The report highlights
- the importance of accurate data to quantify the level of involvement that people with an intellectual disability or cognitive impairment have with the justice system;
- the link between social and economic disadvantages and potential contact with the justice system;
- the limited awareness by the community and justice system personnel of common indicators of intellectual disability or cognitive impairment; and
- the importance of adequate, accessible and effective services and supports for people with an intellectual disability or cognitive impairment, both while in the community and during their transitions through the justice system.
Common life experiences of people with an intellectual disability or cognitive impairment include: increased dependence on others to complete daily activities; limited education, training and employment opportunities leading to financial constraints or dependence on social welfare; and increased social isolation. The degree to which these disadvantages affect a person varies from person to person and may be ameliorated through the provision of appropriate support.
Data quantifying the involvement of people with an intellectual disability or cognitive impairment in the justice system is not collected in a systematic way. Data from correctional settings suggest that between 1.3 and 2.5% of the prison population may have an intellectual disability, while cognitive impairments such as acquired brain injuries (ABI) may be present in up to 42% of male prisoners and 33% of female prisoners respectively.
Compared to population estimates of the incidence of these impairments, it appears that people with an intellectual disability or cognitive impairment are overrepresented throughout the justice system. The absence of comprehensive data about the involvement of people with an intellectual disability or cognitive impairment in the justice system has consequences for determining what services and supports should be made available. The delivery of services and supports for people with an intellectual disability or cognitive impairment could likely be improved if better data on their interaction with the justice system was available.
Definitions for ‘intellectual disability’ typically emphasise different aspects of intellectual, functional and adaptive abilities that a person exhibits during his or her developmental years. For clinical purposes intelligence quotient testing is frequently used to define intellectual disability, with scores of less than 70 indicating a degree of intellectual disability. In Victoria, the Disability Act 2006 (Vic) adopts similar clinical approaches to defining intellectual disability.
Clinical definitions of intellectual disability are useful for diagnosing the existence of intellectual disability. However, they may be of limited use when considering how the justice system should respond to the needs of a person with an intellectual disability and for determining the capacity of a person to understand and exercise his or her legal rights.
In Victoria a distinction is made between intellectual disability and cognitive impairment when determining what services and supports should be provided under the Disability Act 2006. Cognitive impairment tends to refer to a broader range of impairments than encompassed by definitions of intellectual disability, and typically include impairments that arise during adulthood. It is often the case that people with a cognitive impairment have experienced a more diverse range of lived experiences than people with an intellectual disability.
However, depending on how and when the disability manifested people with an intellectual disability and people with a cognitive impairment may experience similar difficulties when seeking access to and interacting with the justice system. Difficulties with recall, comprehension and expressive language may be experienced by people with either impairment. These difficulties suggest that appropriate measures should be adopted to ensure equitable and effective access to justice both by people with an intellectual disability and by those with a cognitive impairment. The Committee’s recommendations aim to achieve greater parity in services and supports available to people with an intellectual disability and people with a cognitive impairment.
The provision of services and supports to people with an intellectual disability has changed dramatically over time. In the 1970s and 1980s treatment and care was generally moved from custodial settings to community-based support and the provision of specialised services. Now the legislative and policy framework governing the provision of services and supports to people with an intellectual disability encompasses a range of national and Victorian strategic policies, the Disability Act 2006, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and international treaties and conventions. This framework articulates principles and objectives for the delivery of services and supports to all people with a disability.
Disability services are provided by a range of groups and organisations including government departments, community service organisations, advocacy groups, and families and carers. These services can help alleviate the effect of a disability on a person and therefore encourage greater and more effective participation in the community. Access to services provided by the Department of Human Services and community organisations is often inhibited by resource constraints and eligibility criteria. The Committee makes a number of recommendations calling for the Victorian Government to examine the availability of resources for existing services and supports, to ensure that all people with an intellectual disability or cognitive impairment are able to access services as required. The Committee recommends that specialist case management services, drawing upon comparable services available to people with an intellectual disability, be made available to people with a cognitive impairment.
A person with an intellectual disability or cognitive impairment may require the support of a number of different service providers at one time. Consequently, the level of coordination and collaboration between agencies that provide services and supports to clients may be disjointed. The Committee recommends that measures be taken to coordinate the delivery of services to people with an intellectual disability or cognitive impairment. Key measures may include: an outline of available services and supports in the community; clarification of agency roles and responsibilities; and the establishment of guidelines to inform the exchange of information between agencies.
