Criminal injustice for vulnerable people

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1 Criminal injustice for vulnerable people Australian Guardianship and Administration Council Social Inclusion: The Future of Ageing, Disability and Substituted Decision-Making The Hilton Brisbane, 20 March 2009 A Paper by Michelle Howard and John O Brien for the Office of the Public Advocate (Queensland) Introduction People with impaired decision-making capacity are over-represented both as victims and alleged offenders in the criminal justice system. This paper focuses on issues relating to the systemic disadvantages experienced by offenders, defendants and victims with impaired decision-making capacity in Queensland. Interest of Office of the Public Advocate Before proceeding further, it is appropriate to explain the role of the Public Advocate Queensland and the history of the Office s interest in these systems. The Public Advocate is an independent statutory officer established by the Guardianship and Administration Act 2000 to provide systems advocacy for adult Queenslanders with impaired decision-making capacity. 1 This group may include for example, people who have a mental illness, an intellectual or developmental disability, an acquired brain injury, or dementia. Essentially, it can include any person with cognitive impairment. Broadly speaking, the functions of the Public Advocate are to promote and protect the rights and interests of those adults through systems advocacy. This is done through advocacy, which identifies issues and gaps in systems, regarding changes to policy, changes to the law, and changes to services and facilities and their delivery. In essence, the Public Advocate strives to influence appropriate systems reform, including reform of the criminal justice system, to achieve better lives and life outcomes for adults with impaired decision-making capacity. For purposes of this paper, the court and prison systems are considered and referred to as the criminal justice system. 2 1 Guardianship and Administration Act 2000 (Qld), Chapter 9. 2 The criminal justice system also includes the policing system, but this paper does not address this aspect. 1

2 Examples of advocacy to date The arrangements for people with impaired decision-making capacity in the criminal justice system have been the subject of ongoing systems advocacy by the Public Advocate since the Office s inception in In its Annual Report, the Office reported on the low level of funding for prison mental health services, and advocated for significantly increased resources, given the high rates of mental illness among the prison population. 3 In May 2005, the Office of the Public Advocate called for an operational review, to bring greater effect to the legislative review of the Corrective Services Act In support of its position, the Office released a paper titled Issues for People with a Cognitive Disability in the Corrections System. 4 The paper raised issues about: identification of people with impaired decision-making capacity, and their referral for appropriate assessment; collection of reliable and accurate Queensland data regarding people with impaired decision-making capacity in the system, particularly about groups on which there is little information: people with acquired brain injury, long-term mental illness, or dementia; the need for independent, scientifically rigorous research; intensive transitional support prior to prisoner release. In , support was given for court diversion initiatives 5 transition support programs. and prisoner In its Annual Report, 6 the Office reported on the increased funding for, but still under-resourced prison mental health service, and systemic barriers to prisoners accessing acute inpatient mental health services and called for a response to overcome attitudinal and funding barriers, as well as improving prisoner access to inpatient care through training and support for staff. In , issues were raised including the disadvantage of people with impaired decision-making capacity on bail applications in the Magistrates Courts, supporting court diversion initiatives and raising issues regarding wrongful convictions of persons with impaired decision-making capacity. 3 Office of the Public Advocate, Annual Report (2005) < /Guardianship/Public_Advocate_annual_report_04-05.pdf> at 24 February Office of the Public Advocate, Issues for People with a Cognitive Disability in the Corrections System (2005) < at 24 February Office of the Public Advocate, Annual Report (2006) < /Guardianship/anrp0506.pdf> accessed 24 February Office of the Public Advocate, Annual Report (2007) < /Guardianship/Public_Advocate_annual_report_06-07.pdf> at 24 February

