The facts

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42% of male prisoners in Victoria have an acquired brain injury

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Many disabilities are hidden and can be missed by workers in the criminal justice system

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Up to 50% of people who have an intellectual disability may have a coexisting psychiatric disorder

Three key challenges

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1. Support needs being overlooked

People with disability have different support needs. Poor awareness in the criminal justice system of the support available for people with disability can lead to uninterrupted cycles of compounding disadvantage and offending (1),(2).

2. Discrimination, stigmatisation and lack of empathy

People with disability in the criminal justice system experience discrimination and stigmatisation.

Behaviours associated with disability can be misinterpreted as deliberate non-compliance or the person being drug or alcohol affected (3). People with disability are at a greater risk of being disadvantaged during their time in prison, including being more likely to be socially isolated and subjected to prison sanctions or seclusion (4).

When a person with disability exits the criminal justice system, the stigma of their justice involvement and resulting discrimination presents ongoing barriers to accessing services.

3. Cycles of contact and disadvantage

The link between disability and the justice system can be complex. A person’s disability may cause legal problems and the impact of legal problems may entrench a person’s social exclusion, compounding their disability.

The lack of appropriate supports combined with stigma and discrimination leads to cycles of disadvantage and increased contacts with the criminal justice system for people with disability.

Aboriginality, cognitive impairment and the criminal justice system

Aboriginal and Torres Strait Islander people are overrepresented in the criminal justice system and are also more likely than non-Indigenous cohorts to experience cognitive impairment and co-occurring mental ill-health (5). For Aboriginal Victorians, the cycles of disadvantage associated with disability and involvement in the justice system are compounded by experiences of discrimination, over-policing, intergenerational trauma and higher rates of poverty.

Aboriginal Community Controlled Organisations has information to support referrals to culturally safe, community-controlled service providers.

Further reading

First Peoples Disability Network Australia – information about the challenges faced by Aboriginal and Torres Strait Islander people with disability

Recognising the signs of disability

The human rights model of disability acknowledges that:

  • Disability is a natural part of human diversity that must be respected and supported in all its forms.
  • People with disability have the same rights as everyone else in society.
  • Impairment must not be used as an excuse to deny or restrict people’s rights. (6) 

Recognising the signs of disability is a way of protecting and upholding the rights of individuals in the criminal justice system. It is also the right of any individual not to accept support or assistance. It is important to keep the human rights model of disability in mind when working with people with disability and when acting within the criminal justice system. 

Every person with disability is different. There are variations between individuals with the same diagnosis and between the different types and severity of the diagnoses listed below. A person’s presentation can be affected by many things such as co-occurring conditions, life experience, medication, substance addiction, and the education and support opportunities that have been available to them.

This page provides general information about the signs of disability. It is not intended to be used as a diagnostic tool. Do not make assumptions or judgements about individuals based only on the information provided here. It is intended to prompt a discussion about a referral to a doctor or specialist for the purposes of clarifying an individual’s support needs.

Acquired brain injury (ABI)

What is ABI?

An acquired brain injury (ABI) refers to damage to the brain that occurs after birth. It can affect:

  • cognitive and thinking skills
  • communication and speech
  • physical and sensory functions
  • emotions and behaviours


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Recognising the signs of ABI

There are different levels of ABIs and variations in the nature and severity of symptoms vary depending on the location and extent of the injury. People with ABI do not generally experience an even decline across every aspect of their functioning.

Some signs of an ABI:

  • History of injury to the head or spine, including loss of consciousness from violence or injury, or substance use or other health conditions such as degenerative conditions or stroke
  • Forgetting things between meetings
  • Feeling frustrated and have poor self-regulation when feeling overloaded
  • Difficulty prioritising important tasks
  • Failing to attend meetings or hearings
  • Being easily disoriented or confused
  • Difficulty remembering information, including appointments
  • Emotional instability and irritability
  • Reduced ability to plan and problem solve
  • Impulsive or inappropriate behaviour

If you think that you or your client has an ABI, a neuropsychological assessment can clarify the diagnosis. See Get reports for court.

ABI in the criminal justice system

Studies suggest that among the Victorian prison population, 33% of women and 42% of men have an ABI. In comparison, the prevalence of ABI in the Australian community is 2% (7).

ABI can be a hidden disability. Many people with ABI do not have obvious physical impairments and can often cycle through the criminal justice system without their support needs being addressed.

