A predictable and preventable path: Aboriginal people with mental and cognitive disabilities in the criminal justice system [
PDF] by Eileen Baldry, Ruth McCausland, Leanne Dowse and Elizabeth McEntyre comments
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.
Quantitative Findings
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.
Qualitative Findings
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.