Physical disabilities, mental disabilities and/or those with issues of mental capacity
1. Overview
Physical disability, mental disability and issues of mental capacity are three very different things. The reason that they are grouped together in this one chapter is that they may require similar types of consideration by a court or tribunal, such as reasonable adjustments.
There is likely to be crossover between this chapter and others. For example, a person with a disability may be a vulnerable person as a result.
2. Duty to take account of disabilities
The court has a duty to make reasonable adjustments and in terms of Part 3 of the Equality Act 2010 it is unlawful to discriminate against persons with a disability in the provision of access to courts.[1]
Accommodating a person with disabilities (as required by case law, the Equality Act 2010, the European Convention on Human Rights, and the UN Convention on the Rights of Persons with Disabilities) requires the court or tribunal to adopt a flexible approach in order to deal with cases justly. The United Nations Convention on the Rights of Persons with Disabilities outlines, in articles 12 and 13,[2] the need for States to ensure equal recognition before the law and effective access to justice. The Scottish Government has committed to incorporating this into Scots law, insofar as possible, but it is not currently incorporated.[3]
The duty also requires anticipation of the needs of persons with disabilities for reasonable adjustments. Adjustments should be made provided they do not impinge on the fairness of the hearing or trial for both sides. They may be necessary for the parties, the representatives of the parties, witnesses, observers, members of the jury, tribunal lay members, clerks and bar officers, amongst others.
Each person with a disability must be assessed and treated by the judge or tribunal panel as an individual so that their specific needs can be considered, and appropriate action taken. What is needed by one person may be quite different to what is needed by another, even where they are perceived to have the same or a similar impairment. The effect(s) on the individual person, rather than the condition, is the important thing.
Mental disability should be considered in the same way as physical disability when it does not render a person incapable of participating in the judicial process. Again, judges need to identify the implications in the court or tribunal setting and make provision to compensate for areas of disadvantage if this can be done without prejudicing other parties.
An example of this taking place occurred in the High Court in London, where special adjustments were reportedly agreed to help the “self-proclaimed inventor of bitcoin“ cope with cross-examination. The measures reportedly included use of a LiveNote screen and pen and paper to write down questions. Risk of emotional dysregulation was also drawn to the attention of the court.[4]
People with disabilities are thought to experience much higher levels of communication difficulty in the justice system than was previously recognised. In 2019, the Equality and Human Rights Commission launched an inquiry to understand the experiences of disabled accused in the UK criminal justice system. They found the following:
The justice system is not designed around the needs and abilities of disabled people, and reforms in England and Wales risked further reducing participation.
Impairments that may require adjustments are not always identified – this is a barrier to effective participation.
Adjustments are not always made for disabled people because information about their impairments is not passed on.
The existing framework to provide adjustments to secure effective participation for disabled defendants and accused people is inadequate.
Legal professionals do not consistently have the guidance or training they need to be able to recognise impairments, their impact, or how adjustments can be made.
Individuals may have an inability to understand or communicate well in court and may also be keen to hide this for a range of reasons. As a disability may not be visible or declared, it may be best to assume that there is a communication issue to be addressed, rather than the other way round.
Judges should check there are no barriers to effective communication at an early stage. To check understanding do not do this by asking the question: “Do you understand?“ This is likely to elicit a positive answer, which may be false. Instead, an individual should be asked to explain what they have understood in their own words, and then be given the time and support to do so. Providing sufficient time is an especially important consideration for most disabilities.
It is not a question of being “kind and sympathetic” towards a disabled person. That would be patronising. Rather, it is important that litigants, accused and witnesses with disabilities can participate fully in the process of justice. Making reasonable adjustments or accommodating the needs of disabled people is not a form of favouritism or bias towards disabled people but may be necessary to help provide a level playing field. Persons without disabilities may lack insight into the inequalities that those with disabilities face. Continual reflection and acknowledgement of this may be necessary to ensure equality. See, for example the opinion of the court in Eric Hamilton v GHA.[5]
“Disability”[6] is a protected characteristic in terms of the Hate Crime and Public Order (Scotland) Act 2021. Broadly speaking, the Act provides that an offence can be aggravated by prejudice based on the victim’s membership of a group defined by reference to a listed characteristic (age, disability, race (and related characteristics), religion, sexual orientation, transgender identity and variations in sex characteristics). It creates offences of stirring up hatred against a group of persons based on the group being defined by reference to the listed characteristics.