The manner in which people with an intellectual disability or cognitive impairment interact with the police often sets the scene for how a person manoeuvres through the justice system. The Committee heard that improving police officers’ ability to identify people with an intellectual disability or cognitive impairment could substantially improve subsequent interactions of those people with the justice system.
When police do not recognise the presence of an intellectual disability or cognitive impairment, existing service and support mechanisms may not be offered. Currently the Victoria Police Manual defines ‘mental disorder’ widely to encompass mental illness, intellectual disability, ABIs and neurological conditions. Given inherent differences between these conditions, the Committee recommends that the Manual be amended to distinguish between these impairments and provide guidance on common indicators and appropriate responses.
At present police training offers opportunities to enhance disability awareness, but does not differentiate between different disabilities. While acknowledging available training for police officers, the Committee considered there was some need to enhance training in the identification and interaction with people with an intellectual disability or cognitive impairment.
A person identified as having an intellectual disability, ABI, dementia or mental illness is entitled to the support of an independent third person (ITP) during police interviews. The role of the ITP is to ensure that as far as possible the interview proceeds in a way the interviewee understands. The ITP program is funded and delivered by the Office of the Public Advocate. The Committee recommends that the obligation to arrange for an ITP be be reaffirmed in the Victoria Police Manual to ensure that ITPs are present for
interviews where appropriate. Concerns were also expressed about the adequacy and availability of ITPs given the voluntary nature of the ITP role.
Legal language can often be incomprehensible to people with an intellectual disability or cognitive impairment. The Committee heard that more simple and plain English format documents outlining legal rights and processes should be available, to minimise opportunities for a person with an intellectual disability or cognitive impairment to come into inadvertent and adverse contact with the justice system because he or she is unable to access information regarding legal rights and responsibilities. The Committee recommends that the Victorian Government develop a comprehensive community education campaign targeted towards people with an intellectual disability or cognitive impairment, to increase knowledge of legal rights and responsibilities.
A person with an intellectual disability or cognitive impairment may have limited financial means and as such may come to rely on legal services provided through community legal centres and Victoria Legal Aid. The Committee recognises that demand for services provided by community legal centres and Victoria Legal Aid often exceeds their resource capacity and accordingly recommends that the Victorian Government ensure people with an intellectual disability or cognitive impairment are able to access these services when required.
Lawyers interacting with a client with an intellectual disability or cognitive impairment may have difficulty identifying that the client has an impairment. It is important for a lawyer to correctly identify the presence of intellectual disability or cognitive impairment, in order to ensure that instructions are taken in an appropriate manner, and that evidence is presented appropriately in court. The Committee recommends that guidance material outlining indicators of intellectual disability or cognitive impairment, issues prosecuting and defending clients with an intellectual disability or cognitive impairment, appropriate communication techniques, and supports available in the community should be distributed to members of the legal profession. As a further measure to improve lawyer’s interactions with people with an intellectual disability or cognitive impairment, the Committee believes that there is merit in allowing an independent support person, similar to that of an ITP in police interviews, to be present when a lawyer is interacting with a client with an intellectual disability or cognitive impairment.
The Committee heard a number of concerns regarding the operation of the Crimes (Mental Impairment and Unfitness to Stand Trial) Act 1997 (Vic), particularly around the procedures adopted by the courts when examining an accused’s fitness to stand trial. The Committee urges the Victorian Government to consider:
- amending the Act to allow a trial judge, as opposed to a specially appointed jury, to determine an accused’s fitness to stand trial;
- whether additional considerations should be taken into account by the courts when investigating an accused’s fitness to stand trial, for example, whether an accused can rationally respond to the charges against them or exercise their procedural rights;
- whether the jurisdictions of the Magistrates’ or Children’s Courts should be expanded to allow these courts to investigate an accused’s fitness to stand trial; and
- whether deferring fitness investigations could minimise the complexity of and time involved in conducting both an investigation into an accused’s fitness to stand trial and into their criminal responsibility.
The Committee also considered the defence of mental impairment under the Act. Under the Act ‘mental impairment’ is not defined and instead the courts have relied on the common law insanity defence to interpret the statutory defence. It is the Committee’s view, in order to avoid doubt as to the meaning of ‘mental impairment’, that the Act should be amended to include a definition of the term to encompass impairments commonly associated with the insanity defence.
Therapeutic and problem-solving models of justice have been developed to provide a more positive way of addressing offending behaviour and to encourage active participation in the process. While beneficial, access to specialist courts, lists and programs is often limited to particular courts, locations and to particular categories of defendants. The Committee recommends that the Victorian Government examine the feasibility of expanding specialist courts, lists and programs that are currently available in the Magistrates’ Court of Victoria.
