DARU – Strengthening Disability Advocacy Conference

Reflections on Intellectual Disability and Mental Illness Initiative at the Magistrates’ Court of Victoria

Chief Magistrate Ian Gray

I intend to speak today about the introduction of the Assessment and Referral Court and its effect on people with cognitive impairments, however to fully understand the impact of the list we must first canvass the traditional court model – the adversarial paradigm. This is a model where a trial is conducted as a contest, and where the Judge or Magistrate has no role in investigation or charging. Proceedings are controlled by the parties, and the Judge’s interventions are minimal. The parties are autonomous and the Judge and jury are impartial. To many people, these are the pillars of our justice system. As a result, where therapeutic jurisprudence, or problem-solving justice, appears to be at odds with this traditional model (as it often does) it is criticised as being ‘soft on crime’. However, the introduction of new approaches to offending does not come at the expense of traditional justice. It is an addition to, and hopefully in time an evolution of, the existing framework.

Of course, it is this framework which we are required to operate within. It is at times a rigid framework, and the effective implementation of therapeutic approaches requires constant re-examination of the operation of the courts, the role of judicial officers and lawyers, and the way that law students are educated. Therapeutic jurisprudence is based on the notion that the Law can increase or decrease psychological wellbeing, and that to have a positive impact it should be multi-disciplinary, incorporating social science and psychology. It moves from those traditional tenets of which I spoke just before, and encourages the use of the law as an agent of change to bring about a positive result. It looks beyond legal rights and duties, and considers individuals and their circumstances. It requires creative problem solving. But perhaps most importantly therapeutic justice is preventative, rather than reactive. It is the focus on prevention that truly drives the therapeutic jurisprudence movement.

The Court has evolved from a ‘one-size-fits-all’ approach, and has not only acknowledged but embraced the fact that problem solving courts and approaches should and will expand and develop in the coming years, as research continues to show that an accommodating, inclusive justice system provides the best outcomes for defendants, litigants and the community. The success of these programs, and the development of new and innovative solutions to the problems the Court sees on a day-to-day basis, rely on progressive and forward-thinking magistrates and administrators.

“Problem-solving” approaches to justice, by their very nature involve deferral, repeat appearances, judicial supervision and monitoring. They are excellent developments and in my view are producing a higher quality of justice. The quality of procedural justice is also enhanced through a more meaningful engagement in the court process. However challenges remain as the courts in which these approaches are used remain obliged to achieve an efficient and effective disposal of the high volume lists at the same time.

The Court has, within its specialist jurisdiction, various referral strategies and services. The Court Integrated Services Program (CISP) is a multi-disciplinary program aimed at accused with multiple and complex needs, such as intellectual or physical disabilities and acquired brain injury (ABI). The CISP referral process involves preliminary screening of applicants to ascertain their particular needs, which results in appropriately individualised support.

The Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010 established the Assessment and Referral Court List (ARC) in the Magistrates Court. The ARC List is a specialist court list designed to “meet the needs of accused persons who have a mental illness and/or a cognitive impairment”. Certain serious violence, violent or sexual offences cannot be heard in the ARC List. The ARC List works collaboratively with CISP to maximise case management opportunities for eligible participants.

The ARC List aims to:

  • reduce the risk of harm to the community by addressing the underlying factors that contribute to the offending behaviour of individuals with a mental impairment
  • Improve the health and wellbeing of individuals with a mental impairment by facilitating access to appropriate treatment and other support services
  • Increase public confidence in the criminal justice system by improving court processes and increasing options available to courts in responding to individuals with a mental impairment
  • Reduce the number of offenders with a mental impairment received into the prison system.

CISP and the ARC List aim to provide simplified explanations and information to people with intellectual disabilities at the start of the referral process. This assists people with intellectual disabilities gain some awareness of their rights to access various services, as well as in relation to their legal rights, court procedures and so on.

CISP and ARC List criteria are broad and include people with a range of impairments; namely, one or more of:

  • A mental illness
  • An intellectual disability
  • An acquired brain injury
  • Autism spectrum disorder
  • A neurological impairment (including, but not limited to, dementia).

