In our studies these conditions appeared to affect the legal needs and access to justice of a broad range of people including homeless people, older people, people with mental health issues and prisoners. For example, the Foundation's study into the legal needs of homeless people, No home, no justice? noted:
|I didn't remember too much of the day — I felt so shocked. I got arrested and they were asking me all kind of questions, took all my stuff, and I don't really know, but, 'cause I was really shocked, and I was crying a lot. 3|
Cognitive impairment and multiple disadvantage
Both our research and the broader literature have drawn strong associations between cognitive disability and other forms of disadvantage such as poverty/low income, low levels of education, public housing and being on social security benefits.4 It has been argued that the disadvantaged circumstances of people with a disability can increase their susceptibility to legal issues and compound the barriers to these issues being resolved.5 In Triple disadvantage: out of sight, out of mind, Jennings illustrates the point:
Some of the civil law problems reported in our studies were directly related to the cognitive impairment, for instance: personal injury or victims compensation claims, when the disability was a result of the injury in question; discrimination on the basis of disability; and matters of capacity where substitute decision making was necessary. However, it was also apparent that civil law issues could arise from the socio-economic disadvantage commonly associated with disability. These legal problems included fines, debt, social security related issues and vulnerability to financial abuse. Whatever the cause, in some cases the person with cognitive impairment needed to bring the action (as a plaintiff), while in others they were the respondent to or subject of the legal process (e.g. as a criminal defendant). The following examples illustrate the various ways that cognitive impairment may intersect with legal need.
Substitute Decision Making
In situations where a person with a cognitive impairment does not have the capacity to understand and make important decisions on their own, legal orders may be sought to enable another person to make financial and other decisions on their behalf.9 The Guardianship Act 1987 (NSW) does not contain a definition of disability, but instead focuses on incapacity to make decisions. Section 3 states:
Fines and Debt
Fines and fine-related debt have consistently been raised in the A2JLN research projects as legal issues commonly faced by disadvantaged people, including those with cognitive impairment. The relationship between cognitive impairment and fines is complex, as people are vulnerable to fines as a result of both their impairment and the attenuating socio-economic disadvantage. Further, once fined, people with cognitive impairment have particular difficulties in managing the complex and multi-agency fine enforcement process, resulting in further and entrenched debt. This process, and the challenges it presents to those subject to it, is described in detail in another Justice Issues paper, Fine but not fair: Fines and disadvantage (2008).
No home, no justice? and Taking justice into custody also highlighted the vulnerability of people with cognitive impairment (and those with limited literacy) to entering contracts and signing legally binding agreements which they did not fully understand.12 In these circumstances a lack of comprehension can lead to breaches of these agreements, liability for debts that were not expected, accrued debt and being subject to debt-recovery processes.
Social security was also raised in the Foundation's A2JLN reports as a pertinent legal issue for people with cognitive impairment, with benefits being a primary source of income for many. Older people may be on the aged pension while people with a defined and long-term cognitive impairment may receive a disability pension. In our studies, some people also reported being on the Newstart Allowance, but with a 'sickness certificate'.13 The disability pension has the benefit of fewer compliance requirements than other social security benefits such as Newstart. However, in keeping with broader policy shifts under the Welfare to Work program, some people reported being moved from disability pensions to Newstart. An example from Taking justice into custody illustrated the difficulties this could present to people with cognitive impairment:
|A fellow who was on a Disability Pension for years … he went to jail for six months and then came out on parole, and Centrelink basically said, 'Because you've been in custody, we've now got to go through the process of finding you eligible for Disability Pension again. In the meantime we'll put you on Newstart.' So it was a lower amount of money, he had to do a lot more to get it. The work diaries … he didn't have the cognitive skills to do it. 14
— Probation and Parole Unit Leader
Family law and child protection
Issues raised in the A2JLN research program about family law and child protection illustrate the complexity of legal issues when cognitive impairment is a factor. Some of the participants in our studies had significant difficulties maintaining the custody of and access to their children when they had other complex needs. One young homeless woman with cognitive impairment described her situation:
|He's with DoCS because I had him when I was 16. I was underneath DoCS at the time … I ended up having a mental breakdown. There was only three choices I had — give my son to my mother, give my son to my uncle or hand him over to DoCS. I wasn't going to give him to my mum because she was an alcoholic and was abusive. My uncle was the father. So, the only other choice I had was to give him to DoCS. I signed the papers and that.16|
Victims of crime
There is evidence to suggest that people with a cognitive impairment are particularly vulnerable to crime victimisation.21 According to the Disability Council of NSW, '...it is widely reported that people with disabilities are over-represented as victims of crime, especially as victims of violence, fraud and sexual assault…'.22 This has been generally attributed to the person's vulnerability and dependence on other people and services.23
The legal needs of older people study reported that 'elder abuse has been appreciated as a serious social problem…'24 and that it often occurs in situations where the person abused is dependent on the abuser due to failing health or having a disability such as dementia. One respondent highlighted the vulnerability of some older people in institutional care:
