Lawyers always begin from the position that adults are presumed to have the capacity to give legal instruction. The law assumes that people over the age of 18 have legal capacity, unless a Court or the Guardianship and Administration Tribunal has ruled they do not have capacity (Guardianship and Administration Act 2000). Having cognitive difficulties will not necessarily negate a person’s ability to make decisions about a particular matter.

In order to be considered capable of providing legal instruction, a client should be able to (LSNSW, n.d.; MacDonald, 2008):

  • Comprehend the essential elements of the legal matter 
  • Understand the charges against them 
  • Respond to those charges with a plea 
  • Understand the role of the solicitor 
  • Have a basic understanding of the court process and be able to participate in proceedings 
  • Understand what impact their instructions will have on the outcome of the legal matter. 

If a lawyer has serious concerns about a client’s ability to give instruction, it may be possible to ask the client’s support person to assist by voicing the needs of the client. However, this depends on the matter and it is important to ensure that the support person does not have a conflict of interest (LSNSW, n.d.).

At its website, the Queensland Criminal Justice Centre states (QCJC, n.d.): Where a lawyer is put on notice that there may exist a ‘significant relationship’ between the actions or omissions that led to criminal charges, and, the possible existence of a relevant disability, the lawyer should invariably seek an adjournment and bail (depending on the circumstances) in order to investigate the matter of the client’s mental state and/or cognitive abilities.

Seeking an adjournment to obtain further advice and evidence may be the most useful approach if considering (1) whether the client is fit for trial, (2) whether the matter should be referred to appropriate diversionary courts, and (3) whether to make an adequate submission about mitigating circumstances. Where necessary, advise and assist clients to apply to Legal Aid Queensland to seek funding for a psychiatric assessment and report.

The Queensland Criminal Justice Centre’s website also advises that investigations on behalf of a client could include, but are not limited to:

  • The QP9 and criminal history, if any, from the prosecution 
  • Letters from treating doctors detailing the client’s condition 
  • Freedom of Information applications to the Medico-Legal Department of the relevant Acute Mental Health Unit in order to acquire the client’s mental health history where the person with intellectual disability also experiences a mental health issue 
  • Private psychiatric reports 
  • Psycho-social reports from psychologists 
  • Character references and details of any social supports in place for the client from relevant social workers and advocates or others.
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