The Disability Commissioner (Scotland) Bill 2024 aims to establish a Disability Commissioner for Scotland. The Commissioner’s primary purpose will be to promote and safeguard the rights of disabled people. If it becomes law, the Commissioner will have the power to undertake investigations into service providers, such as the SCTS.
The Learning Disabilities, Autism and Neurodivergence Bill was consulted upon in early 2024. Part of the proposals of the Bill are for mandatory training on disability awareness, neurodivergence and learning disabilities for public-facing staff in public services. Consideration is also being given to what data are collected, inclusive communication, independent advocacy and diversion from prosecution, all as they relate to persons under the auspices of the Bill in the justice system.
3. The social model v the medical model[7]
Disability can be perceived in two ways: using the medical model or the social model. Many disabled people prefer the social model and would expect a judge to know the difference.
The medical model focuses on disability being a health condition dealt with by medical personnel who treat disabled people for their “problem“ which is in need of being fixed or cured. It is about the person’s inability to do certain things. For example, a wheelchair user cannot get into a building as they cannot climb stairs.
The social model argues disability is caused by the way society is organised. For example, the wheelchair user is prevented from accessing a building as society has failed to ensure there is a ramp or lift. In this model, the implication is that physical, attitudinal and communication barriers must change to enable disabled people to participate in society on an equal basis.
4. Defining physical disability
The Scottish Health Survey (SHeS) in 2017 estimated that 32% of adults and 10% of children had a long-term condition or a limiting illness. Some people have more than one disability. The prevalence of disability increases with age. About 17% of people with disabilities are born with them – the majority are acquired later in life.
Physical disability manifests in many ways, eg compromised mobility, dexterity, motor skills, ability to lift, sensory impairment, continence, circulation, and stamina. Severe or chronic pain can affect ability to concentrate or attend court for lengthy periods. Most impairments are invisible, or visible only in some circumstances, for example, chronic back pain, fibromyalgia, diabetes, sleep disorder, renal failure, epilepsy, chronic fatigue syndrome, hearing loss, some visual impairment, and many mental impairments. The fact that symptoms are invisible can lead to misunderstandings and biases.
Some people have multiple disabilities, including both mental and physical. Physical health problems significantly increase the risk of poor mental health and vice versa. Around 30% of people with a long-term physical health condition also have poor mental health, mainly depression and anxiety.
Disabled people suffer many disadvantages, for example, in the labour market, are more likely to live in poor housing and face a higher risk of poverty. On average, their day-to-day living costs are 25% higher than for others, because of expenditure on basics such as mobility aids, care, and transport. Disability hate crime appears to be on the rise.
The term “disabled person” is currently usually preferred to “person with disabilities” but see below.
The Equality Act 2010 defines the term “disability“ in section 6(1) as: a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
5. Defining mental disability
‘Mental disability’ can take many forms, for example: mental ill health, learning disabilities, developmental disorders, neurodiverse conditions and brain injury or damage.[8]
There are major differences between these conditions, and they should not be confused. The degree of disability in each individual’s case will vary enormously and only in a small number of cases will it mean there is a lack of mental capacity. “Capacity” is addressed below.
Other mental impairments or neurodiverse conditions include autism, learning disabilities, and “specific learning difficulties” such as dyslexia or dyspraxia.[9]
Much mental disability is not visible or is visible only in some contexts. This can lead to misunderstanding. Some people have multiple disabilities, including both mental and physical disabilities. Physical health problems significantly increase the risk of poor mental health and vice versa.
The prevalence of mental ill health is high. It is suggested that about 1 in 4 adults in the general population have some form of mental ill health, and this is likely to be considerably higher among those coming to courts and tribunals.