Further reading

arbias – support services for people with ABI

Brain Injury Matters (BIM) – a self-advocacy organisation that aims to empower people living with an ABI by helping people living with ABI to realise potential for a full life within a supportive community, and increase community awareness about ABI

BrainLink – Victorian-based service that provides services and information for family and supporters of ABI

Enabling Justice report (2017) – the Enabling Justice project conducted by the Centre for Innovative Justice (CIJ) and Jesuit Social Services explores and identifies ways to address the over-incarceration of people with an ABI

Synapse – a brain injury advocacy and support organisation who have created publications and factsheets to support people with ABI

Villamanta Disability Rights Legal Service – rights information and resources for people with ABI in the Victorian criminal justice system

Autism spectrum disorder (ASD)

Autism spectrum disorder (ASD) is a neurodevelopmental condition that affects the brain’s growth and development. Autism can create challenges for individuals in understanding how to relate to other people and to their environment.

The term 'autism spectrum disorder' includes autism / autistic disorder, Asperger's syndrome and pervasive developmental disorder – not otherwise specified (PDD-NOS). Around 50% of people with ASD also have an intellectual disability; however, many people on the autism spectrum have above average intellectual functioning (9).

Recognising the signs of ASD

ASD is a spectrum disorder, which means that, while difficulties in the areas of communication, socialisation and imagination or flexibility of thought are diagnostic traits, each person is at a different point on the spectrum and experiences these traits in different ways. Some people with ASD will be able to live independent lives while others will always need assistance and support.

Some possible signs:

  • Covering ears or eyes, staring, constantly looking down or away, avoiding eye contact
  • Walking with unusual gaits (e.g. pigeon-toed or on tiptoes)
  • Strong reaction to sensory stimulation (aversion or attraction) – noise, touch, smells
  • Monotone, unusual or limited speech
  • Literal responses to questions and poor observance of social norms
  • Attachment to norms and distress to disruptions to routine
  • Attendance at a special school or had supports while at school
  • Challenges with communication and interacting with others
  • Repetitive and different behaviours, moving their bodies in different ways
  • Strong interest in one topic or subject

If you think that you or your client has ASD, a psychologist or psychiatrist will be able to clarify a diagnosis. Amaze, the peak body for autism in Victoria, has guides on their website for people seeking to clarify a diagnosis of ASD.

See also: Get reports for court.

ASD in the criminal justice system

Many ASD traits can put people at greater risk of contact with the criminal justice system. Once in the system, ASD can make individuals vulnerable in custodial settings and create barriers to communicating effectively with system workers.

As with ABI, ASD can be a hidden disability. Many people with ASD do not have obvious impairments and can often cycle through the criminal justice system without their support needs being addressed. People with ASD may be eligible for DHHS Forensic Disability services as well as support through the NDIS. Timely and meaningful support can be critical to quality of life for people with ASD.

Further reading

Amaze  – ASD assessment and diagnosis information

Aspect (Autism Spectrum Australia)  – ASD service provider with resources and information

Dual disability (DD)

Dual disability refers to people who have the coexistence of mental ill-health and another cognitive disability such as intellectual disability, ABI or ASD.

Studies estimate that up to 50% of people who have an intellectual disability may have a coexisting psychiatric disorder. People with disability generally have higher rates of mental ill-health than their peers (1).

Understanding the difference between cognitive disability and mental ill-health

Intellectual / cognitive disabilityMental ill-health
Generally lifelong and will not dissipate; may degenerate over timeMaybe temporary, cyclical or episodic
Certain types must have their onset before a specific ageOnset can occur at any stage of life
Medication cannot restore cognitive ability or reverse the damageMedication may be prescribed to control symptoms
Generally assessed by a psychologist, neuropsychologist or neurologistGenerally assessed and treated by a psychiatrist or psychologist.

 

Recognising the signs of dual disability

Clients with complex presentations may require multiple specialist reports to accurately assess their support needs.

Some challenges for people with dual disability:

  • Complex treatment and health needs
  • Misidentification of substance addiction or being subject to prejudice for complex presentations
  • Poor systemic responses – for example, challenges for people on the NDIS to get adequate supports that address their complexity

There are resources available and access to specialist advice from the Victorian Dual Disability Service.

Further reading

Intellectual disability mental health e-learning – learning modules to upskill workers supporting individuals with dual disability

Victorian Dual Disability Service – provides services and information for people with dual disability in Victoria

Intellectual disability (ID)

Intellectual Disability (ID) is a developmental disorder affecting 2-3% of the population. It primarily affects the way people learn and understand their surroundings (10).

In most circumstances, ID is diagnosed and identified before the person has turned 18. However, it is not uncommon for mild ID to go undetected into adulthood until there is contact with the criminal justice system.