3 In , submissions have been made to the Review of the Civil and Criminal Justice System. 7 The terms of reference include reform of committal proceedings and sentencing discounts for early plea. The reviewers were urged to consider the impact of any changes under consideration on people with impaired decision-making capacity when formulating recommendations for consideration by Government. Recently this Office has made preliminary representations about the issue of wrongful convictions of offenders with impaired decision-making capacity. An intervention in a Coronial inquest is also underway involving issues of disability support in prison. Advocacy is continuing in these matters. Over-representation of people with impaired decision making capacity in the criminal justice system It is now generally acknowledged that people with impaired decision-making capacity are overrepresented as offenders in the criminal justice system. 8 Statistics Few statistics are available in Queensland as to how many people with impaired decision-making capacity are in the criminal justice system, however, various studies provide glimpses of the magnitude of the cohort involved: More than half of women in Queensland prisons have been diagnosed with a specific mental illness. 9 Adults with an intellectual disability are over-represented in the New South Wales prison population by a factor of four times greater than the general population. 10 Based on IQ testing, a 2002 Queensland study found that 9.8% of prisoners scored in the Intellectual Disability range and 28.6% scored in the borderline intellectual disability range. 11 More than one third of persons appearing before New South Wales Local Courts on criminal charges may have an intellectual disability Office of the Public Advocate, Submission to the Tribunals Project Panel regarding the Reform of Civil and Administrative Justice in Queensland < stice pdf> accessed 24 February 2009; Office of the Public Advocate, Submission of the Public Advocate to the Department of Justice and Attorney-General on the discussion paper Reform of Civil and Administrative Justice in Queensland < strative_justice pdf> accessed 24 February Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) < accessed 24 February Anti-Discrimination Commission Queensland, Women in Prison, March 2006, S Hayes and D McIlwain, The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) Queensland Department of Corrective Services, Intellectual Disability Survey (2002). 12 New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993); and New South Wales 3

4 In the UK, 9% of suspects at police stations had an intellectual disability and a further 42% had a borderline intellectual disability. 13 Theories regarding the over-representation There have been a variety of theories advanced to explain the over-representation of people with impaired decision-making capacity as offenders. The New South Wales Law Reform Commission outlined three primary theories: 14 Characteristics of some people with cognitive impairment combine with negative social factors to aggravate risk of offending behaviour. Some people with impaired decision-making capacity are more likely to be convicted due to their vulnerability in criminal justice processes. They come to the attention of police, don t understand their rights and may be persuaded to confess to something they haven t done and are more likely to receive a custodial sentence due to lack of other options. Psychological and socio-economic disadvantage may lead to exposure to environmental factors resulting in vulnerable people becoming involved in or suspected of committing crime. Academic comment suggests that the theories are relevant to most people with impaired decision-making capacity. 15 Significantly, each of the theories recognises that the persons concerned experience disadvantage and vulnerability. The persons concerned may not have supportive families or friends or may have been excluded from services by community agencies. For example, homeless service providers report that homeless individuals with impaired decision-making capacity are problematic to work with and benefit little from existing programs. The persons concerned may be homeless and enter a desperate pattern of cycling between incarceration and homelessness. Some argue that when we went through de-institutionalisation in the 1980s and 1990s, it wasn t replaced with adequate support in the community for the people concerned. 16 People with impaired decision-making capacity went from being forcibly detained, supervised 24 hours per day, and their food and other basic needs provided for, to Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Two Rural Courts (Research Report 5, 1996). 13 G Gudjonsson, I Clare, S Rutter and J Pearse Persons at Risk During Interviews in Police Custody: The Identification of Vulnerabilities (Royal Commission on Criminal Justice, HMSO, 1993) at 24. See also I Lyall, A J Holland, S Collins and P Styles Incidence of persons with a learning disability detained in police custody: A needs assessment for service development (1995) 35 Medicine, Science and the Law New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (1996) Report 80, [2.10] < accessed 24 February Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) < accessed 24 February See Paul White and Harvey Whiteford Prisons: mental health institutions of the 21st century? (2006) 185(6) The Medical Journal of Australia 302; Lesley Chenoweth, Closing the Doors: Insights and Reflections on Deinstitutionalisation, Law in Context (2000) 17(2)

