Getting instructions from your client

Getting instructions from your client

Lawyers can only take instructions from clients with the capacity to instruct.

Capacity generally

In a general sense, capacity is a legal rather than clinical construct and is sometimes referred to as ‘legal capacity’.

Capacity is not a blanket concept; it is decision-specific and can fluctuate over time. Generally it involves considering:

  • a person’s ability to understand and retain information relevant to the particular decision that needs to be made
  • using or weighing up that information to come to a decision; and
  • communicating that decision in some way.

For some decisions (such as entering contracts or making a Will) there is a specific legal test, or threshold of understanding required for capacity to make that decision. However, generally speaking, the starting point is that all adults are presumed to have capacity to make the particular decision facing them.

Capacity to instruct in the mental health law context

In the context of Mental Health Tribunal advocacy, a lawyer should always start from the presumption the person has capacity to give instructions and make decisions. This also applies to young people.

The Mental Health Act 2014 (Vic) also outlines a specific test for (and presumption of) capacity to provide informed consent to treatment, which is particularly relevant in the case of electroconvulsive treatment (ECT).

Most people can give instructions

Most people – including those with disabilities such as mental illness – can give meaningful instructions based on their own personal values and preferences. Having a disability does not mean that the person lacks capacity to make a particular decision nor is unable to give instructions.

The UN Convention on the Rights of Persons with Disabilities (which Australia has ratified) also reinforces that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ (Article 12(2)).

Just because a person makes a decision that others regard as unwise, or because they don’t make the best possible decision, does not necessarily mean that they lack capacity to give instructions. Most people (regardless of ability or diagnosis) make irrational decisions at times or decisions that appear to be risky or not in their objective best interests. This does not equate to being unable to give instructions.

Practice tip

Generally, if a person understands at a basic level your role as their lawyer and can communicate instructions around their mental health treatment relevant to the decision the tribunal needs to make then they have the capacity to instruct you.

For example, ’I don’t believe I have a mental illness’, ’I don’t like the medication I’ve been given – it has awful side effects’, ‘I want to go home where I can see my GP instead’ are all relevant instructions. Whether you ultimately decide whether you are able to represent your client before the tribunal is a different question.

Having difficulty getting instructions

Even though it may be difficult to get instructions, or the instructions are limited, or they change, it is unusual for a person to be unable to provide instructions at all on their Mental Health Tribunal hearing.

For example, even if your client is experiencing delusions they will often be able to provide instructions about some aspect of their experience of treatment in hospital or being forced to attend the community mental health service, or how they feel about their medication.

People can and do change their minds. Your client’s views about a particular medication may also change over time, but this doesn’t necessarily mean they can’t give instructions.

Where a person is unable to communicate (for example, if they are catatonic) then they may lack capacity to instruct. Such situations, however, are rare and often only temporary. A person is likely to regain their capacity once the catatonic symptoms resolve.

Acting on instructions not ‘best interests’ at the tribunal

Acting on a person’s instructions, rather than what the lawyer may perceive to be their best interests is particularly important at the Mental Health Tribunal given the consequences of the hearing can impact profoundly on their rights. The person's treating team will be presenting their case according to what they perceive as in the person's best interests.

The presumption that a person has the capacity to instruct and the process of acting on instructions reinforces their right to autonomy, supported decision-making and dignity.

Lawyers can use their client’s instructions to help enliven these principles by illustrating what their client regards as ’least restrictive treatment’ and ’recovery’ having regard to the dignity of risk.

Taking the time to understand and advocate on the basis of a client’s instructions helps to promote their effective participation in the hearing and other decision-making processes.

Whilst the treating team and the tribunal and even support people may be motivated to act in the person’s best interests, it is ultimately the client’s instructions that determine how the lawyer acts and the submissions they may make on the person’s behalf.

Tips for obtaining your client’s instructions

  • Take instructions in person – some clients find it more difficult to engage over the phone and getting instructions in person can often be more effective.
  • Get to know your client – spending time building rapport with your client can help you understand what is important to them.
  • Ask for reasons or motivations – ask about your client’s reasons for their instructions. What is important to them? How do they understand the issues? Do they need more information?
  • Explain your role – ensure your client clearly understands what assistance you can and can’t provide and, if you are representing them at the Mental Health Tribunal, explain what that involves.
  • Effectively manage your client’s expectations – be clear about the boundaries of your role as a lawyer.
  • Remain impartial and professional – be clear with the client that you’re a lawyer, not a doctor, and that it is not your role to say whether they do or do not have a mental illness. Refer all medical questions to a doctor.
  • Dealing with family members – remember that they may be acting in your client’s best interests and this may not always be of help to your client’s case. Remember to only take instructions from your client directly.
  • Responding to client’s symptoms – try not to engage in a discussion about the veracity of a client’s delusions. You can acknowledge their experiences, but then move on.
  • Communicate in a way they can best understand – be responsive to your client’s communication preferences so you can most effectively explain relevant information, their legal options and the consequences of those options. Use an interpreter where required and be mindful of your use of language and jargon.
  • Choose an appropriate time and place – some clients feel more alert and better able to process information or communicate in the morning, others in the afternoon. This can depend on when they take their medication and its effects. It can also be affected by receiving electroconvulsive treatment (ECT). Some clients prefer a quiet comfortable room in which to talk. You may need to give your client more time to consider their options and provide instructions.
  • Check your instructions – if you are uncertain of your instructions, they appear contradictory or have changed, you can check your instructions several times in different ways, including just before the hearing. Limited instructions can be enough.
  • Test your client’s instructions – It’s a good idea to test your client’s instructions against the evidence and the criteria by pre-empting some of the questions the tribunal might ask. For example, ‘The tribunal might ask you about [ ... ] what do you say about that?’
  • If you are unable to act, be clear about why – at times you may not be able to do as your client has instructed. For example, you may need to explain that you cannot positively mislead the tribunal. There may also be another service that is better placed to assist your client, e.g. The Independent Mental Health Advocacy service (IMHA) may be more appropriate to help your client negotiate a change of medication.

More information

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For more information about mental health treatment and services, see the Independent Mental Health Advocacy service (IMHA) website.