Formal diagnosis is not necessarily required for referral. The disorder identified in the diagnostic criteria must cause a substantially reduced capacity in, self-care, self-management, social interaction, or communication and would derive benefit from receiving co-ordinated services in accordance with an individual support plan.

In the ARC List, between April 2010 and July 2011, 17% of participants had a diagnosed intellectual disability, and 60% had a primary diagnosis of mental illness. During the year 2009-10, 3.6% of CISP referrals were for people with intellectual disabilities, up from 2.2% of referrals in 2007, and 37% of referrals identified mental illness.

The court’s experience is that many CISP and ARC List clients have more than one form of mental impairment. Research conducted internationally has shown that “mental health problems in people with an intellectual disability are three to five times more common than in the general population”. Co-morbidity with drugs and alcohol is also high, and increases the likelihood of brain injuries, whilst also exacerbating the risk of illegal and anti-social behaviour by intellectually disabled offenders.

The ARC list employs clinical practitioners (qualified psychologists and a social worker) who assess each referred accused. CISP also employs experienced caseworkers in its multidisciplinary team-based approach to client assessment and referral. Specifically in relation to people with intellectual disabilities, case management and referrals to disability, ABI and mental health services are available. A specialist intellectual disability worker is attached to CISP. If an intellectually disabled offender faces serious criminal charges, he or she may be referred to Disability Forensic Assessment and Treatment Services.

CISP workers and ARC List Clinical and case advisers have specialist expertise, and can appropriately refer people with intellectual disabilities to specialist external case management and support organisations (i.e. Department of Human Services (DHS) Disability Services, Yooralla, Australian Community Support Organisation (ACSO), Alcohol Related Brain Injury Australian Service (ARBIAS) etc.)

If an intellectually disabled offender is accepted in to the ARC List, a practitioner develops an intellectual disability specific “Individual Support Plan” (ISP), in collaboration with the participant (and if appropriate, family and support workers). The ISP incorporates goals adapted to the individual needs of the person with an intellectual disability. Goals may include a period of case management, and referrals to a range of support services or, where existing services are in place, proactive case coordination. The ISP also requires the accused to appear before the ARC List Magistrate on a regular basis, to discuss their progress.

In addition to the ISP and judicial supervision, key features of the ARC List include:

  • Pre-sentence referral using remand/adjournment powers and compliance conditions (e.g. bail)
  • Voluntary involvement
  • Plea not required until planning completion
  • No contest hearings
  • Offenders are accepted in the List participate in List program for between 3 and 12 months returning to court for regular review hearings (it was originally anticipated most accused would be discharged from the List within 6 months, but so far the average has been much longer).

Other Court-based initiatives that are capable of assisting court users with intellectual disabilities include:

  • Shepparton Magistrates’ Court information Mental Impairment List; where during the period 2005 to 2008 19% of accused were persons with intellectual disabilities. Based on this model, Dandenong Magistrates Court also runs a Special Services List.
  • Neighbourhood Justice Centre (NJC) offers in-house screening, an Assessment and Referral Team (similar to CISP Assessors and Case Managers) who can use comprehensive methodology and intensive case management to assist participants.
  • CREDIT/Bail Support Program has case managers who can refer persons with mental impairment to community assistance and treatment services.
  • Enforcement Review Program (ERP) caters for persons with outstanding fines and “special circumstances”, a legislative term which expressly includes intellectual disabilities.
  • Whilst primarily designed for offenders with mental illnesses, the court’s Mental Health Court Liaison Service (MHCLS) may be able to assist people with intellectual disabilities suffering from mental health problems. The MHCLS is serviced by the Victorian Institute of Forensic Mental Health (Forensicare) in metropolitan courts, and by region/rural-specific mental health services in non-metropolitan areas. After identification and assessment of eligible offenders, participants are diverted into “appropriate mental health treatment services”.

The above court proceedings are more informal than traditional hearings, with more user-friendly court procedures. Magistrates provide judicial oversight and monitoring, using an informal system of rewards and sanctions (for example, bail condition variations). There is also direct interaction between magistrates and offenders with intellectual disabilities.

