Submission to Joint Standing Committee
on the NDIS – Mental Health Inquiry
February 2017
Contact
Aine Healy - Director of Advoacy
Jim Simpson – Senior Advocate
Focus of this submission Our focus in this submission is on term of reference g. - the provision, and continuation of services for NDIS participants in receipt of forensic disability services and the Committee’s proposed forum to consider this issues in relation to people with cognitive impairments.
KEY POINTS
The NDIS provides an opportunity to provide reasonable and necessary disability support to people with criminal justice involvement. This will only occur if the NDIA develops strong systems aimed at this group including strong outreach, engagement and linking systems to support individuals into the NDIS. Such systems were notably lacking in the Hunter trial site.
The practicality of a person being diverted from imprisonment or having an equitable opportunity for parole or other release will be heavily dependent on the availability of appropriate disability support. Around Australia, this support is very often not available.
Since 2000, NSW has markedly improved the availability of disability support to people with intellectual disability and criminal justice involvement.
People with disability in NSW are being indefinitely detained in prison without being convicted of an offence.
The COAG principles on interface between the NDIS and other systems ascribe to justice agencies responsibilities that they have never fulfilled in any systematic way and are very unlikely to fulfil in the absence of major budget enhancements.
Who we are For 60 years, NSW CID has been the peak advocacy group in NSW for people with intellectual disability. We have a diverse membership of people with intellectual disability, family members, advocates, professionals and advocacy and service provider organisations. Our Board must have a majority of people with intellectual disability and we actively involve people with intellectual disability in all our work.
NSW CID has a long history of focusing on the disadvantage faced by people with intellectual disability in the mental health and criminal justice systems including their need for support services that meet their needs and thereby reduce the likelihood of offending and imprisonment.
In 2001, NSW CID and the Intellectual Disability Rights Service (IDRS) published The Framework Report which was influential in the improved NSW service system response to offenders with intellectual disability over the next decade. www.idrs.org.au/law-reform/law-reform.php
In 2008, we and IDRS published Enabling Justice which focused on improving the system for diversion in local courts. www.idrs.org.au/law-reform/law-reform.php
In 2013, we published Participants or Just Policed?,A guide to the role of the NDIS with people with intellectual disability who have contact with the criminal justices system. www.nswcid.org.au/what-we-do/criminal-justice.html
We also led the National Roundtable on the Mental Health of People with Intellectual Disability 2013. www.nswcid.org.au/what-we-do/mental-health.html
We have two representatives on the Intellectual Disability Reference Group of the National Disability Insurance Agency.
NSWCID also operates a wide range of capacity building initiatives including www.mychoicematters.org.au/
The NDIS-an opportunity to get it right
The focus of the NDIS on providing reasonable and necessary support to all people with intellectual and/or psychosocial disability and substantial support needs provides the first opportunity in Australian history to meet systematically the disability support needs of potential and actual offenders with disability and thereby give them opportunities for positive and lawful lifestyles.
Our guide, Participants or just policed?, which was funded under the NDIS Practical Design Fund, sets out in detail how the NDIS can work well for people with intellectual disability and criminal justice involvement.
This requires a continuum including:
outreach and engagement with people who are unlikely to themselves seek out NDIS support early intervention flexible and skilled support across the range of needs including from drop in support to intensive supported accommodation strong collaborative links with mental health and drug services. Approximately 30% of people with intellectual disability also have mental health problems. strong collaborative links with the justice system
Mixed results in the Hunter NDIS trial site
A small number of offenders with intellectual disability have received disability support for the first time through funded packages in the Hunter trial site and with good results for their enhanced lives and reduced trouble with the law.
Best practice in linking people into the NDIS is exemplified by the work of the Criminal Justice Support Network of IDRS which has gone outside its funded role to support some of its regular clients to see the potential benefit of accessing the NDIS, go through the NDIS processes and achieve positive participant plans.
(See Kenn Clift (2014) “Access to the National Disability Insurance Scheme for People with Intellectual Disabilities Who are Involved in the Criminal Justice System”, Research and Practice in Intellectual and Developmental Disabilities, 1:1, 24-33, http://dx.doi.org/10.1080/23297018.2014.910863 ))
On the other hand, there have also been problems.
Juvenile justice NSW reported that in 2 ½ years it had only successfully supported three of its Hunter clients to become participants in the NDIS and none of these had achieved a participant plan. These figures starkly contrast with The 2006 NSW Young people on community orders health survey at www.justicehealth.nsw.gov.au/publications/ypco-report.pdf In that rigorous study,15% of young people had IQs below 70 and an additional 27% IQs below 80. On a measure of academic achievement, 30% had scores below 70 and a further 30% below 80. Further, 40% of the overall sample reported severe symptoms of a clinical mental health disorder including 25% a depressive or anxiety related disorder.
Similar results were found for young people in custody. www.justicehealth.nsw.gov.au/publications/ypco-report.pdf
Clearly, there was a major problem between the NDIA and Juvenile Justice in gaining equitable access to the scheme for juvenile justice clients. We saw similar problems between NDIA Hunter and other justice agencies including Corrective Services and Legal Aid.
We understand things to have worked better in the Barwon trial site which has picked up on a longstanding “justice plan” arrangement between Victorian justice and disability agencies.
At the same time, some clients of the ADHC Community Justice Program have transitioned into the NDIS in the Hunter and there has been a fundamental deficit in the number of hours of behaviour support that the NDIS has been willing to fund. The NDIS has only tended to initially fund 15 hours of behaviour support a year which would be vastly less than what would have been provided by the CJP.
