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Barriers to legal assistance and legal processes

The capacity of people with a cognitive impairment to effectively use the law or participate in legal processes is affected by a confluence of factors: factors relating to the individual and their circumstances, the interactions between individuals and legal systems, and the nature of the law and legal system itself.

Individuals and their circumstances

Lack of awareness of legal rights and options

An immediate barrier to pursuing a legal issue, evident in our research was a lack of awareness among people with cognitive impairment that the problem they faced had a legal resolution.³⁹ For instance, while crime victimisation was commonly reported as an issue for people with cognitive impairment, it remained unreported by some because it had not been understood that what had occurred was a criminal offence.⁴⁰ Remedies such as victim's compensation also remained out of reach because people were not aware that compensation was a possibility or that help was available to make such a claim.⁴¹ In its study, A Question of Justice, the Disability Council of NSW stated:

People with disabilities reported widespread confusion about their rights, how to exercise them, and lack of knowledge about available resources and supports. These were fundamental barriers and they identified community education about the justice system as essential for them to exercise their rights knowledgeably.⁴²

Higher dependence on others to take action

In the Foundation's report Public Consultations: a project to identify legal needs, pathways and barriers for disadvantaged people in NSW and later in Taking justice into custody, examples were given of the dependence of people with cognitive impairment on carers and others to address legal and other needs. At the very least, this may mean that there is an extra 'step' in the pathway to legal assistance. However, depending upon the severity of their disability, it may also result in people not being able to bring their own legal actions. Some people with severe impairment may be denied the opportunity to participate in court processes unless a third party can gain standing to bring an action on their behalf.⁴³

Fear of retribution

As noted in a submission from the Disability Council of NSW, fear of retribution for raising a complaint can sometimes also act as a barrier to accessing justice for people with a disability.⁴⁴ This is particularly the case when the person is dependent upon the person they have a grievance about, be it a family member or a service provider. In one study of 550 reported incidents of abuse against people with an intellectual disability living in supported accommodation, of the 7 per cent of the cases that were investigated or prosecuted, over half of the defendants were staff at the residence.⁴⁵ In the Foundation's study On the edge of justice, some people with a mental illness reported being afraid of complaining about conditions in boarding houses because they feared further abuse or eviction.⁴⁶

Interactions between individuals and the system

Disability or impairment is not recognised

A number of reports have highlighted that it can often be difficult for police, lawyers and other legal service providers to identify that a person has a cognitive impairment, and because of this some people do not get the appropriate support they need.⁴⁷ People may not think to mention that they have a disability or may actively try to hide their disability. For instance, some offenders with an intellectual disability have been found to be effective at disguising their lack of understanding, motivated by feelings of shame about their disability and a fear of being exposed.⁴⁸

There is also evidence to suggest that legal service providers do not always ask clients if they have a disability, and do not have consistent practices for collecting information about disability.⁴⁹ The Attorney General's Department's (AGD) Discussion Paper on the issue of capacity reflected on the need for a simple capacity assessment tool that could be used by a wide range of professionals, including lawyers and other court staff.⁵⁰ In response to feedback on the Discussion Paper, a Capacity Assessment Toolkit has been developed.⁵¹

Communication barriers

Another barrier raised in a number of the A2JLN studies related to difficulties in communication between legal practitioners and people with cognitive impairment.⁵² People reported having difficulties in telling their stories to lawyers and in understanding the advice lawyers gave them. In describing why she takes a case worker to meetings with lawyers, one inmate who had recently been released from jail said:

Further, in Taking justice into custody and No home, no justice?, respondents reported not admitting to their lawyer that they had not understood the advice given.⁵⁴ As a result lawyers were leaving conferences with cognitively impaired clients unaware that the client had not understood their advice. Communication difficulties can therefore arise from the inability of some interviewers to ascertain the person's level of communication and comprehension, and to adjust their questioning and the time they need to spend with clients accordingly.⁵⁵ An inability to understand the communication and comprehension levels of a client can pose a challenge to lawyers who do not have much time, are inexperienced, or who have preconceived ideas about dealing with people with cognitive impairment.⁵⁶ In The legal needs of older people it was suggested that:

Effective communication and sensitivity to complex client situations may be hampered by ageist attitude and organisational pressures arising from inappropriate allocations of time to clients, cost effectiveness and management of work loads.⁵⁷

In the Disability Council of NSW study, legal practitioners spoke of struggling with these issues in the absence of policies, resources and support. They did their best, but were limited by the culture they worked in, procedural requirements and assumptions, and the constraints of time, resources and training.⁵⁸

