Dr Danny Sullivan Assistant Clinical Director, Forensicare Adjunct Senior Lecturer, Monash Uni Dr Danny Sullivan, Assistant Clinical Director, Forensicare June 2012
Shifts in discourse Ethics of a dual role Mental disorders affecting capacity Communication strategies Reflections on the role of legal systems
De-institutionalisation trans-institutionalisation Paternalism fostering autonomy Paradigms: person-centred, recovery approach Medicalism legalism
De-institutionalisation trans-institutionalisation Paternalism fostering autonomy Paradigms: person-centred, recovery approach Medicalism legalism
Transparency Due process Incorporation of rights principles into law Inspectorates Benchmarking coercive or restrictive practices Therapeutic jurisprudence in practice The push for capacity-based laws The Convention on the Rights of Persons with Disability
1/4 had prior admission to psychiatric hospital ¾ met criteria for a diagnosable mental disorder substance dependence (54%) mood disorders (40%) 1/3 both mental illness and substance use disorder Those with mental illness identified significantly more unmet needs (e.g. psychological distress) than those who did not rate current mental illness
Male Female Major mental disorder 8% 15% (psychosis) Schizophrenia 5% 6% Personality disorders 39% 49%
Fairness Conflict between goals Reconciled by?virtue ethics...or by prescribed processes Splitting off the therapeutic and coercive features Partnership and expectations
Organic disorders Substance use disorders Psychotic disorders Mood disorders Anxiety disorders Personality disorders Sexual disorders Intellectual disability
Increasing participation in community Increasing recognition Screening tests Training Health care access
Imprisonment of intellectually disabled man 'embarrassing' February 23, 2013 Jane Lee AN INTELLECTUALLY disabled man was left in prison for more than a year for a crime he could not have understood, largely because accommodation could not be found for him. County Court Judge Mark Taft called Ross Cunningham's 371 days on remand an ''embarrassment to the administration of criminal justice'' in a ruling on Friday after he found him not guilty by reason of mental impairment. Mr Cunningham, 62, has a life-long intellectual disability and has declined with the early stages of dementia.... The judge said that the man should have been identified at an early stage and fast-tracked for a fitness or impairment hearing. Mr Cunningham had spent more time in jail than he would have if he had pleaded guilty to the crime, he said.
Rates of problem behaviours Juvenile offending Service availability and gaps passing as normal
See Snow &Powell (2012) Youth (in)justice: Oral language competence in early life and risk for engagement in antisocial behaviour in adolescence - Australian Institute of Criminology
...Comprehensive neuropsychological assessment indicated that 42% of male prisoners and 33% of female prisoners from Stage 3 had an ABI. Acquired Brain Injury in the Victorian Prison System -Corrections Victoria, 2011
Recognition The role of screening Access to skilled health care preferably independent Options for diversion Therapeutic interventions
Respect Meet the needs of the other Language and ways of asking Use resources and other agencies
Indicators of ID or ABI? Schooling Guardianship Eligibility for disability services Epilepsy Neurological abnormalities Driver s Licence
What is going on? Who is this person? Why is this happening now? Who should be involved? What new issues are raised? What new opportunities arise?
Understanding Choices Resolving conflict Saving face Consent to share info with others
eg fitness for police interview What happens later? scrutinised by lawyers reviewed by psychiatrists may be critical to determination of mental impairment Issues with police interviews process of interview suggestibility, compliance and acquiescence false confessions probative and prejudicial value
SECT 13 Competence-lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)- (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact- and that incapacity cannot be overcome. Note See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
SECT 138 Exclusion of improperly or illegally obtained evidence...(2)... evidence of an admission that was made during or in consequence of questioning... taken to have been obtained improperly if the person conducting the questioning- (a) did, or omitted to do, an act... was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning... likely to cause the person who was being questioned to make an admission.
Legislation grounded in rights discourse User feedback to develop laws and policy Increasingly open to therapeutic jurisprudence experiments Good clinical outcomes overlap with good legal outcomes Access to skilled clinical staff
Danny.sullivan@monash.edu