Focus: LAO seeks ‘better way’ on mental-health matters

Toronto lawyer who focuses on mental-health issues is commending Legal Aid Ontario for developing a strategy to better help clients like hers but worries its approach may be heading in the wrong direction.

“In my personal capacity as a mental-health lawyer . . . I guess I commend legal aid for making sure that the mentally ill have access to justice,” says Anita Szigeti, who has represented about 6,000 people with mental illnesses over the last 22 years.

But with LAO raising the possibility of having its own staff lawyers providing services at places like drop-in centres and social services agencies, Szigeti worries it may divert resources away from where she feels its priority should be: the private bar and the certificate system. “A lot of this isn’t LAO’s problem,” she says, suggesting the proposal would cross the line of having lawyers start providing social services by, for example, helping clients fill out housing applications at drop-in centres.

“It’s for other professionals to do,” she adds.

LAO released the discussion paper last week as it seeks to develop a strategy for improving services to people with mental-health issues.

“What we’re trying to do is reconfigure our services so we can meet the needs of our clientele more effectively,” says Nye Thomas, LAO’s director general of policy and strategic research.

As Thomas points out, mental health is a significant issue among many of the people assisted by LAO. “Legal Aid Ontario, like many other social service providers, has come to the recognition that there’s a very high prevalence within our clientele,” he says.

Statistics, in fact, note that 73 per cent of LAO’s certificate clients receive support from the Ontario Disability Support Program or Ontario Works. With mental illness a factor for 60 per cent of adult ODSP recipients and 25 per cent of those on Ontario Works, the discussion paper suggests “a very high percentage of LAO certificate clients have some form of mental illness.” In addition, criminal duty counsel estimate that about 30 to 40 per cent of those accused of crimes who use their services have a mental illness. It’s also a very significant factor in the youth criminal courts, according to the discussion paper.

The paper makes repeated references to the idea of providing more holistic services to clients. “Clients with mental illness frequently have several concurrent and intersecting legal needs,” the paper states. “While LAO’s broad mandate supports many of these issues, services are often spread across multiple legal advocates and sites with little co-ordination. Opportunities must be developed to assess the full range of client needs and to work with clients to ensure smooth transitions between various legal services.”

Among the objectives is providing better support to the lawyers, clinics, and other agencies that offer mental-health legal services. While the report discusses a number of options for doing that, LAO has already prioritized training as an area to start working on.

“There is a need to ensure that the lawyers who represent those clients are perfectly trained,” says Thomas, who notes LAO is working with the Mental Health Commission of Canada to develop a training curriculum on the issue. It will roll out the training for its own staff first and then offer it in other areas of the system, including the private bar and legal clinics, according to Thomas.

But according to Szigeti, private bar lawyers already have plenty of training. “We have all been trained,” she says. “We trained ourselves. We do a ton of education on mental health.”

In her view, then, the real barrier to providing legal services to people with mental-health issues is the “chronic underfunding of legal aid.”

That’s because, she notes, it generally takes three times as long to provide services to clients like hers due to the complex issues involved. At the same time, LAO has changed its rules around discretionary increases in ways that are problematic for her practice area. Block fees are another challenge given the need to spend so much more time with clients. “Block fees are very problematic for mental disorder matters,” says Szigeti.

“These individuals are unique by virtue of medical disorder,” she adds.

The discussion paper does, however, acknowledge many of these issues and Thomas notes that besides training, LAO is also looking at the tariff structure as “the current billing model doesn’t work very well for lawyers or clients.”

“The second issue has to do with the way that we pay private lawyers,” says Thomas, who notes the challenge of having a “transactional relationship” with the private bar on mental-health matters as many lawyers end up doing significant pro bono work on those files under the current system. That’s particularly true when clients have multiple legal needs related to areas such as criminal, family, and housing matters. “Right now, our legal aid tariff deals with these matters separately. We think there is a better way to do it,” says Thomas.

As a result, the questions LAO’s consultations will consider include how it can better support external service providers. “Updating private bar billing, tariffs, discretion, and disbursement arrangements was also recommended to better match the service needs of clients with mental illness,” the discussion paper states.

“These needs include continuity of counsel over many and successive legal issues and the ability to provide advocacy in less formal and proactive ways.”

For Szigeti, the overriding concern is avoiding any move towards a public-defender system for these types of matters. But she notes that “to the extent that the strategy includes a plan of action to build flexibility into the existing tariff . . . that is acutely needed.”

Following the release of the discussion paper last week, LAO has now begun consultations on it with lawyers, agencies, and other stakeholders. They’ll continue until Feb. 14. The questions to consider include:

•    Where are mental-health legal aid services most effectively delivered?

•    How should LAO define mental health?

•    How should LAO promote accessibility?

•    What should LAO do to promote holistic services?

•    How should training and
quality assurance be imp-lemented?

•    Should all high-needs mental-health clients be streamed to assured providers?

•    What are the mental-health needs in civil law, such as family law and housing?

•    How can LAO’s support for external service providers better serve the needs of clients with mental illness?

•    How should LAO ensure that mental-health competency is sustained indefinitely?

•    What are the best ways to facilitate linkages between criminal and civil legal needs?

•    What role should LAO take in systemic law reform efforts?

•    What legal services and practice areas should the mental-health strategy prioritize?

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