10.2 Service Responses

With these five principles in mind we recommend the following:

CRIMINAL JUSTICE

10.2.1  Legislation/Sentencing

• Mental illness and cognitive impairment should not be conflated in mental impairment legislation. There is the need for specific processes and diversionary pathways for people with cognitive impairment.
• Mandatory sentencing has specific and significant negative impacts on Aboriginal and Torres Strait Islander people with a cognitive impairment and its application to this group should be repealed.
• The principle of imprisonment as the last resort should apply to everyone and particular care must be taken to apply this principle to Aboriginal and Torres Strait Islander people with cognitive impairment and people considered unfit to plead under mental health legislation.
• All relevant mental health and forensic legislation should comply with the Convention on the Rights of Persons with Disabilities and the Rights of Indigenous Peoples.
• Indigenous people who are detained under mental impairment legislation are neither prisoners nor offenders. Legislation, policy and practice should reflect this.

10.2.2  Police

• Ongoing education and training should be provided for police to assist in recognising, understanding and appropriately responding to children, young people and adults with multiple and complex support needs, and cognitive impairment in particular.
• Community-police collaboration should be prioritised to build positive approaches to support children, young people and adult with mental and cognitive disability and complex support needs and to keep them out of the criminal justice system.
• Police Local Area Commands should be accountable for demonstrating community liaison and collaboration with Elders and other Aboriginal community members, including through the Local Area Command Police Aboriginal Consultative Committee (PACC).

10.2.3  Legal Aid/Aboriginal Legal Service

• More resourcing should be provided for Legal Aid and Aboriginal Legal Services to allow relationship building with a client to establish their background and any indication of mental or cognitive disability.
• Support for Legal Aid and Aboriginal Legal Services to arrange for assessment and diagnosis where indicated.  

10.2.4  Court

• Education and training should be provided for lawyers, court support workers and magistrates in recognising, understanding and appropriately responding to in children, young people and adults with complex support needs, cognitive impairment in particular. Particular attention is needed in relation to Fetal Alcohol Syndrome Disorder (FASD).
• A special court list for cognitive impairment and mental health disorders should be introduced in jurisdictions where it does not exist.
• More resourcing should be provided for local courts, especially circuit court in regional areas, and for lawyers to reduce caseloads and allow time for appropriate hearings for Aboriginal and Torres Strait Islander people with mental and cognitive disability.

10.2.5  Diversionary programs

• Jurisdictions that have legislative but no actual options for community-based accommodation and support for Aboriginal and Torres Strait Islander people with cognitive impairment should redress this lack as a matter of urgency.
• Specialised disability case managers should be funded to work with solicitors to assist in making applications (such as Sec 32 in NSW) for diversionary programs or non-custodial sentencing options for Aboriginal and Torres Strait Islander people with mental and cognitive disability.
• Diversionary programs that can address underlying causes of offending for Aboriginal and Torres Strait Islander people with mental and cognitive disability, including AOD dependency should be developed.
• Expansion of diversionary options appropriate for Aboriginal and Torres Strait Islander people with mental and cognitive disability, in particular specialist women’s programs and greater options for people living in regional and remote areas are urgently required.

10.2.6 Corrections

• Screening tools, such as those available for mental health, for cognitive disability including for FASD should be applied for all people on remand as well as those being received on sentence, such as those available for mental health.
• People identified as having a cognitive disability should be diverted from remand to a community support service.
• Programmatic support should be available for people with cognitive disability who do end up in remand, even for very short periods.
• No person should be sent to prison for the purposes of having a psychiatric assessment. Such assessments should be available in the community for consideration by magistrates before sentencing.
• No person with a mental or cognitive disability should be imprisoned in order to access a service.
• No individual with a cognitive impairment should be detained indefinitely in prison. Jurisdictions that currently allow for indefinite detention should legislate for the use of limiting terms for people with a cognitive impairment and abide by the principle of least restrictive support.
• Aboriginal and Torres Strait Islander people with cognitive impairment detained under mental impairment legislation must be provided support and intervention that is of significant benefit to that person.
• Detention of Aboriginal and Torres Strait Islander people with cognitive impairment under mental impairment legislation must be accompanied by a justice plan that identifies pathways from high security to low security detention and to community and from the most restrictive to the least restrictive arrangement.
• In-prison programs to address offending behaviour, including alcohol and other drug rehabilitation, should be designed to be inclusive of people with a cognitive impairment and complex support needs.
• Each jurisdiction should ensure there is a culturally appropriate disability support program in prison.
• For all prisoners with disability, remand or sentenced, the NDIA and each corrections agency should come to an agreement regarding assessment, support and referral into the NDIS upon release from prison.
• In each jurisdiction, corrections agencies should build a working relationship with the NDIA (through Local Area Coordinators) and NGOs that work with people with disability to best support people with disability leaving prison.
• Where a person with mental and cognitive disability is imprisoned, a pathway referral out of prison into disability support and case management in the community must be ensured.

