Access to Justice for Cognitive Impaired

PLBA 4500 - Access to Justice

Written by: Surabhi Kaura

Professor: Ms. Karen Schucher

Date: February 23, 2015

The realm of access to justice for people with cognitive impairment or mental disability endures to be indecisive. Defining what constitutes cognitive impairment is a significant challenge. Substantial variation exists on which behaviours and conditions should fall under the umbrella of cognitive impairment, especially in the case of criminal justice system. While mental disability is not a new concern in the Canadian judicial system, there has been a growing consideration about the issue of mental disability in general and about the prevalence of litigants with mental health issues, as well as their contact with the justice system. “The sources of cognitive impairment identified were varied, including intellectual disability, dimentia, mental illness and brain injury resulting from an accident, illness or substance abuse” (Gray, Suzie, and, Sophie, 2009, p. 1). However, these symptoms contribute to legal problems and barriers faced by people in accessing legal help and participating in legal processes. “With mental illness a factor for 60 per cent of adult ODSP recipients and 25 per cent of those on Ontario works, a very high percentage of LAO certificate clients have some form of mental illness” (Statistics Canada, 2009, p.1). This research paper will precisely touch upon the major legal issues, barriers to legal processes and assistance, systemic barriers, and prospects and strategies to the identified needs.

The issues illustrate how cognitive impairment intersects with legal need. It is argued that people with cognitive impairment are particularly vulnerable to a range of legal issues when compared to other people and as such, their legal issues are less likely to be resolved. “The law of legal capacity, decision-making and guardianship governs how decisions related to property, treatment and personal care are made in situations where individual’s decision-making abilities are in some way impaired, but decisions must nonetheless be made” (Law Commission of Ontario, 2014). In situations where a mentally incapacitated person does not have the capacity to understand and make important decisions on their own, legal orders may be sought to enable another person to act and make decisions on their behalf. For instance, the process of substitute decision making sometimes deprives mentally incapacitated to achieve justice, since there is no guarantee that the attorney or legal guardian acting on their behalf will make a rational decision. As far as the criminal justice system is concerned, people with cognitive impairment are more prone to incarceration than other people. “People with an intellectual disability appear more likely to be refused bail and held on remand than others, since people held in custody do not understand and cannot show that they will keep the bail conditions, or because they lack the support in the community to ensure they keep the conditions” (Gray, Suzie, and, Sophie, 2009, p. 5). It enunciates that the issue of mental disability has consistently been raised in the eyes of judiciary, yet a little fragment of weightage is imparted on it.

When participating in legal processes or applying the law, the capacity of people with mental disability is swayed by a number of factors emerging in conjunction. An immediate barrier to pursuing legal issue is lack of awareness of legal rights and options. “Remedies such as victim’s compensation remained out of reach because people with cognitive impairment were not aware that compensation was a possibility or that help was available to make such claim” (Gray, Suzie, and, Sophie, 2009, p. 5). The other factor is that people with cognitive impairment are highly dependent on others to take action. “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” (Gray, Suzie, and, Sophie, 2009, p. 6). The severity of disability deprives people not being able to bring their own legal action. Further, their disability or impairment is not recognized. For instance, people may not think to state that they have mental disability or may hide it due to societal stigma or fear of being exposed, which deprives them to participate in legal processes. The difficulty in communication is also one of the barriers between legal practitioners and people with mental disability. In addition, there are societal misconceptions and stereotypes about people with cognitive impairment, which affects negatively on their participation and outcomes in legal processes. “Commonly held perceptions of people with intellectual disability is that victims or witnesses may be seen as stupid, untruthful, and inconsistent in their recounting of events and easily flustered” (Gray, Suzie, and, Sophie, 2009, p. 6). Due to these misconceptions, it makes difficult for police and courts to believe that the crime has been committed against a mentally impaired person, which in fact impacts on a mentally impaired person to participate with confidence in court and tribunal practices.

The complexities of systemic barriers encroach on right to access to justice for mentally impaired in various ways. People with cognitive impairment face challenges during the commencement of legal proceedings which often depend on written information. For example, receiving and paying fines are paper-based processes, where this group of people face hurdles to understand legal information. As a result of not being able to understand the legal information and legal processes, people with cognitive impairment avoid seeking help, which further compounds their issues. The complex and stressful nature of legal proceedings is another factor to effectively participate in the legal system for this group of people. “People with cognitive impairment were reported to find giving evidence stressful and difficult, particularly when faced with tactics use to undermine their evidence” (Gray, Suzie, and, Sophie, 2009, p. 8). The stress of legal proceedings exacerbates for some mentally impaired participants in terms of length of proceedings and waiting period between court hearings. Another form of legal process this group of people are exposed to is alternative dispute resolution (ADR). ADR is considered as a more accessible process as compared to formal court proceedings. “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” (Gray, Suzie, and, Sophie, 2009, p. 9). In particular, a process which does not include a legal representative serves hardships for mentally disabled people to identify what is in their best interest without proper assistance and support.

