INTRODUCTION

13.1 The previous 12 chapters have considered a variety of issues which affect people with an intellectual disability throughout the criminal justice system. It is important not to overlook the need to consider the criminal justice process, and the needs of the people involved in it, as a whole, rather than as discrete parts, each requiring separate reforms. Many of the same difficulties arise for the person with an intellectual disability at each stage of the process and it is therefore important to consider these issues in general terms. This chapter identifies common themes and concerns raised in this Paper. These include:

• the “double disadvantage” faced by some people with an intellectual disability, for example, by juveniles and Aborigines with an intellectual disability, and the lack of information and specialist services for such groups;
• difficulties involved in the identification and assessment of a person’s disability;
• the need for continuity, support and case management as the person with an intellectual disability progresses through the criminal justice system;
• the need for co-ordination between government departments; and
• the general lack of services and sentencing options.

SOME GENERAL PROBLEMS

People with a “double disadvantage”

13.2 Apart from people with an intellectual disability, there are a number of groups of people traditionally considered “vulnerable” in our criminal justice system. These include juveniles,¹ Aborigines, people with a mental illness or physical disability and people from a non English-speaking background. Special rules and procedures already exist for most of these groups to ensure that they are treated fairly. A person from one of these groups may also have an intellectual disability and be “doubly disadvantaged”² in the criminal justice system. This chapter will raise some additional problems faced by these “doubly disadvantaged” groups. The Commission seeks further submissions about whether additional reforms are required for any of these groups, and about whether any of the proposals in the previous 12 chapters would have an unfair impact on any particular group.

Juveniles

13.3 Many of the areas under consideration in this Discussion Paper, such as difficulties in identification and communication, the need for training of service personnel, the understanding of court procedures and the appropriateness of diversion, will apply to both adults and juveniles with intellectual disabilities in the criminal justice system. As for adults with an intellectual disability in prison, there are concerns about the appropriateness of juvenile detention centres for juveniles with an intellectual disability and about the lack of specialised support services in these centres.³ There are, however, distinct issues which arise for juveniles. The juvenile justice system generally aims to provide diversionary and community-based services to juveniles, rather than incarcerating them in detention centres,⁴ owing to such concerns as the vulnerability of juveniles in custody and the desirability of maintaining community links. Such concerns must apply with greater force to juveniles with an intellectual disability. It has been suggested that if a juvenile with an intellectual disability becomes involved in the criminal justice system, he or she is more likely to progress into the adult criminal justice system.⁵ This reflects general statistics that a high percentage of adult offenders have spent time in detention as children.⁶

13.4 Another matter raised with the Commission is the young people who seem to fall between the gaps of youth services and disability services and who are at risk, both as likely offenders and victims. We have been told of the victimisation of juveniles with an intellectual disability in refuges and detention centres,⁷ and of the mimicking by these juveniles of the behaviour of other juvenile offenders without understanding of the consequences of their actions. Examples have been provided of a person with an intellectual disability, in seeking acceptance from a group of “normal” people, being used as a lookout or “fall guy” and taking a larger share of blame than is appropriate.⁸ According to Hayes and Craddock, a study of juvenile offenders with intellectual disabilities found that they:

when compared with non-disabled delinquent peers were found to have lower self-images, were more concerned about ease and comfort than about opportunity to learn, looked to the peer group for approval, were less likely to feel in control of their lives, were more disruptive and more frequently disciplined, exhibited inadequate attentional skills, became easily flustered and confused, were behind in academic achievement, had a history of progressive failure and alienation within the school system, had rarely been taught in special education classes despite strong indications of the need for this, and had a high degree of cultural deprivation at home. The study concluded that a vast number of intellectually disabled young people who would otherwise become inmates in juvenile correctional establishments could avoid this fate if they acquired sufficient skills to meet the complexities of daily living.⁹

13.5 A recent Brisbane study provided an insight into the difficulties faced by young people with a mild intellectual disability considered “at risk” of homelessness, contact with the criminal justice system or inappropriate involvement with the psychiatric system.¹⁰ The study referred to the vulnerability of this group (estimated at including approximately 150 to 200 young people) and the lack of appropriate services available, particularly in the area of accommodation. Not only were this group likely to have had contact with the police and to have been charged with an offence, but they were also often victimised and exploited, both financially and sexually, including by their peers. They were a particularly mobile group with a history of contact with a variety of agencies and services. Many service providers commented that no one department or service was seen as having a coordinating role in the provision of services to this group.¹¹

13.6 There have been a number of major reviews and initiatives affecting the juvenile justice system as a whole: the New South Wales Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (1988); the Youth Justice Coalition (NSW) Kids in Justice: A Blueprint for the 90s (1990); the New South Wales Legislative Council’s Standing Committee on Social Issues Juvenile Justice in New South Wales (Report, 1992), and the Juvenile Justice Advisory Council of New South Wales Future Directions for Juvenile Justice in New South Wales (Green Paper, 1993). These reviews culminated in the release, on 15 August 1994, of the New South Wales Government White Paper Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales. In this Discussion Paper it is only possible to refer to the recommendations of these reviews in brief, though all of them contained recommendations likely to be of assistance to juveniles with an intellectual disability.

13.7 The 1988 Working Party Report criticised the lack of adequate identification and assessment procedures, insufficient staff training and resources, lack of co-ordination of services between the Departments of Corrective Services and Community Services, and contained 33 recommendations for change. Many of these recommendations are still under consideration by the Department of Juvenile Justice.¹² The Standing Committee Report did not deal in any detail with the particular needs and issues faced by juveniles with an intellectual disability, though the Committee visited a number of juvenile detention centres, and commented on the “high incidence of learning difficulties”.¹³ The Committee referred to the lack of information provided to it in this area and the need for further consideration.¹⁴

13.8 The Green Paper also contained little detailed consideration of the particular problems faced by juveniles with an intellectual disability, though the Paper recognised that “[y]oung people with disability tend to be a highly disadvantaged group within a juvenile justice setting. Many have also been exposed to previous negative experiences within wardship.”¹⁵ The Green Paper commented:

Greater information is needed on the number of juveniles in custody who are disabled. More comprehensive procedures for the identification of such juveniles are required, when received into a Juvenile Justice Centre or in the Juvenile Justice Community Services. Staff training should be adequate for ensuring staff have the skills to make this identification both amongst generalist and specialist staff.¹⁶

The Green Paper therefore made a number of specific recommendations in the areas of services, identification and staff training.¹⁷ The White Paper outlined a range of reforms to the juvenile justice system, including greater co-ordination between government and other agencies, alternatives to the sentencing and detention of young people, and the use of community youth conferencing. The White Paper stated that young people with disabilities should have access to a range of educational and other services and sentencing options, including, where necessary, specialised services and programs. Little further detail was provided in that document, however, and it is impossible at this stage to assess the likely impact of the White Paper on juveniles with an intellectual disability. The Commission’s earlier comments on the need for training of criminal justice personnel apply equally to all those involved in the juvenile justice system. The issues of identification and specialist services are discussed further below.

