Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues
Part 1
Why do we need this research? Arguing for protection, prevention and knowledge for Indigenous young people with cognitive disabilities and mental health issues
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a) Introduction
This report provides an investigation of early intervention and diversionary practices aimed at preventing offending behaviour in Indigenous young people with a cognitive disability[1] and/ or a mental health problem. It builds on our previous report, Indigenous young people with cognitive disabilities and the Australian juvenile justice system.[2] Specifically, it examines what is available for these young people, identifies systemic service delivery gaps and points to promising interventions that have the capacity to prevent offending behaviour.
I decided to prepare this report as there is a lack of literature, evidence and interventions for this group of young people. Sadly, what commonly comes to light are stories of young people with cognitive disabilities or mental health issues falling through the cracks of community social services and ending up in custody. Once in custody, young people with a disability are more vulnerable than other detainees. They can face additional difficulties in adapting to a custodial environment that is rarely able to meet their needs and they face ridicule and adverse attention by other detainees who do not understand their medical predicament.
A publicly known, real life example, where all of these things have gone wrong is the case of Corey Brough. Corey Brough is an Indigenous young man with a mild intellectual disability, troubled background, limited communication skills and diagnosis of Attention Deficit Disorder. When he was only 16 years of age he was placed in solitary confinement in an adult prison. He was held in solitary confinement for 25 days, stripped of all clothing, belongings and bedding and administered antipsychotic drugs without a proper medical assessment.
Corey Brough made a complaint about his treatment under the International Covenant on Civil and Political Rights that went to the United Nations Human Rights Committee. The United Nations Human Rights Committee found the NSW Government contravened Corey Brough’s right to be treated with respect for his dignity and did not have due regard for his vulnerability as a person with a disability and his Indigenous status in light of the Royal Commission into Aboriginal Deaths in Custody.[3]
Corey Brough’s story may have gone all the way to the United Nations, but there are elements of his story that are repeated day in and day out in the juvenile justice system. The scenario is all too familiar. An Indigenous young person with either a cognitive disability or mental health problem slips through all the nets of early detection and assessment. They struggle at school and act up in class. Their presentation is simply attributed to bad behaviour. Rather than address the cause of the problem, the education system deals with the young person through punishment and exclusion. Not surprisingly, the young person drifts out of education and into poor peer relationships, boredom and offending behaviour. From there they are fast tracked into the juvenile justice system because they most likely lack the skills and support to succeed in early intervention or diversionary measures. This trajectory is set against a backdrop of marginalised families and communities, social and economic disadvantage, poor access to services, the transgenerational effects of the Stolen Generations, racism and high levels of trauma, grief and loss.
The scenario above paints a picture of systemic failure. However, this report will set out to analyse various points of critical intervention and propose an alternative framework based on effective and holistic intervention. At every juncture where a young person can potentially slip through the cracks, there is equally a challenge to develop an alternative, culturally and developmentally appropriate intervention that can prevent offending behaviour.
Contents of the Report
Part 2- What do we know about Indigenous young people with cognitive disabilities and/ or mental health issues? provides a literature review which considers Australian and international research on the problems facing Indigenous young people with cognitive disabilities or mental health issues, as well as different intervention models.
Part 3- Stories from the Field is based on our consultations with community members and experts in the field. In some cases, these sorts of positive interventions are already occurring. A selection of case studies showing promising practice is also included in this section.
Part 4- Conclusion and Recommendations draws together best practice principles based on the consultations, case studies and literature. It also provides targeted recommendations.
Appendix 1 provides a list of consultations.
Appendix 2 collates the data and responses on Indigenous young people with cognitive disabilities/ mental health problems provided by relevant government agencies.
Appendix 3 provides a list of government respondents.
b) Methodology
There is little research about Indigenous young people with cognitive disabilities and/ or mental health issues and there is next to nothing about how we practically keep this group of young people out of the juvenile justice system. For these reasons, this is an exploratory, qualitative research project built on close review of the literature, consideration of existing service provision and targeted case studies and consultations.
Information from government departments
To map service provision to this group, a letter was sent to state juvenile justice, health, education, disability services and crime prevention departments as it was considered that these agencies would most likely have direct service provision involvement in early intervention and diversionary programs for this client group. Information was requested about:
- data that the department/ agency may collect on the numbers of Indigenous young people who have been assessed as having a cognitive disability and/ or mental health issues;
- a break down of this data by age, sex and location;
- any information of relevant early intervention or diversionary programs that they run for the target group of young people; and
- any other research or stakeholder who is working in the field.
A summary of the responses, found in Appendix 2, provides a snapshot of reported services available to Indigenous young people with cognitive disabilities (to a lesser degree mental health issues) at various points when they are either considered ‘at risk’ or actually involved in the juvenile justice system.
Consultations and case studies
There is a divide between the government policy, programs and the real world where these young people live. For this reason, we have consulted with a selected group of service providers and experts to get ‘on the ground’ expertise. A list of consultations is provided in Appendix 1.
These stakeholders are at strategically placed at points of intervention or responsible for promising practices with Indigenous young people. This is by no means a comprehensive consultation but even this small sample highlights some of the common factors and approaches relevant to Indigenous young people with these issues.
The consultations map some of the common pathways of these young people into crime, as well as the junctures or interventions along the way that have the potential to divert them from offending behaviour and the juvenile justice system.
