Chris Woods

Crux of the matter

In a landmark reform agenda, the Victorian Public Advocate has called for nation-wide cognitive disability screening for prisoners and a series of accompanying support services.

Victorian Public Advocate unveils major reform agenda

Released February 26, the Victorian Office of the Public Advocate’s (OPA) ‘Decision Time: Activating the rights of adults with cognitive disability’ aims to ensure Australia fully meets its United Nations obligations for people with disability within five years.

OPA, which was established in 1986, promotes the rights, interests and dignity of people with disability (specifically intellectual impairment, mental illness, brain injury, physical disability or dementia) living in Victoria by:

• acting as guardian when appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make decisions in the best interests of a person with disability,
• providing advice, education and information to the public, and to health, human services and legal professionals,
• undertaking research and strategic advocacy to improve laws, policies and the delivery of services that affect people with disability,
• supporting people with disability in interviews with Victoria Police, and advocating for the rights of people living in group homes, supported accommodation or receiving treatment in a mental health facility.

Its latest agenda item calls for cognitive disability screening for prisoners in all states and territories, as well as support for people with cognitive disabilities to understand and participate in their criminal justice journey, receive support services in prison, and be provided with supported housing if found unfit to stand trial or not guilty for reasons of mental impairment.

“Most prisoners in Australia have a cognitive disability, such as an intellectual disability, autism, acquired brain injury, dementia or mental illness and, as such, they need adequate support during their sentence,” Public Advocate Dr Colleen Pearce said. “By implementing the recommendations in this report, Australians with disability, including those in prison, will have their rights better met and Australia will be better able to meet its obligations under the United Nations Convention on the Rights of Persons with Disabilities, to which it is a signatory.”

Decision Time includes 25 legal and policy recommendations to improve the rights of Australians with disability, covering their rights as consumers of services, including: in the NDIS; guardianship; mental healthcare; medical treatment and advance planning; and opportunities for them to be supported to make their own decisions.

The first five recommendations are dedicated to the rights of detained people with disability, whom, Pearce notes, are dramatically over-represented in Australia’s criminal justice system, particularly those with psychosocial or cognitive disabilities. They make up 18% of the country’s population, but almost 50% of people entering prison, a figure the ABS currently puts at 41,060.

• Recommendation 1.1: OPA recommends that state and territory governments ensure that people with cognitive disability receive support so that they can understand and participate in criminal justice processes, including procedures in police stations and in courts.
• Recommendation 1.2: OPA recommends that state and territory governments ensure that all people entering correctional facilities are screened for cognitive disability.
• Recommendation 1.3: OPA recommends that state and territory governments adequately fund disability support services in correctional facilities and work with the National Disability Insurance Agency (NDIA) to ensure that access to NDIS-funded services is available when such services are necessary.
• Recommendation 1.4: OPA recommends that state and territory governments ensure that there are sufficient forensic disability services to meet the demand for these services.
• Recommendation 1.5: OPA recommends that state and territory governments ensure that there is a sufficient number of supportive residential settings available for people who are unfit to stand trial or who are deemed not guilty by reason of mental impairment.

The Age noted on the report’s release that mandatory screening and confirmation of cognitive impairments triggers NDIS support such as psychiatric care and counselling for prisoners entering and leaving facilities, as well as, in a measure advocates argue helps lower recidivism rates, “life skills training” inside and outside prisons to help transition people back into the general community.

As it stands, the report finds that most Australian jurisdictions do not provide effective support for detained people with disability, noting that the 2017–18 annual report by the operator of Victoria’s sole mental health hospital (which can provide involuntary treatment for acute conditions) showed the average waiting time for a place was 38 days for men and 20 days for women. Following a court recommendation for placement under a custodial supervision order, prisoners waited on average more than five months for a bed.

Decision Time cites a 2016 expert review of hospital safety, which found:

It has been 13 years since the Victorian Institute of Forensic Mental Health identified that demand for forensic psychiatric beds had outstripped availability, leaving prisoners who had serious mental illness untreated and at increased risk of self-harm, suicide, violence to staff, exacerbation of their illness in the prison environment and re-offending after being released. Since then, the problem has worsened and concerns have continued to be raised, but without redress.

How “unfitness to plead” can become de-facto indefinite prisoner detention

Criticism in Decision Time extends to Australian jurisdictions — particularly Western Australia and the Northern Territory — that, in the worst case scenarios, apply “unfitness to plead” laws and practices that see people with intellectual disability and other cognitive impairments end up in de facto indefinite detention.