“Mental disorder“ is defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as any mental illness, personality disorder or learning disability.
6. Defining mental capacity
The legal system relies on the assumption that people are capable of making, and thus being responsible for, their own decisions and actions. When this is not the case, due to a lack of mental capacity, it must be recognised and acted upon.
A person’s communication difficulties or physical appearance can, on the one hand, make one doubt their capacity when no issue exists; and, on the other, false impressions that someone has capacity can be given. There is no standard test of capacity, and where doubt is raised the question to ask is not, “Are they capable?” but rather, “Are they incapable of this particular act or decision at the present time?” Capacity in decision-making is time-specific and decision-specific. A person may have a mental disorder but still have capacity.[10]
There is a presumption that an adult is capable, though this may be rebutted by a specific finding of incapacity. When there is good reason for cause or concern and legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity, if necessary, at a separate hearing. It may also have to be borne in mind that capacity can fluctuate and be dependent on many factors.
“Mental disorder“ is defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as any mental illness, personality disorder or learning disability.
7. What kinds of things may cause a difficulty?
Judges should be live to a wide variety of potential issues, some of which may render the person vulnerable (see chapter on vulnerable persons), such as:
Illiteracy, slow reading or difficulty in understanding paperwork whether due to disability or not;
Reduced mobility leading to a need for more frequent breaks and/or longer breaks, for example as more time is needed to reach a disabled toilet or to access a café on a different floor;
Vision or hearing difficulties;
The need to stand for the oath;
Wheelchair access to, for example, a witness box or jury box;
Auditory or visual hallucinations;
The effects of medication taken in the morning wearing off later in the day;
An inability to cope with a new and different environment, which becomes overpowering;
A problem with concentration, especially over prolonged periods;
Being given lots of new information;
Feelings of not being listened to or believed;
Unfamiliar dress and rules; or
Becoming tired more quickly than may be expected.
8. How to ascertain what adjustments may need to be made
Judges are directed to the “Disability Glossary“ in the England and Wales Bench Book for guidance. The glossary is in Appendix B, commencing on page 244.
In the criminal sphere the party citing a witness, or representing a party, should alert the court to any additional requirement as early as possible. Any such requirement or necessary adjustment should be the subject of a discussion at the intermediate diet or first diet. The Crown Victim Information and Advice Service (VIA) is there to assist any “victim“ requiring additional support.
In the civil and tribunals sphere, a polite enquiry may need to be made of parties and/or their representatives. Judges should not assume that agents have considered any necessary adjustments, and this specific enquiry should be made; such checks should also be made with unrepresented parties.
It is good practice to ask about the nature of and steps needed to address a disability, rather than the extent of the disability. For example, rather than saying, “Are you deaf?“ ask, “Might you need help to hear what is said in court?“ then, “We have a hearing loop system/amplifying headphones/etc. that you could try to see if they assist.“
It is important that the subject of proposed adjustments is fully explored. An example of the type of reasonable adjustments may be:
Providing written materials in a different format, eg large font, Braille, simplified language etc;
The avoidance of jargon and use of simple language;
The use of name of parties, rather than their status, eg “Mr Jones“, rather than “the pursuer’s solicitor“;
Extending time-limits within which things are to be done;
Holding remote hearings rather than requiring a disabled person to travel to court, or not holding remote hearings if a neurodivergent person finds things difficult to follow on a screen;
Avoiding giving too many instructions at the one time;
Conducting a hearing in a room that is accessible;
Altering the layout of a hearing room;
Considering how it can be ensured that a disabled person is not kept waiting for long;
Considering whether a carer should be present;
Restricting the number of people who are present in the courtroom/ restricting reporting;
Considering whether more frequent breaks, a shorter day or different start and finish times are needed;
Considering whether a slower pace is needed, and in some cases whether written questions should be provided (which will be generally required for a witness under 12 in a criminal trial);[11]
Allowing more time for notes to be taken;
Allowing access to an assistance dog;[12] or
Providing an interpreter. If this is required, ensure that the interpreter holds the correct qualifications. For example, it is suggested that only an interpreter on the register maintained by the Scottish Association for the Deaf should be instructed, where required.[13]
It should be noted that a failure to properly consider and make reasonable adjustments by the court or tribunal may be an error of law, leading to a successful appeal.[14]
9. What if no-one raises the subject of disability?
Some individuals may not tell you that they have a disability, whether due to, for example, embarrassment, timidity, or a lack of knowledge that reasonable adjustments can be made.