Misconceptions about people with cognitive impairment

Societal misconceptions about cognitive disability are also reported to be a barrier for people with a cognitive impairment when needing assistance and redress for legal problems. Reported stereotyping of people with intellectual disabilities in legal contexts included the perception that they are incompetent, untruthful and lack credibility, and in terms of sexual assault, more promiscuous and consenting.⁵⁹ Such misconceptions could affect their participation and outcomes in legal processes:

Commonly held perceptions of people with intellectual disability (for example, that they do not make credible witnesses, myths about sexuality) reduce the likelihood of charges actually being laid. Victims or witnesses may be seen as stupid, untruthful, and inconsistent in their recounting of events and easily flustered.⁶⁰

Due to these misconceptions, the police and courts may not believe that a crime has actually been committed against a person with an intellectual disability.⁶¹ Similar issues were raised in The legal needs of older people regarding the perceived difficulties lawyers expect to face in obtaining instructions from older people in nursing homes where allegations of abuse have been made:

It is difficult to get lawyers to take actions against nursing homes where elder abuse is alleged to have occurred, because such cases are perceived to be hard to take instructions on.⁶²

The Disability Council of NSW also reported that:

People with intellectual disabilities felt they were often judged to have less understanding and ability than they actually had. This was due to others not taking the time or effort to assess their needs or, indeed, ask them. As a result, they were often prevented from participating as fully as they were able.⁶³

Concern was expressed that such perceptions may result in police, lawyers and judicial officers treating people with a cognitive impairment as 'all alike': while the capacity of some people with a cognitive impairment is underestimated, the ability of others is overestimated. As Blyth states, '…when seeking to understand intellectual disability, it is important to remember that the key word is variation.'⁶⁴ In order to appropriately address people's needs, they need to be assessed on a case by case basis.

These stereotypes about people with cognitive impairments were reported to leave some people reluctant to seek help, believing that help would be unavailable and or that they would not be believed.⁶⁵ In Public Consultations, participants raised the issue that people with an acquired brain injury and people with a substance addiction may believe that their evidence will not be seen as credible in court, and that this belief may impact on their ability to participate with confidence in court and tribunal processes.⁶⁶

Anxiety, stress and legal processes

In Taking justice into custody the anxiety and stress arising from legal processes was reported to affect the capacity of some people to understand legal information and advice and act upon it. To illustrate, arrest, the criminal legal process and incarceration were all observed to be key stressors and crisis points for prisoners. Inmates described how anxiety, together with alcohol and other drug impairment and acute mental illness, affected their capacity to engage effectively with lawyers and the legal system early in their criminal legal processes.⁶⁷ A Legal Aid lawyer interviewed for the study commented:

While clearly a range of factors may be at play, the interaction between individual capacity and the stressful nature of legal processes appeared to add to the barriers in accessing justice that are faced by people with cognitive impairment.

Systemic barriers

The reliance on formal written processes

Another challenge for those with cognitive impairment is that legal proceedings are often heavily reliant on written information, both to commence a matter and as part of its process.Indeed some processes, such as receiving and paying a fine, are basically paper-based processes.

A key observation made in Taking justice into custody was that as a result of not being able to understand legal information and the legal process, inmates actually avoided seeking help — written or face to face — even when avoiding help was to their detriment:

When assistance is avoided, people's issues can further compound.

The complex and stressful nature of legal proceedings

Public Consultations reported 'the intimidating and alienating atmosphere of the courtroom' as the most commonly identified barrier to effective participation in the legal system for people with an intellectual disability.⁷¹ People with a cognitive impairment were reported to find giving evidence stressful and difficult, particularly when faced with tactics used to undermine their evidence. People may become flustered during cross-examination, and the cross-examiner's questioning technique may emphasise the person's disability.⁷² A Criminal Justice Support Network volunteer described the vulnerability of a client to this type of cross-examination:

The stress of legal proceedings was exacerbated for some participants by the length of the proceedings and the waiting during and between court hearings. Describing the local criminal courts, a lawyer observed:

Ironically, in this situation the matters described were stood down in the morning because the offender had complex needs, and to allow more time for the lawyer to speak with the client before the matter was heard. The impact of waiting and delay has also been raised in relation to family law cases, where again it could adversely affect people's participation in court:

Parents with psychiatric or intellectual disability were identified as being particularly disadvantaged by having to wait in crowds of anxious/angry people. The tension undermines their mental state and subsequently affects their presentation in court.⁷⁵