In their 2017 Melbourne University Law Review report ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’, Piers Gooding et al. found that all Australian jurisdictions have a similar test concerning a person’s fitness to stand trial — the criteria deriving from Victorian case R v Presser — but there is considerable jurisdictional variation over what happens when a person is found unfit to plead, with differences ranging from the extent to which prosecution cases are tested in subsequent ‘special hearings’ and the nature of the custodial orders imposed. The report highlights the experiences of three Indigenous Australians across WA and the NT in 2016 — Rosie Anne Fulton, Malcolm Morton and Marlon Noble — on how indefinite custodial supervision orders can see people end up in situations even worse than if they had been convicted of the crime in question.

Gooding and colleagues proposed a number of reforms to meet the Convention on the Rights of Persons with Disabilities, including the “abolition of indefinite detention of persons with disabilities in Australian unfitness to stand trial laws”. They were also part of a successful Disability Justice Support Program that trialed community legal centres and trained “disability support persons” as “intermediaries as a witness support service”.

The report cites three different programs across Australian jurisdictions, the majority of which focus on vulnerable victims and witnesses but, as is the case in South Australia, can be expanded to allow more alleged perpetrators to be supported when standing trial:

• South Australia established a volunteer support scheme in 2015 to provide support to witnesses, suspects and defendants and will eventually provide a statewide service.
• New South Wales is piloting a three-year intermediary scheme aimed at supporting child victims and witnesses in sexual assault cases.
• Victoria began a two-year Intermediary Pilot Program in July 2018, providing support to ‘vulnerable’ witnesses (children and individuals with cognitive impairment); the possibility is that this role will evolve to assist alleged perpetrators when standing trial. In different ways, laws in these states allow communication support to be provided to witnesses, and sometimes defendants, who have a need for assistance in communicating. Without established programs to support the use of such provisions, however, the evidence suggests the initiatives are underused.

Additionally, Western Australia has a long-standing scheme available only to children.

Decision Time’s focus on “deprivation of liberty” concludes by noting that “one uncontroversial argument for reform is that greater clinical support should be available to prisoners with cognitive disability”, while a final obvious reform argument — one that has been put forward many times, including by a Senate committee — is that no one who has been found unfit to stand trial or who has been found not guilty of a crime by reason of mental impairment should be held in prison; “this means devoting funding to building and resourcing therapeutic facilities to house people who have not been found guilty of committing a crime.”

Reform, the report concludes, should then focus on four primary areas.

1. People with cognitive disability must be assisted to participate in the criminal justice process, ideally through the provision of paid, skilled supporters whose role is to facilitate understanding and involvement. This differs from legal representation, which obviously is also essential.
2. People entering the criminal justice system — and particularly people entering correctional facilities (including jails) — must be screened for the presence of cognitive disability.
3. The necessary therapeutic and disability support services — including NDIS-funded services where applicable (for example, during preparation for parole or release) — must be available to people in correctional facilities.
4. Adequate forensic custodial services must be established and maintained in order to ensure that no person with disability is imprisoned without having been convicted of a crime. When placement in a custodial setting is deemed necessary, a person found unfit to stand trial or found not guilty by reason of mental impairment must be housed in a therapeutic or supportive setting and not simply be left to languish in prison.

Who else has called for cognitive disability screening and subsequent prisoner support services?

In 2016, the Senate Community Affairs References Committee’s report ‘Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia’ made several similar recommendations, including but not limited to:

• Recommendation 10: the committee recommends that the COAG develop and implement a disability screening strategy (including hearing assessments) for all Australian jurisdictions. This screening strategy would apply to all people (adults and minors) who engage with the criminal justice system. The strategy would be applied at multiple points throughout the criminal justice system such as first contact with police, courts, prisons and related facilities.
• Recommendation 11: the committee recommends that the COAG work together to ensure that recently developed tools such as the FASD diagnosis tool are provided as a supported resource to police, courts, legal aid and other related groups.
• Recommendation 12: the committee recommends that the Australian government, through the COAG, actively encourage support worker programs that assist people with cognitive and psychiatric impairment to engage with and participate in the court process. The Australian government should work closely with the states and territories to identify suitable programs to be funded for expansion where they are currently being trialled, and establish new programs where they currently do not exist.
• Recommendation 13: the committee recommends that COAG develop a range of culturally appropriate resources for Aboriginal and Torres Strait Islander peoples that can be deployed to service providers, police and the judiciary. These resources will assist the service providers, police and the judiciary to communicate more effectively with Aboriginal and Torres Strait Islander peoples engaged in the criminal justice system.
• Recommendation 14: the committee recommends that the COAG work together to modify guidelines for police interrogation of Aboriginal and Torres Strait Islander peoples in each state and territory to include a requirement that a hearing assessment be conducted for any Aboriginal and Torres Strait Islander person who is having communication difficulties, irrespective of whether police officers consider that the communication difficulties arise from language and cross-cultural issues.

