Aboriginal and Torres Strait Islander peoples with mental and cognitive disabilities are significantly over-represented in Australian criminal justice systems. However there has been a lack of critically informed evidence, analysis and co-ordinated policy and service response on this most pressing human rights issue. The Indigenous Australians with Mental Health Disorders and Cognitive Disability in the Criminal Justice System (IAMHDCD) Project brings an innovative Indigenous-informed mixed method research approach that provides, for the first time, a critical analysis of systems interactions and responses to the complex needs of Indigenous people with disability in criminal justice. It draws on the mental health disorder and cognitive disability MHDCD Dataset, which contains lifelong administrative information on a cohort of 2,731 persons who have been in prison in NSW and whose mental health and cognitive impairment diagnoses are known. All NSW criminal justice agencies (Corrective Services, Police, Juvenile Justice, Courts, Legal Aid) and human service agencies (Housing, Ageing Disability and Home Care, Community Services, Justice Health and Health NSW) have provided data relating to these individuals. A quarter (676) of the cohort is Aboriginal and/or Torres Strait Islander: 583 Indigenous men (21% of the whole cohort and 86% of the Indigenous sub- cohort) and 93 Indigenous women (3% of the whole cohort and 14% of the Indigenous sub-cohort). This has enabled the compilation of administrative de-identified lifecourse ‘pathway’ case studies for Aboriginal people in the Dataset, providing a broad, dynamic, trans-criminal justice and human service understanding of their involvement in the criminal justice system. It also reports on a qualitative investigation of the experiences of Aboriginal women and men who have mental and cognitive disability and who have been in the criminal justice system undertaken in four communities in NSW and one community in the NT. Analyses and interpretation of these quantitative and qualitative findings are informed by the conceptual tools of decolonisation, complexity and critical methodologies in the fields of criminology, race, feminist and disability studies.
Our research team has developed an in-depth picture of the interactions of diagnoses, vulnerabilities, complex support needs and intensive interventions and how these coalesce for Aboriginal people with mental and cognitive disabilities in the criminal justice system. New understandings of the interactions amongst criminal justice and social, health, disability and other human services for Aboriginal people with complex support needs in two Australian criminal justice systems (NSW and NT) are detailed. This report sets out detailed quantitative analysis of the 676 Indigenous women and men in the MHDCD cohort as well as views of community members regarding systemic and social challenges, service failures, positive program interventions, and culturally responsive approaches and remedies. This project provides innovative theoretical and applied knowledge that can assist in the reduction of the unacceptably high level of Aboriginal people with mental and cognitive disabilities in Australian criminal justice systems.
Indigenous people in the MHDCD cohort are significantly more likely to have experienced earlier and more frequent contact with the criminal justice system and greater disadvantage than non-Indigenous people. Indigenous people in the cohort were significantly more likely to: have been in out-of-home-care, to come into contact with police at a younger age and at a higher rate as a victim and offender, to have higher numbers and rates of convictions, more episodes of remand, and higher rates of homelessness than non-Indigenous people. People in the cohort with complex support needs (multiple diagnoses and disability) in particular are significantly more likely to have earlier contact with police, to have been Juvenile Justice clients, and to have more police and prison episodes throughout their lives than those with a single or no diagnosis. Yet the data also highlights that most of the offences by Indigenous people in the cohort were in the less serious categories of offences – theft and related offences, public order offences, offences against justice procedures, government security and government operations, and traffic and vehicle regulatory offences.
Indigenous women in the cohort experienced the highest rate of complex needs. Indigenous women were significantly more likely than non-Indigenous women to have been in out-of-home care as children. They experienced their first police contact at a younger age and had a significantly higher number of police contacts and convictions across their lives than non-Indigenous women in the cohort. Indigenous women were more likely than non-Indigenous women to have been in custody as juveniles. They had significantly more remand episodes and custodial episodes over their lifetime. Indigenous women with complex needs in particular have significantly higher convictions and episodes of incarceration than their male and non-Indigenous peers. They were more likely to have been homeless and to have been victims of crime than non-Indigenous women in the cohort.
This analysis confirms and extends initial findings that Indigenous women and men in the MHDCD cohort experience multiple, interlocking and compounding disadvantageous circumstances, and highlights their early and frequent contact with criminal justice agencies. The needs of Indigenous people in the cohort emerge as particularly acute and poorly serviced by past and current policy and program approaches.
Institutional racism, stigma and discrimination are common, marginalising and destructive experiences for Aboriginal people with mental and cognitive disabilities. Interviewees reported discrimination and stigma experienced on the basis of their Aboriginality, their disabilities, and in regard to the criminalisation of their behaviour, affecting their access to education, employment, housing and just legal outcomes.