In relation to mental health, it can be difficult to know whether a person has a mental health difficulty or is just, for example, finding attendance at court stressful, or is anxious about the underlying subject matter.
It is essential for judges to ensure that everyone in their court or tribunal can participate effectively, and thus to be alert to the fact that assistance may require to be offered. Again, this should be done without suggesting that a person has a disability. For example: “It is noisy in here, would it help if we closed the window?“ rather than: “Are you deaf?“; or “Shall I read that for you?“ rather than: “Can you not read?“
In relation to mental distress, an example could be: “You appear anxious. Is there anything which would help reduce your anxiety?“ or “I would like to ask if you have a mental health condition. If you want to tell me, say ‘yes’, but it’s also ok to say ‘no comment’ if you don’t want to tell me or if you don’t have a mental health condition.“
10. Vulnerable witnesses
It may be that an individual with a physical or mental disability, involved as a party or witness in a case, is a “vulnerable witness“ in terms of the appropriate legislation. Please see the vulnerable persons chapter.
11. Adults with incapacity
The substantive law relating to applications for guardianship under the Adults with Incapacity (Scotland) Act 2000 is outwith the scope of this bench book. However, judges should be aware of recent suggestions by a practitioner of alleged breaches of fundamental rights of elderly and disabled people.[15] Article 5(1) of ECHR is the right to liberty and security. This is of potential relevance to those with disabilities who, for example, the state seeks to detain in specialist units.[16]
In Aberdeenshire Council v SF [2024] EWCOP 10, the English Court of Protection considered whether to recognise and enforce a guardianship order granted at Aberdeen Sheriff Court resulting in a deprivation of the adult”s liberty. The court refused to do so, deciding the order had failed to uphold the adult’s fundamental human rights. The English court criticised the lack of opportunity for the adult’s views to be provided to and considered by the Scottish court, and the length of time (7 years) over which the order would apply (considered to be too long).
12. Curators ad litem/appropriate Adult
IIn criminal matters, a person who is unable to understand what is happening, or to communicate effectively with the police owing to a mental disorder, may not consent to being interviewed by the police without having a solicitor present.[17] In addition, a constable must ensure intimation is made to a person the purpose of whom is to support that person, and requiring them to provide that support; often known as “an appropriate adult“.[18] Part 6, chapter 2 of the Criminal Justice (Scotland) Act 2016 concerns the support for vulnerable persons by an appropriate adult.[19]
In civil matters, where a party to litigation may be a person with a mental illness, or someone who has an issue with their mental capacity, the appointment of a curator ad litem may be appropriate. Such appointment is mandatory where that party is the defender to a family action,[20] although this was considered by the Sheriff Appeal Court to require a purposive interpretation.[21] The purpose of the rule was twofold: to protect the interests of the defender; and to ensure that a defender who is not incapable of instructing a solicitor is permitted to do so.
In other civil matters, the matter will be discretionary for the court, applying the test of whether justice in the particular circumstances of the case demands it.[22]
13. Jury service and disability
Persons over the age of 71 can be excused from jury service as of right if they wish to be..[23] Persons can also apply to be excused on the grounds of ill health or physical disability, accompanied by a medical certificate.[24]
Otherwise, there is a duty on the court to seek to make reasonable adjustments to allow people to participate in jury service. Lord Matthews’s 2018 Report, “Enabling Jury Service”[25] makes it clear that the court must balance the expectation of a potential juror to undertake their civic duty with the obligation to ensure the accused receives a fair trial.
