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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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Increasing accessibility for people with a cognitive impairment

Strategies which aim to increase access to justice for people with cognitive impairment can be placed into three broad areas:
  • training advocates, support people and 'independent third persons' to assist people with a cognitive impairment to engage effectively with the legal system
  • providing appropriate information and training for people with a cognitive impairment
  • providing training for legal service providers, legal practitioners and court staff.

Advocates and support people

One way of assisting people with a cognitive impairment to effectively address their legal problems is to provide appropriate advocacy and support. As mentioned previously, a number of legal services in NSW provide assistance to people with a disability. These include the Disability Discrimination Legal Centre and the National Disability Advocacy Program Services. The IDRS (Intellectual Disability Rights Service) specialises in providing information, advice and representation to people with an intellectual disability who have a legal problem.

To protect the rights and interests of a person with an intellectual disability who is suspected of committing a crime, the police have an obligation to contact an 'independent third person' so that they can be present during police interviews. Currently the IDRS-run Criminal Justice Support Network (CJSN) provides a network of volunteer support workers and lawyers to assist people with an intellectual disability who come into contact with the criminal justice system at police stations, in court and in legal appointments. The service is available 24 hours and supports witnesses, victims and defendants with a cognitive impairment.

CJSN currently services Sydney, South NSW and Hunter regions. CJSN volunteers can assist a person to understand the issues, access legal assistance, attend meetings and/or court hearings, bring along the relevant papers, dress appropriately and act as a 'go between' between the person and the solicitor.91

Other reforms aimed at making legal processes more accessible for people with a cognitive impairment include courts allowing people with a cognitive impairment to have a support person nearby while giving evidence. Robinson cites an example of a magistrate using his or her discretion to ensure a witness could give evidence as competently as possible. To begin with, the case was adjourned for three weeks to allow for preparation time:

    When the case resumed, Amanda was able to give her evidence in 15 minute sessions, and was able to have her mother sit in the witness box with her for moral support.92

Information and training for participants in legal processes

The Western Australian Disability Services Commission (WADSC) suggests that people with cognitive impairment are able to participate effectively in legal processes and can make appropriate decisions if they are provided with information and support, stating that:

    …to be able to stand trial, people with intellectual disability need information they can understand, together with adequate time, support and teaching to assimilate and to understand the information.93

However, some stakeholders reported that courts and practitioners are not always aware of how to assist a person with a cognitive impairment to become better informed. Further, they may assume that a person with cognitive impairment does not understand the process because of the impairment, rather than realising that the person simply has not been informed about how to participate in a court process. The WADSC comments:
    The court should distinguish between informed and impaired, and people who are uninformed should have the right to access the necessary skills to stand trial.94

Recognising this, the Law Reform Commission (NSW) recommended that:
    All relevant government agencies responsible for informing the community generally about their rights and duties in relation to the criminal justice system should, so far as is practicable, ensure that they also prepare material that is appropriate for people with an intellectual disability.95

Examples of such material include:
  • So you have to go to court! A DVD which covers issues relevant to people with cognitive disabilities who need to go to the local court (produced by the NSW Attorney General's Department)
  • Bail conditions: don't break's just not worth it. An animated DVD, produced by the CJSN, to assist a person to understand what bail conditions are and the importance of not breaking them
  • Getting Arrested – What to do! A DVD produced by the CJSN, which traces the experience of a young man, when he is arrested. The DVD shows the viewer what happens and tells people what to do if they are arrested.96

Participants consulted for the Attorney General's Discussion Paper on the assessment of capacity favoured an approach which limited the assessment of legal or decision-making capacity to the specific circumstances and decisions in question. They found that this approach:
    …is useful as it recognises that capacity depends on the interaction between a person's underlying impairment and their circumstances. It promotes the provision of information and support to a person to enhance their capacity to make a particular decision and the review of the capacity assessment if circumstances change.97

Training for legal service providers

As indicated previously, training and information about cognitive impairment may assist service providers, legal practitioners and court staff to meet the needs of cognitively impaired people, including information on how cognitive impairment may affect offending behaviour, manner, comprehension, responses and performance in court.98 Participants in the Disability Council of NSW study:

    ….advocated compulsory disability awareness training initiatives. These could be an integrated requirement of professional qualification and practice. The earlier the training, the better.99

The Attorney General's Discussion Paper on capacity issues recommends providing legal and non-legal professionals who may have to deal with client capacity issues with better access to advice and guidelines.100 The Capacity Assessment Toolkit produced by the Attorney General's Department in response to this paper is an example of such a resource.101 Another example is Client Capacity Guidelines developed by the The Law Society of NSW to assist solicitors when working with a client who may have limited capacity.102


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