Equality before the Law Bench Book — Section 5 — People with disabilities

It is important to note that, in many cases, the precise name or type of a particular person’s disability or disabilities will not be relevant in court. Much more important will be the need to accurately and appropriately determine whether that person requires any form of adjustment to be made, and if so, what type and level of adjustment.

The Royal Commission found that over half of adults aged 18 to 64 with disability have experienced physical and/or sexual violence; this is particularly the case when the person has a mental disorder, acquired brain injury or intellectual disability.^[22] The most frequent form of violence against a person with a disability is physical threat, followed by emotional abuse from a domestic partner. Other forms of violence are physical threat, domestic partner violence, stalking and sexual assault.^[23] The majority of people with disabilities who experience violence know the perpetrator who is often an intimate partner, family, friend, or co-worker.^[24] The perpetrators are often in positions of authority and trust. Women with disabilities experience higher rates of sexual assault, domestic and family violence, emotional abuse and stalking than men with disabilities or women without disabilities. This is particularly the case when a woman with disabilities has an intellectual impairment, mental disorder, is young or is First Nations.^[25]

The Royal Commission further heard that the disadvantages experienced by people with a disability, such as homelessness, unstable housing, family and intimate partner violence etc, mean they are over-represented in the criminal justice system.^[26]

NSW Bureau of Crime Statistics and Research studies have found a significant proportion of young and adult offenders were identified as people with disability and many of these individuals had also been victims of crime. The first study^[27] examined the proportion of people with disability in NSW who offend, and the proportion of offenders who have a disability, separately for young and adult offenders. The study found:

The study shows the rate of cognitive disability is higher in First Nations adult male offenders (13%) than in the non-Indigenous offending population (5.4%).^[28] First Nations adult male offenders have higher rates of physical disability (16%) and psychosocial disability (33%) compared to non-Indigenous adult male offenders (9.5% and 17% respectively).

A second study of rates of victimisation based on victims of crime reporting to or detected by NSW Police suggests that intersectionality, ie, being younger, female, and/or Aboriginal, is associated with a greater risk of people with disability being victims of violent and DV-related crimes.^[29] Persons of interest (POI) were less likely to be proceeded against in relation to violent incidents involving victims who were people with disability than incidents involving victims with no disability identified. In particular, in relation to violent and DV-related incidents, POIs were less likely to be proceeded against when incidents involved victims with both cognitive and physical disabilities, with or without psychosocial disability. People with disability who were victims of violent incidents were more likely to experience repeat victimisation than people with no disability identified.^[30]

People with disability are at higher risk of experiencing physical violence than those without disability and women and girls with disabilities are twice as likely to experience sexual violence compared to able bodied women and girls (33% or 605,081 women with disability compared to 16% of women without disability).^[31]

People with intellectual disabilities, particularly First Nations people with disability, are “significantly overrepresented” in the criminal justice system.^[32]

It is important to recognise that disability is diverse and that not all disability is visible. The definition of disability under the Disability Discrimination Act 1992 (Cth) (the Act) is wide ranging and includes the presence of disease and illness as being a disability. This encompasses people with chronic diseases which have long-lasting conditions with persistent effects.^[33] Under the Act, discrimination may occur at work, in education, in accessing premises, in providing goods, services and facilities, in providing accommodation, in dealing with land, in participating in clubs and incorporated associations, in participating in sport, or in the administration of Commonwealth laws and programs.^[34]

Types of discrimination may be termed “ableism”/“disableism”.^[35] Ableism is discrimination that favours able-bodied people without disability. Disableism is defined as the “systemic and interpersonal exclusion and oppression of people with disability”. This discrimination is considered to have hard and soft forms. Hard disableism is a direct, conscious act of discrimination and abuse. Soft disableism can be ingrained into our language and social interactions and may not be identified as discrimination.

