Chapter 16*4 Psychiatric Disability contains helpful information regarding the powers of the police to apprehend people with a mental illness.

People with disabilities have the same rights as other members of the community when being interviewed by police. For a general discussion of rights during police interviews, refer to Chapter 3*2 Arrest and Interrogation. 

Police must organise access to a medical practitioner or medication if a person requires it. If access to a doctor or medication is not provided, evidence obtained may be inadmissible, and police behaviour may amount to a breach of rights under the Charter.

During the interview of a suspect, victim or witness who has an intellectual disability, mental illness, acquired brain injury or dementia, the police are required to have an ITP present (Victoria Police Manual). ITPs are volunteers who assist people with a cognitive disability or mental illness during interviews, or when giving formal statements to Victoria Police.

The ITP provides support and facilitates communication between the interviewee and the police. They will help to ensure that the interviewee understands their rights and the questions asked by police. The ITP will participate in the interview and clarify any misunderstandings that may arise due to the person's disability. An ITP will be independent of the police, the interviewee and the inquiry, and will be objective in performing their role.

ITPs are trained volunteers who are supported by and accountable to the Office of the Public Advocate. The police may also use a relative or close friend of the interviewee as the ITP if a trained ITP is not available. Police are responsible for arranging for an ITP to be present when required. An interviewee may also request that police arrange for an ITP to be present. A list of trained ITPs is available to police at all times.

There is often some confusion about the role of the ITP and an expectation that they will assume an advocate role. An ITP will not act as an advocate; a separate advocate must be requested if it is felt that the person being interviewed requires one. It is important that people with disabilities are provided with a legal advocate upon request and that they understand the different roles of advocate and ITP. The client should know the limitations of an ITP; that the ITP cannot act as an advocate, is not "on their side", and that anything said to the ITP is not confidential and can be used against the person in court. An ITP cannot advise the person on how to deal with the issues they are facing and cannot provide legal advice.

If an ITP was not made available to a person with a disability at the time of interview it is important to inform the court. If police fail to assess that the person has a disability and so do not request the presence of an ITP during an interview, then the alleged offender may later submit that as an ITP was not present, that they failed to understand the interview process and that their Charter rights have been infringed. If an ITP was not made available to a person with a disability at the time of interview it is important to tell the court. For more information about the ITP program and the Office of the Public Advocate, see: Chapter 16*2 Advocacy.

All alleged offenders must be able to contact a legal advocate upon request. Access to a legal advocate is an important right protected by section 25 of the Charter, and is particularly significant to a person with disabilities who may not fully understand what is happening. However, it may be that a person with a disability lacks the capacity to comprehend what is taking place, and they are therefore unable to make such a "request". Police should always advise the ITP and the alleged offender of their right to a legal advocate, separate from any standard reading of rights, to ensure that the alleged offender fully understands the role of an advocate and that they are entitled to have one. 

Legal advice can be sought from Victoria Legal Aid or your local community legal centre (see: Chapter 2*4 Advice Directory for contact details) .