A question of justice: Exploring how the civil justice system responds to mental health and learning disabilities

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Omar Salem
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27 July 2021

By Omar Salem

The justice system has exceptional power to shape the course of people’s lives. The criminal justice system can take away someone’s freedom through imprisonment; the civil justice system can decide whether an employee has been unfairly dismissed or whether a child should be taken into care. Often these decisions will involve people with mental health conditions or learning disabilities and, especially given the magnitude of the decisions being made, it is vital that they are treated fairly by the justice system. This means that the justice system should seek to promote wellbeing and good mental health, should take decisions based on a thorough understanding of mental health and learning disabilities, and that people should not be unfairly discriminated against because of their mental health or learning disability.

There has been some focus on the intersections between mental health and the criminal justice system, particularly through the Bradley Report, a review of people with mental health conditions or learning disabilities in the criminal justice system. This came up with important recommendations that have been acted upon, such as liaison and diversion. However, there are a number of areas in the civil justice system where there are concerns about the treatment of people living with mental health problems or learning disabilities.

For instance, there has been a surge in employment tribunal disability discrimination claims, reportedly driven by an increase in claims relating to mental health. In this context, it is important that there be scrutiny of how lawyers and employment tribunals address mental health, whether it is the basis of a claim or is a factor in a case.

The family courts have the power to take children away from their families and place them into care, as well as determining contact arrangements for children. It is essential that the way a case is handled by them both safeguards children and operates with an informed understanding of mental health and learning disabilities, treating people with these conditions fairly. Greater training and resourcing in this area is likely to help with both. Better provision by the NHS to support people with mental health conditions or learning disabilities is also needed.

There are a number of areas where action is needed in the justice system to ensure that people with mental health difficulties or learning disabilities are treated fairly. This will involve exploring:

  • How the justice system could operate to better safeguard the mental health and wellbeing of those participating in it, including those with learning disabilities.
  • The support available for people with mental health conditions or learning disabilities when interacting with the justice system.
  • How a better understanding of mental health and learning disabilities could improve the justice system.
  • The impact of legal aid cuts on people with mental health conditions and learning disabilities.
  • The impact and effectiveness of the Equality Act 2010 in relation to the handling of mental health conditions and learning disabilities by the justice system.
  • Whether additional training on mental health and learning disabilities is needed for judges, magistrates and lawyers.
  • Whether additional guidance is required for courts, solicitors and barristers, in relation to the handling of mental health and learning disabilities.
  • Whether the codes of conduct that apply to solicitors and barristers should be updated to better cover mental health and learning disabilities.
  • Whether better mechanisms for redress are needed when the justice system does not deal with mental health or learning disabilities appropriately.

In all these areas, the experiences of people with mental health conditions or learning disabilities when interacting with the justice system must be at the heart of efforts to improve how the system works.

This blog aims to encourage a discussion about how the justice system deals with mental health and learning disabilities. We need a justice system which treats people with mental health difficulties and learning disabilities fairly. If you would like to help make this a reality or have ideas or views on this issue, please get in touch with me at omar@omarsalem.com.


Omar Salem is a solicitor. He writes in a personal capacity.

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