Perhaps one of the better understood difficulties arising from cognitive impairment is that people may find themselves in legal processes that they do not understand without appropriate support and information. Goodfellow and Camilleri reported that:

…in many cases victim/survivors with cognitive impairments experience difficulties understanding the law and legal processes including the language used, following events, recalling and describing the assault – particularly under pressure and when being cross-examined.⁷⁶

People with cognitive impairment may also have difficulties understanding the consequences of taking an oath and under the Evidence Act 1995 (NSW), may not be eligible to provide evidence. While the Evidence Act does not contain a definition of intellectual disability, section 13 relates to witnesses who lack capacity to give sworn evidence. Section 13(1) states:

A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

For a time, people who, due to disability, could not understand the meaning of an oath were sometimes allowed to give unsworn evidence. This is no longer the case.⁷⁷

Taking justice into custody highlighted the additional barriers to comprehension that can arise from the use of an audiovisual link (AVL) — a video link between prisons and the courts — as an alternative to having prisoner defendants physically transported to court for appearances. While many prisoners preferred AVL hearings for practical reasons (e.g. not having to be transported in trucks, not losing their position or place at their current prison), it was apparent that for people with cognitive impairment, AVL added another layer of confusion and obscurity to the proceedings. A Criminal Justice Support Network worker commented:

Alternative dispute resolution

Another form of legal process that people with cognitive impairment are exposed to is alternative dispute resolution (ADR). ADR is often put forward as a more accessible process than formal court proceedings. Benefits include lower costs and the more informal atmosphere. However, the National Alternative Dispute Resolution Council (NADRAC) suggests that people with an intellectual disability may not have the capacity to participate effectively in mediation processes due to the complexity of some of the laws and rules involved and a lack of available information and guidance.⁷⁹ In particular, in a process which may not include a legal representative or advocate, it may be difficult for cognitively impaired people to identify what is in their best interest, understand the process and then pursue their interest through the process, without appropriate assistance and support.⁸⁰ In the Public Consultations report:

Some disability advocates expressed concern regarding the ability of people with intellectual disability to effectively participate in ADR, due to the difficulties in identifying and articulating their own interests in an ADR setting, and the likely scenario that there will not be an equal power base between the participants.⁸¹

Under-resourcing of specialist services

There are legal services in NSW that provide specialised legal assistance to people with a cognitive impairment. These include the Intellectual Disability Rights Service (IDRS) and the Disability Discrimination Legal Centre. There are also programs such as the Criminal Justice Support Network, run by IDRS, that provide support to people with an intellectual disability who are being questioned by police or appearing in court.⁸² However there is evidence to suggest that these services may not have sufficient resources to meet the volume of legal needs of clients with a cognitive impairment.⁸³ In Public Consultations:

Submissions referred to difficulties associated with inadequate resourcing for the existing specialist legal services for people with intellectual disability. For example, the limited capacity of the Intellectual Disability Rights Service to provide assistance beyond referrals, or to provide legal assistance to the large number of people with intellectual disabilities within the prison system.⁸⁴

In the same report, the NSW Council for Intellectual Disability expressed concerns over the level of resourcing to the Guardianship Tribunal, the Public Guardian, and the Community Services Commission.⁸⁵ A lack of diversion programs or prisoner education programs that are appropriate for offenders with a cognitive impairment was also raised, with some roundtable participants commenting on '…the limited application and effectiveness of diversionary schemes in criminal law for people with an intellectual disability.'⁸⁶

Taking justice into custody also provided examples of intellectually disabled inmates not being able to get parole because of a lack of appropriate programs.⁸⁷ Discussing the type of programs that would be appropriate, the Framework Report found that offenders with an intellectual disability need support in developing general living skills as well as offence specific interventions. The report found that such courses were hard to find.⁸⁸ It also indicated that the Drug Court and the Youth Drug Court were reluctant to accept offenders with an intellectual disability into their diversion programs.

Foundation research indicates that under-resourcing of non-legal services for people with disability (e.g. housing, employment and health/support) can also affect access to justice.⁸⁹ Non-legal services can directly assist disadvantaged people with legal problems by way of ongoing support, advocacy, information and referral. The NSW Council for Intellectual Disabilities also highlighted this link, arguing that:

People with an intellectual disability often lack the support and supervision they need to help them live lawful and constructive lives.⁹⁰

Thus people with a cognitive impairment face a range of individual and systemic barriers to effectively participating in legal processes. However, A2JLN and other studies have also highlighted a range of strategies to address these barriers and increase access to justice for people with cognitive impairment.