|It seems that old people lose certain human rights when they go into nursing homes, which leaves them vulnerable to abuse. For example, there are incidents in which old people are physically or sexually abused and notwithstanding that they have bruises or wounds, the police are persuaded by the residential care staff not to pursue the matters on the grounds that the victims' complaints are not reliable because, for example, they are suffering dementia.25|
Offenders with cognitive impairment
The over-representation of people with a cognitive impairment as offenders in the criminal justice system has been discussed extensively in the literature27 and is reflected in available statistics. Most estimates of the prevalence of intellectual disability in the general population are between 1 and 3 per cent.28 The 2001 Inmate Health Survey conducted in NSW prisons found that 18 per cent of women and 27 per cent of men scored below the pass rate on an intellectual disability screener. Of those further assessed, 59 per cent of women and 39 per cent of men were determined either to have an intellectual disability or to be functioning in the borderline range.29 It has been suggested that people with an intellectual disability may be more likely than other people to appear in the criminal justice system as:
Once in the criminal justice and correctional systems, people with cognitive impairment appear vulnerable to extended and repeat incarceration. Borzycki has noted that people with an intellectual disability have higher rates of recidivism than people without an intellectual disability.32 Taking justice into custody, together with research undertaken in the United States, suggests that people with an intellectual disability are less likely to be placed on probation as an alternative to incarceration.33
Taking justice into custody also noted that people with an intellectual disability appear more likely to be refused bail and held on remand than others.34 Reasons for this include people being held in custody because they do not understand and cannot show they will keep the bail conditions, or because they lack the support in the community to ensure they keep these conditions.35 Similar issues were raised in relation to parole, where, due to a lack of diversionary options or support in the community for offenders with cognitive impairment, they are not granted parole as readily as other inmates.36 In the Taking justice into custody consultations a worker commented:
|And there's no support for them to come out to, so they don't get considered for parole … I couldn't tell you the last time a person with an intellectual disability came up for parole. It just doesn't happen. They always serve their full sentences.37|
In summary, the Foundation's A2JLN research illustrates both the vulnerability of people with cognitive impairment to coming into contact with the law as victims, plaintiffs or perpetrators, as well as the potential value of the law as a tool that could be used in their interests, for example to claim compensation or ensure appropriate decision making on their behalf. And yet, as discussed below, our research indicates that this same group of people face a range of significant barriers to accessing appropriate legal assistance and to participating effectively in legal processes.
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:
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
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:
|…I don't understand some people sometimes. I get really, really stressed out with the things they say and that, and what questions they ask, and all that. .. .sometimes like I try to sit and really have a good think what they're saying, what the meaning is, for it.…But some, some stuff they ask me is like, I don't understand properly…53|
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:
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:
|I see a lot of people who are in shock I reckon; they really don't have a clue and I think that is a huge barrier to them actually taking [anything] in. Their lawyer may well have given them written advice but they are not in a position, they are just not in the mental state where they can take it in.68|
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:
|And then if you are also dealing with things like either an intellectual disability or very poor literacy rates or low education rates or any of those things and someone whacks a twelve page form in front of you. A lot of people just say, 'You know, I never wanted that house anyway.'69|
The complex and stressful nature of legal proceedings
|For people with an intellectual disability who must appear in court, oftentimes charged with a criminal offence, the experience can range from bewildering to terrifying.70|
|…the solicitor would repeat a particular idea endlessly, not accepting the client's statement that this was not correct, until the client began to doubt himself. I feel that being cross-examined like this is inherently unfair for a person with an intellectual disability because he or she is less able to see what the solicitor is doing. I had role-played with the client what might happen and encouraged him but it was extremely difficult for him.73|
|…when matters are stood down in the morning and people have to wait around all day for matters to be heard, this can be a problem for clients with complex needs (e.g. people with mental illness, intellectual disability, drug and alcohol issues) who can become frustrated and leave before the matter is heard.74|
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:
|And audio visual links is an area where the support role is really quite crucial because it's very, very difficult to understand from that side what is actually happening in the court. And particularly for our clients [with intellectual disability], understanding that they're sitting in this room at the jail but they're actually … in court. They don't make the connection that they're actually sitting in court.78|
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:
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:
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:
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:
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:
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:
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.