When seeking to give evidence in court a person with an intellectual disability or cognitive impairment may feel alienated and isolated from court proceedings due to difficulties understanding the complex court environment. This can result in assumptions being made about the credibility, reliability and competency of a person with an intellectual disability or cognitive impairment to give evidence in court. With appropriate modifications and supports both prior to and during court appearances, a person with an intellectual disability or cognitive impairment may be able to provide better evidence to the court. Further measures to facilitate effective participation in court proceedings may be warranted, given barriers that may be experienced by all people with an intellectual disability or cognitive impairment when interacting with the court. In other jurisdictions, the provision of witness support during court hearings has been beneficial in terms of providing moral support and assistance with understanding questions to and responses from a person with an intellectual disability. The Committee believes the Department of Justice should explore the possibility of establishing a witness intermediary scheme to assist communications with a person with an intellectual disability or cognitive impairment involved in court proceedings.
The Committee recommends that the courts should be more flexible in the management of cases involving a person with an intellectual disability or cognitive impairment. This could include allowing more breaks during hearings, or creating priority listings in cases involving people with these impairments.
When sentencing an offender the courts are guided by sentencing purposes which include the punishment, deterrence, rehabilitation and denunciation of the offender, and the protection of the community. When sentencing an offender with an intellectual disability or cognitive impairment sentencing purposes of deterrence and punishment may be of less relevance given the impact of the disability on moral culpability, and on the offender’s appreciation of the wrongfulness of the offence. The courts have recognised that traditional custodial sentences such as imprisonment may be particularly inappropriate for offenders with an intellectual disability or cognitive impairment. The burden of imprisonment may weigh more heavily upon such an offender given that he or she may lose access to his or her support networks, and may be more vulnerable to victimisation when in custody. A number of alternative custodial and non-custodial sentencing options are available when an offender with an intellectual disability is being sentenced.
Before determining the type of order to be imposed the courts are able to ask either the Department of Human Services or the Department of Justice to produce a pre-sentence report. The report establishes an offender’s suitability for a particular order and whether necessary facilities exist for their management. Evidence expressed concern about delays in the production of pre-sentence reports, and the consequences of this for treatment and management of offenders with an intellectual disability or cognitive impairment. The Committee recommends that Departments ensure pre-sentence reports are not delayed for people with an intellectual disability or cognitive impairment compared to other offenders.
When sentencing an offender with an intellectual disability to a community corrections order, the courts may impose a justice plan condition. The justice plan outlines, among other things, available services that are designed to reduce the likelihood of reoffending. The option to impose a justice plan condition is not available to the courts when sentencing an offender with another kind of cognitive impairment. Given the similarities in disadvantages, challenges and support needs experienced by people with these impairments, benefits may arise if the courts had discretion to impose a justice plan condition for all offenders with a disability.The report features the following recommendations -
1: That the Department of Justice, with representatives from Victoria Police, the Office of Public Prosecutions, the courts and the Department of Human Services, establish a centralised database for the collection of statistics on people with an intellectual disability or cognitive impairment who have come into contact with the justice system. The database could include information on: the number of offences in Victoria involving people with an intellectual disability or cognitive impairment, either as victims or offenders; police reports and prosecution rates for such offences; and prosecution outcomes.
2: That the Victorian Government commission research to measure the incidence of interactions with the justice system and human services by people with an intellectual disability or cognitive impairment, and to identify opportunities to improve service delivery.
3: That the Victorian Government review available accommodation options to ensure that people with an intellectual disability or cognitive impairment are not denied parole solely due to the unavailability of suitable accommodation.
4: That the Victorian Government consider establishing case management services for people with a cognitive impairment who seek access to or are interacting with the justice system. The development of case management services should draw upon services that are currently provided to people with an intellectual disability, but also be reflective of the different support needs of a person with a cognitive impairment. The role of the case manager could include: providing continuing contact, support and information for the person;acting as a point of liaison for police, lawyers, courts and corrections; and being involved in the development of a support plan encompassing areas of supervision, accommodation and behaviour skills.
5: That the Victorian Government ensure that clients with a disability who seek assistance from disability advocacy services have adequate access to those services.
