4.8 Clients with disabilities
This section provides an overview of disabilities and provides some practical tips for working effectively with clients. Some clients have disabilities that may affect their cognitive capacity and present particular issues for working with a legal practitioner. This section also outlines some general principles and points to keep in mind when assisting people whose disabilities do not affect their cognitive capacity.
What is a disability?
There are many different ways of defining disabilities. Generally definitions relate to diagnostic criteria that identify the specific disability and, in many cases, the resulting functional limitation or impairment. However, many other definitions exist and these are usually linked to the provision of services and supports to individuals. For example, a typical recipient of a disability support pension will need to demonstrate that they have 20 per cent or more functional limitation in their daily activities and cannot work any more than 15 hours per week. The Disability Discrimination Act 1992 (Cth) contains an extremely broad definition of disability, encompassing any loss or malfunction of any part of the body or mind.147 The Australian Bureau of Statistics reports that approximately 19 per cent of the Australian population has a disability of some kind.148
In general, however, a disability can be described as a condition, disease or illness resulting in some kind of limitation or impairment of a person’s functional ability when compared to a person without a disability.
Types of disabilities
There is a great diversity of disabilities from those which result in a person being completely dependent on others for most or all of their daily needs to those which are less evident and which have very little or no impact upon a person’s capacity to live independently.
Whilst it is not necessary for legal practitioners to have an exhaustive knowledge of disabilities in order to provide legal assistance to a person with a disability, it may prove helpful to develop a basic understanding of some of the more common disabilities. It will also be helpful to know which disabilities may give rise to particular needs for clients when seeking legal assistance.
While it is not always possible to neatly compartmentalise disabilities, most disabilities will fall within one or more of the following broad categories. It should be remembered though, that some people have multiple disabilities across these categories, and some new sub-categories are emerging, such as behavioural disabilities.
This broad category includes disabilities affecting the body, or a part or function of the body and that result in limited physical capacity and/or mobility from the loss of a limb, to those caused by disease or illness such as HIV/AIDS. Although difficult to estimate and survey, physical disabilities affect approximately 17 per cent of the Australian population.149 Many of the issues affecting people with physical disabilities relate to: access to the built environment, or medical treatment and care, or illnesses and chronic disease, or compensation, physical rehabilitation, injury and trauma. Generally speaking, this category of disability would not affect legal competence or cognitive capacity; however, notable exceptions include acquired brain injury and the late stages of muscular dystrophy.
Commonly termed ‘mental illness’, this category includes conditions such as schizophrenia or depression that affect a person’s thoughts, emotions, perceptions and/or behaviour. Such disabilities affect approximately 18 per cent of the Australian population.150 Psychiatric disabilities can be episodic, with patients displaying few, if any, positive symptoms at other times. Many of the issues affecting people with psychiatric disabilities will be related to voluntary/involuntary treatment, family and criminal law, financial management and discrimination. Many psychiatric disabilities don’t affect legal competence and cognitive capacity; some do or only do so sporadically.
This category includes disabilities that affect a person’s competence, cognitive capacity and social and adaptive skills. It includes Down’s syndrome and some kinds of autism and learning disabilities. Intellectual disability affects approximately 2.5 per cent of the Australian population.151 Many of the issues affecting people with an intellectual disability are related to access to information and education, residential support services, community participation and integration, guardianship and administration, capacity and consent. In most cases intellectual disability will not affect legal competence although by definition cognitive capacity is limited.
This complex category refers to an impairment or limitation due to injury or illness affecting the central nervous system, including the brain, and includes multiple sclerosis, Parkinson’s disease and dementia. There is very little information about the numbers of people affected by neurological disabilities. Many of the issues affecting people with neurological disabilities will relate to advances in medical treatment, ethics and treatments, degenerative disability and genetic predisposition. In some cases there will be no impact upon legal competence and cognitive capacity whilst in others there may be reduced or lost capacity over time.
This category includes many of the more familiar disabilities such as Deafness and blindness and some that are less familiar such as being Deaf and blind. These disabilities affect a large proportion of the population particularly as people begin to age. Many of the issues affecting people with sensory disabilities will relate to access to information, access to education, communication, and technical and other aids/adjustments. There is no impact upon legal competence or cognitive capacity, however, some people who are Deaf and blind may have received less education or social interaction and may experience barriers communicating with others.
