Tuesday, 16th of January, 2018

Disability and the Law

The Protection of Rights

People with a disability have many of the same rights as everyone else in our society. They can use the same legal and non-legal remedies if those rights are infringed. They (or their representatives) can take action in the usual way to protect their rights (for example, for privacy, sexual relationships, and marriage). They can also use the provisions of anti-discrimination laws to enforce their rights to housing, education, and employment. However, there are differences in their legal status, and the means by which they access legal remedies or other forms of advocacy to have their issues heard. For example, they are often not tenants entitled to exclusive possession of premises, but licensees, which limits their rights of exclusion.

Legal Action and Help

Where the rights of disabled people have been infringed, court action can be commenced to enforce them. Disputes can also be lodged with the Australian Human Rights Commissioner or the Tasmanian Anti-Discrimination Commissioner. Usually, another person referred to as a ‘next friend’ acts on their behalf during the court proceedings. This would normally be a relative or friend of the person with a disability. Where court proceedings are involved, it is important to choose a solicitor who is familiar with the area of intellectual disability.

Legal aid may be available to intellectually disabled people in the same way as to other people. They may be eligible for assistance from the Legal Aid Commission depending on the nature of the legal matter and whether the person meets other eligibility criteria. Community legal centres have a particular interest in the legal problems of intellectually disabled people and provide advice and referral.

Anti-Discrimination Law

Anti-discrimination law aims to ensure that all people have an equal opportunity to get the things in life they need — a place to live, a job, health care, and a public education. Equal opportunity will often involve positive discrimination, which is a means of helping to level the playing field, and ensure equal opportunity through enabling people who are identified in legislation as being prone to discrimination. This includes intellectually disabled people.

Anti-discrimination law does not give a person with an intellectual disability (or anyone else) any special rights over other people. Rather, it tries to ensure that each person will have equal access to these things, and it makes it unlawful to discriminate by providing less favourable treatment because of disability.

Commonwealth legislation

The Commonwealth Government has enacted legislation dealing with discrimination generally. The Australian Human Rights Commission Act 1986 (Cth), which was previously the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Disability Discrimination Act 1992. These Acts are also discussed in ‘Discrimination’.

Tasmanian legislation

The Anti-Discrimination Act 1998 and the Disability Services Act 2011 are central to the protection of the rights of intellectually disabled people in Tasmania. Sections 15 and 16 of the Anti-Discrimination Act prohibit indirect discrimination and discrimination on the ground of impairment. Persons who are employed by the State Government of Tasmania are covered by the Tasmanian State Service Act 2000.

The Disability Services Act covers the provision of funding for specialist disability services, and for the inspection and regulation of these services. This is particularly important in terms of discrimination, because it goes to maintaining standards of care and services for a vulnerable section of the community. ‘Specialist disability services’ covers accommodation all the way through to education, training, recreation, therapy, transport. These are many of the services provided to people with disabilities. The Act sets out the principles and standards that are to govern both the administration of the Act, and the assessment of specialist disability services providers. This includes respect for people with disabilities, working toward their best interests, and working toward the opportunity for full and effective participation and inclusion in society.

Consumer Protection

Where a person with an intellectual disability has made an unwise contract or gift, the law can assist in a number of ways.

Incapacity

A person who lacks general understanding of the nature and effect of a contract or gift is said by the law to have ‘incapacity’. In deciding whether incapacity applies to a particular transaction, attention is paid to the level of understanding of the person, the complexity of the transaction and the value of the property involved. The more complex the transaction and higher the value of the properties, the greater is the understanding required.

Incapacity has no effect on contracts for purchase of ‘necessaries’ providing only a reasonable price was paid. Necessaries are things a person needs to maintain a reasonable lifestyle (for example, food, clothing, medical treatment, rent). Any other contract may be overturned by a person with a disability if:

  • the person lacked capacity for the transaction;
  • the other person involved realised or ought to have realised that the person lacked capacity;
  • the person with a disability can give back at least most of the benefits they have received under the contract (for example, if the contract was for purchase of a television, it is necessary that the television can be given back in much the same condition as when it was purchased); and
  • property that the person with a disability wants back has not been sold to someone else who is not aware of the person with a disability's incapacity.

