42% of male prisoners in Victoria have an acquired brain injury
Many disabilities are hidden and can be missed by workers in the criminal justice system
Up to 50% of people who have an intellectual disability may have a coexisting psychiatric disorder
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).
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.
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.
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.
First Peoples Disability Network Australia – information about the challenges faced by Aboriginal and Torres Strait Islander people with disability
The human rights model of disability acknowledges that:
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.
An acquired brain injury (ABI) refers to damage to the brain that occurs after birth. It can affect:
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:
If you think that you or your client has an ABI, a neuropsychological assessment can clarify the diagnosis. See Get reports for court.
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.
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) 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).
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:
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.
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.
Amaze – ASD assessment and diagnosis information
Aspect (Autism Spectrum Australia) – ASD service provider with resources and information
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).
|Intellectual / cognitive disability||Mental ill-health|
|Generally lifelong and will not dissipate; may degenerate over time||Maybe temporary, cyclical or episodic|
|Certain types must have their onset before a specific age||Onset can occur at any stage of life|
|Medication cannot restore cognitive ability or reverse the damage||Medication may be prescribed to control symptoms|
|Generally assessed by a psychologist, neuropsychologist or neurologist||Generally assessed and treated by a psychiatrist or psychologist.|
Clients with complex presentations may require multiple specialist reports to accurately assess their support needs.
Some challenges for people with dual disability:
There are resources available and access to specialist advice from the Victorian Dual Disability Service.
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) 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.
People with ID have significantly more difficulty than others in:
People with ID may also:
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.
When people with an ID come into contact with the justice system, they are more likely to:
The following may also indicate the presence of disability:
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
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
Supporting Justice © Centre for Innovative Justice, RMIT University, 2019
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