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Why use litigation?

Strategic campaigning – lessons learnt Using test cases / litigation to advocate for systemic change Catherine Leslie Lawyer and policy officer. Why use litigation?. Case studies are powerful illustrations Core work as legal services – links with policy/law reform

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Why use litigation?

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  1. Strategic campaigning – lessons learntUsing test cases / litigation to advocate for systemic change Catherine Leslie Lawyer and policy officer

  2. Why use litigation? Case studies are powerful illustrations Core work as legal services – links with policy/law reform Shine a light in dark places – a ‘stick’ to make agencies/public authorities improve practice Building capacity of the CLC, and empowering for others in client group

  3. MHLC’s experience – key cases Breach of right to a fair hearing for failure to review involuntary psychiatric treatment for over 2 years; test case on Victorian Charter • Krackev Mental Health Review Board & Ors(General) [2009] VCAT 646 (August 2009) Vindication of client as ‘fit and proper’ person to drive a taxi, despite his forensic psychiatric history • Director of Public Transport v XFJ [2011] VSCA 302 (11 October 2011) Preventing forced sale of our client’s home affirmed his right to choose where to live and confirmed that Administration Orders cannot be used to compel psychiatric treatment • PJB v Melbourne Health & anor (‘Patrick's case’) [2011] VSC 327 (19 July 2011)

  4. Identifying test case / strategic litigation? Strong casework base to draw from Aligns with objectives of CLC ‘Accidental’ test case vs planned campaign

  5. Resources Limited resources at CLC • Running of case • Other aspects of law reform work MHLC’s experience • Use of pro bono counsel – PILCH • CLC lawyers run the case – builds capacity • Flexible in practice, incl. pro bono representation scheme

  6. Media

  7. Using media Promote outcome of decision – broad impact Humanise problem and re-focus community/media debate Difficult to counter prevailing attitudes & prejudice MHLC case studies – privacy critical • Sensitive nature of health and person information • Stigmatising attitudes to people with mental illness in community and media • Case by case basis

  8. Using case studies Ongoing law reform work – identified law reform issues and others De-identify client and relevant health service Sharing knowledge in sector – empowering other advocates, peak bodies, consumers

  9. Reflections and learnings Managing client’s expectations of outcome, process, media Need to be flexible Opportunities: • Effective & efficient ways of identifying test cases • Media capacity & presence • Improve planning and coordination across casework, law reform and education activities

  10. For more information incl. accessing materials: www.communitylaw.org.au/mentalhealth or tel: 9629 4422 Catherine Leslie – catherine.leslie@mhlc.org.au/mentalhealth

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