MHDCD Project

9. Discussion

The findings of this project strongly demonstrate that pathways into and around the criminal justice system for many Indigenous people with mental and cognitive disability in NSW and the NT are embedded and entrenched by the absence of coherent frameworks for holistic disability, education and human services support. Indigenous Australians 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 Indigenous Australians 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 between the overall findings emerging from the quantitative study, case studies and qualitative data analyses points to a commonality of experience for Indigenous people with mental and cognitive disabilities in the two criminal justice jurisdictions involved in the study. Together these findings indicate that thousands of Indigenous 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 quantitative study highlights the ways that Indigenous people with mental and cognitive disabilities experience multiple, interlocking and compounding disadvantageous circumstances. The data reveals extraordinarily high and early rates of contact with police for Indigenous children and young people with mental and cognitive impairment, as both victims and offenders. The case studies and qualitative data further highlight that those with disability who are most likely to be incarcerated are Indigenous people from highly disadvantaged families and geographic locations. This confirms and extends the body of research interrogating the relationship between Indigenous status and disability, disadvantage, place and over-representation in the criminal justice system in Australia.

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 Indigenous families. For adults in the criminal justice system, cognitive impairment is either not recognised at all, or if recognised, poorly understood. For many Indigenous people, diagnosis of their cognitive impairment comes with assessment on entry to prison. However such a diagnosis rarely leads to appropriate services or support; 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 AOD support needs. Services often only support an individual around a single diagnosis, that is, of mental illness or intellectual disability or alcohol or drug addiction – rather than responding to their multiple and complex support needs. This leads to a failure of community-based options as they currently operate because they are not appropriately integrated or inclusive and do not have the capacity and approach needed. Diversionary and therapeutic approaches do not address the underlying causes of behaviour by people with mental and cognitive impairment that is considered problematic and regularly criminalised. The disabling effects of social, cultural and systemic factors for Indigenous Australians with impairment are evident at all stages of contact with the criminal justice system.

Our findings illuminate the particular challenges and vulnerabilities facing Indigenous women with mental and cognitive disabilities. Aboriginal and Torres Strait Islander women are the most disadvantaged group in our cohort in terms of their multiple and complex support needs – they are more likely to have multiple disabilities and health problems than non-Indigenous women or Indigenous and non-Indigenous men. They were 3.7 times more likely to have been in out-of-home-care than non-Indigenous women. They have earlier and more regular contact with police and significantly higher numbers of police convictions. Indigenous women in the cohort were 2.4 times more likely than non-Indigenous women to have been in custody as juveniles, and had significantly more remand and custody episodes as adults. Histories of violence and abuse and ongoing trauma are common experiences for Indigenous women with mental and cognitive disabilities. Indigenous women in our cohort were recorded by police as victims of crime an average of 23 times in their lives, while for non-Indigenous women, the number of reports as victims of crime was 16. Indigenous women were 2.2 times more likely than non-Indigenous women to be homeless at some point in their life. They were likely to have moved more often than their non-Aboriginal peers but lived in a smaller number of towns and suburbs. The negative impact of a lack of specialist, culturally-responsive, therapeutic community-based support for all Indigenous people with mental and cognitive disabilities is compounded for Indigenous women. There are distinct issues facing women such as the lack of police responsiveness to domestic violence, access to Aboriginal Legal Services, and gender-specific diversionary programs and post-release support. Elizabeth McEntyre’s forthcoming PhD research will elaborate on the lived experiences of Australian Indigenous women with mental health and wellbeing issues and/or cognitive impairment (including intellectual disability and acquired brain injury) in both the NSW and NT criminal justice systems.

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) and service providers. This next section will consider the implications of our research in the context of legal issues, policy and service capacity relating to Indigenous Australians with mental and cognitive impairment in the criminal justice system. 

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