4.1 - Key indicators of a relevant disability

Taking Instructions

When taking client instructions, practitioners should be alert to any circumstances that may put them on notice to investigate a client's state of mind and/or intellectual disability or any other disability that may have influenced the offending behaviour and/or be of such a nature that may render the person 'unfit for trial.'  First and foremost, practitioners should note the facts of the alleged offence itself, and critically analyse the behaviour of the client at interview. It is important for a lawyer to ascertain the details of any current disability support benefit the client may receive, and any information in relation to whether the client currently receives clinical mental health treatment, or, whether the client has a history of such treatment.

Practitioners should appreciate that it is not always possible to elicit information in relation to a person's psychiatric history at interview. It is often the case that mentally ill clients may fear the prospect of hospitalisation if they divulge such information to a person whom they perceive to be an authority figure - such as a lawyer. Moreover, some clients who suffer from certain illnesses do not always display active symptoms. That is to say, that the manifestation of mental illness can often be episodic. Although a person may not display active symptoms at the time of taking instructions, symptoms of mental illness could have been active at the time of the alleged offence.

In all cases, it is critical that practitioners be alert to certain behavioural indicators that cumulatively (or in isolation where the indicator is intense) may serve notice to further investigate the issue of a client's mental state. These indicators include, but are not limited to:

• Aggression and/or emotional or irrational over-reactions;
• Excessive confusion, distraction or distress;
• Dis-inhibition/low impulse control;
• Difficulty in comprehension of process;
• Verbal disorganisation;
• Difficulty in maintaining eye contact;
• Short attention span and cannot stay focused;
• Excessive compliance to suggestion;
• Short-term memory loss such as the inability to remember familiar persons or places; and
• Any other behaviour that may put the practitioner on notice.

When taking instructions practitioners should allow the client to tell their story uninterrupted. It is important to use simple language that expresses one idea at a time while avoiding the use of leading questions. A simple way of checking if the client understands is to ask him or her to paraphrase their understanding of the advice provided, or by asking other sensitive and appropriate follow-up questions. It is also important to pay close attention to non-verbal behaviour when assessing a client's level of understanding.