Taking instructions from clients who have a cognitive impairment
It is, of course, important for all legal practitioners to be adequately instructed by their client. When working with clients who have a cognitive impairment, a conscious effort needs to be made to ensure that they are given ample support and opportunity to make informed decisions. Impairment may be permanent or sporadic as a result of a cognitive impairment, some types of mental illness, acquired brain injury, dementia or the latter stages of an illness or disease, such as multiple sclerosis and HIV/AIDS-related dementia.
Of course, not all people with these disabilities will have a cognitive impairment. The central issue for those providing legal advice and representation to people who have cognitive impairment is the degree to which the person can demonstrate their capacity to provide instructions. This generally involves demonstrating a reasonable understanding of:
their current circumstances and the circum-stances leading them to need legal advice and representation;
their legal and non-legal options and the risks and benefits of these options; and
their role in providing instructions to their legal advisor.
The following are suggested ways to assist in ensuring your client to able to provide you with accurate instructions. These may apply to a range of services working with a client with cognitive impairment, not just to legal practitioners:
Allow sufficient time to conduct an interview. This means spending time explaining the law and the options available to your client and eliciting both their understanding of your advice and what they wish to do. This time is also well spent in assessing your client’s skills and capacity to instruct and developing their confidence in talking to you.
Identify any limitations in literacy skills and respond accordingly. Any written material should be carefully explained to your client. Questions or comments may need to be put in a number of ways to ensure the client understands their content.
Be aware that people perceived as authority figures may easily and unwittingly intimidate some (but not all) people who have a cognitive impairment. For example, be mindful of body language, and ensure that questions are not put in a way that suggests there is a correct or incorrect answer, or an answer you would prefer. Note that people who have lived in institutions may be in the habit of saying ‘yes’ to questions unless they are given an opportunity to feel confident that they are free to express their real opinions.
Take responsibility for explaining things in an accessible and easily understandable way. Ask the person to tell you what they have understood, so you can do a better job if necessary.
Record relevant events as soon as possible after they have occurred, particularly where the client has a poor memory.
Speak simply. Avoid jargon, abstract concepts and long-winded explanations. Explanations should be given in simple terms. Use drawings or other methods of representation if necessary.
Where appropriate, try to ensure that a support person or advocate is available to assist with effective communication between you and your client. Such a person will usually be familiar with any difficulties your client may have in responding to questions or providing an account of events. Be clear on the relationship between yourself, the support person and your client and that you are acting on behalf of your client and not on behalf of the support person or advocate. It is important to get instructions directly from your client to ensure you are acting on their wishes.
Sometimes a client may be unable to provide you with instructions so that you can act on their behalf. There may be a substitute decision-maker to provide instructions on their behalf. This does not apply in criminal matters, including under the CMIUT Act.
If the person has an administrator appointed, the administrator may have authority to provide you with instructions (GA Act s 51) in relation to financial matters. The capacity of the administrator to instruct you will depend on the authority granted at the time of their appointment. Similarly, a guardian may be appointed who is able to instruct you in relation to personal matters (GA Act ss 38, 40).
If there is no administrator or guardian appointed, you may consider it necessary for someone appropriate to apply to the Guardianship List of VCAT for one to be appointed.
Some courts and tribunals provide other mech-anisms for bringing actions. Look at the relevant legislation for the tribunal or court to see if formal appointment of a ‘litigation guardian’ or ‘next friend’ is required, or whether another person is able to bring the action on behalf of your client. (For example, under section 77B of the VCAT Act, if your client brought a proceeding under the Residential Tenancies Act 1997 (Vic) and they have a disability the Tribunal may appoint a litigation guardian to bring the action your client is seeking.)
Litigation guardians can be held personally liable for the costs of the matter before a court or tribunal. The only circumstances where instruction should be taken from a person other than your client are those where a person who has legal authority to instruct on behalf of your client with cognitive impairment has been appointed, and is acting in accordance with what you believe to be your client’s will and preferences, wishes and interests. If you believe that the instructions you receive from your client’s advocate or legally authorised person are not the client’s wishes, will or preferences, or in their interests, you should consider challenging the advocate’s authority in the proper forum, which is generally the Guardianship List of VCAT.
Taking instructions from clients who have a cognitive impairment
Chapter: 8.1: Understanding disability and the law
Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate; Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service
Current as of: 1 September 2024
Law Handbook Page: 706
Next Section: More information