Disability discrimination has been the most common type of complaint made to the Anti-Discrimination Board of NSW since 2011. In the 2021–22 reporting year, the Board received 1,626 complaints under the Act, with 40.8% of all complaints received relating to disability discrimination, the most common form of complaint. The highest complaints were in the area of goods, services and facilities (50.6%), employment (36.3%), education (5%), accommodation (3.1%), clubs (1.65%), non-statutory matters (2.8%), and qualifying bodies (0.6%).^[36]

In 2019–2020, the Australian Human Rights Commission received 1006 complaints under the Act, with 44% of all complaints received relating to disability discrimination. The highest complaints were in the area of goods, services and facilities (30%), employment (20%) and complaints relating to the Disability Standards (12.5%).

A physical disability may have existed since birth or it could have resulted from accident, illness, or injury.

A physical disability may be mild, moderate or severe in terms of the way in which it affects the person’s life.

A person with a physical disability may need to use some sort of equipment for assistance with mobility. A person with a physical disability may have lost a limb or, because of the shape or size of their body, or because of a disease or illness, require slight adaptations to be made to enable them to participate fully in society.

Some common physical disabilities are:

Intellectual disability (ID) is defined in terms of an individual’s level of intellectual (cognitive) functioning as assessed by qualified psychologists using recognised psychometric tests of intelligence, tests of adaptive functioning, and assessment of ability to perform a range of cognitive, social and behavioural tasks required for independent living. In lay terms, ID refers to a slowness to learn and process information.^[45]

In contrast, a learning disability refers to weaknesses in certain academic skills and may be caused by physical conditions such as poor vision or a hearing impairment.^[46] A cognitive impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may arise from an ID: s 5(2)(a). See 5.5.3 Fitness to plead/criminal responsibility for the definition of “cognitive impairment” under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

The majority of people with an ID have mild ID.^[47] Seventeen percent of NDIS participants in NSW have ID as their primary diagnosis (nationally 16%).^[48]

Deficits in adaptive behaviour refer to limitations in such areas as communication, social skills and ability to live independently. An ID is permanent. It is not a sickness, cannot be cured and is not medically treatable. People are born with an ID. It may be detected in childhood or it may not be detected until later in life.

There are various types and degrees of ID. Some of the more common causes of ID are Down syndrome, foetal alcohol spectrum disorder, fragile X syndrome, Prader-Willi Syndrome, Rett Syndrome, genetic conditions, birth defects and infections.^[49]

People with an ID can, and do, learn a wide range of skills throughout their lives. The effects of an ID (for example, difficulties in learning and development) can be minimised through appropriate levels of support, early intervention and educational opportunities.

Importantly, and contrary to some of the extreme misconceptions that may be held about people with IDs, they are not compulsive liars (see also Capacity to give evidence at 5.5.1); are not either asexual or extremely promiscuous (applied particularly to women); and do feel emotion and pain.

Depending on the person, a person with an ID may:

Acquired brain injury is an injury to the brain that results in changes or deterioration in a person’s cognitive, physical, emotional and/or independent functioning. People may have an ABI as a consequence of a trauma (for example, a car accident), stroke, lack of oxygen, infection, degenerative neurological disease (dementia), tumour, and/or substance abuse.^[50]

A cognitive impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may arise from an ABI: s 5(2)(d). Three percent of active participants in the NDIS in NSW have a primary disability of an ABI.^[51] Significantly, the prevalence of ABI is much higher in the prison population than in the general population.^[52]

Disability resulting from an ABI can be temporary or permanent and can be mild, moderate or severe. It is rarely assisted by medication. Every brain injury is different. Two injuries may appear to be similar but the outcomes can be vastly different. Brain injury may result in a physical disability only, or in a personality or thinking process change only, or in a combination of physical and cognitive disabilities. ABI may result in physical and cognitive problems such as:

See also the Bugmy Bar Book section on ABI.^[54]

Mental disorders identified in the DSM-5-TR must meet the elements of “mental disorder” as follows:^[55]

See 5.5.3 Fitness to plead/criminal responsibility for the definition of “mental health impairment” under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) as applies to criminal proceedings in NSW.

A mental disorder may be long-term, but is often temporary and/or episodic. Long-term mental disorder, and the drugs used to control it, do affect cognitive ability, especially in schizophrenia spectrum disorders and schizo-affective disorder, where there is often marked cognitive impairment, particularly in executive function.