Aborigines

13.9 The over-representation of, and the discrimination and difficulties faced by, Aborigines within the criminal justice system have been extensively documented, in particular by the Royal Commission into Aboriginal Deaths in Custody.¹⁸ The Royal Commission did not, however, address the issue of Aborigines with an intellectual disability, though it did include consideration of the need for health and related services, including mental health services.¹⁹ In the Issues Paper the Commission referred to a study suggesting that there is also an over-representation of Aboriginal prisoners with an intellectual disability in New South Wales prisons.²⁰ There were, however, a number of factors in this particular study (recognised by the authors) which may have affected this finding, such as the inclusion of Broken Hill Gaol, which has a high Aboriginal population, and the possible cultural bias in the screening tests.²¹ In response to that study the Department of Corrective Services noted that this over-representation “has not been substantiated by large numbers of referrals of Aboriginal inmates to the special units for intellectually disabled inmates.”²² The principal author of the study, while supporting the need for further research into the prevalence of intellectual disability amongst the Aboriginal inmate population so that their special needs may be more suitably addressed, suggested a number of reasons why Aboriginal inmates may not be represented in large numbers in the special units:

One is that the presence of intellectual disability amongst the Aboriginal inmate population may not be being recognised, because of the general deficits in communication amongst the members of that sub-group. Secondly, the Aboriginal prisoner information support network in the gaols is extremely strong, and many Aboriginal intellectually disabled prisoners may be assisted and protected by others, and therefore not come to the notice of officers. Thirdly, a number of Aboriginal prisoners are accommodated in country correctional facilities where the system of management is more like the special units in any case.²³

13.10 A recent Western Australian study also found a high proportion of Aboriginal prisoners with intellectual deficits.²⁴ That study therefore recommended (Recommendations 8-10) that:

• education and personal development programs available for Aboriginal prisoners should be reviewed to ensure that they meet the needs of Aboriginal prisoners with intellectual deficits;
• peer group input should be used for developing appropriate screening procedures for Aboriginal prisoners with intellectual deficits; and
• a role for Aboriginal organisations should be considered in post release plans for Aboriginal prisoners with intellectual deficits.

13.11 Though few submissions were received on this issue, the Redfern Legal Centre Intellectual Disability Rights Service supported further inquiry into the needs of Aborigines including the difficulties caused by geographical isolation and the access to services.²⁵ Difficulties in providing correctional and “respite” services to Aborigines who live in remote locations were referred to in the submission of the South Australian Department of Correctional Services, together with comments about the advantages of Aboriginal Liaison Officers.²⁶ The New South Wales Council for Intellectual Disability was also concerned that Aborigines with intellectual disability were under-represented in the receipt of specialist services and suggested that intellectual disability may not be as readily identifiable:

when many of the “flags” for such identification may occur in the Aboriginal population due to other factors, eg difficulty in reading, writing, and/or understanding complex language due to poor educational background; different body language and gestures due to culture rather than an individual’s slower ability for social adaptation.²⁷

The need for culturally appropriate psychological testing to determine the extent of the problem was referred to in several submissions and consultations.²⁸

13.12 The Commission is unaware of any other research about the particular difficulties faced by Aborigines with an intellectual disability, though their additional disadvantage appears to be generally recognised. Further research into the number of Aborigines with an intellectual disability in the Local Courts is currently being undertaken by Associate Professor Susan Hayes. The Commission has invited representatives of the Aboriginal Legal Service to its consultations, who have referred to such issues as the need for appropriate specialist services, but the Commission believes it needs further information before making proposals in this area. The Commission invites submissions from Aboriginal groups and believes that further consultations with such groups, as suggested in several submissions, would be appropriate.

Mental illness

13.13 By its Terms of Reference the Commission was asked to consider whether any recommendations should be made for people with a mental illness, where the law and practice relating to people with an intellectual disability is relevant to the treatment of mental illness in the criminal justice system. The Commission does not believe that it is within the scope of this inquiry to consider the contact between people with a mental illness and the criminal justice system. Many matters already raised in this Paper, for example fitness to be tried and the criminal defence of not guilty on the ground of mental illness, will be relevant to some people with a mental illness, but the Commission does not propose to raise issues which are solely applicable to such people. The issue of the rights of people with a mental illness, including in the criminal justice system, has been recently considered in detail by the Human Rights and Equal Opportunity Commission’s Report of the National Inquiry into the Human Rights of People with a Mental Illness (the “Burdekin Report”).²⁹

13.14 “Dual diagnosis”. One area where overlap issues do arise is the treatment of a person with a “dual diagnosis”, that is a person with both an intellectual disability and a mental illness. Such people may find themselves in the invidious position of falling between services designed for either group. Their difficulties were considered in the Burdekin Report, which referred to the lack of services, research and expertise in this area, despite the fact that people with an intellectual disability were more likely than the non-disabled to experience mental illness, and to the inappropriateness of existing psychiatric services.³⁰ That Report referred to the negative effects of the “compartmentalisation” of the two conditions, particularly in terms of ongoing service provision, and the dangers of inappropriate use of medication.

13.15 The Commission sought further information and submissions about the position of people with an intellectual disability who also suffer from a mental illness within the criminal justice system. Few submissions were received in this area, though difficulties referred to included: the general lack of support by mental health and intellectual disability services, leading to a greater chance of such people coming into contact with the criminal justice system as either an offender or a victim;³¹ the lack of services once the person comes into contact with the criminal justice system;³² the inappropriate use of medication, the lack of psychiatric training in the area of intellectual disability and the fact that people were seen as having either an intellectual disability or a mental illness so that those with both diagnoses were poorly treated.³³ In the absence of detailed information in this area the Commission suggests that further research be undertaken. It also proposes that any training for criminal justice personnel (see Chapters 3 and 11) and any new procedures introduced also include reference to the possibility that a person with an intellectual disability may also have a mental illness (and vice versa). It also suggests that specialist services for people with a dual diagnosis should be developed through consultation between the Department of Health and the Department of Community Services. The Commission understands that there are already protocols in this area.³⁴

Identification and assessment

13.16 Apart from the particular difficulties faced by people with an intellectual disability with some additional disadvantage or vulnerability, there are also issues which are likely to affect all people with an intellectual disability in the criminal justice system. The remainder of this chapter will focus on those issues and some possible solutions. One general issue is the identification of the person’s intellectual disability. The lack of recognition of a person’s disability, whether by the police, the courts or in prison, can lead to many of the injustices discussed in this Paper. It has been commented that the assessment of people with an intellectual disability coming before the courts appears to be poor, with neither lawyers, nor in some cases psychiatrists, realising that the person may have an intellectual disability.³⁵ It is also clear from the discussion in Chapter 11 that prison assessments are not identifying intellectual disability sufficiently. Submissions and consultations have referred to the lack of assessment services at all stages of the criminal justice process, and to the cost and delays involved. The solution, however, is not necessarily a simple one. A variety of necessary assessment services have referred to, for example:

ongoing assessment over varying periods of time [is needed] - depending upon the multiplicity and complexity of the individual’s challenging behaviours. Multiple snap-shot assessments by experts are hardly likely to provide the information needed to identify effective interventions for complex problem behaviours. Such an intensive and extensive assessment and training service requires an on-site multi-disciplinary team.³⁶

Additionally, some people with an intellectual disability have experienced a lifetime of (sometimes inappropriate) testing, or may seek to hide their disability because of experiences of discrimination, and are unwilling to be assessed by a psychologist (see paras 3.26-3.28). In any event, for a person to be referred for assessment, the possibility of an intellectual disability must be first identified, which often does not occur.

