Disabling justice

30 Jun 2013

It has long been obvious to many who struggle with mental and/or cognitive impairment (and their supporters) and whose lives are enmeshed with the criminal justice system that they are not well served by our public institutions. Evidence from all ‘Western’ countries, particularly the United Kingdom and United States, over the past 30 years shows that people with mental impairments are imprisoned at higher rates than their peers without mental impairment.

In New South Wales there has been mounting and strong evidence via the Inmate Health and the Young People in Custody Surveys that 40–50 per cent of adult prisoners and 60 per cent of juvenile detainees have mental impairment (excluding drug or alcohol disorder) and the rate appears to be increasing. Although the level of over-representation is not as high in Victoria, rates of mental illness amongst prisoners are also of great concern.

Lesser recognised is that people with a cognitive impairment are also over-represented in police events, at courts, in the prison population and, most alarmingly, in the juvenile justice population. For example, a recent survey of juvenile offenders in custody in NSW demonstrated that a remarkable 77 per cent scored below the average range of intellectual functioning, compared to 25 per cent expected in the general population. Of these:

• 14 per cent had an IQ of less than 70 (intellectual disability [ID] range) compared with 2 per cent expected in the general population, and
• a further 32 per cent had an IQ between 70 and 79 (borderline intellectual disability [BID] range) compared with less than 7 per cent expected in the general population.

Young Aboriginal people in custody had an even higher incidence of cognitive impairment, with 20 per cent in the ID range and 39 per cent in the BID range.

But there is very little information on or understanding of those in criminal justice systems with complex needs;6 that is, persons who have more than one and, most often, multiple impairments, and who also experience serious social disadvantages. They are more likely than people with only one impairment or none to have earlier contact with police, be victims as well as offenders, be a client of juvenile justice, have more police contacts, and more police and prison custody episodes and to experience these criminal justice events over much of their lives.

Differentiating the manifestations of mental or psychiatric disabilities from those associated with cognitive impairment is a challenge for many working outside specialist medical and/or disability fields. But when it comes to recognising and working with people with both mental and cognitive impairment who have lived with social disadvantage, abuse and exclusion (complex needs), most people working in criminal justice systems, including police, legal officers and corrections staff, have virtually no idea of what this means or what to do to best assist.

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