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Criminal Law - working with intellectually disabled clients

David Allan 2015 Dr Brigit Mirfin-Veitch 2015
David Allan
Dr Brigit Mirfin-Veitch
Director, Donald Beasley Institute

This book is only available in PDF format

Published: 20 March 2015
Pages: 21


People with intellectual disability1 are a specific group of disabled citizens who are recognised as being disadvantaged in their interactions with the legal system. In New Zealand two key pieces of legislation have been developed to address, in part, the legal needs of people with intellectual disability; the Protection of Personal and Property Rights Act (1988),2 and the Intellectual Disability (Compulsory Care and Rehabilitation Act) (2003).3 This legislation, in combination with the presence of the New Zealand Disability Strategy,4 the United Nations Convention on the Rights of Persons with Disabilities,5 and more recently, the Disability Action Plan 2014-186 would suggest that this country has adequately addressed the legal and human rights of people with intellectual disability. However, despite this legislation, and aspirational policy, research evidence,and monitoring processes8 have continued to highlight that adults with intellectual disability in New Zealand often find it difficult to exercise their human rights, including in legal contexts.9 If unrecognised, and unaddressed, such vulnerability has the potential to result in people with intellectual disability failing to receive equal recognition before the law or adequate access to justice.

This paper has been developed to underpin a NZLS CLE webinar that has the purpose of building capacity within criminal lawyers who represent people with intellectual disability. The paper incorporates three parts: an overview of what international research in the area of people with intellectual disability in the legal system; findings of recent New Zealand research that includes the views and experiences of people with intellectual disability themselves; and a framework for providing responsive and effective legal representation for people with intellectual disability, referred to here as “interviewing to find the person.”

1 A range of definitions are used to describe intellectual disability however for the purposes of this report the American Association on Intellectual and Developmental Disabilities definition is used: “Intellectual disability is characterised by significant limitations in both intellectual and adaptive functioning and adaptive behaviour as expressed in conceptual, social and practical skills. This disability originates before age 18.” The authors acknowledge the preference expressed by New Zealand self-advocacy organisation People First for people with intellectual disability to be referred to as people with learning disability, but for reasons of consistency and clarity have used the term intellectual disability in this paper.
2 Protection of Personal and Property Rights Act, 1988: New Zealand.
3 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003: New Zealand.
4 Ministry of Health, The New Zealand Disability Strategy, O.o.D. Issues, Editor 2001, Ministry of Health: Wellington. p 1-37.
5 The United Nations, United Nations Convention on the Rights of Persons with Disabilities, 2006.
6 Office for Disability Issues. Disability Action Plan 2014-2018. 2014. Wellington.
7 Johnston, H., Henaghan, M., and Mirfin-Veitch, B.The experiences of parents with an intellectual disability in the New Zealand Family Court System. New Zealand Family Law, 2007. 5(9): p 226-236.
8 United Nations. Convention on the Rights of Persons with Disabilities. Concluding observations on the initial report of New Zealand. October 2014. Geneva.
9 Mirfin-Veitch, B., Gates, S., Diesfeld, K., and Henaghan, M, 2014. Developing a more responsive legal system for people with intellectual disability in New Zealand. Dunedin: Donald Beasley Institute.

Content outline

  • Working more effectively with clients who have an intellectual disability
  • "Interviewing to find the person": a strategy for effective representation
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