Each of the case studies represent a promising practice which has the potential to develop healthy, pro social alternatives to offending for Indigenous young people with cognitive disabilities and/ or mental health issues. Selection of case studies was based on the information provided by government departments and suggestions from stakeholders.
c) Definitional Issues
Concepts around disability and mental illness can be confused and contested. The following definitions are used in this report and discussed in terms of their relevance to Indigenous communities.
Cognitive Disability
The category of cognitive disabilities
includes a range of disorders relating to mental processes of knowing, including
awareness, attention, memory, perception, reasoning and judgement. Cognitive
disabilities include intellectual disabilities, learning difficulties, acquired
brain injury, foetal alcohol syndrome, dementia, neurological disorders and
autism spectrum disorders.
People with intellectual disabilities and some people with cognitive disabilities experience:
Significantly lower than average intellectual ability and deficits in social and adaptive functioning, that is, limitations in such areas as communication, social, daily living or movement skills.[4]
There was a conscious decision to use a broad definition of cognitive disability to capture the range of different conditions which may affect Indigenous young people. In particular, there is a growing awareness in Australia about prevalence of Foetal Alcohol Syndrome in Indigenous communities. Similarly, acquired brain injury, particularly from substance use (especially petrol sniffing) may also have links to offending behaviour.
Mental Illness
We found that a lot of the Indigenous young people
in the juvenile justice system were suffering from mental health problems.
Although cognitive disabilities and mental illness can be very different, in
terms of early intervention and diversion from the juvenile justice system, the
impact of interventions is similar. For this reason, we have decided to expand
our research parameters to look at both of these conditions.
Cognitive disabilities and mental illness are two separate conditions. However, in the first phase of this research we found that there is a connection between the two. Some young people have a cognitive disability as well as a mental health condition (which may or may not be associated with substance use) that can make their lives and the interventions they require, more complex.
A mental illness is a condition that:
Severely impairs (temporarily or permanently) the mental functioning of the person and is characterised by the presence of one or more of the following symptoms: delusions, hallucinations, serious disorder of thought, a severe disorder of mood, and sustained or repeated irrational behaviour.[5]
Indigenous definition of health
Our first report also noted that
Western medical definitions don’t necessarily reflect an Indigenous view
of health. The Indigenous view of health is ‘holistic, encompassing mental
health and physical, cultural and spiritual
health’.[6]
Holistic health acknowledges the impact of colonisation on Indigenous
health:
Any delineation of mental health problems and disorders must encompass recognition of the historical and socio-political context of Aboriginal mental health including the impact of colonisation; trauma; loss and grief; separation of families and children; the taking away of land; and the loss of culture and identity; plus the impact of social inequality, stigma, racism and ongoing losses.[7]
This holistic view of health has contextualised the way we have approached the issues of cognitive disability/ mental health issues with Indigenous young people.
Diversion
This report adopts a broad definition of diversion that
looks beyond ‘front end’ diversion. ‘Front end’
diversion takes place through Police, court and alternative processes that aim
to decrease the incidence of young people being formally charged with offences
in the first place.
We are also looking at the issue of diversion from custody. Firstly, because there seems to be some positive actions that can be taken once a young person has become involved with the juvenile justice system. For instance, this may be the first time a cognitive disability is actually assessed and there is an opportunity for assistance.
Secondly, based on the youthful and rapidly expanding Indigenous population, over representation is projected to worsen in the future.[8] We have an obligation to look at all available diversionary options to try and avert this source of national shame and promote social justice for our communities and young people.
Obviously, the earlier a diversionary option is applied the better, but we can’t give up on finding solutions for young people once they are formally involved in the juvenile justice system. We know the likely consequences of juvenile detention: graduation to the adult criminal justice system; poor life outcomes; and the intergenerational transmission of disadvantage. These are compelling reasons for continued commitment to diversion and rehabilitation options.
Endnotes
[1] In this report cognitive
disability is commonly defined as any sort of cognitive disorder that impairs
understanding and functioning. Cognitive disabilities include intellectual
disabilities, learning difficulties, acquired brain injury, foetal alcohol
syndrome, dementia, neurological disorders and autism spectrum disorders. A more
comprehensive definition of cognitive disability can be found on page 9.
[2] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Indigenous Young People with Cognitive
Disabilities and Australian Juvenile Justice Systems, Human Rights and Equal
Opportunity Commission, Sydney,
2005.
[3] New South Wales Council
of Social Services, Briefing Note: Children (Detention Centres) Amendment
Bill 2006, May 2006, available at www.ncoss.org.au/bookshelf/law/articles/Briefing-note-children-detention-may-06.pdf, accessed 18 March 2008.
[4] NSW Law Reform Commission, People with Intellectual Disability and the
Criminal Justice System: Courts and Sentencing Issues, 1994, Discussion
Paper 35, p2.
[5] Freeman,
K.,‘Mental Health and the Criminal Justice System’, Crime and
Justice Bulletin: Contemporary Issues in Crime and Justice, NSW Bureau of
Crime Statistics and Research, No 38. October 1998,
p2.
[6] Swan, P and Raphael, B., Ways Forward- A National Consultancy Report on Aboriginal and Torres Strait
Islander Mental Health, National Mental Health Strategy, AGPS, 1995,
p13.
[7] Swan, P and Raphael, B., Ways Forward- A National Consultancy Report on Aboriginal and Torres Strait
Islander Mental Health, National Mental Health Strategy, AGPS, 1995,
p2.
[8] Victorian Department of
Justice and Jones, R., Diversion: A model for reducing Indigenous criminal
justice over- representation, Paper prepared for consideration at the Second
National Indigenous Justice Forum November 2006,
p3.