This may involve the court considering, for example, the nature of the evidence to be led. If there is to be “essential“ CCTV evidence, for example, that may create difficulties if a potential juror is blind. Similarly, if there is to be audio played then a deaf juror may be able to have that interpreted by a BSL interpreter, but if the intonation of the voice is important then problems may arise.
SCTS has made a commitment to having wheelchair access to at least one jury box in each sheriff court, where that is possible; and, where it is not, it is suggested that a wheelchair user on the jury be seated as close as possible to the other jurors.[26] The report also made it clear that a large number of people in Scotland have hearing loss: about 40% of over 40s, 60% of over 60s and 90% of over 90s.[27] In recognition of this it also recommended that hearing loop systems be fitted to jury rooms to assist communication during deliberations.
14. Questioning of witnesses with disabilities
The Advocate’s Gateway offers Toolkits designed to assist those preparing to question persons with additional needs. These exist for persons with autism, persons with a learning disability, persons with “hidden disabilities“, someone who has a hearing impairment and someone with a suspected or diagnosed mental health disorder.
They make clear that “advocates must adapt to the witness, not the other way round.”[28]
The individual “kits“ are useful sources of further information about each of these topics and the considerations that may apply when such a person is giving evidence in court. See also the list of issues to consider when taking evidence from vulnerable witnesses.
15. Describing some particular common mental disabilities/illnesses
A person with a mental disability may require reasonable adjustments to be made for their needs in the same way as a person with a physical disability.
Judges should take care not to confuse those with additional support needs due to a learning disability that is life-long and enduring and those with a different mental health disorder, which may be transient.
A person with learning disabilities may be limited in their ability to learn, understand, and communicate, take care of their personal needs, and develop their social skills. A briefing paper prepared by the Equality and Human Rights Commission entitled “Experiences of People with a Learning Disability in the Scottish Criminal Justice System“, published in June 2017, makes worrying reading. It highlights little improvement over recent years in addressing the challenges and disadvantage faced by accused/convicted persons with learning disabilities.
Learning disability | This should be distinguished from specific learning difficulties such as language impairment, dyslexia, dyspraxia, ADHD and other conditions which occur independent of intellectual impairment. Specific learning difficulties may affect language and communication skills, memory, and concentration. | |
Autistic Spectrum Disorder (ASD) | This is a lifelong neurodevelopmental condition. It is described as a spectrum disorder or condition because, although all people with ASD share certain significant difficulties in communication, social interaction, imagination, and flexible thinking, these affect each person differently. A person may have good expressive language skills and vocabulary, which masks poor understanding. They may have difficulty interpreting the communication signals of others causing them considerable anxiety and confusion and may have inflexible interests in highly specific topics. Just over 1% of the population in Scotland are estimated to be on the autistic spectrum. People with ASD seem to be over-represented in the criminal justice system as victims and witnesses and as alleged perpetrators, due to risk factors such as social naivety, repetitive interests, elevated levels of anxiety, difficulties in predicting consequences and diminished insight into what others think. A small study from Cambridge suggests these persons are not given adequate support in the criminal justice system.[29] People with learning disabilities or ASD have a higher incidence of other mental illness.[30] | |
Schizophrenia | This is a psychotic illness often characterised by delusions, auditory or visual hallucinations, thought disorder and paranoia as well as changes in emotions and behaviour, such as apathy, withdrawal, irritability or over-excitement. | |
Bipolar affective disorder | This is also a psychotic condition involving extreme changes in mood, from severe depression to mania with regular moods in between. Symptoms can include impaired concentration, delusions, grandiose thinking, acting irrationally, talking rapidly and increased irritability. | |
Depression and anxiety | These are two of the more common mental illnesses but can affect someone’s day-to-day functioning. They can cause distortion in perception and thinking and affect a person”s ability to process information and communicate. Changes in mood can lead to feelings of hopelessness, worthlessness or guilt, self-harm, or suicidal thinking. | |
