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• Overview
• New Zealand Disability Strategy

15. Disability awareness

OVERVIEW

862 THE MINISTER FOR DISABILITY ISSUES has said:

Disability is not something individuals have. What individuals have are impairments. They may be physical, sensory, neurological, psychiatric or other impairments. Disability is the process which happens when one group of people create[s] barriers by designing a world only for their way of living, taking no account of the impairments other people have.[236]

Respondents to Preliminary Paper 47 highlighted the difficulties that those with disabilities, or parents of children with disabilities, have in accessing the Family Court.

863 We acknowledge that use of the term “disability” is contentious, but accept the Office for Disability Issues definition:

“Disability” is now usually defined in terms of functional limitation in activity resulting from a long-term condition or health problem that cannot be readily corrected.[237]

864 Disability includes physical disabilities, sensory disabilities, such as hearing or visual impairment, intellectual disabilities, and psychiatric and psychological disabilities.

865 The 2001 New Zealand Disability Survey found a total of 743 800 New Zealanders, or 20 per cent of the population, have some form of long-term disability.[238] Because our population is ageing and there is more disability among people who are older, we can expect this national rate to keep rising.

Barriers faced by people with disabilities

866 People with disabilities often face barriers to full participation in everyday life: they are less likely to have educational qualifications or be employed, and more likely to experience financial hardship, and communication and transport difficulties than people without disabilities.²³⁹ Forty-two per cent of all New Zealand adults with disabilities are slightly limited by their disabilities, 43 per cent are moderately affected, and the remaining 15 per cent are affected severely.[240]

867 People with disabilities often face ignorance and prejudice. Many identify the negative attitudes of others as a major barrier operating at every level of daily life.[241] One of the biggest difficulties is the assumptions of others about their capacity made on the basis of a generic disability status. Everybody is different, and those with disabilities no more homogenous a group than any other.

868 People with disabilities face barriers in the New Zealand court system. This is concerning, because the Family Court has jurisdiction over the Protection of Personal and Property Rights Act 1986 and mental health matters, and matters relating to the protection of children, all of which can involve disability issues.

869 While there are common elements in these barriers to accessing the courts, they vary with the individual and their disability.[242]

NEW ZEALAND DISABILITY STRATEGY

870 The New Zealand Disability Strategy aims to make New Zealand more inclusive by removing barriers that prevent people with disabilities participating in, and contributing to, society.[243] The strategy is a framework to ensure that government departments and agencies consider people with disabilities in their decision making.[244]

871 The strategy requires government agencies to treat people with disabilities with dignity and respect, to improve the information available to them and make it available in formats that suit their needs, and to ensure all government agencies and public services are accessible.[245]

Physical disabilities

872 In 2001, 15 per cent of the total adult population reported a physical disability.

873 It may not always be easy for people with physical disabilities to make their way around court buildings. They need parking spaces close to court buildings, accessible entranceways, easy access to interior facilities such as bathrooms and telephones, and manoeuvring space and appropriate courtroom seating. The Department for Courts intends pinpointing court accessibility issues and ensuring accessibility in all future construction.[246]

Hearing impairment

874 An estimated 223 500 New Zealand adults are deaf or have a hearing limitation not correctable by a hearing aid.[247]

875 It is vital that people involved in the Court process understand what is going on. Given the verbal nature of Court proceedings, this is particularly difficult for the hearing impaired.

876 The Hearing Association Incorporated highlighted several problems with current court provision for the hearing impaired. It noted that while some general courts have loop systems fitted, incompatible hearing aids cannot pick up the loop signal. Some courts have an infra-red listening system that requires the issue of a compatible headset, and not all the hearing impaired are aware of this useful facility. No amount of technology is of use to people who are profoundly deaf, and other kinds of assistance are required.

877 In New Zealand, sign language interpreters are most often used to help the deaf understand and communicate. Signing takes time, and means the person who is deaf will always be somewhat behind verbal exchanges. Court staff and associated professionals, judges, lawyers, and witnesses need reminding to pace their speech to give the deaf person and the signer time to translate.

