the defendant’s instructions as to those disputed issues, or ask for the report’s author be called to the Court for cross-examination.

DO NOT ASK THE COURT TO ORDER A REPORT WITHOUT THE CLIENT’S INSTRUCTIONS
If the duty solicitor is not satisfied that the defendant’s instructions proceed from an aware mind, they cannot consider themselves to be acting in the professional solicitor/client relationship, because they effectively have no instructions on which to act.

Where the duty solicitor is not satisfied that the solicitor/client relationship exists, they must not take the step of asking the Court to order a psychiatric report. The recommendations of such a report may not be what the defendant wants, however practical they may seem. The Magistrate may order a report of the Court’s own motion, but it is not the duty solicitor's place to seek one without clear instructions from the defendant to do so.
The Duty Solicitor's role with defendants who have a mental impairment or illness  :  Last Revised: Wed May 1st 2019