Categories of mental disorders in DSM-5-TR:

DSM-5 is structured to reflect the interrelationship of various conditions and the occurrence of mental disorders across the life span.^[56] It begins with neurodevelopmental disorders, it is then based on groups of internalising disorders such as anxiety, depression; externalising disorders such as impulsive, disruptive conduct and substance-use symptoms, neurocognitive disorders, and other disorders.^[57]

The Disability Royal Commission, in its final report, discusses “cognitive disability”, which arises from the interaction between a person with cognitive impairment and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis.^[78]

Cognitive impairment is used in the Royal Commission Report as an umbrella term encompassing actual or perceived differences in cognition, including concentration, processing, remembering, or communicating information, learning, awareness, and/or decision-making.

For the purposes of criminal proceedings in NSW, “cognitive impairment” is set out in s 5(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act), followed in s 5(2) by a non-exhaustive list of conditions which might meet that definition. These include:

“‘Borderline intellectual functioning’, while specifically included in the definitions to the MHCIFP Act, has not been viewed as a formal disability, nor as necessarily indicating deficits in intellectual and adaptive domains. It is a term used to describe persons who function in the well-below average range.”^[80] A lower than average cognitive function may arise from a FASD or ASD or a mild traumatic brain injury, or learning or other difficulties impacting on a person’s cognitive function. It can also include those who may have no identifiable reason or disorder but have a level of cognitive function that falls within the lower end of the average intelligence spectrum.

The Act explicitly excludes an impairment caused solely by the temporary effect of ingesting a substance or a substance use disorder: s 4(3).

Foetal Alcohol Spectrum Disorders are experienced by individuals who have been exposed prenatally to alcohol.^[81] This is an umbrella term that captures those individuals who have a unique range of physical, intellectual and behavioural disabilities. Individuals with this type of disorder may display specific facial anomalies, growth retardation, organ damage, hearing difficulties and vision problems, as well as the following behaviours:

There is growing awareness of the prevalence and impacts of FASD in Australia. Neuro-developmental impairments due to FASD can predispose young people to interactions with the law. A Western Australian prevalence study of 99 young people in youth detention (93% male and 74% First Nations) found that 88 young people (89%) had at least one domain of severe neuro-developmental impairment, and 36 were diagnosed with FASD, a prevalence of 36%. The study highlights the vulnerability of young people, particularly First Nations youth, within the justice system and their significant need for improved diagnosis to identify their strengths and difficulties, and to guide and improve their rehabilitation.^[84]

In LCM v State of WA [2016] WASCA 164, the West Australian Court of Appeal considered the medical condition of FASD and how it is relevant in sentencing proceedings. The court recognised that FASD is a mental impairment and as such engaged sentencing principles relating to an individual offender’s mental condition: at [121]. See Sentencing Bench Book at [10-450].

See also the Bugmy Bar Book section on FASD^[85] and for judicial officers, see the page on JIRS with a range of further information.^[86]

Neurocognitive disorder describes decreased mental function due to an acquired medical disease other than a mental disorder/developmental disorder. Some of the symptoms can be agitation, confusion, long-term loss of brain function (dementia), severe, short-term loss of brain function. There are three subcategories:^[87]

The DSM-5 provides six cognitive domains which may be affected by mild or major neurocognitive disorders:

The causes of neurocognitive disorders can be:

The Ageing and Disability Commissioner Act 2019 (NSW) established the dedicated role of the Ageing and Disability Commissioner. The Commissioner’s purpose is to protect and promote the rights of adults with disability and the elderly from abuse, neglect and exploitation and to promote their rights.^[89]

It is an offence for an employer to take detrimental action against an employee or contractor who assists the Ageing and Disability Commissioner with a report about abuse, neglect or exploitation of an adult with disability or an older adult.^[90]

Since March 2021, the NSW Ombudsman no longer monitors disability reportable incidents. The NDIS Quality and Safeguards Commission is an independent agency established to improve the quality and safety of NDIS supports and services. NDIS providers are required to take all reasonable steps to prevent all forms of harm to people with disability.^[91] The NDIS Quality and Safeguards Commission must be notified of “reportable incidents” to a person with disability, such as:

The objects of the Disability Inclusion Act 2014 are stated in s 3, and include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals and providing safeguards in relation to the delivery of supports and services for people with disability. Section 10 provides that each government department and local council must have a disability action plan that sets out the measures the department or council intends to put in place so that people with disability can access general supports and services.