878 The Deaf Association of New Zealand pointed out that legal terms (even those commonly understood in English) can make it difficult for people who are deaf to understand what is going on and to take part.[248] Many words such as custody and guardianship do not have a New Zealand sign language equivalent. If there is no sign, the translator or person who is deaf must fingerspell the word. The extent to which the person understands what is going on often depends on their English comprehension, and English, as the Deaf Association points out, is a second language for many people who are deaf.

879 Problems can arise where family members or others interpret proceedings. For several reasons, family members can “edit” or misrepresent what the person who is deaf is saying, or what a witness has said. It would be preferable to offer people who are deaf independent sign interpreters.

880 To be truly effective, signers would have to be available through every stage of Family Court conciliation services and proceedings, intake interviews, counselling, mediation, and interviews with lawyers, report writers, social workers and counsel for the child.

881 Interpreters are not always available at short notice and hearings may have to be rescheduled. The need for a signer should be noted whenever advance appointments are made.

882 Because a person who is deaf focuses usually on the signer, they can miss non-verbal cues such as the body language and expressions of others in the courtroom. People who are deaf often miss appointments because of communication difficulties, and reduce their interaction with others, which decision makers sometimes interpret as lack of co-operation.

883 Barriers often stand between people who are deaf and other Court specialists. Psychologists, counsellors, and others unused to deaf culture and language can do people who are deaf a disservice by misinterpreting their expression and behaviour. Once an impression has formed it can colour the assessment, and possibly the final outcome. Any professional working with a person who is profoundly deaf should be familiar with deaf culture.

884 The Deaf Association says the hearing impaired are disadvantaged in exercising parental custody and access rights. If their child is a hearing child and the other parent does not encourage him or her to learn sign language, the parent who is deaf and the child can quickly become alienated. This highlights the need for community-based support for hearing impaired parents and children.

885 If these factors are not recognised by others they can compromise the participation of the person who is deaf in proceedings and stress them further. We recommend that people who are deaf be entitled to have a support person present, to allow them to participate more confidently in the Court process.

Visual impairment

886 An estimated 81 500 New Zealand adults are visually impaired, and 7800 completely blind. The Royal New Zealand Foundation for the Blind highlighted difficulties that the visually impaired experience in accessing Court-related information and finding their way around courts.

887 The Foundation called for more information on the layout of court buildings, and that it be available in forms suitable for “print-disabled” people – audio and videocassettes, large print and Braille, and text-to-voice computer software.

888 In the courts themselves, better lighting, and large print signage can make a big difference to those less profoundly visually impaired. Surface indicator matting would keep visually impaired people safe by warning of potentially dangerous obstacles, such as stairs, escalators and building entrances.

Intellectual disability

889 Some 32 400 adults, or 1 per cent of the adult population, have an intellectual disability, and 23 700 need help from support people or organisations such as IHC to run their daily lives.[249]

890 Those with intellectual disabilities are often disadvantaged by being unaware of their rights, and may have difficulty communicating needs and concerns. It is well documented that people with intellectual disabilities are more likely to appear in court as both defendants and victims of crime.[250] This is a worldwide pattern, often resulting from a combination of vulnerability and lack of community support.

891 Historically, people with intellectual disabilities have been subjected to Court processes to place them under the Court’s jurisdiction so that they can be sterilised without their consent, and to extinguish their rights as parents so that their children can be adopted. This has raised concerns about how well the functional capacity of people with intellectual disabilities is understood and how well their rights are protected during the Court process.

892 Attending court can be traumatic for people with intellectual disabilities. Unfamiliar people and locations, delays (such as waiting several hours for a court appearance) and last-minute case rescheduling can exacerbate disorientation.

893 People with intellectual disabilities often need more time and help to absorb information, and ask and answer questions, and will have particular trouble following the sometimes complex language lawyers and judges use in court. Plain language pamphlets and videos can be useful, if others are there to read, explain, and answer questions.

894 It is important to create a structured environment with which people with intellectual disabilities can become familiar. This might include court visits before any appearances. They should be entitled to have someone present to support them throughout the conciliation or Court process.

