INTRODUCTION

7.1 This Chapter raises two discrete issues which affect people with an intellectual disability throughout the whole of the criminal justice process; namely, the establishment of specialist units and the confusing and often inappropriate overlap which exists in the treatment of people with an intellectual disability and people with a mental illness.

ESTABLISHMENT OF SPECIALIST UNITS

7.2 The Commission was asked to consider whether specialist units should be established within the Office of the Director of Public Prosecutions, the Legal Aid Commission, the Department of Corrective Services, the Police Service and other related bodies, to deal with the special needs of people with an intellectual disability. The first question which arises is what is meant by a “specialist unit”: is it a policy unit or rather a group of specially trained field officers? The Commission anticipates that different bodies will have different specialist needs, and that the question should be approached by individually examining the present position of those bodies which come into contact with people with an intellectual disability. The general policy issue of the merits of specialist units also needs to be considered (see para 7.11 below).

The Present Position

The Office of the Director of Public Prosecutions

7.3 The Office of the Director of Public Prosecutions (DPP) does not have a specialist unit but has internal practice directions on the management of matters involving people with an intellectual disability, whether as a witness or an accused. All matters where, before the accused is arraigned, the question of an accused’s fitness to be tried is raised, or is deemed by the Crown to be an issue, are forwarded to the Director with appropriate documentation. These directions also require that solicitors notify, in writing, the Deputy Solicitor (Legal) within 2 days of any matter in which the question of fitness to be tried arises and thereafter the Deputy Solicitor is to be kept informed if anything further occurs in the matter. The DPP also has provided its solicitors and Crown Prosecutors with internal training programs in this area. As to whether a specialist unit should be established, Charles Luland QC (Senior Deputy Director of Public Prosecutions) noted that “matters involving the intellectually disabled are given special emphasis and are closely monitored at a senior management level”. He further commented:

... I am of the view that given the relatively small number of special hearings and fitness to plead cases (8 special hearings and 21 fitness to plead matters since November 1990) compared with the number of trials disposed of annually by my Office (3552 for the 1990-91 financial year) that the creation of a specialist unit is not warranted. Rather I believe that these matters can be adequately dealt with by good management practice to ensure that they are treated with the due sensitivity and priority they require ...¹

He also noted that the establishment of such a unit would have funding implications.

The Legal Aid Commission

7.4 The Legal Aid Commission does not have a specialised policy unit for people with an intellectual disability; however, it also provides training in this area for its solicitors. The Legal Aid Commission runs its own Continuing Legal Education (CLE) program to increase its solicitors’ skills. The program usually takes the form of seminars at Sydney, with outside experts as speakers. The solicitors receive CLE points which can be counted towards the points required by each New South Wales solicitor for the renewal of practicing certificates. Country solicitors are encouraged to attend and assistance is provided for them to do so. The Legal Aid Commission estimated that it holds approximately 2-3 seminars each year on the area of intellectual disability. The Legal Aid Commission believes that it is important that all legal practitioners develop their professional skills to enable them to communicate and effectively represent people with an intellectual disability, and that therefore it is more effective to have a continuing legal education program than a specialist unit in this area, “to enhance the skills of a greater number of legal practitioners within the criminal and other areas of the law.”²

7.5 The Legal Aid Commission’s Mental Health Advocacy Service provides assistance in mental health matters, including assistance to “forensic patients”, namely persons detained in a hospital, prison or other place pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW), persons detained in a hospital pending committal for trial or persons transferred to a hospital while serving a sentence of imprisonment.³ A small number (approximately 3-5%) of these patients have been identified as having an intellectual disability. The Service’s solicitors, for example, represent forensic patients free of charge at Mental Health Review Tribunal hearings. This raises the issue of attempting to meet the needs of both people with an intellectual disability and people suffering from mental illness within the same system, a problem which is dealt with more fully at para 7.14-7.16 below.

7.6 The majority of “fitness to be tried” cases are not dealt with by the Mental Health Advocacy Service but by solicitors at the Legal Aid Commission on the basis of which jurisdiction the matter falls within. For example, an indictable matter is dealt with by that section of the Legal Aid Commission. In relation to these cases it has been stated that:

[t]his is a particularly complicated area of law. It requires specialist knowledge and expertise in resolving the issues and ensuring that an accused person who is intellectually disabled, or a witness testifying in a matter who is intellectually disabled, is properly advised of his or her rights and is properly represented. Solicitors should be given specialist training so that they are better able to understand the special needs of the intellectually disabled. To that end, the establishment of specialist units may be appropriate.⁴

The Department of Corrective Services

7.7 The Department does not have a specialised policy unit for people with an intellectual disability, but it has created the position of Co-ordinator of Programs for Intellectually Disabled Prisoners, currently held by Mr Col Rannard. The Co-ordinator is responsible for setting up services for inmates with an intellectual disability in the Department and ensuring that these services run properly. The Department has also set up the specialised detention units outlined in Chapter 6. One possible area which could benefit from a specialised unit is in the area of Community Corrections, where the problem is recidivism could best be tackled.