5 being on the street without any close friends, relatives or others to support them in organising their lives, and they may be unable to access disability support. Let s be clear that this is not an argument against de-institutionalisation, which aims to allow people to live their lives in the community so that they may have enriched life experiences and live at less risk of the abuse and neglect than in isolated, institutionalised life. Adequate supports were arguably not put in place to facilitate this worthy aim. The reality is that there remain many vulnerable people in need of support for accommodation, everyday activities, an income, or to apply for disability support funding. If they manage to apply for disability support, they may not succeed, as the current demand outstrips available resources 17 and applications are reviewed in consideration of the applicant s relative priority needs, as well as the availability of resources. 18 Unfortunately, it also seems that services designed to assist vulnerable people often have narrow application, stretched resources and overworked staff. Operational guidelines may often operate to exclude the very people intended to be supported. 19 The end result is, without adequate support, many vulnerable people with impaired decision-making capacity find their way into the criminal justice system. What is needed are systems which can break the cycle of disadvantage and offending behaviour. This will have the effect of supporting many vulnerable adults to address their offending behaviour and have enriched life experiences. It will also minimise offending behaviour which will benefit the community. Criminal justice and the courts: alternatives to punishment For the purposes of this topic, it helps to have some understanding about how disadvantage can be experienced by this vulnerable group in the current court system. By way of example, reference is made to some areas of disadvantage. Bail Defendants with impaired decision-making capacity are disadvantaged on bail applications. 20 As suitable arrangements for accommodation and support are often not available, Magistrates are not infrequently unable to be satisfied that there is not an unacceptable risk of re-offending or later non-appearance, and accordingly some vulnerable people are remanded in custody. Sometimes, they may be in custody before sentence for longer than they would be if sentenced after an early guilty plea. 17 Disability Services Queensland, Guide to completing the Application for Support (2007) 3 < accessed 23 February Ibid. 19 For example, see Michelle Howard, Left out in the cold (speech delivered at a forum on chronic homelessness and impaired decision-making capacity at Griffith University, 27 March 2008). 20 Office of the Public Advocate, Issues for People with a Cognitive Disability in the Corrections System (2005) < accessed 24 February

6 The Adult Guardian has also reported that on occasions when she is appointed as guardian for legal matters, she is unable to support bail applications, as appropriate accommodation and supervision arrangements cannot be made for the person concerned. False confessions People with impaired decision-making capacity have been shown to be susceptible to false confessions in a British study of 30 miscarriage of justice cases. 21 The study found that 67% (20) of the people convicted came under the psychologically vulnerable category, including 19 who were suggestible and compliant. This susceptibility may lead people to plead guilty inappropriately. Lawyers and decision-makers Lawyers who represent defendants with impaired decision-making capacity may be unintentional contributors to their client s disadvantage, as the system is not well geared to accommodate the needs of vulnerable adults. Duty lawyers in Magistrates Courts struggle with large volumes of cases and may not identify a person s impaired capacity, or if they suspect it, may not explore it. Even with more time at their disposal, lawyers may not recognise the impairment and consider alternatives. Legal aid is prioritised for more serious offences legal representation may not be available to vulnerable defendants who do not wish to plead guilty to less serious offences. 22 Judges and Magistrates may often have no opportunity to realise the person before them has impaired decision-making capacity unless they are told. What can be done? A variety of areas for systems reforms have been proposed in reports and are worthy of consideration. 23 These include reform of legal aid funding; increased disability awareness and training for all persons involved in the administration of justice; and law reform. As mentioned earlier, the Office of the Public Advocate has given support to court diversion initiatives as they represent a productive response. Court diversion recognises the limitations of the current criminal justice system to adequately provide for adults with impaired decision-making capacity and offers alternatives. For the individual concerned, the diversion can afford opportunities for establishing a new life and addressing offending behaviour. The person concerned can have better life experiences, and if the offending behaviour stops, community needs are also met. Most people will be aware of a long-standing court diversion process through the Mental Health Court. 21 G Gudjonsson, Disputed Confessions and Miscarriages of Justice in Britain: Expert Psychological and Psychiatric Evidence in the Court of Appeal, Manitoba Law Journal, (2005) 31, Legal Aid Queensland, Can I get legal aid? (2008) < A2552AB C-8E C96E0ABB/0/fsmeanstestjuly08.pdf> at 18 March For example, see Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 5-11 < accessed 24 February

