2. Background

2.1 Indigenous Australians with mental health disorders and cognitive disability in the criminal justice system

Indigenous Australians are grossly over-represented in Australian criminal justice systems and in prisons in particular, where they make up 27% of the prison population and they are 13 times more likely than non-Indigenous Australians to be incarcerated (Australian Bureau of Statistics 2014). Findings from the 2001 NSW Inmate Health Survey (Butler and Milner 2003) and from a previous study conducted by the investigators[1] indicate that a higher proportion of Indigenous Australian people in prison have MHDCD when compared with non-Indigenous people. However obtaining accurate data on the prevalence of mental and cognitive impairment in Indigenous communities is difficult: a lack of access to professionals for competent diagnosis is one difficulty, as well as misdiagnosis of certain disorders, and under-diagnosis of others due to cultural bias in testing affecting accuracy (MacGillivray and Baldry 2013; Calma 2008).

What is known is that Indigenous Australians experience higher rates of mental illness than other Australians (AIHW 2011) and this appears to be mirrored in criminal justice systems and prisons (Heffernan et al 2012). Indigenous women in custody experience particularly poor mental health, with common histories of multiple traumatic events (Heffernan et al 2015; Baldry & McEntyre 2011; Indig, McEntyre, Page & Ross 2009). Cognitive impairment is also more common amongst Indigenous populations than other Australians; for example, ABS data indicates that 8% of Indigenous Australians have an intellectual disability (ABS 2011) compared with 2.9% of the general population (ABS 2012). Indigenous people with cognitive impairment are over-represented in criminal justice settings across Australia (Baldry, Dowse, Clarence 2012; Rushworth 2011; Simpson and Sotiri 2004). Recent research indicates that Indigenous Australians with cognitive impairment are more likely to come to the attention of police; more likely to be charged; and more likely to be imprisoned (Victorian Legal Aid 2011); spend longer in custody (Hunyor & Swift 2011); have few opportunities for program pathways when incarcerated (Martin 2011); be less likely to be granted parole (Victorian Legal Aid 2011) and have substantially fewer options in terms of access to programs and treatments (Rushworth 2011) than Indigenous people without cognitive impairment (Sotiri, McGee & Baldry, 2012). Those with Fetal Alcohol Spectrum Disorder (FASD) have been noted to be particularly vulnerable due to low levels of understanding and diagnosis (Sotiri, McGee & Baldry 2012). Indigenous people with more than one type of impairment or disability with significant social disadvantages experience particular difficulty in finding appropriate service provision and are more likely to be imprisoned or involved in the criminal justice system (NSW Law Reform Commission 2012).

Research suggests that an array of problematic impacts, including loss of land, culture and spirituality; social disadvantages; discrimination; lifestyle; perceptions; and system arrangements and failures all contribute to the higher likelihood that Indigenous Australians with MHDCD come into contact with the criminal justice system, compared with any other disadvantaged group (Aboriginal and Torres Strait Islander Social Justice Commissioner 2008; AIHW 2011). Significantly poorer physical health (AHRC 2009) may also be a contributing factor. The majority of Indigenous women in prison have experienced sexual assault and/or domestic and family violence and post-traumatic stress disorder, and their needs are particularly poorly understood and not supported either in the community or in prison (Heffernan et al 2014; Baldry & McEntyre 2011; Lawrie 2003). It has been demonstrated that the therapeutic needs of Indigenous persons are significantly different from non-Indigenous persons, as the trauma resulting from ongoing colonisation must be understood and addressed (Westerman 2002; Atkinson 2002; Sherwood 2009). Despite this research, system and agency responses are often poorly integrated and inappropriate, resulting in inadequate service and support across the lifecourse of individuals concerned (Baldry & McEntyre 2011, Aboriginal and Torres Strait Islander Social Justice Commissioner 2002, 2004, 2008).

Previous work has attempted to conceptualise likely risk factors and possible responses to these individuals’ complex needs. This is limited by the absence of a clear picture of their context and circumstances such as the impacts of colonial and intergenerational trauma; the actual pathways individuals take from the earliest points of interaction; and the possible multiple interventions by agencies such as school education, police, juvenile justice, health, community services and welfare (Westerman and Wettinger 1997a, 1997b). Hence there is no overall appreciation or understanding of the lifecourse pathways taken by Indigenous people with MHDCD into the criminal justice system or of the meaning, experience and impact of their cycles of imprisonment and re-imprisonment.

