There is currently no systematic identification of people with intellectual disability in the justice system at any of the usual entry points (such as Legal Aid, Corrective Services, police, courts or other agencies). As a result, many people with intellectual disability are not recognised as having a disability and miss out on relevant protections of the law, diversions from the criminal justice system and other appropriate assistance.
To ensure that people with intellectual disability receive appropriate support and have access to justice (either as a victim or an offender), it is critical that their intellectual disability be identified as early as possible. When lawyers and other legal professionals are skilled in identifying intellectual disability, they can positively influence the outcomes and experiences of people with intellectual disability in the criminal justice system.
Hayes and Bleakley (discussed in MacDonald, 2008) argue that, when a person’s intellectual disability is not identified, the consequences are likely to include:
- Police interviewing the person with intellectual disability without an independent third person present, as required by the Queensland Police Powers and Responsibilities Act (2000)
- Lawyers not using available defences or diversions that would be of great assistance to the person with intellectual disability
- Corrective and community services not assisting the person with intellectual disability to access tailored programs designed to assist in rehabilitation.
Several factors can impede the timely identification of the person’s intellectual disability:
- The intellectual disability is often not obvious from the person’s appearance, nor from brief contact with them
- The person may be adept at hiding their disability and/or deny having one when explicitly asked (out of shame, embarrassment or past negative experiences)
- The person may not identify personally as having an intellectual disability
- The person may have strong verbal skills and ‘present well’
- The person may not have a formal diagnosis
- Behaviours that may indicate intellectual disability can be misinterpreted by others – for example, the behaviours can be seen as a bad attitude, as story-telling, or as indicators of guilt. Example behaviours might include aggression, joking, inappropriate behaviour, evasive or inconsistent answers, confabulation, difficulties with time and difficulties sequencing events
- The limited ability amongst most members of the community to recognise when a person has an intellectual disability.
Intellectual disability might be indicated by a range of difficulties in a person’s communication, such as:
- Having a restricted vocabulary
- Being easily distracted
- Experiencing difficulty in understanding questions
- Responding to questions either inappropriately or with inconsistent answers
- Experiencing memory difficulties
- Showing difficulty with abstract thinking and reasoning.
If legal professionals suspect that their client has an intellectual disability, it is best to ask the client directly. If the client does not know or they do not wish to identify with this label, the following questions may assist to develop an understanding:
- Where did you go to school?
- Did you get any extra help at school?
- How are you with reading and writing?
- What do you do during the day? Do you go to work?
- What types of things do you do for fun? To relax?
- Where do you live? Do you live with other people?
- Do you get a pension from Centrelink?
Another indicator that a client may have an intellectual disability is the presence of a support person. This person may not readily identify themselves as the client’s support person or support worker out of respect for the client who may have asked them not to do so. However, it can be helpful to ask the client about the person who is with them and what role that person plays (or how that person helps them). (For more information, see the sections: ‘Definitions of intellectual disability’ and ‘Recognising intellectual disability’.)