When working with clients with a mental impairment, a conscious effort needs to be made to ensure they are given adequate support and opportunities to make informed decisions. Never assume that a person with disabilities cannot give instructions, nor should you assume to act in their best interests. For a detailed range of suggestions on how to assist a client to give a service provider accurate instructions see: "Taking instructions from clients with cognitive impairment", in Chapter 16*1 Disability Overview.

See also: "Fitness to stand trial", below, for situations where a person is unable to instruct on a plea.

If a person with a mental illness or intellectual disability has been charged with a crime, specific laws and procedures may be available from the time of the police interview to sentencing. Police are required to have an Independent Third Person (ITP) present when interviewing a suspect who has a psychiatric or intellectual disability (see: "Police", below).

If there is a connection between the incident for which the person is charged and their mental impairment then they may be eligible for a defence of mental impairment; which is a complete defence in the Magistrates' Court and so ought always be explored. (See: "Fitness to stand trial and the defence of mental impairment", below.) However, there are considerable risks involved in raising this defence in the higher courts (see: "Procedures" and "Orders", below).

In addition to the standard sentencing options (see: Chapter 3*5 Sentencing in the Magistrates' Court), a further range of options is available for people with disabilities who have been found to have committed a crime. (See: "Criminal Justice Diversion Program", "Sentencing" and "ARC", below.)

The Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter") requires public authorities to consider and act consistently with human rights, and requires courts to interpret and apply legislation in accordance with the rights in the Charter. Public bodies such as Victoria Police are public authorities, and must act consistently with the Charter.

Charter rights that are relevant to people with disabilities who are involved in the criminal justice system are:

The human rights that are set out under the Charter are not absolute rights. Section 7 requires that rights are balanced against each other, and against other public interests. Rights can only be limited in ways that are reasonable and justified in a free and democratic society.

The application of the Charter is still being tested in Victorian courts and people who feel that their human rights have been breached should obtain detailed legal advice. Advice can be sought from the Mental Health Legal Centre or the Human Rights Law Centre (see: Chapter 2*4 Advice Directory for contact details).