7.1 This chapter discusses issues concerning decision-making ability that have implications for access to justice. People with disability may be involved in court processes in a number of different roles, including as parties and witnesses in criminal and civil proceedings. The issues discussed include those affecting people with disability as:

  • defendants in criminal proceedings—the concept of unfitness to stand trial;

  • parties to civil proceedings—the appointment and role of litigation guardians;

  • witnesses in criminal or civil proceedings—in giving evidence as a witness; and

  • potential jurors—qualification for jury service.

7.2 In each of these areas there are existing tests of a person’s capacity to exercise legal rights or to participate in legal processes that the ALRC proposes should be reformed consistently with the National Decision-Making Principles, based on art 12 of the CRPD and other sources.[1]