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Research Report: Cognitive impairment, legal need and access to justice, Justice issues paper 10
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Cognitive impairment, legal need and access to justice, Justice issues paper 10  ( 2009 )  Cite this report

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The impact of cognitive impairment on the legal issues people face and their capacity to address these issues has emerged as a theme in the Foundation's qualitative and quantitative A2JLN research. Cognitive impairment can arise from an intellectual disability, acquired brain injury, mental illness, alcohol and other drug related impairment and dementia. Anxiety and stress may also affect the capacity of people to understand and engage in legal processes at times of crisis (including critical points in the legal process itself). In the Foundation's research, the effects of cognitive impairment were observed among older people, among the homeless, among people with mental illness, among prisoners, and in a survey of six disadvantaged regions in NSW.

The A2JLN research has illustrated how people with a cognitive impairment may experience legal issues which specifically relate to their impairment, such as personal injury compensation, substitute decision making and guardianship issues. In addition, this group are vulnerable to socio-economic disadvantage which in turn increases their susceptibility to a range of further legal issues including debt, housing and social security related issues. Some of the characteristics that render people vulnerable to legal problems appeared also to hinder the resolution of those issues.

To begin with, people may not take legal action as they are not aware that the issue they face is a legal issue or has a possible legal resolution. Difficulties in understanding legal information or advice and communicating with lawyers can add to the challenge of people pursuing a matter. Finally, the complexity, stressful and often drawn-out nature of legal processes can make it difficult for cognitively impaired people to pursue their interest through to a satisfactory outcome. The problems of access to justice for people with a cognitive impairment may be further compounded by the limited capacity of some legal professionals (in terms of time and skills) to recognise that someone has a cognitive impairment and to appropriately communicate with and support that person.

Negative misconceptions about people with cognitive impairments held by some members of the legal and law enforcement professions can sometimes result in a failure to believe these people and in a failure to take appropriate action on their behalf. This lack of action can contribute to a low sense of entitlement amongst people with a cognitive impairment and a fear of not being believed. Under these circumstances, a person may not voluntarily admit to having a disability and thus may fail to receive the specialised assistance that would enable effective participation in legal processes.

The A2JLN research program focused on legal need and barriers to accessing justice, rather than on specific strategies to address the identified needs. However, strategies to enable people with a cognitive impairment to seek legal assistance and participate more effectively in legal processes became apparent during the research. These strategies included providing appropriate advocacy and support to people with cognitive impairment, and offering training and information for participants in legal processes who have cognitive impairment. Training for service providers, legal practitioners and court staff on how cognitive impairment may affect offending behaviour and manner, responses and performance in court, and on how to communicate effectively with people with cognitive impairment, was also put forward as a way to improve access to justice.

This paper has brought together valuable research about the legal need and access to justice issues facing people with cognitive impairment, particular from the A2JLN research program. There is more to learn, particularly about the experiences of people with a cognitive impairment in civil law processes, in family law and child protection processes, and in substitute decision making. It may also be valuable in future to focus on assessing strategies that can be used to increase the capacity of people with cognitive impairment to access and use the law to their advantage, and the capacity of the legal system to appropriately serve and assist this group.


Gray, A, Forell, S & Clarke, S 2009, Cognitive impairment, legal need and access to justice, Justice issues paper 10, Law and Justice Foundation of NSW, Sydney