The NSW Police Service

7.8 The NSW Police has no specialised unit or official policy on people with an intellectual disability. The Police have policies or programs for other groups, such as young people, elderly people, Aborigines, gays and lesbians, and ethnic groups, who “need special police help and protection”.⁵ There have been individual branch initiatives. The Wagga Wagga Police Beat Section created a Special Needs Unit in late 1990 to interact with and assist members of the community with intellectual and physical disabilities in their contact with the police. In the area of intellectual disability this unit has met with community groups providing services for people with an intellectual disability, and has visited people with an intellectual disability at schools, sporting and residential facilities. The Unit has prepared a survey about people with an intellectual disability and the criminal justice system and distributed it to 600 people, including people with an intellectual disability, their carers, parents, doctors and others. The branch also is preparing an education package for police, service providers and people with disabilities and has liaised with local organisations (including Sturt University), psychologists and social workers.

The Intellectual Disability Rights Service

7.9 Though not a specialist unit within a government department, it is worth mentioning the work of the Intellectual Disability Rights Service (IDRS). The IDRS is a specialist unit within the Redfern Legal Centre and receives government funding. The IDRS provides such services as legal advice, education, resource production and policy formulation for people with an intellectual disability. It employs a number of trained educators as well as legal staff and runs a number of educational programs, including a legal rights course, courses for disability workers and talks for parent groups. It has also produced a number of useful publications as to legal rights for people with an intellectual disability.

The Commission seeks further information as to the success or otherwise of the existing units and procedures developed to meet the needs of people with an intellectual disability in the New South Wales criminal justice system.

Other related bodies

7.10 The Commission was also asked to consider whether specialist units should be established within “other related bodies”. Possible bodies for consideration include: the Public Defenders, the Department of Courts Administration, or non-government legal bodies such as the Law Society and the Bar Association.

The Commission seeks submissions as to which “other related bodies” within the criminal justice system may require a specialist unit to meet the special needs of people with an intellectual disability.

Advantages and disadvantages of specialist units

7.11 Though it would be extremely useful for the bodies discussed above to develop expertise in the special needs of people with an intellectual disability and to have an accessible and centralised pool of contacts and resources, there is a fear that such units would, in the words of one submission, simply lead to a “proliferation of bureaucratic red tape to the detriment of service provision to people with intellectual disabilities who become involved with the criminal justice system”.⁶ It has been emphasised that in organisations such as the Police and the Legal Aid Commission, where it is the officers or solicitors in the field who have frequent day to day contact with people with an intellectual disability, specialist units should not be created at the expense of, or instead of, training for field workers.⁷ There is a danger that such units could become distanced from and inaccessible to the very people they are set up to assist. The National Council on Intellectual Disability supported the establishment of specialised people in all areas of the criminal justice system, although noting it would be unrealistic to expect specialised magistrates. The Council stated, however, that it would be “detrimental if the rest of the system considered it unnecessary to deal with people with an intellectual disability just because a specialist section existed.”⁸ Similarly, the Director of the Legal Aid Commission, Mark Richardson, stated:

... I am of the view that a specialist service would be disadvantageous as it could reduce the diversity of services and limit the availability of legal representation throughout the State, and consider that overall the legal representation of disabled people is best carried out by a mainstream service, with properly trained staff.⁹

7.12 Professor Susan Hayes stated that the major problem with specialist units is one of identification, in that the person first has to be recognised as having an intellectual disability before being referred to such units.¹⁰ There is also the question of what tasks such specialist units should undertake, that is, should they be for training, or simply a contact and referral point between the community and the body? Information access is crucial and many people with an intellectual disability and their families have experienced difficulties in knowing who to contact in relation to particular problems. This problem could be dealt with in other ways, such as the establishment of an intellectual disability “Information Line”. The advantage of specialist units would be in the area of policy issues and in raising the profile of the problems of people with an intellectual disability in the particular organisation. The National Council on Intellectual Disability submitted that it must be part of the role of such units to spread the specialist knowledge to non-specialists,¹¹ and it is likely that training would be an important function of such units.