In most cases, people with disabilities will have the legal capacity to give sworn evidence in the same way as anyone else^[92] — as long as, where required, appropriate adjustments are made so that evidence can be successfully communicated.^[93] In all cases, the fundamental issue is whether the person is able to understand the nature and effect of a particular decision or action, and can communicate an intention to consent (or refuse consent) to the decision or action.^[94] For the types of adjustments that may need to be made see 5.6.1.

People with mental disorders or intellectual disabilities may be vulnerable to prejudicial assessments of their competence, reliability and credibility if judicial officers and juries have preconceived views regarding such people. For example, they may fail to attach adequate weight to the evidence provided because they doubt the person with a mental disorder/ID fully understands their obligation to tell the truth. In addition, such people are vulnerable to having their evidence discredited in court because of behavioural and communication issues associated with their disability. Testimonial injustice arises when a hearer does not take the statements of a speaker as seriously as they deserve to be taken. People with mental disorders are particularly vulnerable to having their credibility deflated due to negative stereotypes.^[95]

It may be necessary for some people with disabilities (in particular those with severe intellectual disabilities) to give unsworn evidence. A person with disabilities is presumed competent to give unsworn evidence if the court has told the person the matters mentioned in s 13(5) of the Evidence Act 1995 (NSW) including that it is important to tell the truth.

Research suggests that, contrary to public perception, most people with intellectual disabilities are no different from the general population in their ability to give reliable evidence — as long as communication techniques are used that are appropriate for the particular person^[96] — see 5.6.5. In some cases, however, a psychologist’s assessment may be required in order to adequately assess a particular person’s ability to give evidence, help the court to understand the person’s characteristics and demeanour and/ or how best to communicate with them in court.^[97]

In Bromley v The King [2023] HCA 42, where the reliability of a witness with schizo-affective disorder was sought to be impugned on the basis of “fresh and compelling” psychiatric evidence, the High Court refused leave to appeal against a decision of the South Australian Court of Criminal Appeal which had held the expert opinion was not highly probative of the witness’s reliability, as considerable evidence supporting the witness’s evidence was not considered by those experts. The majority noted that each of the expert psychiatrists accepted that a person with schizo-affective disorder could be found to be reliable if other evidence supported that person’s evidence: [70].

Informed consent refers to the permission given by a person to agree to a health care treatment, procedure or other intervention that is made. Consent may be made by the person or a legally appointed guardian concerning services, finances, relationships, medical and dental treatment, behaviour support and forensic procedures. For consent to be valid it must be voluntary, informed, specific and current. Consent by legally appointed decision makers can only be given on matters for which they have been authorised to give consent.^[98]

On the issue of informed consent to medical procedures, the decision of Bell J in PBU & NRE v Mental Health Tribunal [2018] VSC 111 has provided a “carefully reasoned analysis of how the imposition of treatment engages human rights and has the potential to be discriminatory against those with a mental illness”. The decision established that “not everyone with a mental illness is deprived by their condition of their capacity to give informed consent to a treatment recommended by their clinicians. … The law provides in most jurisdictions in Australia that capacity to treatments such as ECT is presumed until the contrary is established”.^[99]

For the purposes of criminal proceedings in NSW, The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFPA) introduces separate definitions of “mental health impairment” and “cognitive impairment” following recommendations of the NSW Law Reform Commission.^[100] These definitions are relevant to the assessment of fitness to stand trial, the partial defence to murder of substantial impairment, the defence of mental health or cognitive impairment, which leads to a verdict of “act proven but not criminally responsible” (Pt 3); and the diversionary provisions in Pt 2, Div 2 and Div 3 of the MHCIFPA.^[101]

The MHCIFPA defines a “mental health impairment” in s 4 as follows:

[A] person has a mental health impairment if:

Section 4(2) provides a mental health impairment may arise from any of the following disorders but may also arise for other reasons:

Excluded for the purposes of the MHCIFPA are if the impairment is caused solely by:

(a) the temporary effect of ingesting a substance, or

(b) a substance use disorder.