An assimilationist approach was perceived as still pervasive amongst many of those working within criminal justice and human service agencies, with little recognition of the ongoing impact of colonisation, intergenerational trauma, and grief and loss for Aboriginal peoples. The lack of understanding and recognition around cognitive impairment was perceived as a key problem exacerbating contact with the criminal justice system. The over- representation of Aboriginal people with mental and cognitive disabilities in the criminal justice system was described as normalised in every community and context we investigated. Disability emerged as part of the accepted overall presentation of Aboriginal people with multiple and complex support needs in the criminal justice system. The view that Aboriginal people with disability should be managed by criminal justice agencies, that this is ‘just how it is’, permeates all agencies’ practice. What emerged strongly from the data was the systemic normalisation of disadvantage, disability and offending, with the conflation of these seen most clearly in people with complex support needs.
Many Aboriginal people who end up in the criminal justice system have early lives marked by poverty, instability and violence, without access to good primary health care or early childhood education. What emerged from the qualitative interviewees is the way that an Aboriginal child with an intellectual disability or Fetal Alcohol Spectrum Disorder (FASD) rarely receives early diagnosis or positive intervention, resulting in their disengagement or expulsion from school at a relatively young age. Drug and alcohol misuse by young people is a common experience, along with emerging mental health issues. Frequent out of home care placements, which break down resulting in homelessness, are often experienced. Aboriginal people with mental and cognitive disabilities were described as particularly at risk of physical and sexual violence from a young age, Aboriginal girls and women in particular. Increased police contact as a person of interest in relation to minor theft or public order offences is a common pathway, with the likelihood of a number of court appearances before a juvenile justice custodial period. Moving into adulthood, drug and alcohol misuse and mental health-related illnesses tend to worsen, often accompanied by increased experience of violence and self-harm, more serious offending and longer periods in custody. Trauma and violence emerged as common and pervasive experiences for Aboriginal people with mental and cognitive disabilities in the criminal justice system.
Other than occasional crisis-related admissions into hospital, there are reportedly few positive health and wellbeing options for this group. Drug and alcohol rehabilitation is often only available in a regional centre, which may be many hundreds of kilometres away, and even then, excludes people with a cognitive impairment. Mental health services are unable to accept people with drug or alcohol addiction. The few diversionary programs that aim to assist people whose offending is connected to their drug and alcohol addiction will not accept those with a history of violence. Incarceration becomes the default option in the absence of available or appropriate community-based care, housing or support. The multiple and complex support needs experienced by many Aboriginal people in the criminal justice system can then be understood as emerging from the siloed institutional responses to their circumstances; as in effect created from those responses. Negative, punitive criminal justice interventions rather than positive human or community based service interactions are the norm. Aboriginal people articulated the need for a holistic, integrated, culturally responsive model of care with rigorous client and community accountability to support Aboriginal people with multiple and complex support needs to reduce contact with the criminal justice system.
What these findings mean
The findings of this project unequivocally demonstrate that pathways into and around the criminal justice system for many Aboriginal people with mental and cognitive disabilities in NSW and the NT are embedded and entrenched by the absence of coherent frameworks for holistic disability, education and human services support. Aboriginal people with mental and cognitive disabilities are forced into the criminal justice system early in life in the absence of alternative pathways. Although this also applies to non-Indigenous people with mental and cognitive disabilities who are highly disadvantaged, the impact on Aboriginal people is significantly greater across all the measures and experiences gathered in the studies across the project. Interrogation of the MHDCD Dataset and information gathering through interviews was purposive and selective rather than representative, yet the synchronicity across the findings points to a commonality of experience for Indigenous people with mental and cognitive disabilities. Together these findings indicate that thousands of Aboriginal people with mental and cognitive impairment are being ‘managed’ by criminal justice systems in lieu of support in the community. Systems of control rather than care or protection are being invoked for this group, often from a very young age. The findings of this project highlight the ways that Aboriginal people with mental and cognitive disabilities experience multiple, interlocking and compounding disadvantageous circumstances.
