People with cognitive impairment face many challenges as self-represented litigants. The Law Reform Committee heard evidence that ‘attending court can be intimidating for people with an intellectual disability or cognitive impairment, and that procedures adopted in courts can present a number of challenges for them’.259 As noted above, many people with disability are unable to afford a lawyer and rely on CLCs and other services for support.
The support these services can offer is limited, however, by inadequate resourcing.
Court services need to adjust their process to assist people with cognitive impairment to access justice. LIV Committee members have suggested the following ways in which the court and tribunals could make adjustments to assist people with a cognitive impairment:
• Flexibility in the timing of cases involving people with a cognitive impairment, e.g:
o Allowing extra time so that explanations can be provided during the hearing;
o Acknowledging that some people with a cognitive impairment function best at different times, and scheduling hearings to accommodate these needs;
o Better training of triage staff to ensure that they are aware of these issues and can accommodate the needs of people with a disability;
• Training of court staff about different forms of disability and medication and how to recognise and accommodate different needs;
• Judicial officers should have access to an up to date medical record (where appropriate) to enable them to make informed decisions;
• Ability to adjust court processes to recognise supported decision-making (and also be awareness of potential conflicts and ensure that they are acting in the best interest of the person with a disability); and
• Adjustments to or assistance with processes such as preparation and filing of court documents.
There has been training of judicial staff in this area and LIV members report that some judicial staff can be very accommodating and can effectively communicate with people with cognitive impairment. However, they also report that there remains a great deal of variability in the awareness of judicial officers of the need for support. Comprehensive training should be provided to all judicial officers, along with ongoing support, to ensure that there is a consistent approach to recognising and responding to the needs of people with cognitive impairment in the court room.
The LIV also recommends that a specialised support person, with appropriate training, be available in court and tribunals to liaise with the court and assist people with cognitive impairment (particularly those who are self-represented) to navigate their way through the court system. This independent support person could help articulate and explain the cause
259 Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013) 215.
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of action being put to the court. LIV members have reported that in the past there has been a specific disability liaison officer role, however, the support staff currently employed by courts and tribunals have less specific expertise about accommodating people with a disability.
Another important role that judicial officers can take is thorough post-trial referral to support and medical services. LIV members have highlighted that referrals from judicial officers can offer a unique opportunity to encourage people with a disability to seek assistance. It is important, however, that these referrals be appropriate to the
circumstances of the individual and respectful of people’s wishes and choices, and the disability support staff referred to earlier should be involved at this stage.
Recommendations:
101. That greater focus on training judicial officers to accommodate the needs of people with a disability is needed.
102. That specialised independent support persons should be available at Court and Tribunals to assist people with a disability to navigate the legal system.
Litigation guardians
It is the LIV’s view that litigation guardians play a crucial role in facilitating the legal agency of people with impaired decision making facility to assert their rights by enabling them to bring and defend legal proceedings.260 This is essential to provide access to justice on an equal basis with others in the community consistent with the CRPD. Litigation Guardians can be crucial in promoting the legal rights and interests of people with cognitive
impairment by instigating or defending legal actions.
Under the current law, it can be difficult to arrange for litigation guardians. Under the current Supreme Court Rules potential litigation guardians are often reluctant to become involved in proceedings for fear of costs being awarded against them personally and lack of clarity about who can conduct litigation on behalf of a person with impaired decision-making ability.261 This uncertainty has also extended to administrators following the decision in State Trustees Ltd v Andrew Christodoulou [2010] VSCA 86.262
260 Law Institute of Victoria, Submission to Senior Master, Funds in Court, Supreme Court of Victoria, Supreme Court (General Civil Procedure) Rules 2005 – Order 15, 13 November 2015.
261Victorian Law Reform Commission, Guardianship, Final Report (2012) 571.
262 In this case, the court refused State Trustees’ application for leave to appeal against the trial judge’s decision to make a costs order against State Trustees in its personal capacity rather than in its capacity as administrator for a represented person and not to provide it with an indemnity against the estate of the represented person.
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The LIV has advocated for reforms to Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 to ensure that the litigation guardian not be personally liable for costs.263 These reforms will enable people with a disability to pursue their legal interests.