A large number of policy and legislative changes over the past 20 years have had negative and disproportionate effects on Indigenous persons, women and those with mental and cognitive impairment who are poor, disadvantaged and racialised, thereby increasing their rates of imprisonment (Baldry & Cunneen 2014, 2012; Cunneen et al 2013; Australian Prisons Project 2009; NSW Legislative Council 2001, 2002; Pratt et al, 2005). These include changes in sentencing law and practice leading to increased penalties and more frequent use of imprisonment as a sentencing option; restrictions on judicial discretion; punitive changes to bail eligibility; changes in administrative procedures and practices in relation to classification and access to programs; changes in parole eligibility and post-release surveillance; limited availability of non-custodial sentencing options; limited availability of suitable and appropriate rehabilitative programs; judicial, administrative and political perceptions of the need for ‘tougher’ penalties; and the greater use of remand and more restrictive use of parole (Baldry & Cunneen 2014; Baldry 2014; Cunneen et al 2013). Baldry & Cunneen note that these policy and legislative changes have also emerged in parallel with a significant cultural change which has seen the apparent acceptability of the overcrowded prison itself as an institutional response to those with mental and cognitive impairment who are seriously disabled by social arrangements. They also note the continuity in the use of incarceration for Indigenous people as a fundamental colonial strategy of control, as well as the ascendancy of the prison as a major place of contemporary confinement for Indigenous people (Baldry & Cunneen 2014).

People with cognitive impairment are often confused with those with a mental disorder and are less recognised as an over-represented and vulnerable group in prison (Baldry & Cunneen 2014). Generally, cognitive impairment is elided in the law with mental health impairment; that is, people with cognitive impairment usually have been dealt with under mental health legislation (Baldry 2014). Many staff in criminal justice agencies are unsure of what cognitive impairment is (Snoyman 2010) and there is an under recognition of the need for special supports for this group (IDRS 2008). There are serious consequences of imprisonment for people with cognitive disabilities, and those with borderline intellectual disability (BID) face particular difficulties because they have not been recognised as having a disability for the purposes of receiving support and assistance from state disability services (Hayes et al 2007) and may also be excluded from the new Commonwealth Government’s National Disability Insurance Scheme (NDIS). The classification of people with cognitive impairment into categories determined by whether they have an IQ score above or below 70 IQ, have deficits in at least two social adaptive functions and were diagnosed before the age of 18 is an injurious practice for many, especially Indigenous Australians; moreover this categorisation has been used to determine whether an individual gets a disability service or how he or she is treated by the police and in court and prison (Baldry et al 2013). People from poor, disadvantaged and abusive backgrounds may well have intellectual disability that is not recognised and are assumed to be just ‘too difficult’, or they may have an acquired brain injury that impairs their intellectual and behavioural responses significantly but which has not come to the attention of services. Because they do not fit into the limiting categories required for a disability service many in this group are not recognised until they are assessed in prison (Dowse et al 2009; Baldry & Cunneen 2014).

Across Australia, thousands of people with mental and cognitive disability are being ‘managed’ by criminal justice systems rather than being supported in the community, a disproportionate number of them Indigenous (Baldry & Dowse 2013). Children and young people from already racialised and criminalised communities and families who struggle with cognitive or mental impairment are not supported in the community, in school or in the child and family support systems in the way middle class young people are; instead they are increasingly dealt with by systems of control rather than systems of care and support (Baldry 2010; Baldry, Dowse, McCausland and Clarence 2012). Indigenous young people are particularly vulnerable to this practice, and are vastly over-represented in the care and protection and juvenile justice systems in every jurisdiction in Australia (SCRGSP 2014). The criminalisation of disability related behaviours and responses to life circumstances is described as particularly evident for Indigenous children and young people (Baldry 2014).

The label ‘complex needs’ (Rosengard 2007) is often applied to people with dual diagnosis (both mental and cognitive impairment), comorbidity (mental or cognitive impairment with a substance abuse disorder) or multiple diagnoses (Hayes et al 2007; Kavanagh et al 2010), many of whom form a large and neglected group in the criminal justice system (Herrington 2009; Baldry 2010). However, this label should be understood as a creation of state agencies and social institutions rather than as an individual’s problem (Baldry & Dowse 2013) with the term being more appropriately ‘complex support needs’. There is an almost universal lack of community support places for persons with complex support needs since their needs often cannot be met by any one agency in the currently siloed human service system, meaning that prisons become ‘institutions of default – the place people end up because there is nowhere else for them to go’ (Sotiri, McGee and Baldry, 2012). This group is often denied parole, and when they are released (usually from short sentences or remand) there is almost no appropriate support for them, which perpetuates the cycle of re-offending, being breached and returning to prison quickly (Baldry 2014). Cycling in and out of prison in this way leaves this group even more vulnerable to compounding disadvantageous factors such as homelessness. Social and health services are more limited in rural and remote places, therefore it is more likely that a person living in a disadvantaged community outside a large urban area and with a number of impairments and disability will be subjected to criminal justice control rather than mental health and disability support (Baldry & Cunneen, 2014); again, this has a disproportionately negative effect on Indigenous Australians.

Notes

[1] ARC Linkage Grant (Project LP0669246), UNSW, ‘People with mental health disorders and cognitive disability in the criminal justice system in NSW’. Chief Investigators: Eileen Baldry, Leanne Dowse, Ian Webster; Partner Investigators: Tony Butler, Simon Eyland and Jim Simpson. Partner Organisations: Corrective Services NSW, Housing NSW, Justice Health NSW, Juvenile Justice NSW, and the NSW Council on Intellectual Disability.