7 Magistrates Court Some Queensland initiatives have been implemented for particular groups of vulnerable people. The aim of these initiatives is to provide diversion from the standard court process to accommodate the offenders specific needs. These programs place onerous requirements on offenders with a view to reduce rates of recidivism. These court diversion projects have capacity to facilitate better outcomes for the individual as well as the community. The Homeless Persons Court Diversion Program was a two-year pilot program which operated in Brisbane Magistrates Court under the State Government s Responding to Homelessness initiatives. The program targeted homeless people and referred them to appropriate mental health, housing, and other services for support and treatment as required. Their progress following the referral was reported regularly to the court, which considered the results of the person s court diversion process when finalising the matter. The pilot program ended on 30 June 2008 and the subsequent evaluation, whilst not publicly released, considered the objectives of responding to the needs of homeless people were likely to be achieved. The Special Circumstances List was part of the Homeless Persons Court Diversion Program and an initiative of the Magistrates Court. It is able to gain a more complete understanding of the defendant s circumstances and underlying causes of the offending behaviour with the assistance of professionals. A case management approach allows a defendant to attempt an individualised program in order to stabilise their lifestyle and avoid punishment. The defendant can be referred to medical treatment or suitable programs to address the behavioural problems in consultation with the defendant, prosecutor, and professionals supporting the court. The Drug Courts currently operate in the Beenleigh, Southport, Ipswich, Townsville and Cairns Magistrates Courts and sentence people who have pleaded guilty to certain drug-related offences in the Magistrates Court. Adults with impaired decision-making capacity not infrequently self-medicate with legal and illegal substances. The Drug Courts offer some of these vulnerable people an opportunity to be placed on an Intensive Drug Rehabilitation Order as an alternative to prison. Such orders usually involve supervised drug rehabilitation treatment programs, the breach of which will result in resentencing. Last year, the Australian Institute of Criminology released its findings on the evaluation of the Drug Courts. 24 It found that graduates of the Drug Courts committed 80% less offences after their graduation compared to the 12 months prior to their entry into the drug courts program. These recidivism findings confirmed drug courts work in other jurisdictions graduates from the program have significantly improved criminal justice outcomes compared to people who were imprisoned. Three pilot programs which are underway provide the opportunity for some people with impaired decision-making capacity charged with an offence to postpone making a plea and address offending behaviour or behaviour which contributes to offending: 24 Australian Institute of Criminology, The Queensland Drug Court: a recidivism study of the first 100 graduates, (2008) No. 83 < > accessed 23 February

8 The Queensland Indigenous Alcohol Diversion Program 25 is a bail-based diversionary program which offers indigenous people alcohol and drug treatment before a charge is heard in court. The Drug Diversion Assessment Program 26 is initiated by police, or as a condition imposed by a court, to divert a person charged with a minor cannabis offence from the court process. The Queensland Magistrates Early Referral into Treatment (QMERIT) 27 program deals with drug-related summary offences, but does not require a guilty plea in order for a person to participate. Of course, court diversion schemes can only be effective with adequate numbers of court staff to run them, and available services to which vulnerable offenders can be diverted. Federal Courts In the federal arena, the Australian Law Reform Commission (ALRC) recommended court diversion for people with impaired decision-making capacity. 28 It was recommended that federal sentencing legislation enable deferment of sentencing of an offender with a disability for up to 12 months, so the offender has the opportunity to address their condition and behaviour. The ALRC also recommended that the Commonwealth Government work with States and Territories to improve service provision to federal offenders, including court diversionary schemes, and appropriate community programs and accommodation for offenders with a mental illness or an intellectual disability. This Office s advocacy encouraged the Commonwealth Government to implement the ALRC s recommendations. The Commonwealth Government has since advised it is developing detailed proposals for federal sentencing and offender management reform, drawing on the recommendations from the ALRC Report as well as by consulting with government/non-government agencies and interested persons. Other jurisdictions It should also be noted there are diversionary programs in each state which provide other models for consideration. 25 See < accessed 24 February See < > accessed 24 February See < accessed 24 February Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (2006) Report 103 < accessed 24 February

