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Snapshot

  • The Disability Royal Commission has highlighted many issues that are relevant to how we as lawyers work with people with disability.
  • This article discusses how we can improve the experiences of people with disability in the justice system.
  • Your Story Disability Legal Support is a national service assisting people with disability and their supporters to safely share their story with the Disability Royal Commission. We welcome you to refer clients to our free service, or speak to our team about sharing your story.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability began in April 2019 to investigate the mistreatment of people with disability across all settings and contexts. One area the Royal Commission has highlighted is the experience of people with disability in the justice system, from courts to prisons, mental health facilities to family homes, and more, both historical and present-day.

For the Royal Commission, ‘disability’ means any type of impairment. This includes people with mental health conditions, as well as physical, intellectual, sensory and psychosocial disabilities, whether they were born with the impairment or acquired it later in life. This can include people experiencing addiction or the effects of trauma. No matter where we practise, it’s important for lawyers to try to improve the experiences of people with disability. At Your Story Disability Legal Support, we have supported people to make submissions about their experiences with criminal justice, housing, health law, NDIS appeals, personal injury and more. If it’s an area of law, there’s likely a submission about someone’s experiences with it.

Who are we?

Your Story Disability Legal Support (‘Your Story’) is a national service that gives free and independent information and legal advice about taking part in the Disability Royal Commission. Our priority is to support and empower people with disability, as well as their family, friends, carers and advocates, to safely share their story. We are independent and separate from the Disability Royal Commission. We are funded by the Australian Government and deliver our service through Legal Aid Commissions and community-controlled Aboriginal and Torres Strait Islander Legal Services in each state and territory.

Misconceptions about disability and the justice system

Last year, the Royal Commission called for responses to its Criminal Justice System Issues Paper. The responses highlighted many issues applicable to our experiences as lawyers. For example, the Law Council of Australia told the Commission that people with disability can be viewed as being unreliable, or incapable of actively participating in legal proceedings and the Australian Lawyers Association reported that people with intellectual disability and acquired brain injury may face negative assumptions about their credibility or reliability as a witness.

Many organisations expressed variations on a theme – that stigma and misconceptions surrounding people with disability can become entrenched due to inadequate disability awareness training. We need to correct the biases we have when working with people with disability to avoid miscarriages of justice. Unfortunately, sometimes people’s experiences with lawyers are the subject of the submission itself. By acknowledging the imperfections of our justice system, including ourselves, we can strive for better.

When it goes wrong

In consultation for this article, Todd Davis, Solicitor in Charge at the Legal Aid NSW Mental Health Advocacy Service, acknowledged that there is a ‘tendency for the law and lawyers to treat or approach those experiencing disability in a manner that often departs from the manner in which they would treat or approach those who do not experience a disability’. Davis highlighted that lawyers and decision makers can sometimes adopt a ‘best interest’ approach when that is not part of the legal test or process as described in the legislation or regulation. He says such an approach would not be applied to those who don’t experience disability and damages people’s confidence in legal processes and their ability to be heard. The result is a lack of confidence in orders or decisions made, which Davis contends often leads to a failure to adhere to such decisions.

However, that doesn’t mean we shouldn’t strive for inclusive practice. As Sifa Mtango, the senior solicitor at Your Story, said: ‘While in many ways people with disability shouldn’t be treated differently, sometimes their unique needs should be acknowledged and accommodated in a supportive and positive way.’ A client who came to Your Story provided an example of this, describing a family law matter that later contributed to his bankruptcy. He was charged excessive fees by his law firm due to his disability. He had dyslexia and was unable to interpret the correspondence the firm sent to him, so he asked them to read the letters out to him over the phone. He was charged for both the letter and the telephone conversation. The lawyers also encouraged him to sign agreements that he did not understand as they did not assist him to interpret them. Their conduct is currently before the relevant state complaints body. This is an important example of why lawyers should adapt to how clients communicate without burdening them with fees for simply being an accessible service.

How we can all improve our communication

The ways in which we adapt our legal services to clients with disability can differ greatly, due to the varied impacts disability can have. Working with lawyers can be stressful for any client. If we do not meet clients’ communication needs, we are not representing our clients effectively.

Communicating in a client’s preferred language is a matter of respect. For many Deaf and Hard of Hearing people, that means having sign language professionals at each appointment, whether that’s in person or through video remote interpretating. It seems obvious but lawyers, courts and judges don’t always do it! We also hear of clients with visual impairment being sent letters without Braille, which means these letters can’t be read without the help of a support person. If you’re unsure of how a client would like to communicate, the best thing to do is just ask.

Adapting your communication methods

The following are some different ideas for lawyers to help them create a more supportive and trauma-informed experience for a client who has a disability that impacts communication.

  • To help them feel more comfortable, a client may prefer a video call or a face to face appointment at a familiar place to make trauma responses less likely for people with psychosocial disability. Consider structuring appointments around the client. For example, if mornings are better for the client, make the appointment in the morning when client wellbeing is at its best.
  • Include support people if needed. Family, friends, disability advocates and support workers can be valuable to assist creating trusting lawyer-client relationships.
  • Providing an agenda may assist people on the autism spectrum or people with intellectual disability to make the
    appointment more structured and predictable.
  • Consider if it’s necessary to check in to ensure the client understands everything throughout the appointment. This is especially important for people with intellectual disability.
  • For some clients, it can be useful to follow up with an email with images if the person responds to visual communication.
  • Ask your client if they’d prefer multiple calls/appointments instead of one to assist clients to process complex or voluminous information.
  • And culturally appropriate communication is vital.

The following additional factors are also important.

Physical space: Have you checked the physical accessibility of your office? Do you have a lift and easy to open doors? Do you have an accessible bathroom that’s easy to find? Do your meeting rooms have enough room for a wheelchair’s turning circle?

Be aware of trauma responses: Being trauma informed means realising that if someone presents with ‘difficult’ or evasive behaviours, it could be related to trauma or psychosocial disability. Patience and respect are key.

Watch out for ‘gatekeepers’: Support people are often very helpful in appointments, but it’s important to not let them take over. You are acting for the client – not their support person.

Representation: It’s worth noting that people with disability aren’t just clients, they’re lawyers, colleagues and employers too. Having representation of people with disability on the boards of law firms, CLCs and regulatory bodies sets the tone for organisations and can make inclusive practice part of the everyday.

When it goes right

A trusting lawyer-client relationship can go a long way to empowering a client and asserting their interests. The Royal Commission’s hearing about ‘the experiences of First Nations people with disability and their families in contact with child protection systems’ highlighted the good that lawyers can accomplish, recognising the work of Aboriginal legal services to achieve outcomes emphasising the choice and dignity of clients.

How you can help

Lawyers are uniquely placed to refer people who have been mistreated in the justice system and can bring a vital perspective to the Royal Commission’s work. We invite you to start discussing the Royal Commission with your clients where appropriate, and particularly where you identify that they have experienced systemic failings within the justice system. By sharing a story with the Royal Commission, your client can become an advocate for both themselves and their community. Contributions of lived experience enable the Royal Commission to make recommendations informed by the needs and priorities of people with disability.

Your Story is happy to accept referrals from you or to work alongside you if you have a client who may be interested in being part of the Royal Commission. Supporters of people with disability, including professionals, can also share their experiences with the Royal Commission, as well any ideas or recommendations for improvement. For more information, visit: www.yourstorydisabilitylegal.org.au or call 1800 77 1800.



Oliver Moore
is a solicitor at Your Story Disability Legal Support.