6: That the Victorian Government consider establishing a steering committee for the purpose of coordinating Government agencies involved in the care and support of people with an intellectual disability or cognitive impairment who are involved in the justice system. The steering committee should be comprised of senior departmental staff, and report regularly to the responsible Minister or Ministers. The steering committee could: identify services, needs and support required by people with an intellectual disability when involved in the justice system; identify the roles of agencies responsible for meeting those needs; develop interagency guidelines for determining the responsibilities of agencies where there is an overlap in service delivery; and establish guidelines to ensure that departments and agencies involved in the justice system exchange information where appropriate. These guidelines should take into account relevant privacy and confidentiality considerations and be developed in consultation with the Privacy Commissioner.
7: That Victoria Police develop separate sections in the Victoria Police Manual for guidance on mental illness, intellectual disability, and cognitive impairment respectively, and define appropriate responses for each impairment.
8: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide guidance on how to identify a person with an intellectual disability or cognitive impairment.
9: That Victoria Police identify and make available a simple indicative screening test for use by police officers when they suspect that they have come into contact with a person with an intellectual disability or cognitive impairment.
10: That Victoria Police record all instances when an Independent Third Person provides assistance to a person during a police interview on the Law Enforcement Assistance Program.
11: That the Victorian Government evaluate the performance of the Geelong Community Support Register, and if benefits from the Register are demonstrated, consider introducing similar registers across Victoria.
12: That Victoria Police make available to police officers regular revision training on issues surrounding interaction with people with an intellectual disability or cognitive impairment. Training could encompass: techniques to improve identification of people with an intellectual disability or cognitive impairment; techniques to encourage effective communication with people with an intellectual disability or cognitive impairment; a component to raise awareness of challenges experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system; a component outlining the services available to people who have an intellectual disability or cognitive impairment; and a component outlining existing operational procedures that aim to provide support to people with an intellectual disability or cognitive impairment during police interviews, such as the Independent Third Persons program.
13: That Victoria Police consider establishing a Disability Liaison Officer position across major metropolitan and major regional police service areas to provide expertise in identifying and appropriately interacting with people with an intellectual disability or cognitive impairment.
14: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide enhanced guidance on how to improve communications with people with an intellectual disability or cognitive impairment. Guidance could cover: the need to pitch language and concepts at a level that can be understood; the need to take extra time in interviewing; the risks of the person’s susceptibility to authority figures, including a tendency to give answers that the person believes are expected; the dangers of leading or repetitive questions; the need to allow the person to tell his or her story in their own words; the person’s likely short attention span, poor memory and difficulties with details such as times, dates and numbers; and the need to ask the person to explain back what was said.
15: That the Victoria Police Manual be amended to provide enhanced guidance on how to administer a caution to a person with an intellectual disability or cognitive impairment. Guidance could describe: the comprehension difficulties that a person with an intellectual disability or cognitive impairment may experience in comprehending the right to silence and police cautions; the possible evidentiary consequences of failing to understand the caution; and the need for the person to be reminded of the caution during the interview process.
16: That guidance contained in the Victoria Police Manual be enhanced to clarify an officer’s obligation to obtain an Independent Third Person during an interview with a person suspected of having an intellectual disability.
17: That the Victorian Government promote the Independent Third Person program, and review incentives for participation in the program to ensure that enough suitably qualified people are able to perform the duties of an Independent Third Person.
18: That the Government develop a comprehensive community education campaign to increase awareness of legal rights, court processes, and legal assistance and support by people with an intellectual disability or cognitive impairment, their families and carers. The education campaign should be delivered in disability, community and education settings, and online.
19: That the Government ensure that specialist community legal centres and other agencies that provide services directly to people with a disability are able to adequately meet demand.
20: That the Government examine whether financially disadvantaged sectors of the intellectually disabled and cognitively impaired community are able to access sufficient legal aid
21: That the Government ensure that psychological or psychiatric reports are available to determine whether individuals that come into contact with the justice system have an intellectual disability or cognitive impairment in all appropriate cases.
22: That the Government support the Law Institute of Victoria and the Victorian Bar to develop and distribute information to their members containing information on how to better interact with, and appropriately respond to, clients with an intellectual disability or cognitive impairment. This information could include: how to identify intellectual disability or cognitive impairment; issues involved in prosecuting and representing clients who have an intellectual disability or cognitive impairment; disadvantages experienced by people with an intellectual disability or cognitive impairment; and organisations that can provide information to assist both practitioners and clients.
23: That the Government assist the Law Institute of Victoria and the Victorian Bar to develop and distribute information to members on appropriate communication techniques when interviewing a person with an intellectual disability or cognitive impairment. Communication techniques could include that: the interview be conducted where it is quiet and there are few distractions; extra time be scheduled for the interview; advice be given in clear, brief sentences and spoken clearly and slowly; plain English, short words and sentences be used; the client be encouraged to use their own terminology; communication by alternative means, for example, using picture boards, be encouraged; one piece of information and advice be provided at a time; and questions be open ended.