9 Sentencing options When sentencing offenders, courts are to impose sentences of imprisonment as a last resort. 29 However, Judges are restricted by limited sentencing options which may not meet the needs of an offender with impaired decision-making capacity. The Office of the Public Advocate will continue to advocate in favour of initiatives which reduce the likelihood of re-offending behaviour through providing a means to address the needs of vulnerable offenders with impaired decision-making capacity. Criminal justice and prison alternatives for consideration For many people with impaired decision-making capacity, prison is unlikely to serve a deterrent to further offending behaviour. If a person with impaired decision-making capacity receives a custodial sentence, how could the prison experience be different, in a way that would minimise re-offending? Again, it is useful to have some understanding about how disadvantage can be experienced by people with impaired decision-making capacity in a prison setting. Impoverished Lives As discussed earlier, many people with impaired decision-making capacity will have lived in disadvantaged and impoverished circumstances in the community. Their lives will often have been characterised by poverty, social exclusion, unemployment, homelessness, and regular contact with police. 30 They are often disadvantaged in receiving health services, education and are most often reliant on social security benefits. These adults enter prison at an extreme disadvantage. Following incarceration, their disadvantage may be exacerbated. Prisons are primarily concerned with security and good order. 31 Prison is an environment where vulnerabilities place people at risk of abuse, exploitation, manipulation and intimidation. Some prisoners with impaired decision-making capacity will attempt to mask their vulnerabilities as a defence, with the end result being that prison staff have great difficulty in deciding which prisoners need support. They are susceptible to negative influences and having criminal behaviours reinforced in prison, rather than reduced. 32 They may be classified as higher security prisoners in order to keep them physically safe, but this may see them spend long periods in relative isolation. 29 Penalties and Sentences Act 1992 (Qld) s 9(1). 30 Tamara Walsh, No Vagrancy: An examination of the impact of the criminal justice system on people living in poverty in Queensland (2007) Office of the Public Advocate, Issues for People with a Cognitive Disability in the Corrections System (2005) 12 < accessed 24 February See also Corrective Services Act 2006 (Qld) ss 20(1), 33(2), 36(1), 39(1), 48(1), 52(4), 53(1), 60(2), 62(2), 111(4), 135(1), 136(5), 138(1), 154(2), 156, 163(1), 265(4), 268(1), 280(1), 306(2), 336(3), 341(4). 32 Office of the Public Advocate, Issues for People with a Cognitive Disability in the Corrections System (2005) 12 < accessed 24 February

10 Disability Support Generally Notably, funding a person with impaired decision-making capacity for disability support is suspended when a corrective facility is entered. Society wouldn t countenance the removal of other commonly used aids which counter a physical condition or disability. Why should prisoners with impaired decision-making capacity have a withdrawal of disability support at this most difficult time? If it is accepted that people with impaired decision-making capacity are overrepresented in prisons, this cohort represent a significant portion of the core business of corrective facilities. Therefore, it would seem there is a good argument for specialist disability support for people with impaired decision-making capacity in prisons. Over-representation of people with impaired decision making capacity as victims of crime There is a growing body of international evidence that suggests people with impaired decision-making capacity are also over-represented as victims of crime. Statistics In Australia, limited research has been conducted and a review of the literature shows little or no collection of data on the incidence of crime against people with impaired decision-making capacity. 33 The following statistics suggest comprehensive research is warranted: In New South Wales between 70% and 90% of people with an intellectual disability will experience some form of abuse in their lifetime. 34 Several small studies in New South Wales, Canada, United Kingdom and United States estimated between 50-99% of people with intellectual and psychosocial impairments are subject to sexual assault at some point in their lifetime. 35 In South Australia, people with a disability were more than twice as likely to be a victim of a personal crime (such as assault or robbery) and 1½ times more likely to be a victim of a household offence (such as break and enter) Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 16 < accessed 24 February Queensland Department of Justice and Attorney General, Vulnerable Person Policy Statement to improve services < at 3 March Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) < accessed 24 February Carlene Wilson, The Incidence of Crime Victimisation among Intellectually Disabled Adults (1990) 5 < accessed 13 March

11 People with a disability are three times more likely than others to experience violent or severe sexual offences. 37 Theories regarding the over-representation There may be a variety of reasons why people with impaired decision-making capacity are frequently victims of crime. Vulnerability People with impaired decision-making capacity are among the most vulnerable within our community. In many cases they are unlikely to prevent crime or understand their rights. 38 They often have mobility issues which prevent them distancing themselves from an unsafe environment. 39 They may have insufficient financial or emotional resources to recover from crime. 40 People with impaired decision-making capacity are also unlikely to be aware of criminal justice services, how to access them and may be unable to assist a police investigation. Some people with impaired decision-making capacity do not benefit from the many interpersonal cues guiding social behaviour which alert others without an impairment to the possibility of criminal victimisation. 41 They may also have difficulty recognising that a crime has been committed against them. 42 Even people with impaired decision-making capacity who are have a high level of functioning may not be safe, as their perceived vulnerability (as opposed to actual vulnerability) has been recognised as a factor when offenders select their target. 43 The end result is that a person with impaired decision-making capacity is at greater risk merely because of an offender s perception. Perceived inhumanity Sadly, misperceptions persist within the community that some people with a disability experience little emotion compared to other people, and sometimes their very humanity is called into question. 44 The proliferation of ill-informed, stereotypical views such as these have a negative impact on maintaining the dignity and rights of people with a disability, and allows unacceptable conduct towards them to go unaddressed. 37 Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 19 < accessed 24 February New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (1996) Report 80, [2.26] < accessed 24 February Ibid. 40 Ibid. 41 Ibid [2.27]. 42 Ibid. 43 United States National Research Council, Commission on Behavioural and Social Sciences and Education, (2001) Crime Victims with Developmental Disabilities: Report of a Workshop 28 < accessed 17 March Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 17 < accessed 24 February

