Procedural justice in marginal places: calling out the elephant in the room.

A/P Penelope Weller1

1 GSBL,RMIT University, City Campus, Melbourne, Victoria, 3000.

This paper considers the application of procedural justice theory and practice in legal interactions concerning individuals who a persons lack legal capacity. To date the procedural justice research has considered formal court or mediation settings where is assumed individuals have mental and legal capacity. This paper explores the potential of procedural justice practice to provide a framework for the inclusion of people with disabilities in a range of less formal legal settings where legal capacity is uncertain. It does so by considering the situation of people with acute mental illness facing compulsory mental health treatment, on one hand, and the situation of people with acquired brain injury in the criminal justice system on the other. In acute mental health settings, the usual principles of informed consent to health care are displaced by the statutory principles providing for compulsory mental health treatment. When compulsory treatment is provided to those who lack mental capacity, they are often excluded from the decision making process. In contrast, when people with acquired brain injury interact with the criminal justice system their disability may be overlooked. This means they may be included in legal interactions that they are unable to fully understand. Both situations result in high levels of dissatisfaction. Drawing on the results of two recent empirical studies, the paper argues that procedural justice practice provides a robust framework for the inclusion of marginalised people in legal interactions. The paper argues that a procedural justice approach to legal decision-making is compatible with a human rights approach mandated by the Convention on the Rights of Persons with Disabilities.  Drawing a link between procedural justice theory and human rights offers a new perspective for the non-adversarial justice discipline.


Associate Professor Penelope Weller is Director of the Juris Doctor Program in the Graduate School of Business and Law at RMIT University in Melbourne Australia. She is an expert on the Convention on the Rights of Persons with Disabilities and mental health law reform, with research interests in innovative justice.  She serves a community member of the Mental Health Tribunal in Victoria.

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