A spokesperson for the Australian Human Rights Commission notes that, subsequent to these recommendations, the UN CRPD’s Committee on the Rights of Persons with Disabilities urged Australia in the 2019 concluding observations on the combined second and third periodic reports of Australia to “implement the recommendations contained in the Senate Community Affairs References Committee 2016 report Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia“.

The HRC’s recent submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, on People with Disability and the Criminal Justice System similarly calls on state and territory government’s to implement the 2016 Senate report’s recommendations.

Where are the states and territories on prisoner cognitive disability screening?

The report has been sent to relevant Victorian ministers and members of the national body for public advocates, guardians and administrators, the Australian Guardianship and Administration Council, while Pearce tells Mandarin Premium that recommendations are set to be raised at various state and federal meetings and forums.

OPA understands Victoria does not have effective universal cognitive impairment screening across all prisons, although Pearce says the body is “not aware of any states or territories which have rejected the idea of disability assessments” and, “for all, it would involve resource considerations.”

“There are not necessarily any legislation or bureaucratic changes needed for assessments to be undertaken,” Pearce says. “You don’t need legislation to do it although being legislatively required would make assessments compulsory.”

The 2017 study ‘Recognition, Respect and Support: Enabling justice for people with an Acquired Brain Injury‘ by RMIT’s Centre for Innovative Justice suggests more than 40% of male prisoners and more than 30% of women have an ABI, although the true figure is unknown because most prisoners are not screened.

Without automatic screening, prisoners are required to access neuropsychological report, which can be an expensive, confusing and lengthy process; Pearce notes assessments are available for free if prisoners are on the public waiting list (for which people can wait for three to four months) or if they are hospital patients; “therefore, it would be necessary to fund assessments through justice systems”.

Disability advocate and PhD candidate at UNSW’s Social Policy Research Centre Molly Saunders further explains that costs and times for neuropsychological reports varies from state to state — and then again between rural and regional areas — but ultimately “many people in contact with the criminal justice system will not have had regular medical or psychological treatment, they may be distrustful of the health system, they may have lower literacy levels, and many have alexithymia, which essentially makes it difficult for them to communicate their needs and wishes.”

“Some may also not want a formal diagnosis, due to their limiting nature and the reality that people’s lived experience of disability may not accord with the narrow and inflexible definitions provided by medical professionals,” Saunders says.

Another legal source argues that these reports are generally used for people charged with serious crimes “despite the fact confirmation of an Acquired Brain Injury can be pivotal in repeating low-level behaviour or social connections that lead people to arrest/charge, and keep them cycling through the criminal justice system with no real targeted help.”

New South Wales

While Victoria does not have state-wide screening, a Corrective Services NSW spokeswoman tells Mandarin Premium that “all inmates are screened for cognitive impairment when they enter custody in NSW.”

“Screeners are trained to detect impairment, both by the content of responses to questions and the way the questions are answered,” they say. “They also undertake a review of any disability support the offender may have received prior to coming into prison.”

However, the department draws a distinction between their current practice and “universal cognitive screening” — a phrase they argue as “means the same screening methods would need to be introduced in all jurisdictions across Australia — at present, each jurisdiction uses their own screening methods.”

The spokesperson notes the question of whether or not to implement this version of universal screening is “much more complex,” and that the screening done in prisons is not always accurate “which has little to do with the screener and much to do with the environment.”

“People entering custody for the first time are more concerned about their personal issues than providing accurate information to a screener,” they say. “A person also has a right not to disclose that they have a cognitive impairment.

“People with cognitive impairment have different goals and needs, and imposing universal screening on them in order to identify impairment can take away their own choice and control of their lives, especially in a custodial environment.”

CSNSW employs neuropsychologists who can provide reports as required, and, if an offender requires a report as part of their criminal proceedings, this is apparently arranged by their legal counsel and facilitated by private practitioners.

“If the offender is being held on remand, the external psychologist will be allowed access to the offender to conduct the assessment.”