13.17 Juveniles. As discussed for adults, identification of intellectual disability is a major difficulty, particularly for juveniles in the borderline range. The disability may be masked by, or wrongly attributed to, learning disabilities, low levels of literacy, cultural factors or behavioural difficulties. Possibilities for assessment occur when a Background Report (similar to a Pre-sentence Report) is prepared for a court matter. Assessment can also occur in detention centres. Following the release of the Commission’s Research Report revealing an over-representation of people appearing before Local Courts, the Department of Juvenile Justice surveyed the last 625 juveniles who entered Juvenile Justice Centres on committal orders. This preliminary study found 3.4% in the mild intellectual disability range, and 15% in the borderline range.³⁷ This study did not assess adaptive and social skills, which, for some people in the borderline range, may be severe enough to bring the person into the category of mild intellectual disability based on the dual test for intellectual disability.

13.18 According to the Department, all juveniles entering detention centres receive some assessment as part of the general admissions procedures and the legislative requirements in relation to the treatment of detainees.³⁸ The detention centres have places for 450 juveniles (120 remandees and 330 under control orders).³⁹ The Department pointed out, however, that they do not have a legislative mandate to assess juveniles on remand. On arrival juveniles are initially assessed for any need for urgent attention, for example, whether the juvenile is a suicide risk or is likely to require protection from other inmates. Within a week after arrival the Centre’s nurse, psychologist and drug and alcohol counsellor prepare reports on the juvenile and a multi-disciplinary case plan is prepared, which is regularly reviewed. Psychometric testing is not necessarily carried out on the juveniles.⁴⁰ One submission commented on the need for a standardised screening/identification procedure for intellectual disability as a “safety net” to prevent juveniles with an intellectual disability without either observable characteristics or an accompanying pre-existing report from being overlooked. It also noted that the:

effectiveness of a subject assessment or diagnosis on whether or not a person has an intellectual disability has to be questioned. An individual’s presentation at intake interview or other contact is not indicative of functional ability or extent of intellectual capability in comprehending the Criminal Justice System and its procedures etc ...⁴¹

13.19 The Department of Juvenile Justice has commented in relation to psychological services: “current staffing levels prohibited a fuller service provision of this type. Notwithstanding this every effort is made to formulate an individually tailored case plan”.⁴² As at March 1994,⁴³ the Department had 12 psychological positions, all but one of which were filled, at the nine detention centres (three positions are based at Mt Penang, the largest centre). Obviously there are likely to be a range of difficulties experienced by juveniles in detention centres (apart from intellectual disability) for which psychological assistance is required. Less psychological input is available in the services provided by the Department in the community, for example community workers (Juvenile Justice Officers) prepare court reports and may need psychological assistance. Such workers may not necessarily have the training to identify a juvenile’s intellectual disability.⁴⁴ Children can, however, be referred to psychologists practising in the community, but this is costly and still requires the worker to identify the possibility that the person may have an intellectual disability.

Continuity and support

13.20 Another issue referred to throughout this Paper is the lack of continuity, not just in legal representation (see paras 3.31-3.32) but in the provision of support and in the consideration of the needs of the person on a continuing basis. Many people with an intellectual disability do not have family members who can provide support as they face the criminal justice system, nor are they necessarily already clients of the Department of Community Services (“DOCS”). They are therefore at a particular disadvantage in the criminal justice system, as services are often provided in a sporadic and crisis-based manner, rather than in a co-ordinated and pro-active way.⁴⁵ It has therefore been argued that support persons are needed in interviews with police and lawyers, and that case managers may also be required. (See Proposals 22-26 and 42-44 of the Policing Issues Discussion Paper, Proposals 7 and 8 of this Paper, and para 13.40 below.)

Policy and co-ordination

13.21 Another issue which has arisen throughout this reference, and which was discussed in the Policing Issues Discussion Paper (Chapter 5), is the lack of co-ordination between government departments. The issues facing people with an intellectual disability in (or at risk of being involved in) the criminal justice system are likely to lead to the involvement of a number of government departments and agencies, including School Education, Health, Community Services, Police, Courts Administration (including the NSW Probation Service), Juvenile Justice, Corrective Services, Attorney General’s and the Judiciary/Magistracy. There appears to be little co-ordination between such agencies to meet the needs of people with an intellectual disability, and little communication to remedy this fact. There is currently general uncertainty about who, or which department, is the appropriate contact, provider of services or source of information. This confusion is caused by the absence of policies in many departments about intellectual disability issues. Such problems are not limited to New South Wales, for example in the United States the lack of co-operation among community agencies was seen as “a persistent problem”:

Mental retardation, vocational rehabilitation, and criminal justice agencies do not understand each other’s perspective, nor do they want to assume responsibility for clients with multiple statuses ... or diagnoses. Each views the mentally retarded offender as the responsibility of the other, with the result that the offender “falls through the cracks” of community services, continues to recidivate, and ends up in prison.⁴⁶

13.22 Additionally, at both the policy and the operational level, a major problem appears to be the absence of any formal system of liaison and consultation between some criminal justice agencies, such as the police, and the disability community, with resulting ignorance, and perhaps suspicion, on both sides. Where policies do exist, the community is often unaware of their content. The need for more contact between the police and people with an intellectual disability, to assist understanding, was referred to in the Commission’s consultations with people with an intellectual disability,⁴⁷ and has been discussed in the Policing Issues Discussion Paper.

13.23 Juveniles. Lack of co-ordination between community services and the juvenile justice system is a particular problem for juveniles with an intellectual disability.⁴⁸ The Department of Juvenile Justice has commented:

As with state wards often Juvenile Justice ends up taking the lionshare of the responsibility for these clients in cases where the Department of Community Services ought to have more of an ongoing role.⁴⁹

Similarly the New South Wales Council for Intellectual Disability has noted “a reluctance by Community Services to “stretch” their resources to provide assistance for a person with an disability who may be seen to be the “responsibility” of another department.”⁵⁰

13.24 Concerns that children are being inappropriately dealt with by the juvenile justice system, rather than through the use of community services, to ensure that the child obtains some assistance, have been expressed in consultations with the Commission.⁵¹ For example, it has been suggested that a Magistrate will order a Background Report to ensure that the needs of the child are looked at, which may prolong the contact of children charged with quite minor offences with the juvenile justice system. The Legal Aid Commission of NSW has also expressed concern that juveniles on remand are usually supervised by the juvenile justice system rather than by DOCS: it therefore suggested that legislative amendment should ensure that DOCS provides such supervisory services due to their expertise and facilities in this area. It commented, however, that such options:

don’t always result in easy solutions for the disposition of matters involving children with an intellectual disability in that often there are few available resources to ensure on-going supervision, protection and care for the child. [DOCS] appears to be reluctant to become involved in criminal matters and this of course may be quite proper. However, the Office of Juvenile Justice is not able to offer much assistance once the court proceedings are over. This is one area which should receive urgent attention.⁵²

As the Legal Aid Commission recognised, the juvenile justice system is not the most appropriate place to consider and service the long term special needs of juveniles with intellectual disabilities. The emphasis on diversion and the short time spent by many juveniles in detention centres (the average stay is three months)⁵³ means that treatment or other programs will necessarily be of short duration. An ongoing casework role cannot be undertaken by the Department of Juvenile Justice for these children. There are, however, some juveniles who will spend a number of years in detention and their needs should not be overlooked.