895 One respondent was concerned that her autistic son was assessed by a section 29A report writer with no particular training or experience in assessing autistic children. She was also concerned that counsel for the child did not have a good understanding of autism. Intellectual disability is an umbrella term for a variety of problems and needs, and specialist assistance is desirable wherever possible.

896 Any professional – report writer, counsel for the child, counsellor, or mediator – who works closely with someone with an intellectual disability during Court or conciliation processes, or who must assess them, should have expertise in intellectual disability generally, and preferably in that particular type of disability.

Psychiatric disability

897 The term “psychiatrically disabled” refers to those people whose mental illness interferes with major life activities, such as learning, thinking and communicating.[251] Approximately 4 per cent, or 104 500 of adult New Zealanders have a psychiatric or psychological disability.[252]

898 Those suffering forms of mental illness such as anxiety and depressive disorders, and schizophrenia often face public prejudice and lack of understanding.

899 The Family Court has jurisdiction over mental health matters and therefore has more contact with, and experience of, working with the mentally ill than have other courts. Judges receive training about mental illness, and the Court often asks psychologists and psychiatrists to prepare assessments. Apart from the Court’s specific mental health jurisdiction, people with psychiatric disabilities also use the Court to help them resolve family disputes.

900 Submitters did not make any negative comments about the Family Court’s treatment of litigants who were psychiatrically disabled. Nevertheless, we believe it appropriate to recommend that Court staff are trained in the needs of those with psychiatric disabilities, and the community support services available.

OPTIONS FOR CHANGE

901 People’s requirements vary depending on their circumstances and the nature and extent of their disability; some have multiple disabilities. This demands an individualised approach to assessing the needs of people with disabilities. Court professionals must not assume that a particular disability implies a particular level of capacity, or that one accommodation will meet the needs of others with a similar disability. There are, however, aspects common to all people with disabilities accessing the Court, and which call for a more general, holistic approach.

Court staff disability awareness training

902 Other people’s attitudes are the biggest barrier in the daily lives of many people with disabilities. Such attitudes are not always ill-intentioned, but result from lack of knowledge about disability issues and how to help. Court staff trained in, or knowledgeable about, the needs of those with intellectual disabilities can, for example, modify procedures to reduce anxiety, provide quiet areas, and consult local support agencies and crisis services.

903 Court personnel may need to be aware of the extra time it takes to read information to people with disabilities, and to help them complete forms or other documents.

904 Judges, Court staff, and professionals all need disability awareness training to be able to offer a good service to people with disabilities. This training would need to cover issues particular to certain disabilities, while emphasising the diversity of disabilities and individual needs. It should also include the scope and nature of the means of addressing these issues.

905 Family Court-affiliated professionals, such as counsellors, social workers and, in particular, report writers, should, where possible, be expert in the particular disability of the person they are working with.

Recommendations

Judges, Court staff, and all professionals providing Family Court services should have disability awareness training.

Report writers should, where possible, be expert in the disability of the person they are assessing.

Better information for people with disabilities

906 Information about the law, legal and conciliation services, and the Family Court itself should be readily available. People with disabilities need more information on, for instance, building layout, in a form suitable for the visually impaired, and for the hearing impaired, written information on technological assistance. Forms that are regularly requested could be standardised in Braille. Notices and information about facilities and support services for people with disabilities at court should be advertised in Family Court buildings. Website information can be made more accessible to people with disabilities using currently available website disability scans.

Recommendation

Information must be provided in a variety of forms suitable for people with disabilities.

Scheduled hearing times

907 Long waits are particularly difficult for people with disabilities. They often depend on limited access public transport and the availability of support people, and may have strict medication schedules. For these reasons, Family Courts must arrange more flexible hearing times for those with disabilities.

Recommendation

Specific hearing times should be scheduled, wherever possible, for people with disabilities.

Expanding legal aid criteria

908 Many people with disabilities rely for representation in court on legal aid. Some respondents wanted legal aid extended to cater for the needs of people with disabilities; for example, they often need more time with a lawyer to participate fully in the Court process.

Recommendation

The legal aid ceiling should be raised to allow those with disabilities more time with their lawyers.