24: That the Government consider establishing a mechanism to allow appropriately qualified independent support people to attend interviews between lawyers and clients with an intellectual disability or cognitive impairment.
25: That the Government liaise with the Law Institute of Victoria and the Victorian Bar to consider amending the Professional Conduct and Practice Rules 2005 and the Victorian Bar Incorporated Practice Rules 2009 to require lawyers to discuss with a client with an intellectual disability or cognitive impairment whether the client wishes to have a support person present. If the client does wish to have a support person present, the lawyer should make enquiries as to whether a nominated or independent support person could provide appropriate support for the person.
26: That the Government support the Judicial College of Victoria to provide more training opportunities for members of the judiciary about best practice management in proceedings involving a person with an intellectual disability or cognitive impairment.
27: That the Government support the Judicial College of Victoria to develop, in consultation with members of the judiciary and the disability sector, guidance material on how the needs of people with an intellectual disability or cognitive impairment can be identified and appropriately met, including with modifications to court proceedings.
28: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow the trial judge to investigate an accused’s fitness to stand trial.
29: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to require the court to determine, when considering fitness to stand trial: 1) the ability of the accused to understand, or respond rationally to, the charge or allegations on which the charge is based; or 2) the ability of the accused to exercise, or to give rational instructions about the exercise of, procedural rights.
30: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow investigations into an accused’s fitness to stand trial to be considered in the Magistrates’ and Children’s Courts.
31: That the Government consider amending the Criminal Procedure Act 2009 (Vic) to ensure that uniform committal procedures are employed when fitness to stand trial is considered by the courts.
32: That the Government investigate procedures adopted in the United Kingdom for determining fitness to stand trial, with a view to examining whether these procedures could provide for opportunities to resolve determinations of fitness to stand trial in Victoria more expeditiously.
33: That the Government consider introducing legislation to provide a definition of ‘mental impairment’ in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to encompass mental illness, intellectual disability, acquired brain injuries and severe personality disorders, while maintaining criteria for determining fitness to stand trial described in section 6 of that Act and Recommendation 29 above. .
34: That the Government extend the use of problem-solving court models currently operating in the Magistrates’ Court of Victoria – particularly the Assessment and Referral Court List, the Court Integrated Services Program and the Neighbourhood Justice Centre – across Victorian Magistrates’ Courts in major metropolitan and major regional centres.
35: That Victoria Police require police officers qualified to conduct audio and audio-visual recordings of evidence to receive training on effective communication with people with an intellectual disability or cognitive impairment, and awareness of the kinds of disadvantages experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system.
36: That the Victorian Government consider establishing a witness intermediary scheme modelled on the United Kingdom scheme to provide support for people with an intellectual disability or cognitive impairment. The role of the intermediary could include: communicating questions that have been put to the witness; communicating answers given by the witness in reply to any questions; and explaining questions or answers as necessary to allow them to be understood by the witness.
37: That the Government review current arrangements for the appointment of litigation guardians. The review could seek to: ensure consistent processes are employed by the courts to appoint litigation guardians; ensure that a mechanism exists to enable a person with a disability to locate a suitably qualified litigation guardian; and ensure that organisations currently acting, or required by the courts to act, as litigation guardians are able to draw upon funds to meet adverse costs orders should such orders be imposed by the courts.
38: That the Government consider establishing specialist advocacy roles within the Magistrates’, Children’s, County and Supreme Courts of Victoria to provide support to Magistrates and Judges to manage cases involving a person with an intellectual disability or cognitive impairment.
39: That the Government examine whether existing mechanisms for giving evidence by alternative means could be expanded, with a view to exploring whether these measures could enhance the level of participation that all people with an intellectual disability or cognitive impairment have in court proceedings.
40: That the Government consider amending the Sentencing Act 1991 (Vic) to clarify the courts’ ability to impose a residential treatment order for ‘serious offences’ and the status of residential treatment orders within the sentencing hierarchy available to the courts.
41: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to clarify Departmental responsibility for supervising and monitoring Custodial Supervision Orders and Non-Custodial Supervision Orders.
42: That the Government ensure the Department of Human Services and Department of Justice prepare pre-sentence reports in a timely and efficient manner for people with an intellectual disability or cognitive impairment.
43: That the Government continue to support Corrections Victoria in providing education, training, and resource programs for Corrections staff working with people with an intellectual disability or cognitive impairment.