Lack of services

13.25 However, policies, liaison and co-operation are insufficient if there are needs for which no agency will accept responsibility. Without the provision of necessary services inter-departmental co-operation becomes meaningless. The lack of services for people with an intellectual disability in the community, particularly for those with some contact with the criminal justice system, has already been discussed in detail in many previous reports, for example The Missing Services Report.⁵⁴ Submissions and consultations for this reference have also constantly referred to the lack of services and its adverse implications for the person and often their family or carers, for example:

the lack of appropriate services providing accommodation, care and support for people with an intellectual disability is well known. Although it is occasionally possible to find care for persons who have not committed offences, this becomes virtually impossible for those who have offended. Whilst I do not advocate the establishment of facilities to which people can be “sentenced”, alternative sentences such as bonds, would be more readily available if the judge or magistrate could be satisfied that the person is receiving appropriate care.⁵⁵

13.26 A number of other reports have made recommendations in the area of services. For example a Community Youth Support Taskforce was established in March 1993 and released its report in September 1993.⁵⁶ That report identified a main priority to be the co-ordination of government departments at the local level, through community youth coordinating committees. Following that report a two year pilot scheme has been set up in a number of communities. Recommendations have also been made to improve services for abused children and co-ordination between the Departments of Health, School Education and Community Services in the New South Wales Child Protection Council’s report Systems Abuse.⁵⁷ The Commission does not wish to duplicate the reports and recommendations which already exist in this area.

13.27 Of concern is the frequently made claim that offenders with an intellectual disability are being imprisoned by default, or are remaining in prison or juvenile detention centres, even though gaol may be particularly inappropriate, because there is no other option in the community (see paras 11.14-11.15).⁵⁸ For example, a representative of the Brain Injury Association commented to the Commission that she had received three calls over a period of four weeks looking for alternative accommodation with 24 hour support as an alternative to gaol, and nothing was available.⁵⁹ Similar problems arise for juveniles with an intellectual disability:

Council is aware that current residential and similar support services to juveniles with intellectual disability and their families are very limited. In some instances the young person does not attend school, and spends a large part of the day with nothing to occupy his/her time. The family is unable to meet the needs of the individual for meaningful activity and support. The young person may end up with a group of other children, usually younger, and may become involved in criminal activity such as break and enter, graffiti, being a passenger in stolen cars, or shoplifting. The Department of Community Services may become involved when a pre-sentence report is being prepared. It has been known that some disability services and professionals will not accept the juvenile into services saying “this is delinquent behaviour rather than behaviour associated with their disability”. When approaches are made to Juvenile Justice, the response is that most services cannot accommodate the needs of a person with intellectual disability. The person may end up receiving a custodial sentence because of the lack of a community-based option.





The situation for juveniles therefore appears to replicate that for adults. People with intellectual disability will be sentenced to custodial centres, not because they are necessarily deserving of such sentences, but because community-based services fail to accommodate their needs.⁶⁰

Similar concerns about Magistrates being forced to jail State wards convicted of minor offences (or juveniles being refused bail) because of lack of community services have been reported in the media.⁶¹

13.28 Courts are often unwilling to imprison people with an intellectual disability but are often left with no option. It has also been suggested that families (often elderly parents) feel obliged to provide an offender with an alternative to incarceration (by agreeing to provide supervision), when their ability to provide adequate supervision may be limited.⁶² Similarly, lack of services, particularly accommodation, can reduce the person’s likelihood of obtaining parole (see Chapter 12) or of being diverted from the Local Courts (see Chapter 5).

13.29 The Commission has also often been told of carers or people with an intellectual disability being referred from person to person in government departments or other agencies seeking services. One example detailed a fruitless paper and telephone chase which ended up “coming full circle” with the referral after many months back to the first agency contacted.⁶³ A person with an intellectual disability who does not have an energetic advocate to fill such a role may be even more disadvantaged in the provision of services. Consultations have therefore referred to the concern that there is a distortion in service provision in favour of those with the most vocal advocates.

13.30 The consequences of this lack of services in the community was graphically illustrated by the comments of a New South Wales judge in relation to a person (“D”) charged with eight nuisance type offences and six charges of stealing:

The psychiatric and psychological evidence establishes beyond doubt that [D] is suffering from a severe handicap, the result of his having both a marked intellectual handicap, apparently the result of brain damage, and from his also suffering from hyperactivity. In combination, these two disorders leave him functioning at a psychological age of twelve or less; he is unable to plan ahead or to foresee the consequences of his actions, particularly when he acts impulsively; and he is unable to help acting impulsively. If therefore at any given moment he needs money or thinks he needs money for some purpose, perhaps of only ephemeral importance, he simply takes it from wherever it is available; and as I have already said, he cannot control this impulsive conduct. Additionally, and for the same reasons, he is frequently guilty of conduct which other people find offensive, eg exposing his person, using indecent language in inappropriate circumstances, and the like.





Although he is only 21 years old, he has therefore accumulated a lengthy criminal record, and, unless his behaviour pattern can be changed, he will quite plainly continue to be an utter nuisance to the community at large, and will be in and out of jail fairly constantly for the next several years, at no doubt considerable expense to the community; his lifestyle will almost certainly become quite degraded; and in the longer term he will probably spend the latter part of his life either in prison or as a hopeless derelict, continuing to act in a manner which others will find offensive or worse; and all because he cannot help himself.





The evidence also establishes that imprisonment will not serve as an effective deterrent to him, because of his inability to think ahead or foresee consequences: he is not capable of appreciating that imprisonment will or might be the consequence if he acts impulsively. Nor will imprisonment serve any useful function in terms of rehabilitation: indeed, the complete reverse seems all too likely.





The one chance of his escaping from this appalling future, and the one chance of the community being able to escape from this future lies in there being devised and implemented a behaviour therapy program. The evidence establishes that such a program must be put into effect whilst he is in a custodial situation, for there is no other way of constraining him so as to secure his effective cooperation and therefore treatment.⁶⁴ [emphasis added]

If all else fails, in terms of effectively providing for the implementation of an appropriate program for [D] at this stage, then it may well be that it will be a particularly useful operation if the relevant government departments were able to take appropriate steps so that, if as seems inevitable [D] is released in the not too distant future, and then reoffends and is then imprisoned, it will then be possible to initiate the implementation of an appropriate program as soon as possible, and at a time when, because he is in prison, it will be possible to take these steps.