Post-traumatic stress disorder (PTSD) | This is related to other forms of anxiety disorder but has been caused by exposure to a traumatic event/s and can lead to flashbacks, psychological distress, and physical anxiety responses as well as impacting on everyday living. Complex PTSD has many similar symptoms, but often includes difficulties in relating to others and in managing emotions. | |
Acquired brain injury | This can result from a variety of causes including road traffic accidents, assaults, domestic and industrial accidents, and substance abuse. It can affect cognitive functioning, communication, memory, concentration, and emotional stability. | |
Personality disorder | This occurs where an individual’s personal characteristics or traits cause regular and long-term problems in the way they cope with life, interact with others and how they respond to events emotionally. These characteristics are present from adolescence and young adulthood and persist in different settings. There are many diverse types of personality disorder each with distinctive features. These can include lack of emotion, extreme fear of rejection, reckless and impulsive behaviour, attention-seeking behaviour, self-harm, lack of trust in others and pseudo-hallucinations, such as hearing voices. | |
Dementia | This is an umbrella term for a set of signs and symptoms which indicate there may be changes in the functioning of the brain. The most common types of dementia are Alzheimer’s, vascular, Lewy Body and temporal frontal lobe dementia. Dementia can cause a progressive decline in cognitive ability, memory, personality, behaviour, and ability to do everyday activities. Specific forms of dementia cause specific deficits, for example, frontal temporal lobe dementia affects problem-solving and judgement and can lead to impulsive and socially disinhibited behaviour. | |
Comorbid conditions/dual diagnosis | Dependence on alcohol or drugs is not considered to be a mental disorder but many people with mental illness may also have substance abuse problems. Some people may have a dual diagnosis. Drug addiction is increasingly being treated as a health issue. | |
Intersex/DSD | Judges should be aware that a very small number of babies are born each year who have differences in sexual development. This is referred to as intersex or DSD (disorders or differences of sex development). There may be controversial issues around those terms. Intersex is seen by some people as an inappropriate term, on the basis that those having such issues have one sex, but a disorder or difference in development of that sex. It is a medical issue, where a baby’s development might present as one sex at birth but develop through puberty with traits of the other sex. It can cause several physical and psychological issues throughout life, sometimes requiring ongoing medical interventions.[31] References to sexual differences is found as a protected characteristic in terms of the Hate Crime and Public Order (Scotland) Act 2021.[32] | |
16. Terminology
There are different views in the disabled community as to whether the best term is “disabled person“ or “person with a disability“, with some strong proponents in each category. It will be best to take the lead from the person themselves, if their disability needs to be referred to.
As in many areas there are now outdated terms, which may cause offence. Judges should avoid:[33]
“the disabled“;
“normal“ or “able bodied“ to refer to non-disabled; rather use “non-disabled“;
Negative terms such as “suffers from“; rather use “has“, “experiences“ or similar neutral terminology;
“handicapped“; rather use “disabled“, or “person with a disability“;
“wheelchair bound“, “confined to a wheelchair“ or “in a wheelchair“; rather use “wheelchair user“;
“the blind“; use instead “blind people“ or “people who are visually impaired“ or “partially sighted“;
“the deaf“; use instead “deaf people“ or “people with hearing loss“, or something more precise, eg “pre-lingually deaf“ and consider capitalising “Deaf;[34]
“drug abuser“ or “addict; rather use “has a substance misuse disorder“ or “has an addiction”;[35]
“suffers from“; instead use “has“ or “experiences”;
“committed suicide“; instead use “died by suicide”;[36]
“mental illness“; instead use “mental ill health”;[37] or
“Asperger Syndrome“ is a diagnostic term for autism no longer in appropriate use due to Hans Asperger’s work with the Nazis. It is now agreed that what was formerly referred to as Asperger’s is part of the autism spectrum. The diagnosis was retired in 2019;[38] instead use “autism”.
This list is not exclusive. We offer a link to the US resource, “Disability Language Style Guide”. It can be difficult to keep up to date with terminology: judicial office holders will not cause offence if the person themselves is asked for input, which is then followed..