The Law Handbook 2024

Chapter 8.1: Understanding disability and the law 787 – the right to full consideration of their disability/ cognitive impairment in court or tribunal proceedings including appropriate legal and practical advice, assistance and representation in such proceedings (EO Act; DD Act); – upon their alleged criminal behaviour ( Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ( ‘CMIUT Act’ ), diversionary programs); – upon their sentencing were found guilty of a crime ( Sentencing Act 1991 (Vic) (‘ Sentencing Act ’), CMI Act; MH Act; Disability Act); – in the nature of their correctional placement, services, employment and education (Sentencing Act; Disability Act; MH Act); and – equality of opportunity with other prisoners who do not have a disability (EOAct; DD Act). Correctional facilities and programs Correctional facilities and programs are subject to the provisions of the EO Act and the DD Act relating to the provision of services. Also, the Corrections Act 1986 (Vic) (s 47(1)) states the rights of prisoners: g If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the governor’s approval, outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances. For more information, see Chapter 3.8: Imprisonment and the rights of people in prison, and Chapter 8.3: Disability and criminal justice. Asserting the rights of people with disability People with disability have the same rights as any other member of the community, however decades of institutionalisation, segregation and exclusion from the community have lead to many incorrect assumptions about these rights. NDIS and engaging service providers The NDIS allows participants to choose their own service providers for their disability supports, and generally these arrangements are written in a service agreement. The Australian Competition and Consumer Commission has published important information to help people understand their rights when entering into these agreements (see www.accc. gov.au/focus-areas/information-for/consumers- with-disability) . Complaints about disability services The NDIS allocates funding to an individual personally, so if they are unhappy with the supports they are receiving they can look for a different provider who is better able to meet their needs. If they believe the service provider has breached their obligations under the NDIS Code of Conduct they can make a complaint to the NDIS Quality and Safeguards Commission (See contacts below). Capacity Capacity is not a fixed concept, but one which is context dependant. • A person (whether or not they have a disability) can enter into a contract if they have ‘capacity’ to do so. To have capacity means that the person understands the nature and effect of the contract. (See chapter 7.1: How contract law works, for more information) • A person (whether or not they have a disability) can make a will as long as they have the ‘capacity’ to do so. To have capacity means they understand what a will is, the amount and type of property they have (in general terms) and their obligation to provide for persons such as spouse, children and certain family members. (See chapter 9.3: Wills, for more information). • A person (whether or not they have a disability) can consent to medical treatment if they have the ‘capacity’ to do so. Under the Medical Treatment Planning and Decisions Act 2016 (Vic) capacity is defined at section 4 as being able to understand the information relevant to the decision and the effect of the decision; retain that information to the extent necessary to make the decision; use or weigh that information as part of the process of making the decision; and communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means. For more information, see Chapter 8.5: Guardianship and medical treatment, and Chapter 8.6: Understanding powers of attorney.