12 Sometimes these views are manifested through the actions of some individuals in social services, law enforcement agencies or the greater community, who fail to characterise offences towards people with a disability as criminal behaviour. The offences are somehow distinguished from similar crimes against people without a disability and may be intentionally or unintentionally overlooked. 45 Other risk factors Although a person s vulnerability and community perceptions are significant issues, several other risk factors have been identified by a variety of studies. Criminal victimisation has been shown to be related to: the level of a person s impairment generally, the higher the level of a person s impairment, the more likely they are to be a victim; 46 residential status those living with other people with a disability are exposed to a higher crime risk; 47 absence of healthy bonds with family members, support networks and advocates; 48 resident incompatibility; 49 the level of control the potential offender has over the person; 50 exposure to a large number of support workers; 51 lack of adequate training, supervision or clear policy for support workers; 52 isolation from the community; 53 and money (in cases of financial exploitation) Ibid Carlene Wilson, The Incidence of Crime Victimisation among Intellectually Disabled Adults (1990) 11 < accessed 13 March Ibid. 48 See United States National Research Council, Commission on Behavioural and Social Sciences and Education, (2001) Crime Victims with Developmental Disabilities: Report of a Workshop 30 < accessed 17 March 2009; Mark Sherry, Hate Crimes Against People with Disabilities < accessed 17 March Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 18 < accessed 24 February United States National Research Council, Commission on Behavioural and Social Sciences and Education, (2001) Crime Victims with Developmental Disabilities: Report of a Workshop 27 < accessed 17 March Ibid Ibid Ibid Ibid

13 Systemic issues which lead to over-representation The psyche of social services Many social services agencies provide support to people with impaired decision-making capacity via accommodation support services, community services, respite, community and home care, or through assistance to people who are homeless. Often, these agencies view themselves as being responsible for managing social issues/problems that arise in the lives of the people they support but what happens when a social problem becomes a legal problem? Many crimes against people with impaired decision-making capacity occur in specialist service environments which are operated by services agencies. 55 In those instances, it is suggested that some agencies characterise these issues as social, rather than legal problems. 56 This approach suggests the orientation of support personnel is to harmonise social problems through casework interventions and avoid legal consequences. Often, agencies and police characterise a criminal act as a social problem when a crime against a person with impaired decision-making capacity occurs, because of the complexity and competing imperatives which can ensure. For example, when both the offender and victim have impaired decision-making capacity, a tension exists between the social issue of diverting an offender with impaired capacity from the criminal justice system; and the need to recognise and prosecute the harm perpetrated on the victim. Support workers may contribute to denying access to justice for their service users: There can be confusion about whether a crime has been committed against a person with impaired decision-making capacity; There may be low reporting rates for incidents of a criminal nature by the service providers; or Thefts and minor assaults could be the norm in some institutional environments and therefore not recognised as crime. 57 Other access to justice issues Community consultation has led to the identification of access to justice issues for people with impaired decision-making capacity engaging with the criminal justice system Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 17 < accessed 24 February Ibid New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (1996) Report 80, [2.29] < accessed 24 February Queensland Department of Justice and Attorney General, Vulnerable Person Policy Statement to improve services 2 < at 3 March