This is, of course, not a matter for me, and the fact that it is the best solution which seems now available is of itself a powerful comment on how society has failed to adequately protect [D], his family, and society itself.⁶⁶

Services needed

13.32 Submissions have referred to a large number of services required by people with all levels of intellectual disability (not just those with a more severe level of disability) and their carers or support people. It is important to note that services do not merely involve the provision of facilities, but also the provision of skilled intervention in people’s lives to stop the cycle of recidivism referred to above.⁶⁷ A representative list of services needed includes:

• education for people with an intellectual disability and their carers about the criminal justice system (see paras 3.19-3.23);
• pre-offence programs: it has been stated that most people with an intellectual disability who end up in the criminal justice system had previously given clear indications that some form of intervention or counselling was required, but that the resources did not exist;
• counselling, both for offenders and victims;
• support at court (see also Chapter 7);
• supervision by appropriately trained officers of people with an intellectual disability serving non-custodial sentences or on parole (see Chapters 11 and 12);
• accommodation services, both crisis and longer term with varying degrees of supervision and security.⁶⁸ Accommodation is particularly needed for people on bail who are itinerant or homeless or those whose current place of residence can no longer offer them a place. The appalling conditions of some people with an intellectual disability or a mental illness who live in private “for profit” boarding houses has been canvassed in detail elsewhere,⁶⁹ and it is sufficient to say that there must be a better alternative for the accommodation of people with an intellectual disability;
• assessment services (see also paras 5.15 and 11.20); and
• post release or re-integration programs, including residential options (see paras 12.40-12.43), as many post custodial services will not take people with an intellectual disability or people with a mental illness.⁷⁰

The role of the Department of Community Services

13.33 According to the Office of the Public Guardian, referring to a number of their clients involved in the criminal justice system:

If they are not diagnosed as suffering from a mental illness and if they are not already clients of the Department of Community Services, there are significant difficulties in getting appropriate services by way of accommodation and behaviour management programmes for these clients.





The Department of Community Services appears not to be “geared up” to providing such services (ie to people who have a mild developmental disability and concurrent behaviour [problems]). It is the experience of this Office that it is much easier to advocate for services for someone who has a moderate developmental disability as opposed to someone who has a mild developmental disability.


Often because a client is “only” mildly developmentally disabled the expectation is that they can be accommodated in “private for profit” boarding houses. Our experience and the experience of “grass roots” Department of Community Services workers is that such accommodation is often inappropriate because of the behavioural problems they have.⁷¹

DOCS, whilst having the funding, facilities and services tend to provide for the severe to moderate intellectual disability groups, and say the others should be treated as any other person in the community (normalisation). DOCS staff are very thinly stretched, and are not capable of providing the required service with current staffing. Consequently some of this group tend to be admitted to psychiatric hospitals as a way of containment. It is inappropriate for intellectually handicapped or brain damaged people to be admitted to short term Psychiatric Admissions, for long term care, mostly because they are perceived to be dangerous to others.⁷³

13.34 DOCS is clearly the government department with the most expertise in the area of intellectual disability, and has specialist disability teams. Historically however, DOCS (and before that the Department of Health) has mainly provided residential services to people with moderate to profound levels of disability, though predecessors of DOCS also provided services to State Wards, some of whom had a mild level of intellectual disability. DOCS now provides services to a wide variety of clients on a statewide basis and now has more clients with a mild level of intellectual disability living in the community.⁷⁴ Its responsibilities following the passing of the Disability Services Act 1993 (NSW) have expanded but not, according to comments made to the Commission, its resources. DOCS is currently developing its policy on people with an intellectual disability who come into contact with the criminal justice system, but it presently provides primarily non-residential services such as case management, assessment and counselling/therapy to these people. It also provides information to the court about the availability of services. When a person with an intellectual disability who is a client of DOCS comes into contact with the criminal justice system, assistance is provided by either the Disability District Officer or the area-based Community Support Teams. The Commission met with a Community Support Team, consisting of two psychologists and a number of case workers and community workers. Each case worker had approximately 60 clients, each with an intellectual disability, some also with physical disabilities or a mental illness. A limited specialist service was also available in the area for approximately 10 clients with “challenging behaviour”. The case workers had performed such functions as attending police interviews, accompanying their clients to court and preparing case plans to be presented at court, and the psychologists had also attended at court and undertaken counselling programs. The team commented that the contact between their clients and the criminal justice system was a matter of increasing concern.⁷⁵

13.35 Where accommodation is requested this must be met within the Department’s usual service delivery system.⁷⁶ DOCS now only has a small number of institutions and 234 group homes which together, as at 1992, provided accommodation for approximately 3,300 people with an intellectual disability.⁷⁷ The Department does not provide crisis accommodation itself but there is a State/Commonwealth-funded Supported Accommodation Assistance Programme, which funds a range of non-government community organisations to provide transitional accommodation and support services for homeless people in crisis.⁷⁸

13.36 The Commission has been provided with examples of people with an intellectual disability involved (or at risk of being involved) in the criminal justice system who (or their carers) have sought, but not received, support of varying kinds from DOCS. According to one submission, DOCS should have facilities/programs for people who have “offended in the past and will re-offend without suitable intervention. Such intervention of counselling and behaviour management is a function of the Department.”⁷⁹ DOCS is, however, placed in a difficult position in this area, particularly in the area of secure residential facilities. Apart from the resources issue, the philosophy of DOCS is based on the voluntary provision of services, rather than a social control role. Some people with a mild intellectual disability may choose not to use the services provided by DOCS, for example they may simply walk out of a group home, and DOCS states that it does not maintain any special facilities in which a person can be confined, though a guardian in certain circumstances could authorise the detention of a person in an existing DOCS facility.⁸⁰ For DOCS to provide secure residential facilities and supervision would raise philosophical, structural, staffing, and funding implications, and would need public discussion and appropriate checks and balances.⁸¹ Apart from accommodation, DOCS does not provide 24 hour services, except in the areas of family crisis and child protection, and therefore the role which can be played by a DOCS case worker is presently a limited one.

POSSIBLE SOLUTIONS

13.37 It is clear that these general problems in the criminal justice system, primarily the need for services and co-ordination, can be met in a number of, often complementary, ways. Some possible solutions to the general areas of difficulty identified above are set out below. Each provides different results and therefore one perfect solution cannot be suggested. Many of these solutions have already been discussed throughout the Paper, but are repeated here for convenience.

Information

13.38 One proposed solution involves setting up an information service or “hotline” about intellectual disability and available services. In the Policing Issues Discussion Paper the Commission proposed, for example, that Police should have 24-hour access to experts to provide advice, answer specific questions or arrange assessments. Such a service could be telephone-based and available 24 hours a day. It could provide information and contact numbers, including where to get legal advice, assessments, the availability of crisis accommodation etc, and could be used by people with an intellectual disability, parents and carers, the police and the legal profession. One submission commented:

Practically all Health Areas now provide a 24 hour (usually 16 hour on duty with 8 hour on call) “Crisis Service” or “Extended hours” service with experienced psychiatric nurses or other experienced staff. With some additional training, and access to up to date databases, these teams could provide the 24 hour information service, rather than establishing parallel services.⁸²

13.39 Apart from information about intellectual disability, there is also a need for information about services and sentencing options for the courts and the Probation Service. One important innovation which will be of assistance to the judiciary is the development by the Judicial Commission of New South Wales of a “Facilities” database, as part of the Sentencing Information System. This information will be available later this year on-line to all judges and magistrates and will include information about the availability of sentencing facilities (custodial, non-custodial and services such as drug and alcohol facilities) in particular areas, and details about that facility’s intake policy.⁸³ It has also been suggested that procedures be established within each agency to allow the flow of information (both internally and externally to other government departments, private service providers and the disability community) and the co-ordination of (always limited) resources. The Commission believes that for effective change to occur within the criminal justice system there must be an established system of contacts for all agencies with the disability community at both the policy and the operational levels (where there is such a division). The intellectual disability liaison officers proposed for the Office of the Director of Public Prosecutions and the Legal Aid Commission of NSW (see Proposal 9) should be of assistance in this area.