Legal competence and cognitive capacity
There are some disabilities that may have an impact on how a lawyer deals with a client, obtains instructions and provides advice. Where a client’s disability has a significant impact on their comprehension and thought processes – or cognitive capacity – this may impact upon their ability to provide sound instructions.152 This includes some people with intellectual disability, acquired brain injury, mental illness, dementia and some neurological disabilities such as certain forms of multiple sclerosis.
The following notes may assist.
Acquired brain injury
For further information, contact the Brain Injury Association or other relevant state association.153
For further information contact Alzheimer’s Australia.154
For further information contact the National Council on Intellectual Disability.155
For further information about mental health, contact the Mental Health Council of Australia.156
Working with clients with a disability affecting cognitive capacity
A diverse range of disabilities may affect cognitive capacity and it should not be assumed that clients with a disability will all have the same needs. For example, a person with schizophrenia who is not actively symptomatic may experience no -difficulties with cognitive capacity whilst a person with intellectual disability may appear extremely compliant but not be able to understand what is happening. The following points regarding the ways cognitive capacity may affect your client are worth considering:
A person with limited cognitive capacity will be able to provide instructions, give evidence and make decisions about the progress of their matter to varying degrees depending on the level of their capacity, whether they are affected by their disability at the time and on how well the practitioner communicates with them.
Client interviews and speaking on the phone
A person with a disability that affects cognitive capacity may have a short attention span and may have difficulty staying on the same subject. The person may appear to understand and provide the appropriate responses when in fact they have not understood. They may not have absorbed information discussed at a previous meeting. When speaking to or taking instructions from a client with limited cognitive capacity, the following strategies might assist:
Writing letters to the client
Find out about the client’s skill level in reading and writing. Where the client has difficulty reading, information contained in any letter can be communicated in person or on the phone (see Communication below). Client agreements can be presented in a format that assists understanding, for example, by:
A person with limited cognitive capacity may bring a support person with them to an interview or to court. One of the roles of the support person is to assist the client in communicating with other people but it is important for solicitors to speak directly to the client and not the support person. A support person can reinforce the issues discussed with a solicitor through the stages of the court process and can be invaluable in assisting the solicitor to communicate effectively with their client. They should be able to indicate when they believe the client does not understand what is being said or when the client needs a break. It may be appropriate in some circumstances to ask the support person to sign a confidentiality agreement.
It is important to explain the court process to the client and, if possible, to arrange for the client to visit the court room in advance of the hearing. If a person has a support worker or caseworker it may help to have them present at the hearing.
Clients who may lack capacity
Most people with limited cognitive capacity have the capacity to instruct a solicitor, particularly if care is taken with communication. There will, however, be some people who, because of the level of their disability, lack the capacity to instruct effectively.157 Note that some people will have had a guardian or financial administrator appointed who may need to be informed of decisions or matters affecting the client, for example, if legal proceedings are being contemplated. (Legal practitioners may also need to be cognizant that in some cases, a client with a disability may be subject to a trusted person’s exploitation or undue influence, such as family members or ‘friends’.)
General principles and tips
Some people with disabilities use communication aids such as a voice synthesiser or a communication board. They will need to show the legal representative how to work with the aid and some may take longer to communicate than others. Time should be allowed for this in consultations.
Some people who are Deaf will require an AUSLAN (Australian sign language) interpreter who will need to be arranged prior to consulting. The cost of the interpreter will most likely need to be covered by the legal practitioner or firm. They may also need to communicate using a TTY (telephone typewriter) rather than a telephone or use text messages on a mobile phone. An alternative is the National Relay Service, a free Australia-wide telephone access service available to facilitate communication with people who are Deaf or have a hearing or speech impairment.158
Some people with speech impediments or who are ‘non-verbal’ may require a -specialist interpreter either in person or on the telephone. These services will need to be arranged before the consultation and are generally cost free.
It is important not to assume that people who are non-verbal also have limited -cognitive capacity.
Some people with disabilities need to take treatments and/or medications that may affect their behaviour or comprehension. This can sometimes be confused with the effects of the person’s disability upon their capacity. If a person appears affected by medication or treatment, legal practitioners should ensure their communication with the client is effective to the extent that they are confident that they are acting according to the client’s instructions, and in the client’s best interests.
Access to courts and other venues
Physical access to a court or venue and access to information provided within these environments should be considered. The client should be asked if they have any particular access needs such as always having an accessible toilet facility nearby.
For further assistance
There are specialist community legal centres in some states that work specifically with clients with disabilities. Solicitors from these centres may be able to provide further information about working with clients with a disability. Contact the National Association of Community Legal Centres to find out the contact details of any such service in your state.159