Answering your questions about disability in the justice system

The Centre for Innovative Justice recently held two events focusing on the experience of people with disability in the criminal justice system, and their capacity to lead change.

To celebrate Law Week 2020 Michael Haralambous and Dorothy Armstrong from CIJ’s Supporting Justice Project discussed acquired brain injury (ABI) in the criminal justice system, covering the work undertaken by the CIJ with Jesuit Social Services in the Enabling Justice project, and more recent work as part of CIJ’s Supporting Justice project. Secondly, to formally launch the SupportingJustice.net website, the CIJ was joined by Minister for Disability, the Honourable Luke Donnellan and an expert panel discussion facilitated by CIJ Associate Director Stan Winford, including Magistrate Pauline Spencer, Disability Advocate Emily Piggott from Victorian Association Victorian Advocacy League for Individuals with Disability (VALID) and Self-Advocate Dorothy Armstrong to explore the issues facing people with disability in the criminal justice system.

You can access the recordings of these events on these links:

The CIJ was overwhelmed by the interest and engagement in these events. The Q&A sessions concluding both events generated thoughtful questions from the audience, and we felt that it would be important to provide responses to these. Below is a list of some of these questions and our responses.

Disability and trauma awareness

Why are we so poor at recognising the link between family violence and the likelihood of ABI?

The link between family violence and ABI is beginning to be recognised. This link was identified in the recommendations of the Victorian Royal Commission into Family Violence and the Enabling Justice Report. However there is still much work to do to raise awareness of the practical consequences for victim survivors of family violence, and the changes to service system responses and legal practice required to better support them.

Dorothy Armstrong has spoken powerfully of her experience of the criminal justice system and her struggles to have her support needs recognised by police, lawyers and courts. Dorothy’s experience highlights the disconnect that can occur in service systems in getting appropriate supports to people who have experienced violence before they spiral into crisis and find themselves in the criminal justice system. If you missed the Law Week event you can access the recording here, and you can also listen to Dorothy talking about her experience and calling for change in the Our Voices Podcast series which releases episodes every Tuesday over the next month.

The CIJ is aware of work being undertaken within government that has the capacity to respond to this breakdown in support systems for victim survivors of family violence with ABI. The CIJ worked with the Victorian Department of Justice and Community Safety in 2019 on a review of the Victorian Victims Services system, exploring ways that the system can better respond to victims of crime to ensure they do not fall between service gaps. Concurrent work within the Victorian government through the Common Clients project between the Department of Health and Human Services and the Department of Justice and Community Safety is also looking at better ways to respond to people with complex support needs, including disability and acquired brain injury, who first present through family violence and child protection systems and later become involved in the corrections and justice systems.

The SupportingJustice.net website includes resources for court and legal professionals that support more meaningful and effective conversations with clients, and enable court and legal professionals to recognise and respond to the signs of disability. While there is still much work to be done to raise awareness of this link, we are encouraged that work is being done to create positive and lasting change.

What do you say to lawyers who resist formal assessments that may identify cognitive disabilities, because of their concern that it may result in a harsher sentence if Magistrates assume that someone with a cognitive disability is less capable of behaviour change?

This question was addressed by Magistrate Spencer during the SupportingJustice.net launch event. Magistrate Spencer noted that more education around therapeutic jurisprudence is important for judicial officers. She noted that the resources available through SupportingJustice.net are a good start to encouraging judicial officers to understand how to respond to cognitive disability in their courtrooms.

In addition to Magistrate Spencer’s suggestions, CIJ found that assessments, such as neuropsychology assessment for a person with acquired brain injury can unlock supports and recommend ways of working with a person to ensure they have meaningful access to support and rehabilitation. As noted by Magistrate Spencer, Victorian sentencing law allows a judicial officer to moderate sentences where the person being sentenced has a cognitive impairment.

It is vital that lawyers consult and engage their clients in a meaningful way in the decisions associated with legal processes that affect them. This is both an ethical and legal requirement for lawyers. Lawyers can be pro-active in making referrals to support, commissioning assessments, and obtaining reports, all of which can lead to lasting, positive impacts on individual’s lives. By treating their clients with dignity and respect and involving them in decisions that affect them, these positive impacts are magnified.