OPA has acted as a litigation guardian for people with a disability in some matters in the Children’s Court and Family Court. However, the OPA is unable to meet the demand for appointments. Currently, the OPA does not undertake the role of litigation guardian where the litigation relates to financial matters. This can mean that the litigation is unable to continue. This situation is not in the best interest of justice for all the parties in the dispute, particularly the person with a disability.
Many people with a disability may not be able to access a litigation guardian. The LIV supports the Law Reform Committee’s Recommendation 37:
“That the Victorian Government review current arrangements for the appointment of litigation guardians. The review could seek to:
• ensure consistent processes are employed by the courts to appoint litigation guardians;
• ensure that a mechanism exists to enable a person with a disability to locate a suitably qualified litigation guardian; and
• ensure that organisations currently acting, or required by the courts to act, as litigation guardians are able to draw upon funds to meet adverse costs orders should such orders be imposed by the courts.” 264
Such a review should consider OPA’s suggestion of a government funded litigation guardian service.265 As the Victorian Equal Opportunity and Human Rights Commission has stated, the ‘fundamental issue is to ensure that the rights of the represented person are not breached merely because there is no one available to conduct litigation on their behalf’.266
Recommendation:
103. That the Victorian Government conduct a review of the appointment process for litigation guardians and consider establishing a government funded litigation guardian service. In the alternative, the LIV supports the amendment of rule 15.02 of the
Supreme Court Civil (General Civil Procedure) Rules 2016 to:
103.1. remove the personal liability of a litigation guardian for any adverse cost orders made against them; and
103.2. set off adverse costs against any costs that the Court has ordered that other party or non-party pay to that litigation guardian.
263 Law Institute of Victoria, Submission to Senior Master, Funds in Court, Supreme Court of Victoria, Supreme Court (General Civil Procedure) Rules 2005 – Order 15, 13 November 2015.
264 Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013) 287.
265 Office of the Public Advocate, Submission No. 29 to Law Reform Committee, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, 13 September 2011.
266 Victorian Equal Opportunity and Human Rights Commission, Submission No. 66 to Victorian Law Reform Commission, Guardian-ship, 3 June 2011.
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Disability complaints
The Disability Services Commissioner is the complaints body for people who have a disability in Victoria who have problems with their service provider. However, the Commissioner’s office is inadequately resourced to deal with the large number of complaints it receives. It has a power to investigate, but is seldom able to use it. The Commissioner frequently uses a conciliation process which is often lengthy and does not bind parties to any outcomes. This can lead to unsatisfactory results for many of LIV members’ clients and can dissuade them from reporting abuse and returning to the
Commission again when further issues arise for them which would justify a complaint. Due to the power imbalances involved, an alternative dispute resolution process such as this can be inappropriate or inadequate for complaints relating to abuse or neglect.267 These concerns have been raised in the Interim Report of the Family and Community
Development Committee’s Inquiry into Abuse in Disability Services268 and the Victorian Ombudsman’s Phase 1 Report on Reporting and Investigation of Allegations of Abuse in the Disability Sector.269
With the move to the NDIS, it is currently unclear what body will deal with disability service complaints in Victoria in the future (and whether this will be a Commonwealth or State body). LIV members report that one of the main issues with the way in which complaints are handled by the Disability Services Commissioner is that complaints that are not progressing cannot be referred to VCAT. This is unlike other similar systems such as complaints about health information. Under the Health Records Act 2001 a complaint about interference with health information or lack of access to health information is first lodged with the Health Services Commissioner. If the complaint cannot be resolved through conciliation, the person lodging the complaint can request that the matter be referred to VCAT. People with disability services complaints do not have this option. This option of taking a complaint to VCAT if conciliation is not successful provides an important additional layer of accountability that should be extended to disability services complaints.
Any disability complaints body (whether that be the existing Disability Services
Commissioner or a new body) needs to be independent, properly funded and have an avenue to take complaints to VCAT or another appropriate Commonwealth Tribunal if conciliation is unsuccessful.
267 Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services (Interim Report) 2015, 91-96.
268 Ibid.
269 Victorian Ombudsman, Reporting and Investigation of Allegations of Abuse in the Disability Sector: Phase 1: The Effectiveness of Statutory Oversight (2015).
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Recommendation:
104. That the body investigating complaints about disability services (either the Disability Services Commissioner or a new body under the NDIS) needs to be independent, properly funded and allow an avenue for complaint to go to a relevant State or Federal Tribunal.