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S32 Step By Step Guide

Level of evidence required

Best evidence of intellectual disability

The best evidence of intellectual disability to satisfy both the jurisdictional question and to positively influence the magistrate to exercise discretion in favour of your client is a comprehensive psychological assessment that indicates your client's IQ, outlines and explains deficits in adaptive functioning and states that the disability was present before the age of 18. Ideally the report should also state that intellectual disability is a developmental disability, so as to reflect the language of section 32.

Using an assessment prepared by a psychologist with expertise in intellectual disability is particularly important if the effects of your client's disability are not obvious or if the disability is at the mild end of the scale. 'Mild' disability is frequently misunderstood as being minimal in effect and requires careful explanation in order for the court to understand its full impact. (See common misconceptions about 'mild' intellectual disability in Clients with intellectual disability.)

For example, a client may have high-level verbal skills that mask their very limited understanding. A psychologist familiar with the effects of intellectual disability will be able to clearly explain the discrepancy between expressive and receptive language skills to the court and the impact of such a discrepancy on the person's daily life. Without such an explanation the court is unlikely to fully understand the impact hat person's disability.

Does your matter require the best evidence?

Whether you need the best evidence in the form outlined above or whether a lesser form of evidence will suffice will be a matter of judgement. Every client and every matter will be different.

    Factors that may influence this judgement call include:
  • the severity of your client's disability
  • the apparentness and complexity of your client's disability
  • the level of knowledge about disability on the part of the judicial officer
  • the seriousness of the alleged offending behaviour
  • the category of offence
  • the number and type of entries on your client's criminal history

A section 32 application for a client charged with shoplifting with no previous history will require a lower level of evidence than an application for a client charged with assault who has a history of similar offences.

If you find your assumptions about the level of evidence that the court will accept are incorrect, an adjournment should be sought to enable you to obtain the evidence required. Rejection of lower level evidence by the court would, on the face of it, appear to be good grounds for a grant of Legal Aid for a comprehensive, specialist report from an appropriately qualified and experienced psychologist.

Psychological or psychiatric assessment?

Psychologists are best qualified to formally assess intellectual disability given their expertise in assessment of IQ and of adaptive functioning. A psychiatrist cannot do this form of assessment.

An assessment and report from a psychiatrist is more appropriate for a person with mental illness or mental disorder.

Magistrates are not always aware of this distinction.

In some cases, your client may have intellectual disability and a mental illness or disorder. If there is a treating psychiatrist get a report from them. Try to ensure that the person doing the assessment has expertise in both intellectual disability and mental illness or, at a minimum, has an understanding and an awareness of the area that is outside of their area of expertise. In some cases assessments from a psychologist and psychiatrist may be necessary to get satisfactory evidence.

Getting evidence, services, support planObtaining evidence of intellectual disability

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