10.2.7  Post-release

• Resources and funding should be provided to Indigenous organisations to ensure the building of skills and capacity to work with people with a cognitive impairment and complex support needs returning to community after completing criminal justice orders or sentences.
• Specialist long-term accommodation, wrap-around services and case management support should be provided post-release for Aboriginal and Torres Strait Islander people with mental and cognitive disability across the country. 

HUMAN SERVICES

10.2.8  Community Services

• Early diagnosis and positive culturally appropriate support for Aboriginal and Torres Strait Islander children and young people with cognitive impairment and complex support needs should be resourced and supported.
• Culturally appropriate support and respite are needed for families and carers of Aboriginal and Torres Strait Islander children with cognitive impairment and complex support needs.
• Aboriginal and Torres Strait Islander children with disability who are in out of home care must be provided with appropriate community and school based support to promote well being and positive life pathways.

10.2.9  Schools

• Education and information is required to enable school personnel to better recognise and respond to children with a cognitive impairment and complex support needs. 
• Schools where there are enrolments of Aboriginal and Torres Strait Islander children with cognitive impairments should be linked with agencies to provide specialist behaviour interventions where those behaviours are assessed as of concern.
• Culturally appropriate information and support for families of Aboriginal and Torres Strait Islander children with cognitive impairment should be made available through schools in all jurisdictions.

10.2.10 Disability

• Improved identification, assessment and referral processes and pathways for Aboriginal and Torres Strait Islander young people with cognitive impairment are required urgently.
• Concerted effort is needed to enable appropriate and early diagnosis and treatment for Aboriginal and Torres Strait Islander children and young people with FASD, particularly through adequate resourcing of professionals and through community education programs.
• Alternative appropriate models of care should be provided to Aboriginal and Torres Strait Islander people with FASD to avoid imprisonment of those unable or unfit to plead.
• Respite options should be provided to families and other members of Aboriginal and Torres Strait Islander communities supporting people with mental and cognitive disability.
• Specialist Indigenous violence intervention programs should be linked with disability supports in Indigenous communities.
• Particular attention must be paid to the planning and support options for Aboriginal and Torres Strait Islander people with mental and cognitive disability and complex support needs through the NDIS.

10.2.11 Mental and other health concerns

• Improved referral pathways and greater case coordination between corrections and community-based health providers in regard to medication and therapeutic services and support for Aboriginal and Torres Strait Islander people with mental health disorders and complex support needs.
• Maintenance and provision of up to date medical reports and assessments are vital for consideration in court matters when sentencing Aboriginal and Torres Strait Islander people with mental health disorders and complex support needs
• Culturally appropriate, community-based holistic specialised mental health services able to address the whole range of complex support needs should be available in all areas and communities with significant numbers of Aboriginal and Torres Strait Islander people.
• Indigenous community health care clinics should be resourced to assess and respond to Aboriginal and Torres Strait Islander children and adults, in particular to children with FASD.

10.2.12 Housing

• A range of culturally appropriate supported housing, depending on need, should be available in their communities for Aboriginal and Torres Strait Islander people with mental and cognitive disability and complex needs.

Step down supported housing should be available for Aboriginal and Torres Strait Islander people with mental health disorders and cognitive disability leaving prisons.