There are certain strategies and prospects to address these barriers in increasing access to justice for people with cognitive impairment. The situation demands the need to increase accessibility for people with a cognitive impairment. “There is a need to train advocates and support people to assist people with cognitive impairment and helping them to engage effectively in the legal system. There is need to provide information and training for people with a cognitive impairment. There is a need to provide training for legal service providers, legal practitioners and court staff” (Gray, Suzie, and, Sophie, 2009, p. 10). As such, strategies will eventually provide a better access to justice and advice to guidelines when capacity issues arise. “Mental Disability Advocacy Center asserts that the law must include a procedure to allow all persons with disabilities, regardless, of their legal capacity status, to exercise the right to legal representation, i.e. to freely appoint a lawyer or another representative of their choice and the law must enable all people with disabilities access to State-funded legal aid to a person whose capacity is being questioned” (Jacobs, 2013, p. 9). There are certain projects being undertaken to address this issue. “Law Commission of Ontario has undertaken a project to examine and recommend reforms to Ontario’s legal capacity, decision-making and guardianship laws related to property, personal care and treatment decisions” (Law Commission of Ontario, 2014). In addition, Legal Aid of Ontario has also begun consultations with lawyers and agencies to address this issue. “While LAO’s broad mandate supports many of these issues, services are often spread across multiple legal advocates and sites with little co-ordination” (Kauth, 2013). The issue of access to justice for mentally impaired was also raised by United Nations. “The meeting specifically addressed article 12 of the convention on the right of disabled persons to equal recognition, capacity and support before the law, and article 13 on their right to equal access to justice as well as support and accommodation in the justice process” (UN News Center, 2003, p. 2). During the discussion, many delegates took the floor to shed light on the importance of educating and training the judiciary about the needs and concerns of mentally disabled people.

In conclusion, the impact of cognitive impairment on the legal issues people encounter and their capacity to address these issues has emerged as a central theme of this research. The barriers coupled with the issues lead to crises so much so that it affects the capacity of people in understanding and engaging in legal processes. The deprivation of justice ascends where people may not take legal action as they are unaware that whether the issue they face is a legal issue or has a possible legal resolution. The difficulties and challenges for mentally disabled litigants in pursuing a legal matter serves as a drawback in understanding legal information or advice and communicating with lawyers. The complexity and drawn-out nature of justice system can make the legal process arduous for people with cognitive impairment in pursuing their interest through a satisfactory outcome. The problems of access to justice for this group of people may be further compounded by the limited capacity of some legal professionals, where they fail to recognize that their client has a cognitive impairment. It demands appropriate communication and support. In addition, negative misconceptions about people with cognitive impairments held by some legal professionals and law enforcement agencies can sometimes result in a failure to believe these people, which can limit the chances of taking appropriate action on their behalf. This lack of action eventually contributes to a low sense of entitlement amongst mentally disabled and a fear of not being believed. When the fear of not being believed strikes into the minds of mentally disabled, they may not voluntarily admit to having a disability under such circumstances and thus may fail to receive specialised assistance, making them unable to effectively participate in legal processes.

From the foregoing information and facts, it is crystal-clear that there is a dire need to focus more on specific strategies to address the identified needs, which can enable people with cognitive impairment to seek legal assistance and participate effectively in legal processes. The objective of strategies should specifically target on providing appropriate advocacy, and offering training and information to support people with cognitive impairment during the legal processes. The crux of this growing issue has brought together valuable research about the legal need and access to justice issues faced by people with cognitive impairment. The issue not only ends here. “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” (Gray, Suzie, and, Sophie, 2009, p. 12). In summon bonum, it is vital to focus on assessing strategies that can be used potentially in increasing the capacity of this group of people to access and use the law to their benefit, and the capacity of legal system to aptly serve and assist this group.

~ Copyright © Surabhi Kaura 2015


Academic Journal Article

Jacobs, Laverne. “Access to Justice for Persons with Disabilities: The Case of Legal Aid” (2013) University of Windsor, Faculty of Law

Gray, Abigail., Suzie, Forell., and Sophie, Clarke., “Cognitive Impairment, Legal Need and Access to Justice” (2009): 1-16. Law and Justice Foundation.$file/JI10_Cognitive_impairment.pdf

Government Document and NGO

n.d. “Equal Legal Rights, Access to Justice Crucial to Implementation of Disabilities Convention, Say Speakers as Conference of States Parties Continues | Meetings Coverage and Press Releases” (2003) UN News Center.

n.d. “Section A: Overview of Issues - Mental Health and the Criminal Justice System” (2009) Statistics Canada

n.d. “Legal Capacity, Decision-making and Guardianship” (2014) Law Commission of Ontario

Popular Document (Newspaper)

Kauth, Glenn. “Focus: LAO Seeks ‘better Way’ on Mental-health Matters” (2013)Law Times

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1 comment

Cathy 13 months ago

Society needs people like you.................

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