14 Some stakeholders identified a general lack of awareness of the need to accommodate vulnerable people, with the result being an increased risk of these people being subjected to inequitable treatment. 59 The justice system was also described as intimidating and bewildering for vulnerable people, and a one-size-fits-all approach which resulted in a lack of support and labelling for people with different needs. 60 It was raised that often service staff had inadequate interpersonal skills and responded in unacceptable ways such as by breaching confidentiality principles or making value judgements about vulnerable people. 61 Law enforcement agencies may also be reluctant to invoke a legal response as a victim with impaired decision-making capacity might be regarded as an unreliable witness. An alternative view is that law enforcement agencies may view crimes against people with impaired decision-making capacity as welfare problems for social services to resolve. Some promising developments For the disadvantage of alleged offenders, prisoners and victims with impaired decision-making capacity to be addressed, early identification of them and their individual support needs are essential. Further, services must be developed and delivered to meet these support needs. Vulnerable Person Policy People with impaired decision-making capacity form a particularly vulnerable group which could benefit from a Vulnerable Person Policy, to address the needs of disadvantaged people who are vulnerable in the criminal justice system. In Queensland, the Department of Justice and Attorney-General has developed a Vulnerable Person Policy 62 which embodies the following principles to guide the delivery of justice services: i. Vulnerable people in the criminal justice system, whether they are victims, witnesses or defendants, will have access to justice. ii. iii. iv. The special needs or difficulties of vulnerable people in the criminal justice system are recognised so that they receive fair and equitable treatment. We respect and treat vulnerable people with dignity and consider their needs, wishes or instructions and respond appropriately. That we ensure the best possible services available are provided to the vulnerable person, through the use of appropriate referrals to services provided by other agencies both within and outside the Department. 59 Ibid Ibid Ibid Queensland Department of Justice and Attorney General, Vulnerable Person Policy Statement to improve services < at 3 March

15 v. Our staff will be informed about the needs and difficulties vulnerable people encounter in the criminal justice system so that staff may respond in accordance with these principles. Although the success of the Vulnerable Person Policy will be determined by its implementation, this Office commends the recognition of issues which confront people with impaired decision-making capacity in the criminal justice system and looks forward to improvements in service delivery. Police and Court support services Support services for people with impaired decision-making capacity who are required to participate in a police interview or attend Court are likely to be useful. 63 In a police investigation or court hearing, these workers can: Help people to understand and exercise their rights; Help them to get legal advice and understand it; Raise any individual needs of the person; and Help the person to understand outcomes, conditions and consequences. 64 In Queensland, Queensland Advocacy Incorporated has funding for a 10-month pilot called the Justice Support Program, which provides assistance to people with a disability who are victims or alleged offenders in the police interview process and at Court. The pilot is restricted to the North Brisbane area. Similar programs exist to provide support to offenders in at least New South Wales with the Criminal Justice Support Network and in Victoria with the Independent Third Person Program. Identification and data collection People with impaired decision-making capacity would benefit from the establishment of screening processes within law enforcement and corrective services for use on initial contact, to assist with identification of persons with impaired decision-making capacity. The aim of identification should be to facilitate and tailor necessary services and supports. It is understood that in Queensland, work is underway to develop a screening tool for the identification of people with impaired cognitive functioning who enter the corrective services system. It is hoped that this tool will better identify the special needs of offenders upon reception into custody. This is an important initiative, but it is stressed that identification of people with impaired cognitive functioning must be followed up with the development and implementation of appropriate support and rehabilitation plans to meet the needs of the individual. 63 Phillip French, Disabled Justice: People with Disability in the Criminal Justice System (2007) 10 < at 24 February Jim Simpson, Meredith Martin and Jenny Green, The Framework Report: Appropriate community services in NSW for offenders with intellectual disabilities and those at risk of offending (2001) 28 < at 18 March

16 Information obtained about the numbers and circumstances of offenders and victims with impaired capacity should be collected and collated, and made available to inform policy, program and service development, monitoring and evaluation. Such efforts are underway elsewhere in Australia, most notably Victoria. 65 The Office of the Public Advocate encourages a detailed exploration of the information and issues which emerge from it. Conclusions Widespread recognition of the vulnerable cohort of people with impaired decision-making capacity within the criminal justice system offers opportunities for constructive change. The interests of the vulnerable individuals concerned and the community will likely best be served by looking for solutions, which adequately address the needs of individuals with impaired decision-making capacity and minimise re-offending behaviours and vulnerabilities. 65 See Victorian Department of Human Services, Protocol between Corrections Victoria, Department of Justice and Disability Services, Department of Human Services 2008 (2008) < ic.gov.au/wps/wcm/connect/doj+internet/resources/file/ebe3f64af55de70/protocol_cv_disability_ Services_DHS_2008.pdf > at 17 March 2009; Victorian Government Department of Justice, Addressing the Barriers Corrections Victoria Disability Framework (2007) at 17 March

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