SupportingJustice.net includes practical guides for lawyers on how to access to support, including through the NDIS, for their clients with disability. The website also has links to other resources, such as Scope’s decision-making support resource for legal professionals that provides guidance to lawyers on engaging clients with cognitive disability in the legal decision-making process. This is a very important guide for lawyers grappling with this complex reality.

How can we be assured that neuropsychological assessments are done in a timely manner, and that this is not at the cost of the person, but rather the state?

Victoria Legal Aid has grants of assistance available to accused persons to access funds to pay for specialist reports, including neuropsychological reports. Obtaining reports in a timely manner can be a challenge, particularly where a person is in custody, as there are a limited number of forensic neuropsychologists in Victoria. The best approach is to ensure that lawyers are asking the right questions at the earliest possible opportunity to identify whether a report will be of benefit to their client.

SupportingJustice.net includes helpful information for lawyers on obtaining court reports for people with disability.

Trauma informed practice is very necessary for practitioners working with people who have come into contact with the justice system. Does CIJ have a platform to be able to influence that trauma informed training is paramount for corrections staff etc?

I continually get frustrated by the court assessments conducted for people with undiagnosed ABI’s, they can be judged rather than supported with difficulties – can specialised training be provided to court assistance team members?

Through our Supporting Justice project, the CIJ has been advocating to government and organisations across the justice, disability and social service systems to take seriously the need for trauma and disability informed service delivery. Promoting disability and trauma awareness is one of the four priority areas for the Supporting Justice project which is aiming to address the overrepresentation of people with disability in the criminal justice system. We are working hard with people with disability to support the development of initiatives within government, courts, justice system, support and disability service systems, and we welcome collaboration.

System interconnectedness, early intervention and pathways into support

How can we improve police databases regarding consistent alerts on their system that a person has a disability. I have clients who get charged for not wearing a push bike helmet! I feel the Police need far more education.

The low levels of disability awareness among police was identified by the Enabling Justice report and is something that the CIJ has discussed extensively with Victoria Police. The issue of police databases has been identified by Victoria Police and is something that CIJ understands is slowly being addressed.

Of particular concern, is the lack of support for people with disability and options for police officers to take diversionary or therapeutic responses as an alternative to charging people and initiating a criminal justice response.

Approaches in other jurisdictions provide examples of increasing the agency of people with disability to communicate their disability support needs to police. The Brain Injury Association of Tasmania (BIAT) has developed an ABI identification card to help people with ABI communicate with law enforcement authorities about their disability and communication needs. A similar approach is taken in the United Kingdom by the ABI advocacy organisation Headway.

While the identification of disability is the first step, our work through the Enabling Justice project identified that what people with disability want is a recognition of disability. That is to say, knowing how to respond to disability in a way that recognises an individual’s rights under the UNCRPD. The Enabling Justice project identified ‘recognition, respect and support’ as being closely interrelated, and as Magistrate Spencer noted, for people with disability ‘recognition’ means authorities not only identifying their disability, but following through with supports. The roll-out of the Disability Liaison Officers program and isolated initiatives such as the Box Hill accessible station project, are encouraging signs and show a real capacity and willingness by Victoria Police to address this issue.

The lack of communication and information sharing between government agencies, including Police, Corrections, Courts, Health and Statutory organisations such as the TAC had tragic outcomes in the death in custody of Darren Brandon. The Coroner was critical of the failure of multiple agencies to share information about Mr Brandon’s disability support needs and recommended improved management of information about disability support needs of prisoners, particularly for first time prisoners.

Improved communication and information sharing about disability support needs was one of the priorities for change identified by the Supporting Justice project to address the overrepresentation of people with disability in the criminal justice system. This priority was identified following consultations with justice system stakeholders around the Supporting Justice System Map. The System Map visualises the complexity of the criminal justice system from the perspective of a person with disability and can be downloaded from the CIJ website.

The NSW Government in the past two years approved 10 million dollars for its Justice Advocacy Service for people with cognitive disabilities in the justice system. Do you all see this as a possibility for Australia nationwide? If not, is this an advocacy aim you think we should shoot for?