The ARC List is the most specialised and intensive court option for eligible persons with intellectual disabilities. Whilst the ARC List represents and optimal court-based response to accused with intellectual disabilities, it is only available at the Melbourne Magistrates Court. Other court programs that cater for people with intellectual disabilities, such as CISP and NJC are also not uniformly available across Victoria. CISP is only available at the Melbourne, Sunshine and Latrobe Valley Magistrates’ Courts.

Despite their limitations, all of the above programs and services are examples of the court’s role in promoting greater participation of offenders with intellectual disabilities, and breaking down systemic barriers to the justice system. If people with intellectual disabilities are able to access appropriate support and case management through the court process; this directly enhances their degree of qualitative participation.

The court’s CISP and NJC models have been the subject of numerous independent assessments. Conclusions from the assessments highlight how the court’s specialist programs can enhance participation of participants in the justice system. MelbourneUniversity’s Dr Stuart Ross was commissioned by the Victorian Government to conduct an assessment of CISP over a three-year period. Dr Ross’s final report, in 2009, provided a detailed and comprehensive analysis of CISP. The report’s findings highlighted how CISP had assisted clients’ experience of, and participation in, the justice system. During the survey period, 87 intellectually disabled persons participated in CISP.

Dr Ross found that CISP had:

  • Successfully engaged and retained its clients (achieving, or exceeding, its targets)
  • Proportionately matched levels of intervention to the degree of risk faced by clients, and individualised programs to correlate with clients’ needs.
  • High rates of referrals of clients to specialist treatment services and supports.
  • Generally improved the mental health of its participants.
  • Comparatively (cf. ‘mainstream’ offenders), CISP participants who successfully completed the program “showed a significantly lower rate of reoffending in the months after they exited the program”.

In 2010, the Government’s Executive Summary Evaluation Report on CISP was published, summarising Dr. Ross’s findings together with the findings of Pricewaterhouse Coopers’ independent economic evaluation of CISP. The report found that:

  • There was a “demonstrable decrease in the seriousness of reoffending post CISP program involvement”
  • CISP clients “experienced increased physical and mental health status” whilst on the program.

In April 2011, the Victorian Auditor-General released the findings of an audit of CISP and NJC. The report found that CISP and NJC reduced rates of recidivism, with CISP showing marked reduction in participants’ reoffending. CISP and NJC also promoted enhanced participation in the criminal justice system as follows:

  • NJC decreased numbers of breaches of court orders
  • CISP increased compliance with bail
  • CISP increased compliance with court orders
  • NJC reduced not just rates of reoffending, but also crime rates.

Enhanced participation of clients with complex needs arises from specialist courts, lists and services as therapeutic jurisprudence principles encourage a more relaced and less adversarial court environment, with increased judicial supervision.

Unfortunately there remains a significant disparity in available services to support offenders with intellectual disabilities across the court and the state, especially in rural and regional areas. Even specialist court-based initiatives have identified “gaps” where people with multiple indicia of disadvantage, dual or multiple forms of mental impairment, and co-morbidities are not able to access appropriate support services. The Court is aware of these gaps, and in constantly looking for ways to improve the quality of justice for all users.

The role of advocacy in the development of new programs should not be understated. Effective advocacy is difficult to ignore; governments and Courts are compelled to respond to an evidence-based, persuasive call to action. Although the Court is independent in the exercise of its judicial functions, budgetary constraints hinder progress and it the Government needs to be aware of qualitative benefits to weigh against costs. High quality advocacy begets a response from government, and helps increase the preparedness of judicial officers to move away from that traditional, adversarial paradigm and towards more inquisitive, problem-solving approaches, that we are seeing more and more provide a better quality of justice for those involved. The public too need to be aware of challenges faced by people with intellectual disabilities and mental illness in the justice system, to help combat the “tough on crime” rhetoric that plagues our tabloids with its over-simplistic stereotypes, and lures politicians with its public appeal.

Ultimately, the court can only do so much; and is not a panacea to the issue of how people with intellectual disabilities and mental illness access, and interact with, the justice system. However, the ARC List and associated initiatives are an interesting and worthwhile experiment in therapeutic jurisprudence. Independent assessments of Court programs have proven that specialist courts and programs are highly effective in assisting offenders with complex needs navigate successfully through the court system, as well as facilitating treatment and support for underlying problems, and for that they have a well-deserved place in the problem-solving Court.