The serious implications of poor diagnosis and unclear definitions of mental and cognitive disability are starkly highlighted in this research. The findings demonstrate that there is a severe and widespread lack of appropriate early diagnosis and positive culturally responsive support for Indigenous children and young people with cognitive impairment. This is connected to schools and police viewing certain kinds of behaviour through a prism of institutional racism rather than disability, as well as Indigenous community reluctance to have children assessed using particular criteria that are perceived as stigmatising and leading to negative intervention in Aboriginal families. For adults in the criminal justice system, cognitive impairment is either not recognised at all, or if recognised, poorly understood. For many Aboriginal people, diagnosis of their cognitive impairment comes with assessment on entry to prison. However such a diagnosis rarely leads to appropriate services or support while in prison; analysis of the data reveals that subsequent interventions tend to continue to foreground offending behaviour rather than complex social disadvantage or disability, mental health or alcohol and other drug (AOD) support needs. Our findings illuminate the particular challenges and vulnerabilities facing Indigenous women with mental and cognitive disabilities as the most disadvantaged group in our cohort in terms of their multiple and complex support needs.
During the course of the project, our research influenced and was in turn informed by the work of the Aboriginal Disability Justice Campaign and reports by the Australian Human Rights Commission and NSW and Victorian Law Reform Commissions (Baldry 2014). There is a growing awareness of the devastating impacts of current legislation, policies and practices on Indigenous people with mental and cognitive impairment and a need for an evidence-informed response by political leaders, policy makers, people working in criminal justice systems (police, magistrates, correctional officers, parole officers) and service providers. This report articulates a clear agenda for action.
Solutions from the community
Based on the qualitative and quantitative findings of our study, we recommend that the following five principles and associated strategies should underpin policy review and implementation:
Principle 1: Self-Determination
Self-determination is key to improving access to and exercise of human rights and to the wellbeing of Aboriginal and Torres Strait Islander people with mental and cognitive disability, especially for those in the criminal justice system.
Strategies: • Indigenous-led knowledge and solutions and community-based services should be appropriately supported and resourced. • The particular disadvantage faced by women and people in regional and remote areas should be foregrounded in any policy response to this issue. • Resources to build the cultural competency and security of non-Indigenous agencies, organisations and communities who work with Aboriginal and Torres Strait Islander people with mental and cognitive impairment who are in contact with the criminal justice system should be provided.
Principle 2: Person-Centred Support
Person-centred support which is culturally and circumstantially appropriate is essential for Aboriginal and Torres Strait Islander people with mental and cognitive disability, placing an individual at the centre of their own care in identifying and making decisions about their needs for their own recovery.
Strategies • Disability services in each jurisdiction, along with the NDIS should ensure there is a complex support needs strategy supporting Aboriginal and Torres Strait Islander people with disability in contact with criminal justice agencies. • Specialised accommodation and treatment options for Aboriginal and Torres Strait Islander people with mental and cognitive disability in the criminal justice system should be made available in the community to prevent incarceration and in custodial settings to improve wellbeing. • Aboriginal and Torres Strait Islander people with mental and cognitive disability who are at risk of harm to themselves or others and who have been in the custody of police or corrections should not be returned to their community without specialist support.
Principle 3: Holistic and Flexible Approach
A defined and operationalised holistic and flexible approach in services for Aboriginal and Torres Strait Islander people with mental and cognitive disability and complex support needs is needed from first contact with service systems.
Strategies • Early recognition via maternal and infant health services, early childhood and school education, community health services and police should lead to positive and preventive support allowing Aboriginal and Torres Strait Islander children and young people with disability to develop and flourish. • A range of ‘step-down’ accommodation options for people with cognitive impairment in the criminal justice system should be available. The NSW Community Justice Program (CJP) provides a useful template. • Community based sentencing options should be appropriately resourced, integrated and inclusive so they have the capacity and approach needed to support Indigenous people with mental and cognitive disability
Principle 4: Integrated Services
Integrated services are better equipped to provide effective referral, information sharing and case management to support Aboriginal and Torres Strait Islander people with mental and cognitive disability in the criminal justice system
Strategies • Justice, Corrections and Human Services departments and relevant non-government services should take a collaborative approach to designing program pathways for people with multiple needs who require support across all the human and justice sectors. • All prisoners with cognitive impairment must be referred to the public advocate of that jurisdiction
Principle 5: Culture, Disability and Gender-informed practice
It is vital that Aboriginal and Torres Strait Islander people’s understandings of ‘disability’ and ‘impairment’ inform all approaches to the development and implementation of policy and practice for Indigenous people with mental and cognitive disability in the criminal justice system, with particular consideration of issues facing Aboriginal and Torres Strait Islander women.
Strategies • Better education and information are needed for police, teachers, education support workers, lawyers, magistrates, health, corrections, disability and community service providers regarding understanding and working with Aboriginal and Torres Strait Islander women and men with cognitive impairment, mental health disorders and complex support needs. • Information and resources are needed for Indigenous communities, families and carers, provided in a culturally informed and accessible way. • The distinct and specific needs of Aboriginal and Torres Strait Islander women should be foregrounded in such education and information.