A person may (because of the level and nature of their mental health impairment or cognitive impairment or mental illness ) be unfit to plead and/or be unfit to be tried,^[102] or be found not criminally responsible for an offence further to s 28 of the MHCIFPA.

For the procedures for indictable matters for fitness to be tried including the orders that can be made and how to refer such matters to the Mental Health Review Tribunal, see the Criminal Trial Courts Bench Book under “Trial instructions R–Z — Procedure for fitness to be tried (including special hearings)” at [4-​300]ff and “Forms of orders for referrals to the Mental Health Review Tribunal under State law” at [4-​325].

For summary proceedings, a magistrate may need to hold an inquiry further to s 12 of the MHCIFPA to determine whether the person has a mental health impairment or cognitive impairment, and if determined as such, make an appropriate order for assessment, treatment, or discharge. For the procedures to be used in such cases see the Local Court Bench Book at [30-060]. If the defendant is a mentally ill person or a mentally disordered person, s 18 of the MHCIFPA provides a mechanism for making orders as set out in s 19 of the MHCIFPA including an order for the person to be taken to and detained in a mental health facility or an order for the person to be discharged into the care of a responsible person. See further Local Court Bench Book at [30-120].

See also Vol 8 of the Royal Commission at [4] and [8] which canvasses fitness and diversionary processes in Australian jurisdictions respectively.

For indictable proceedings, the defence of mental health impairment or cognitive impairment is set out in s 28 of the MHCIFPA. This incorporates the two limbs of the common law M’Naghten rules and provides that if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person … did not know the nature and quality of the act, or did not know that the act was wrong, the person is not criminally responsible for the offence. Under s 30 of the MHCIFPA, if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established, the jury must return a special verdict of “act proven but not criminally responsible”.

See further “Trial instructions H–Q — Intention” at [3-​200]ff,^[103] and “Defence of mental health impairment or cognitive impairment” at [6-​200]ff.^[104]

Section 23A of the Crimes Act provides a partial defence to murder of “substantial impairment because of mental health impairment or cognitive impairment”, enabling a murder charge to be reduced to a manslaughter charge.^[105]

Given the number of people in prison with intellectual and psychiatric disabilities, it is important that these provisions are used, where appropriate, because in some cases the stigma of raising the existence of a mental illness, mental or cognitive impairment may mean that, unless the court intervenes at an earlier stage, a person may end up unjustly convicted and/or sentenced. On the other hand, it is also important to ensure that they are not used when they should not be.

Many people with disabilities need adjustments to be made in order for them to participate in court or for them to be able to give evidence effectively. Some of these may take some discussion to work out exactly what is required, and then some time to organise.

The Royal Commission has provided a helpful list of possible information and communication requirements for people with a disability in Vol 6, [1.2] “Accessible communication and information”. Recommendation 6.1 is directed to developing a national plan to promote accessible information and communications.

Hopefully, the court will have advance notice of any such possible needs from the person themselves, their support person or carer, or their legal representative. At other times, the court may not find out a person’s needs until they appear.

The barriers for people with disabilities in relation to court proceedings — whether as a juror, support person, witness or accused — obviously depend on the type and severity of the particular person’s disabilities.

There are numerous barriers to the full participation of people with disabilities — unless some appropriate adjustment or adjustments are made. A few examples follow.

It is important to be aware of the presence of media in the courtroom and the reporting of court decisions in the news. Courts are often a source of news items for media outlets.

In some circumstances, it may be appropriate to seek advice from your media liaison officer, or to control the amount and detail of information in judgments. For instance, where the circumstances disclose facts which may be “sensationalised” by media, a detailed factual description of events might be capable of reinforcing stereotypes of those who have a mental illness.

For further advice and information, see Mindframe resource: guide for judicial officers on mental illness.^[136] Mindfame’s objective is to destigmatise mental illness and to encourage media reporting about mental illness consistent with best practice guidelines.