When working with a person with ID, it is important that you check what their communication preferences are and take the time to properly communicate complex concepts. See Effective communication with people with disability.

Recognising the signs of ID

People with ID have significantly more difficulty than others in:

  • learning new things
  • understanding concepts
  • solving problems
  • concentrating and remembering
  • understanding long words or complex information
  • responding to questions.

People with ID may also:

  • have limited vocabulary, stock phrases or may repeat themselves
  • act younger than their age
  • have poor memory with regards to the passage of time
  • be unable to read or write
  • lack flexible thinking.

Diagnostic reports for people with ID can usually be found with the person’s GP or school, or by contacting their disability worker. If there is no previous diagnosis, a psychologist is generally best placed to assess whether a person has an ID.

People with ID are eligible for assistance through the Victorian DHHS Forensic Disability Program and the NDIS.

ID in the criminal justice system

When people with an ID come into contact with the justice system, they are more likely to:

  • be arrested, questioned and detained for minor public offences
  • admit to committing offences on questioning
  • receive harsher penalties and have less access to sentencing options
  • experience disadvantage when interviewed by police or when in court because they may not understand what's happening and what's being said
  • be highly vulnerable in prisons
  • have more youth detention episodes
  • have prior histories of having received more Community Corrections Orders and periods of remand
  • be involved in prison incidents
  • be assessed as being at higher risk of re-offending on release
  • be denied parole and be classified high or medium risk on release.

Sources: (11),(12)

Other signs of disability

The following may also indicate the presence of disability:

  • Living in supported accommodation or with family
  • Attending or having attended a special school, or having education aides
  • Early disengagement from schooling or education
  • Being registered with disability services or previously sentenced to a Justice Plan
  • Receiving or having previously received a disability support pension (DSP)
  • Under a guardian or administration order with funds managed by a family member or State Trustees

Further reading

Centre for Developmental Disability Health (CDDH) – training resources for workers supporting clients with intellectual disability

Inclusion Australia – a national advocacy organisation for people with intellectual disability

Intellectual Disability Rights Legal Service (NSW) – rights information and resources for people who have a disability

Scope – disability service provider and advocacy organisation. Resources including handbooks to support decision-making in legal contexts for people with a disability

Victorian Advocacy League for Individuals with Disability (VALID) – Victorian peak body for people with an intellectual disability. Resources for people with disability and their supporters on accessing the NDIS and communication guides

Villamanta Disability Rights Legal Service – rights information and resources for people who have an intellectual disability in the Victorian criminal justice system

References

1: Kathryn Vanny, Michael Levy and Susan Hayes, ‘People with an Intellectual Disability in the Australian Criminal Justice System’ (2008) 15(2) Psychiatry, Psychology and Law 261, 263

2: Centre for Innovative Justice and Jesuit Social Services, Recognition, Respect and Support: Enabling Justice for People with an Acquired Brain Injury (2018), 54

3: Ibid., 15

4: Australian Institute of Health and Welfare (AIHW), The health of Australia's prisoners 2018 (30 May 2019), 77

5: Stephane Shepherd, et al., ‘Aboriginal prisoners with cognitive impairment: is this the highest risk group?’ (2017) No. 536 Trends and Issues in Crime and Criminal Justice, 1–14

6: Disability Advocacy Resource Unit (DARU), How We Talk About Disability Matters!: Understanding Models of Disability

7: Martin Jackson et al., ‘Acquired Brain Injury in the Victorian Prison System’ Corrections Victoria Research Paper Series (2011) Paper No. 4

8: Suzanne Brown et al., People with Acquired Brain Injury and the Victorian Justice System: Rights and Resources (2015), 7

9: For more information on understanding Autism Spectrum Disorder, see: www.amaze.org.au/understand-autism/

10: Villamanta Disability Rights Legal Service, People Who Have an Intellectual Disability and the Criminal Justice System (April, 2012)

11: Eileen Baldry, ‘Navigating Complex Pathways: People with Mental Health Disorders and Cognitive Disability in the Criminal Justice System in NSW’ (2011) 9(1) HIV Australia, 35

12: Shasta Holland and Peter Persson, ‘Intellectual disability in the Victorian prison system: characteristics of prisoners with an intellectual disability released from prison in 2003–2006’ (2011) 17(1) Psychology, Crime & Law, 25

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Supporting Justice

Supporting Justice © Centre for Innovative Justice, RMIT University, 2019

Questions or feedback: contact@supportingjustice.net

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