A key recommendation of the Enabling Justice report was the consideration of a program like the NSW Justice Advocacy Service that supports people with disability in contact with the justice system for Victoria. Such a scheme would address the gaps in support for people with cognitive disability between first contact with police right through the court process. Such a scheme has the potential to ensure continuity of support through the criminal justice system. Justice advocacy can also play a diversionary role by linking people with disability with supports that can lead to pathways out of the criminal justice system.

As part of its focus on identifying early intervention opportunities to reduce the overrepresentation of people with disability in the justice system, the Supporting Justice project has advocated for the enhancement and expansion of Victoria’s Independent Third Person Scheme to fill the gap between police charge and first appearance at court, and potentially, to remain in place through the court process. The scheme is administered by the Office of the Public Advocate and provides independent third persons to sit in on police interviews where the accused or police officer identifies a cognitive impairment.

The scheme plays a crucial role in providing an independent person to support people with cognitive disability in police interviews. There is a potential to better utilise this recognition of disability at the earliest stage of contact with the criminal justice system as a way of connecting individuals to support and legal advocacy to bridge the gap from criminal charge to first court appearance, and potentially, to remain in place through the court process.

Housing

Most social housing options require a long wait, and many people would never be eligible.

How can the justice system end the process of releasing vulnerable ex-prisoners into homelessness?

Is there any work being done to improve social housing opportunities for those with an ABI or disabilities more broadly? I feel that those leaving prison on parole or straight release still face the exact same housing barriers, and many stay in or return to prison due to a lack of housing.

Being released into homelessness and/or having to stay in jail because there are no other options are, to my mind, the most compelling need at present. The public housing failure in Victoria is absolutely shocking.

The issue of housing and the connection between housing and cycles of disadvantage and imprisonment was discussed in the Law Week presentation. Housing is one of the four priorities identified by the Supporting Justice project to address the overrepresentation of people with disability in the criminal justice system. As these questions correctly identify, there are significant issues with the current social housing system which often fails to connect people leaving prison, or at risk of contact with the justice system, into safe, secure and long-term housing.

While funding was announced recently for increased investment in social housing, much more is needed to adequately address the issue of homelessness for people with disability in contact with the criminal justice system.

The Supporting Justice project is exploring opportunities to collaborate with housing and disability support organisations to find sustainable solutions to provide safe, secure and long-term housing for people with disability exiting the criminal justice system.

To listen to personal stories about the impact on the lack of appropriate housing for people with ABI leaving prison, you can listen to the Our Voices Podcast series which includes self-advocates sharing their frustration and explaining how it felt as though they had been set up to fail when placed in unsafe and insecure housing.

Creating the SupportingJustice.net online resource and the Supporting Justice System Map

What was the design process like for those involved in creating this resource? What did you learn from this experience?

The CIJ worked with design firm Paper Giant to develop SupportingJustice.net and the early iterations of the Supporting Justice System Map. View the Supporting Justice System Map here.

The project adopted systems thinking and human-centred design principles to develop the online resource. The project team drew in a broad cross-section of court and legal professionals, as well as court support and disability justice workers, to inform every stage of the website’s design and development. Critically, the lived experience of people with disability was embedded in the project, ensuring that the resource responds to the needs of the people it is designed to support. Project activities often brought together stakeholders with very different experiences of the justice system. For example, co-design activities included Magistrates and lawyers developing concept ideas alongside people with disability and lived experience of the justice system.

The project involved people with disability and lived experience of the criminal justice system at every stage. A person with disability and lived experience of the criminal justice system was appointed as a member of staff within the project team. For many participants with lived experience, it was the first time they had been approached as subject matter experts in their own experience. Participating in the design, creation and testing of the resource was an empowering experience for participants with lived experience and proved invaluable for the integrity and practicality it has provided to SupportingJustice.net.

SupportingJustice.net incorporates features which specifically respond to input from people with lived experience, including:

Prominently featuring personal stories of people with disability and their experience of the justice system;
A focus on the communication skills of court and legal professionals; and
Resources designed to improve understanding and build confidence of people with disability in their interactions with legal professionals.

You can read more about the experience and learnings from a design perspective in this interview between Stan Winford and Kate Goodwin of Paper Giant and this article by Paper Giant.