Case management

3.40 As discussed in Chapter 3, some submissions have referred to the advantages of providing a designated “case manager” for all people with an intellectual disability involved in the criminal justice system, whether clients of DOCS or not. A case manager provides information and advice and identifies what services are necessary (and available) for the person. The form of management provided will vary from person to person and from organisation to organisation. Case management is designed to ensure that the person’s needs will be considered in a pro-active way and that a consistent and logical provision of services and support will be maintained. The key element is the individualised approach and the continuity provided. Such an approach is particularly important in the criminal justice system, which involves a wide variety of people and organisations, often with no expertise in the area of intellectual disability. The case manager’s role should continue throughout the criminal justice system, that is, the responsibilities should not cease simply because the person is involved with another agency, for example under the supervision of the Probation Service. It has been suggested that the most appropriate department to provide case management services is DOCS, as that Department has the expertise to provide such a service and it is designed to be a “whole of life” service for people with disabilities. Unlike, for example, the Probation Service, its role does not end with the completion of a sentence. This possible solution was reflected in Proposal 8. DOCS, however, appears to lack the resources at this stage to undertake such a role on the scale envisaged.

Guardianship

13.41 Guardianship provisions may also be used to ensure that a person with an intellectual disability has adequate support. As discussed in Chapter 3, a guardian cannot be appointed if the checks and balances of the guardianship legislation are not met, and the appointment of a guardian cannot assist the person to find services if none exist, but guardianship may be appropriate to assist a person to gain access to available services. The Guardianship Board provided the following example:

Mr P was charged with sexual assault and physical assault. The alleged victim shared his supported accommodation and it was therefore not possible for Mr P to return there. Mr P had a mild intellectual disability. Mr P’s caseworker was concerned that Mr P lacked the capacity to instruct a solicitor and also that Mr P would be incapable of finding alternative accommodation. The Board made guardianship orders to ensure that Mr P had consistent legal advocacy which took cognisance of his disability, to arrange accommodation on his release; and to liaise with the Department of Corrective Services as to his safety and well-being while in custody. ...⁸⁴

The difference between guardianship and case management is that a guardian is a substitute decision-maker, whereas a case manager provides a support role. Guardianship will not be necessary or appropriate for many people with a mild level of intellectual disability.

Provision of assessment, accommodation and other services

13.42 There is a need for access to experts to provide assessments and advice, whether for court proceedings or otherwise. Often such expertise is needed at short notice and outside normal business hours, for example in police situations. Many organisations, for example the Department of Juvenile Justice (see para 13.19), have their own “in house” psychological services, but others, for example the NSW Probation Service, do not. In Chapter 11 the Commission proposed (Proposal 39) a pilot assessment service for use in the courts. Many submissions also referred to the need for accommodation services, both crisis and long term. The need for stable accommodation is particularly important for the development of appropriate non-custodial options for offenders with an intellectual disability. It needs to be available at short notice, for example in bail situations. However, some submissions have rejected the establishment of facilities such as bail hostels for such situations.⁸⁵ Concerns have been expressed about the inflexibility of facilities and the danger that they could become “dumping grounds for people with an intellectual disability. The limitations of a facility-based approach to the needs of people with an intellectual disability has been stressed.⁸⁶ Instead, what is preferred is individual-based solutions, for example using the provisions of the Disability Services Act 1993 (NSW) to construct a service plan for the person rather than attempting to slot the person into existing (and perhaps inappropriate) facilities. Services should be based on a person’s need rather than because of a person’s IQ level. Another way of organising services is a system of service brokerage whereby an amount of money is allocated for an individual and the broker can therefore organise (and pay for) services for that person using government and non-government options.

Training

13.43 Many submissions referred to training about intellectual disability issues as essential within the criminal justice system. Such training needs to be available to a wide range of personnel, not just a few key officers, and the Commission has made a number of proposals in this regard. The relevant agencies which have been discussed in this way are:

• the NSW Police Service (see the Policing Issues Discussion Paper, Chapter 4, Proposals 12-14);
• the legal profession, the judiciary and court staff (see Chapter 3, Proposals 2-5); and
• the Department of Corrective Services and the NSW Probation Service (see Ch 11, Proposal 45).

Policy development and specialist units

13.44 It is clear from the previous 12 chapters that each of the departments or agencies involved in the criminal justice system needs to develop a (sufficiently flexible) policy for their contact with, and services for, people with an intellectual disability. Such a policy will affect the level of knowledge of the agency as a whole about people with an intellectual disability and should influence training and resources priorities. Some agencies in the criminal justice system might not have a policy on intellectual disability owing to a (mis)perception that the issue is not seen as large enough to warrant the diversion of scarce resources. However, the generally accepted over-representation and vulnerability in the criminal justice system of people with an intellectual disability, both as offenders and as victims, must be considered in this context. Input from the disability community, as discussed above, is needed in this process. The most appropriate way to consider the needs of people with an intellectual disability will naturally vary from agency to agency and the Commission has raised this issue on a case by case basis. For some agencies a specialist unit may be appropriate, for others this would be a waste of resources better used to train all operational staff. Other agencies may prefer to allocate current staff with the responsibility of acting as a contact and referral point for intellectual disability issues. The relevant agencies which have been discussed in this way are:

• the NSW Police Service (see the Policing Issues Discussion Paper, Chapter 5);
• the legal profession and the judiciary, including the Legal Aid Commission of NSW and the Office of the Director of Public Prosecutions (see Chapter 3);
• the Department of Corrective Services (see Chapter 11); and
• the NSW Probation Service (see Chapters 11 and 12).

Inter-department initiatives and the transfer of information

13.45 As discussed in the Policing Issues Discussion Paper, in addition to communication, practical co-operation between the criminal justice agencies (whether government departments or otherwise) is crucial and seen as a solution to many of the difficulties in this area. In 1993, following the release of the Commission’s Research Reports in this area, an inter-departmental committee was set up, as an initiative of the Social Policy Directorate within the Department of Community Services.⁸⁷ The Social Policy Directorate and the Disability Council of New South Wales commissioned Associate Professor Susan Hayes to prepare a consultant’s report on recidivism by people with an intellectual disability and how this may be addressed, including consideration of inter-departmental co-operation. That report has been completed but has not yet been publicly released.

13.46 The Commission has heard constant allegations of “buck passing” in the provision of services to people with an intellectual disability,⁸⁸ and examples of such people thereby suffering from lack of services. The Commission believes that the needs of people with an intellectual disability in the criminal justice system must be tackled on an on-going basis at an inter-departmental level, including the establishment of guidelines as to departmental responsibilities, at both the local and policy levels. Non-government agencies should also be involved as they are a major provider of services and referrals. Though issues of client confidentiality and privacy are crucial and should be considered in any inter-departmental protocols, there are occasions where information does need to be passed from agency to agency, for example if a court recommends that a person be detained in a special unit in the Department of Corrective Services. There are also issues which are best tackled on a multi-disciplinary or inter-departmental basis, for example the proposed Lancaster model discussed in Chapter 12. Inter-departmental initiatives and co-ordination must start from a basis of agreed positions and policies by the relevant departments. There needs to be agreement about each Department or agency’s role and responsibility and what will trigger (and end) its involvement with the person. There needs to be somebody with the authority to bring involved departments together to form a coordinated plan for a person - though the identity of the relevant organisation is not important.⁸⁹ One danger of an inter-departmental model is that, unless each department’s responsibilities are clearly defined, one department may be left with all the responsibility - this may contribute to the hesitation by some agencies to become involved in such a process.