Questions for discussion

7.13 The Commission seeks submissions about the role of specialist units in the criminal justice system. In particular, the Commission seeks to receive responses to the following questions:

• Do the present procedures operating within the Office of the Director of Public Prosecutions, the Legal Aid Commission, the Department of Corrective Services, and the NSW Police meet the needs of the people with an intellectual disability who come into contact with these organisations? If no further specialist units are to be established, how are the needs of people with an intellectual disability best met within the existing system?
• Should further specialist units be established within the above or related organisations? If any further specialist units should be established, what should be their form and function? Should they be policy units or units specialising in field work?

MENTAL ILLNESS: ISSUES OF OVERLAP

Distinction between mental illness and intellectual disability

7.14 The Commission was asked to consider whether any recommendations also should be made in relation to 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. This has proved to be a controversial inclusion in the Commission’s terms of reference. The Commission acknowledges the clear distinction between intellectual disability and mental illness and the desirability of separate treatment and services, but notes the confusion which still exists in the community. This distinction is often not recognised. Procedures and treatment appropriate for people with a mental illness will often be inappropriate, and even detrimental, to the person with an intellectual disability. It has been suggested that dealing with mental illness at all in this reference may reinforce this confusion and that it may be preferable to deal with the issue separately.¹²

“Dual diagnosis”

7.15 It is also important to consider the position 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 people with an intellectual disability or people suffering from mental illness. In relation to such persons, Professor Susan Hayes commented:

[a] significant proportion of intellectually disabled offenders also suffer from mental illness and it is my experience that both of these systems fail the dually diagnosed client. Therefore, any review of intellectual disability in the criminal justice system should also include the topic of the dually diagnosed client and the intellectually disabled person who falls under mental health legislation.¹³

As discussed at para 7.5, the Legal Aid Commission’s Mental Health Advocacy Service provides assistance to forensic patients. Approximately 3-5% of these patients have an intellectual disability. The Solicitor-in-Charge of the Mental Health Advocacy Service commented that such patients have difficulties as their specific needs fall outside a system designed to cater for forensic patients.¹⁴ The Commission believes that it should consider within this reference the special position of people with an intellectual disability who also suffer from a mental illness.

The Commission seeks 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.

7.15 The Commission interprets the terms of reference as asking us to consider only issues of overlap between mental illness and intellectual disability. It is not within the scope of this inquiry to deal with all aspects of the contact between people with a mental illness and the criminal justice system. To do so would broaden the project considerably, as mental illness is an extremely complex area in itself and the Commission would have to consider the needs and solutions separately within all parts of the criminal justice process and consult with a much wider range of people. To do so may also perpetuate the confusion which exists between these two groups of people. The Commission is currently reviewing the treatment of people with a mental illness in police custody in its forthcoming Discussion Paper, Vulnerable Persons in Police Custody, which forms part of the Commission’s ongoing reference to review New South Wales criminal procedure. Many other matters already raised in this Paper, for example fitness to be tried and the criminal defence of mental illness will, of course, 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, in order not to divert attention from the focus of this reference, namely people with an intellectual disability.

FOOTNOTES

1. New South Wales. Office of the Director of Public Prosecutions Submission (17 March 1992).

2. Legal Aid Commission of New South Wales Submission (8 January 1992) at 3.

3. As at October 1991 there were 86 forensic patients in New South Wales. For further details see R Hayes, M Sterry, T Ovadia, B Boerma and W A Greer "Profile of New South Wales Forensic Patients and an Assessment of the Mental Health Review Tribunal’s Role in Effecting Their Release", paper presented at Australian Institute of Criminology conference Serious Violent Offenders: Sentencing, Psychiatry, and Law Reform (Melbourne, 29-31 October 1991).

4. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 11-12.

5. NSW Police Service What are the Police Doing? The 1990 NSW Police Service Annual Report Summary.

6. West Australia. Department of Correctives Services Submission (19 November 1991) at 7.

7. Senior Constable P Fernandez, Wagga Wagga Submission (8 December 1991).

8. National Council on Intellectual Disability Submission (18 December 1991) at 2.

9. Legal Aid Commission of New South Wales Submission (8 January 1992) at 3.

10. Professor S Hayes Submission (6 November 1991).

11. Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 2.

12. Intellectual Disability Services Council, South Australia, Submission (13 November 1991).

13. Professor S Hayes Submission (6 November 1991).

14. Legal Aid Commission of New South Wales Submission (8 January 1992).