A gift may be overturned if some of the above conditions apply. It is not necessary that the recipient of the gift ought to have realised that incapacity applied. Sometimes a person with a disability will enter a contract because (or partly because) of a misleading statement. This is called misrepresentation (for example, a car salesperson may say ‘this car has only done 20,000 kilometres’ when the car has in fact done 80,000).

Sometimes a misrepresentation is fraudulent (that is, intentionally false or made without caring whether it is false) in which case the person with a disability can normally overturn the contract and sue for damages to recover any loss suffered. If a misrepresentation is made innocently, the contract can still normally be overturned, but the person with a disability cannot usually sue for damages.

The court can also overturn transactions entered into following ‘undue influence’ or ‘unconscionable bargaining’. There is a ‘presumption’ of undue influence where:

  • a transaction is between people whose relationships the law recognises as giving rise to risk of undue influence, for example, doctor and patient, parent and child;
  • a person with a disability gains much less than they give in a transaction with a person in whom the person with a disability has great trust and confidence, for example, if a person with a disability gives their television to a house-parent whom the person with a disability depends on for advice.

Where this presumption of undue influence arises, it is then up to the person without a disability to prove that the person with a disability made an informed and independent decision to enter the transaction. If the person with a disability received independent advice, this would be easier to prove.

Consumer Protection Legislation

The Competition and Consumer Act 2010 applies to all those who provide goods or services. A person who believes that they have been the victim of misrepresentation or unconscionable conduct should seek legal aid or contact a community legal service.

Other Ways to Exercise Rights

Other avenues are available to people with disabilities (or a friend or relative) to exercise their rights.

  • The media: current affairs shows are keen to expose consumer rip-offs, especially where someone such as a person with an intellectual disability has been taken advantage of;
  • The Office of Consumer Affairs will investigate complaints about fraudulent or unfair commercial practices and, although Consumer Affairs cannot force a trader to remedy a complaint, most traders do not wish to be off-side with it, such that the result is often full or partial satisfaction for the consumer;
  • The civil division of the Magistrates Court or the Small Claims Court: these courts can deal with a dispute involving a contract between a consumer and a trader for the supply of goods or services (for example, where a person has bought a washing machine which is defective, or where a person has their car repaired but is not happy with the quality of the work).  The Small Claims Court can only deal with disputes involving less than $3,000. It can order that money be repaid or that works be carried out.

Complaints

Complaints about an infringement of rights can be taken to a local Member of Parliament. It is their job to follow up a complaint. When approaching a Member of Parliament it is best to:

  • see them in person — make an appointment;
  • present a written account of complaints;
  • take someone along for support.

Complaints and representations to Members of Parliament and the relevant Minister can be effective but must be followed up. Representations by action groups, or collective representation for common complaints, may also be an effective way of drawing attention to particular problems.

Complaints can also be directed to the Ombudsman.

The Media

The media can be a useful tool in bringing abuses of the rights of disabled people to public attention. However individual person with a disability should take care as the media can also abuse their rights.

Negotiation

Very often problems can be sorted out satisfactorily through negotiation before legal action is taken. One of the problems in negotiation for disabled people and their advocates, is that they often feel themselves to be powerless and can be intimidated by an organisation or by ‘able’ people.

In many cases negotiation using a third person (for example, a lawyer) adds balance to the negotiation. This also adds credibility to the person with a disability's case.

Citizen Advocacy

A ‘citizen advocate’ is an ordinary member of the community who becomes a long-term friend and adviser for a person with an intellectual disability. The advocate can help the person with an intellectual disability in making a complaint, for example, by complaining to the Ombudsman on behalf of a person with a disability.

Ideally, most citizen advocates would be trained by and registered with a local citizen advocacy office. However many people become citizen advocates simply by forming a friendship with a person with a disability.

