Personal Injury

What the law says in NSW – and what happens if police get it wrong.

The new Netflix drama The Survivors, based on the 2020 novel by Australian author
Jane Harper, follows a murder investigation in a small Tasmanian town. One of the most striking moments is when police question — and ultimately charge — an elderly man who is clearly experiencing symptoms of dementia.

It’s a fictional case. But it reflects a real and complex legal issue: What happens when police question or arrest a person with a cognitive impairment — and do they have legal grounds to do so?

Police Interviews and Mentally Impaired Persons Under NSW Law

Legal Obligations Under LEPRA

In New South Wales, police powers are governed by the

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Under section 281, a person who is mentally impaired is considered a
vulnerable person, and specific rules apply when police seek to conduct interviews or obtain statements.

Police are required to:

• Ensure a support person (such as a guardian, lawyer, or independent person) is present during questioning;
• Assess whether the person has the capacity to understand the interview and their rights;
• Refrain from interviewing the person if they are unfit to participate due to cognitive or mental impairment.

Failure to meet these obligations may render any admissions or statements inadmissible in court proceedings.

Relevant Case Law

R v FE [2009] NSWSC 530
A 14-year-old with intellectual disability was questioned without a support person. The court ruled the confession inadmissible due to non-compliance with LEPRA and lack of procedural fairness.

State of New South Wales v Riley [2003] NSWCA 208
The Court of Appeal found the State liable in negligence for failing to appropriately manage the arrest and detention of a mentally ill person, breaching its duty of care.

Can Police Charge Someone With Dementia?

Yes — but only if the person is fit to be interviewed, understands the nature of the proceedings, and their rights are upheld.

Dementia or other cognitive impairments may affect:

• Whether the person is fit to be interviewed or stand trial;
• The admissibility of evidence obtained in interviews;
• Whether valid consent was given during interactions with police.

If mental impairment is significant, the person may be referred for a fitness to stand trial assessment under the
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

When Police Get It Wrong: Civil Remedies Available

Where proper procedures are not followed, and a mentally impaired person is wrongfully questioned, arrested, or mistreated, they may be entitled to civil compensation. Potential claims include:

1. False Imprisonment

Unlawful detention — including when police ignore a person’s mental state or fail to provide safeguards — may amount to false imprisonment.

2. Negligence

Police owe a duty of care to persons in custody. Failing to identify or accommodate mental impairment can constitute a breach of that duty.

3. Disability Discrimination

Unfair or differential treatment due to mental illness or cognitive disability may breach the
Disability Discrimination Act 1992 (Cth) and the
Anti-Discrimination Act 1977 (NSW).

Why It Matters – Especially for Abuse Survivors

At Koffels Solicitors & Barristers, we work with many clients who are survivors of institutional child sexual abuse. These individuals may live with PTSD, trauma-related cognitive impairments, or neurological conditions that affect how they interact with authorities.

When police fail to make reasonable adjustments or ignore obvious signs of impairment, the legal and emotional consequences can be profound — and actionable.

What To Do If It Happens

You may have a claim if you or someone you care for has been:

• Interviewed by police without a support person;
• Denied the opportunity to understand their rights or charges;
• Wrongfully detained or subjected to discriminatory conduct.

These claims may be pursued through civil litigation — including for false imprisonment, breach of duty, or discrimination — and may result in financial compensation or injunctive relief.

Contact Koffels Solicitors & Barristers

We are experienced in representing clients with mental illness, intellectual disability, and trauma-related conditions — particularly those affected by police misconduct and institutional abuse.

📞 Call us on +612 9283 5599
📨 Or request a confidential call-back via the online enquiry form below.