Criminal justice worker

13.47 Another possibility, which is currently being piloted in the Illawarra area, is the establishment of a criminal justice worker, unattached to any particular Department, whose brief is to coordinate services for people with an intellectual disability involved in the criminal justice system (such as the provision of a support person) and to act as a training, contact and referral point. Such a worker would obviously be assisting a large number of people and would not be able to provide the same level of individual assistance as a case manager. In the Illawarra pilot, the criminal justice worker has primarily been involved in training, both of police and of support people to accompany people with an intellectual disability to police interviews and to court.

PROVISIONAL PROPOSALS FOR REFORM

13.48 Though all of the above solutions have their uses, the Commission believes that the problems of the lack of services and co-ordination affecting people with an intellectual disability in the criminal justice system is so fundamental that many of the legislative and administrative changes suggested in the previous 12 chapters would be rendered meaningless without the better provision of appropriate services, including accommodation, assessment facilities and case managers. The Commission therefore suggests, that in addition to the perhaps piecemeal proposals referred to in this Paper, including proposals about the detail of the services needed, there needs to be a mechanism to ensure the provision of services, and the ongoing consideration of the needs of people with an intellectual disability in the criminal justice system. The Commission proposes that an Intellectual Disability Commissioner with statutory powers and duties should be established.

13.49 At the Federal level the position of Disability Discrimination Commissioner in the Human Rights and Equal Opportunity Commission was established by the Disability Discrimination Act 1993 (Cth). The Commissioner has a number of functions, including the investigation and conciliation of complaints, reporting to the Minister about the development of disability standards and undertaking research and educational programs. In New South Wales the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) established the Community Services Commission and a Community Services Commissioner to investigate and conciliate complaints about services provided by DOCS, Home Care (NSW) and non-government services funded by DOCS. It also provides information and training support to clients and service providers. Two other bodies have also been established: a Community Services Appeals Tribunal with the power to review certain decisions involving community services and a Community Services Review Council to coordinate the agencies providing community services and advise the Minister. The role of the Intellectual Disability Commissioner would need to be developed in consultation with these bodies and the Office on Disability. Apart from the functions set out below, other possible functions could include, for instance, an independent in-house assessment service. The Commissioner could also advocate on behalf of people with an intellectual disability and advise government departments generally about intellectual disability services. The Commission seeks submissions about other appropriate functions.

48. The position of Intellectual Disability Commissioner should be established, independent of any Department, to perform the following roles, in consultation with the disability community, government agencies and appropriate experts:


(a) identify the service needs of people with an intellectual disability involved (or at risk of being involved) in the criminal justice system, and review these services on a regular basis;


(b) decide which government departments could best provide such services and be involved in their allocation, considering the necessity of appropriate resources to meet those needs;


(c) once the departmental responsibilities are clearly outlined, assist in the establishment, at both the operational and the policy levels, of formal channels of communication between the relevant criminal justice and service agencies;


(d) provide an information and referral contact point for personnel in the criminal justice system (police, lawyers, probation officers etc), and preparing appropriate information for dissemination to the public;


(e) encourage research into this area, through the commissioning of projects and the supervision of, for example, inter-departmental initiatives;


(f) assist (perhaps on a contract basis) in the training of criminal justice system personnel about intellectual disability; and


(g) develop and provide a list of support persons available for police interviews on a 24 hour basis.

1. In New South Wales a person is considered a juvenile until the age of 18 years.

2. L Gething, T Poynter and F Reynolds Disability Awareness Package - Manual (Community Disability and Ageing Program, University of Sydney, 1991) at 52, referring to people from a non English-speaking background.

3. For example, Illawarra Disabled Persons’ Trust Submission (10 August 1992) at 3.

4. New South Wales Department of Juvenile Justice What’s Happening in Juvenile Justice in New South Wales (1992) at 7.

5. New South Wales. Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (Department of Family and Community Services, 1988) at 9.

6. New South Wales Department of Juvenile Justice What’s Happening in Juvenile Justice in New South Wales (1993) at 7.

7. For example, consultation with Ms S Allan, Community Living Programme Inc, Queensland on 14 December 1993.

8. See, for example E F Reed “Legal rights of mentally retarded offenders: Hospice and habilitation” (1989) 25 Criminal Law Bulletin 411 at 414.

9. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 284, citing F Dennis The Retarded Juvenile Offender Research and Demonstration Project (Tennessee Department of Correction, 1971).

10. A Coleman It Doesn’t Mean I Can’t Do It: Expanding Options for Young People at Risk with a Mild Intellectual Disability (The YAR<>MID Project Report, Brisbane, 1994).

11. Coleman at 4.10.

12. Mr I Graham, Director-General, Department of Juvenile Justice Letter (28 April 1994).

13. New South Wales. Legislative Council Standing Committee on Social Issues Juvenile Justice in New South Wales (Report 4, 1992) (the “Standing Committee Report”) at 123.

14. Standing Committee Report at 21.

15. Juvenile Justice Advisory Council of New South Wales Future Directions for Juvenile Justice in New South Wales (Green Paper, 1993) (the “Green Paper”) at 233.

16. Green Paper at 236.

17. Green Paper, Recommendations 338-343.

18. Royal Commission into Aboriginal Deaths in Custody National Report (AGPS, Canberra, 1991). See also, for example, R Lincoln and P Wilson “Aboriginal offending: patterns and causes” in D Chappell and P Wilson (eds) The Australian Criminal Justice System: The Mid 1990s (Butterworths, 1994); and S McKillop (ed) Aboriginal Justice Issues (Australian Institute of Criminology, Conference Proceedings 21, Canberra, 1993).

19. For example, Commissioner P L Dodson Regional Report of Inquiry into Underlying Issues in Western Australia: Volume 2 (Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra, 1991) at 651ff.

20. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) at 39-43, 46-47.

21. See also the comments of G P Jones and K Coombes The Prevalence of Intellectual Deficit Among the Western Australian Prisoner Population (Department of Corrective Services, Western Australia, 1990) at 27-30.

22. New South Wales. Department of Corrective Services Submission (20 July 1992) at 2-3.

23. Associate Professor S C Hayes Submission (31 August 1992) at 3.

24. Jones and Coombes at 38-41.

25. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 2.

26. South Australia. Department of Correctional Services Submission (27 August 1992) at 1.

27. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 3.

28. New South Wales. Department of Corrective Services Submission (20 July 1992) at 3; consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

29. Human Rights and Equal Opportunity Commission Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness (AGPS, 1993) (the “Burdekin Report”), see especially ch 25.

30. Burdekin Report, ch 21. See also data prepared by Associate Professor Susan Hayes showing that just over half of a sample of defendants appearing in court (51.5%, N = 134) had a dual diagnosis of psychiatric disorder in addition to intellectual disability: S C Hayes “Intellectually disabled defendants - characteristics and psychological assessment”, paper presented at the First International Congress of the European Medical Association The Mentally Retarded in the 2000’s Society (23-26 March 1994, Rome) at 7.

31. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 12.

32. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 5.

33. Dr R Vine, Rosanna Forensic Psychiatric Centre Submission (21 July 1992) at 1-2.

34. New South Wales. Department of Family and Community Services [now Department of Community Services], Ageing & Disability Services Submission (21 January 1992) at 3.

