Legal Aspects of Working with Persons with Mental Retardation

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Information obtained from the Arc of Midland Web page on 12/12/07: http://www.thearcofmidland.org/legal_aspects_brochure.htm

About three out of every 100 people have mental retardation, so it is likely that you will come into contact with a person who has this disability. A successful interaction with a person who has mental retardation can yield accurate and useful information while, at the same time, protecting his or her rights as an individual.

The goal of this brochure is to help lawyers achieve positive outcomes when working with people who have the disability of mental retardation.

What is mental retardation?

People with mental retardation have difficulty in learning, but the effects of this condition can vary greatly from person to person.

Why is mental retardation sometimes harder to detect than other disabilities?

Some people with mental retardation may try to hide their disability in order to be liked or accepted by others - especially by authority figures.

How can I tell if someone has mental retardation?

Although there is no sure sign that a person has mental retardation, there are traits that may indicate some level of retardation. A person exhibiting these traits may not necessarily have mental retardation. If there is any question, however, it is best to assume he or she does.

Following is a list of traits you might observe when talking with an individual who has mental retardation.

Communication-the person may have

  • Limited vocabulary or speech impairment
  • Difficulty understanding or answering questions
  • A short attention span

Behavior-the person may

  • Act inappropriately with peers or the opposite sex
  • Be easily influenced and unusually eager to please others
  • Be easily frustrated
  • Have difficulty giving accurate directions, making change, using the telephone or telephone book, telling time, reading and writing, and/or answering questions quickly and clearly.

 

What is the difference between mental retardation and mental illness?

 

  • Mental retardation refers to below average intellectual functioning and abilities to learn and process information.
  • Mental illness has nothing to do with intelligence. It refers to disturbances in thought processes, emotions and behaviors.
  • Mental retardation generally occurs before a person reaches adulthood.
  • Mental illness can occur at any time in a person's life.

How do I talk to someone who has mental retardation?

Remember to...

  • Speak directly to the person
  • Keep sentences short
  • Use simple language
  • Speak slowly and clearly
  • Ask for concrete descriptions (colors, clothing, etc.)
  • Whenever possible, use pictures, symbols, and actions to help convey meaning.

Be patient...

  • Take time when giving and asking for information
  • Avoid confusing questions about reasons for behavior
  • Repeat or rephrase questions
  • Use calm, firm persistence
  • Don't ask leading questions
  • Ask open-ended questions

Keep in mind that people with mental retardation

  • Are not necessarily incapable of understanding or communicating
  • Should not be treated as children if they are adults
  • Are entitled to the same respect you would give any person.

Problems which may be identified

  • Person may not be competent to stand trial (lack of knowledge, doesn't understand each person's role including judge, jury, attorneys, etc.)
  • Unable to competently waive Miranda rights
  • Cannot make a knowing and voluntary plea

Miranda Rights

People with mental retardation usually want to please police officers and may appear to incriminate themselves even when innocent of any crime. They often fake greater competence than they actually possess. Because this puts people with mental retardation at a disadvantage when being questioned, you should not ask questions about criminal activity until a person's lawyer is present. Use your common sense, if you have the feeling that a person may be mentally retarded, you're probably right, trust your instincts. Remember that you are public servants and are here to protect and serve - don't take advantage of someone's disability just because you can.