Citizen advocates have no formal legal status. However, Government departments and other organisations are developing greater recognition of the value of citizen advocacy and are often willing to give advocates the same sort of informal recognition that they give to the next-of-kin of disabled people.

The Criminal Justice System

A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person accused of a crime, or merely as a witness. While the former are the two main areas of concern, some of the same problems may occur in all cases. For example, does the particular person with a disability have the legal capacity to give evidence?

As a Victim of Crime

According to the law, a person with an intellectual disability who is the victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. There are some understandable reasons for this, for example even where a person with an intellectual disability does manage to contact the police, or someone else does so on their behalf, the police may decide not to prosecute because they feel that the person with a disability will not be a reliable witness.

A person can give evidence in court as long as they generally understand that they have promised to tell the truth (and what that means) and that telling a lie is against the law. Even if the person is permitted to give evidence, the judge or jury may not see that evidence as being as important as other evidence because they believe the person's understanding is insufficient.

Accused of a Crime

Intellectually disabled people accused of committing crimes are particularly vulnerable, because their special needs are often not met, and because the legal system tends to discriminate against the less articulate. Most criminal offences require an intention to do an unlawful act, or recklessness as to whether or not it was done. Some intellectually disabled people may be so disabled as to be incapable of forming an intention to commit a crime.

The defence most commonly thought of in relation to intellectually disabled people is insanity. Insanity is a complete defence in respect of crime involving a mental element. Someone who is found not guilty in this way may be detained ‘at the Governor's pleasure’ in a gaol or institution. They are released when the Governor chooses and often serve longer 'sentences' than people who are convicted and sentenced to gaol for the offence.

The first contact an accused is likely to have with the criminal justice system is with the police. Depending on police attitudes to the accused and their awareness of the person's disability, the police may exercise their discretion and with minor offences give a warning rather than charge someone.

Police in Tasmania receive only limited training in regard to 'mentally disturbed' people and most of this is with reference to the Mental Health Act and mentally ill people, not with intellectually disabled people. Thus it is particularly important for intellectually disabled people to be accompanied and assisted when being questioned by police officers.

There are guidelines in the Police Commissioner's Instructions to Police which, while they are not legally enforceable, police should follow. One of these is that any person who is suspected of being of ‘feeble understanding’ should, if reasonably practicable, be questioned by police in the presence of a friend, parent, guardian or other responsible person not associated with the enquiry. Another states that such ‘special measures as are practicable and appropriate’ should be taken to ensure a fair interrogation. Where there is any doubt about the fairness of an interrogation of a person with a disability or the voluntariness of a confession, an application should be made to the Court to exclude such evidence. Confessions made to police by intellectually disabled people are particularly unreliable often because of the person with a disability’s desire to please.

Fitness to Plead and to Stand Trial

Every accused person is asked to plead guilty or not guilty. Silence is assumed to be a statement of not guilty. The court must be satisfied that an accused person is fit to plead, that is, that they understand the act of which they have been accused and can indicate a response. A person who is held unfit to plead may still be detained in custody (in gaol or a mental hospital) by the Minister, the Governor or by the Court.

In theory, fitness to stand trial is different to fitness to plead, and involves the accused person being able to comprehend what is going on generally in court. They must be able to understand the significance of telling the truth to the court, the nature of the charge and be able to instruct their solicitor. Again, someone considered unfit to stand trial can be remanded in custody.

Alternatives to Imprisonment

It is important to realise that even when a person with an intellectual disability has been convicted of a serious offence, there are alternatives to imprisonment. A solicitor who is aware of the person's disability should attempt to establish the person's ability and willingness to comply with any conditions which might be imposed if they are placed, for example, on a good behaviour bond. Awareness of the resources and support services available in the community is very important here.

While it is hoped that court officials will acquaint themselves with this information, it is ultimately up to the solicitor, citizen advocate, or any other friend to acquaint the magistrate or judge with what support is available for the particular offender. Failure to arrange ongoing assistance and support, and even supervision, will almost inevitably result in the person's reappearance one day in the criminal legal system.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.