ACT

Similarly, an ACT government spokesperson notes that the ACT government’s Disability Justice Strategy (2019-2021), which is focused on addressing “unequal access to justice in the ACT”, covers “Identification, Screening and Assessment” under its third focus area. Action 3.1. of the strategies’ First Action Plan (2019-2023) relates to the screening and identification of disability for reasonable adjustments.

“Work is currently underway to develop a trial of a needs identification tool in a range of justice settings to improve the justice system’s response to people with disability, including cognitive impairment, by identifying and providing reasonable adjustments to support their participation,” they say. “The ACT government is also monitoring the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, and notes that Public Hearing 11 (16 February to 25 February 2021) focused on the experience of people with cognitive disability in the criminal justice system.”

Given Decision Time was only published last week, the ACT government does not have an official response, although a spokesperson notes, “the ACT government will consider the report and its recommendations with interest.”

South Australia

A spokesperson for South Australia’s Department for Correctional Services says the state has a “proactive program of services to support prisoners to gain access to the National Disability Insurance Scheme upon release.”

Additionally, Saunders notes that South Australia’s latest ‘Disability Inclusion Plan‘ includes research projects that “relate to disability and in particular, which look at brain injury prevalence among prisoners; and assessing disability needs of Indigenous prisoners.”

Western Australia

While a spokesperson for Western Australia did not reply to Mandarin Premium’s request for comment, Saunders points to a 2020 Human Rights Watch report that found WA prisons have no proper or consistent assessment of disability and that disability identification relies heavily on self-reporting.

Should screening be mandatory, diversionary for prisoners, and/or linked to the NDIS?

While supportive of the idea that greater clinical support should be available for prisoners with cognitive disability, Saunders raises concerns over the idea of compulsory cognitive screening:

The mandatory nature of the assessment raises concerns about prisoner’s autonomy and choice, noting that while diagnoses can have benefits, they can also be narrow, inflexible and the prisoner may have their own complicated relationship to any diagnoses they were to receive. Furthermore, if the screening process were to occur, I would have questions about who received and came to own that information and what was done with it.

If the screening is done with the intention to create reasonable adjustments, this is also worthy of comment, because we should be adopting universal design. We should not be designing services or institutions and then creating ‘reasonable adjustments’ for people with disabilities, post-design.

Saunders also argues that introducing screening at the entry point to prison can be too late — and currently, she argues the prison system is “used to manage people with impairments, who for whatever reason, haven’t been supported to live in the community (various factors, such as class, ethnicity, gender etc., mean people with impairments may be more/less successfully supported in the community) — and that voluntary screening processes may be better as a diversionary strategy, “for example upon apprehension by the police, so as to support people with disability to remain out of the criminal justice system”:

This is important because incarcerating people with impairments often has the effect of disabling them. To clarify, we talk about the person’s impairments, including the biological aspects of their condition, whilst their disability is what arises from their interaction with social, political, and environmental aspects. For example, a person’s cognitive impairment might reduce their understanding of consequences and lead them to commit criminal acts (like theft), yet arresting and placing the person in jail will only create further barriers for them in engaging positively in society. In such situations, behaviours arising due to people’s impairments are conflated with criminality. If people with disability were (voluntarily) screened early and supported to live in the community, the disabling effects of prison could be avoided.

Saunders hypothesises that the NDIS has the potential to support prisoners with cognitive disability to live in the community post-release — while stressing this requires research and is something she intends to explore in her research — and that the “there is potential in the NDIS’s focus on learning life skills, as well as its’ ability to connect participants with caring support staff, building community participation and improving relationships”.

She notes, however, this potential in the NDIS is connected to factors pertaining to the quality and value of disability support work, and she has concerns “the conflation of criminal behaviour and disability mean that the NDIS may define people with disability in such a manner that excludes prisoners, does not allow for the connection between impairments and offending behaviour, or may require people with disability to present in a manner which is not congruent to their lived experiences.”

Moreover, people may end up in prison because other systems have not been able to support them and their ‘complex needs’. Rather, people are shuffled between services (such as drug and alcohol, homelessness, disability supported accomodation) because each one determines that they are not the most appropriate service, or they simply cannot cater for them due to their array of needs. I have concerns that the NDIS will similarly determine that prisoners with disability are someone else’s responsibility. There are already hints of this in the NDIS operational guidelines, which distinguishes between the responsibilities of the justice system and the NDIS.

Further reading

• “I Needed Help, Instead I Was Punished”: Abuse and Neglect of Prisoners with Disabilities in Australia. Kriti Sharma. Human Rights Watch. February 6, 2018.