35. For example, in a case referred to in consultations, a person saw three psychiatrists, none of whom suspected the existence of an intellectual disability, even though the person had an IQ of approximately 50: Consultation with the Mental Health Review Tribunal and the Mental Health Advocacy Service on 11 March 1994.

36. Mr M Porter, Clinical Psychologist Submission (8 June 1994) at 1.

37. Mr I Graham, Director-General, Department of Juvenile Justice Letter (7 March 1994): 60% of this group were assessed using Ravens Progressive Matrices and only 30% by the more appropriate Wechsler Scale (according to the Department of Juvenile Justice, the Ravens Progressive Matrices Scales correlate 0.7 or 0.8 with Wechsler Scales).

38. Children (Detention Centres) Act 1987 (NSW) s 14.

39. New South Wales. Office of Juvenile Justice Annual Report 1992/93 at 16.

40. Consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

41. Illawarra Area Consultative Committee Meeting Submission (12 August 1992) at 1. Similar comments were made by the Illawarra Disabled Persons’ Trust Submission (10 August 1992) at 3.

42. Mr I Graham, Director-General, Department of Juvenile Justice Letter (7 March 1994).

43. Consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

44. Consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

45. Consultation with representatives of the NSW Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994.

46. Reed at 437 [footnote references omitted].

47. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Consultations (Research Report 3, 1993).

48. For example, The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 2.

49. Mr I Graham, Director-General, Department of Juvenile Justice Letter (7 March 1994).

50. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 2.

51. For example, consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

52. Legal Aid Commission of NSW Submission (24 July 1992) at 7.

53. Consultation with representatives of the Juvenile Justice Advisory Council, the New South Wales Department of Juvenile Justice and the Aboriginal Legal Service on 9 March 1994.

54. Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales The Missing Services (Departments of Corrective Services and Youth and Community Services, Sydney, 1985). See also the follow-up story in the Ombudsman of New South Wales’ Annual Report 1990 at 115-119 and the Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (Department of Family and Community Services, 1988).

55. Legal Aid Commission of NSW Submission (24 July 1992) at 6. Other submissions which refer to the issue of lack of services include: Mr M Porter, Clinical Psychologist Submission (8 June 1994) at 1; Mr R Hogan, Director, Parole Service, Department of Corrective Services, (New South Wales) Submission (22 June 1994); Mr G Simpson, Social Worker, Lidcombe Hospital, Head Injury Community Outreach Team Submission (21 February 1994) at 16; Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 4-5; Kingsford Legal Centre Submission (29 October 1992) at 5; New South Wales. Department of Corrective Services Submission (14 November 1991) at 2; New South Wales. Office of the Public Guardian Submission (26 August 1992) at 2; consultation with representatives of the NSW Probation Service, the Department of Corrective Services and the Aboriginal Legal Service on 2 March 1994; and Epistle Post Release Service Submission (26 August 1992) at 1.

56. New South Wales. Community Youth Support Taskforce Supporting Young People in their Communities (Report, Social Policy Directorate, New South Wales, 1993).

57. New South Wales Child Protection Council Systems Abuse: Problems and Solutions (New South Wales Child Protection Council, February 1994), for example, Recommendations 4.1-4.2.

58. See also Mr M Porter, Clinical Psychologist Submission (8 June 1994) at 1.

59. Consultation with representatives of Redfern Legal Centre Intellectual Disability Rights Service, The New South Wales Council for Intellectual Disability, Disability Council of NSW, New South Wales Sexual Assault Committee and the Brain Injury Association on 10 March 1994.

60. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 2-3.

61. For example, E Jurman “Stuck inside: the kids a department forgot” The Sydney Morning Herald (2 March 1993) at 1; and S Kirk “Magistrate rejects jailing of children” The Sydney Morning Herald (21 September 1993) at 6.

62. For example see Mr G Simpson, Social Worker, Lidcombe Hospital, Head Injury Community Outreach Team Submission (21 February 1994) at 16.

63. Mr P Hutten Submission (17 June 1994) at 47.

64. R v Harris (unreported) Supreme Court, NSW, 12 March 1987, Brownie J, 8204/87 at 2-4.

65. Minister for Corrective Services v Harris (1989) 8 Petty Sessions Review 3892 at 3896-3897.

66. Minister for Corrective Services v Harris (1989) 8 Petty Sessions Review 3892 at 3897.

67. Consultation with representatives of Redfern Legal Centre Intellectual Disability Rights Service, The New South Wales Council for Intellectual Disability, Disability Council of NSW, New South Wales Sexual Assault Committee and the Brain Injury Association on 10 March 1994.

68. Mr M Porter, Clinical Psychologist Submission (8 June 1994) at 1.

69. For example the Burdekin Report; Sydney City Mission Neglect of Duty: A Sydney City Mission response to the Human Rights and Equal Opportunity Commission’s National Inquiry concerning the Human Rights of People with Mental Illness (October 1993); and Task Force on Private Hostels Report of the Task Force on Private “For Profit” Hostels (Volumes 1 and 2, December 1993).

70. Consultation with the Mental Health Review Tribunal and the Mental Health Advocacy Service on 11 March 1994.

71. New South Wales. Office of the Public Guardian Submission (26 August 1992) at 2.

72. Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 2.

73. Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 2.

74. Consultation with a Community Support Team, Department of Community Services on 29 November 1993.

75. Consultation with a Community Support Team, Department of Community Services on 29 November 1993.

76. Consultation with representatives of the New South Wales Department of Community Services, the Office of the Public Guardian and the Guardianship Board on 15 March 1994.

77. New South Wales. Department of Community Services Annual Report 1991-1992 at 41.

78. New South Wales. Department of Community Services Annual Report 1991-1992 at 24-26.

79. Mr P Hutten Submission (17 June 1994) at 2.

80. See letter from Ms J Woodhouse, Director, Ageing and Disability Services, Department of Community Services, New South Wales to the Commission dated 29 January 1993 and consultation on 8 March 1993 with representatives of New South Wales Department of Community Services and the Guardianship Board.

81. Consultation with representatives of the New South Wales Department of Community Services, the Office of the Public Guardian and the Guardianship Board on 15 March 1994.

82. Dr J A Thompson, Consultant Psychiatrist, Community Health Services, Central Sydney Health Service Submission (26 January 1994) at 2.

83. Letter from Mr S Cumines, Judicial Commission of New South Wales dated 27 June 1994.

84. New South Wales. Guardianship Board Submission (31 January 1994) at 2-3.

85. Redfern Legal Centre Intellectual Disability Rights Service Submission (28 January 1994) at 21-22; The New South Wales Council for Intellectual Disability Submission (16 December 1993) at 6.

86. For example, consultation with representatives of the New South Wales Department of Community Services, the Office of the Public Guardian and the Guardianship Board on 15 March 1994.

87. The New South Wales Law Reform Commission is represented on that Committee. See also letter from the Hon J Longley, MP, Minister for Community Services to the Commission dated 10 January 1994.

88. Legal Aid Solicitors referred to the lack of facilities and the “buck passing” between Departments and services which occurs in relation to clients considered particularly difficult: consultation with solicitors from the Legal Aid Commission of NSW on 17 March 1994.

89. Consultation with representatives of the New South Wales Department of Community Services, the Office of the Public Guardian and the Guardianship Board on 15 March 1994.