Outreach and engagement is key to equity of access
Alleged offenders with disability are very unlikely to be aware of or seek out support from the NDIS which they are likely to initially perceive as just another government agency that will interfere in their lives.
If this group are to have equitable access to the scheme, it is necessary that the NDIA has a strong outreach and engagement strategy both with individuals and with other services that may know and have the trust of the individuals.
See Participants or just policed? pages 74-77 for 17 strategies for engagement with a person with criminal justice involvement.
The NDIA needs to have a strong focus on outreach and engagement in the roles of local area coordinators and in its funding of Information, Linkages and Capacity Building (ILC) services.
Disability support services in NSW for offenders with intellectual disability
Until about 2000, offenders with intellectual disability seldom had access to disability support. Government disability services prioritised people with more “severe” disability than those who usually get in trouble with the law.
Then, the NSW disability department, now Ageing, Disability and Home Care (ADHC) in the Department of Family and Community Services, took three major steps to acknowledge the considerable disability support needs of people with intellectual disability and justice system involvement.
First, the department made this group a high priority for access to support services. This led to increased access to things like case management, behaviour support and accommodation support, albeit within the context of a very stretched service system.
Second, with a major budget enhancement, the department established the Community Justice Program whose focus is supported accommodation, behaviour support and case management for people with intellectual disability and complex needs related to their serious history of offending.
The CJP now is available to up to 400 people with a wide range of support arrangements including individual support packages and drop-in support through to intensive residential placements (group homes with intensive support and supervision and in some cases restrictions on freedom of movement).
A high proportion of the clients of the CJP are Aboriginal people.
Most but not all clients of the CJP are in supported accommodation run by non government organisations but with a high level of case coordination and behaviour support from the specialist CJP team in ADHC.
Third, the Department funded the Intellectual Disability Rights Service to establish the Criminal Justice Support Network. Through a large network of volunteers trained and coordinated by a small number of staff, the CJSN provides support in police interviews and the criminal courts to people with intellectual disability who would otherwise find it extremely difficult to understand the legal processes and their rights, for example the right to silence in a police interview.
CJP clients are transitioning into the NDIS and there are major issues about whether the NDIS will meet their needs in the same holistic way as has the CJP.
The funding for the CJSN is in peril with the transfer of the whole NSW disability budget to the Commonwealth.
Disability support services in other States and Territories
See section 2 of our publication Participants or just policed? for a detailed summary of the services that State and Territory governments report having available for people with intellectual disability who have justice system involvement. No jurisdiction has an adequate response but NSW and Victoria are much more advanced than other jurisdictions.
The NSW criminal legislative framework
For minor offences, a magistrate may divert a person with intellectual disability from the criminal justice system by dismissing the charge with or without conditions under section 32 of the Mental Health (Forensic Provisions) Act 1990.
Apart from section 32, most alleged offenders with intellectual disability are subject to the same criminal legislative structure as other alleged offenders. However, there are three exceptions to this which generally only arise in relation to very serious charges:
-
If a person does not understand court processes and is found “unfit to be tried”, the person can be the subject of a “special hearing” leading to a “qualified finding of guilt” and a “limiting term” in detention. The limiting term is designed to be a similar period as the person would have been sentenced to if found guilty at a normal trial. The person is then periodically reviewed by the Mental Health Review Tribunal which may order that the person be released if it is satisfied that the person has “served sufficient time in custody”, the safety of the person and the public “will not be seriously endangered” and any necessary “safe and effective care. is available. (Mental Health (Forensic Provisions) Act 1990 Parts 2 and 5)
-
Recent amendments also allow continued detention after a limiting term of a person if there is a high degree of probability that the person poses an unacceptable risk of causing serious harm to others, and that risk cannot adequately be managed by less restrictive means. The term can be extended for successive five year periods. (Mental Health (Forensic Provisions) Act 1990 Section 54A and Schedule 1) These amendments are similar to provisions for extended detention at the end of a sentence of some offenders generally who have committed sexual or serious violent offences.
-
If a person is found “not guilty by reason of mental illness” which in this context can include intellectual disability, they are detained until the Mental Health Review Tribunal is satisfied that their release will not seriously endanger the safety of the person or the public and that any necessary safe and effective care is available. (Mental Health (Forensic Provisions) Act 1990 Parts 4 and 5)
In practice, in all situations, the chances of a person being diverted from imprisonment or having an equitable opportunity for parole or other release will be heavily dependent on the availability of appropriate disability support.
The lack of such services leads to unnecessary and prolonged imprisonment and in some cases indefinite detention of people who have not been convicted of a crime.
People with intellectual disability on normal sentences or any of the above bases for detention are usually detained in a correctional facility. In some cases, the person may be placed in an additional support unit of a correctional facility. These units accommodate and provide some programs for a small number of Inmates with intellectual disability in NSW.
In the community, and separate from the criminal justice system, some people with criminal justice involvement are subject to restrictions on their freedom of movement
through guardianship orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal. Under the Guardianship Act, a guardian can be empowered to authorise a person with a decision making disability being confined to or brought back to their residence but the purpose of these restrictions must be the person’s interests rather than community safety. It is sometimes in the interests of a person with intellectual disability to have some degree of restriction on their freedom of movement so as to reduce the likelihood of them offending and being subject to the criminal law.
For a discussion of this use of guardianship see The Framework Report Section 4.14. www.idrs.org.au/law-reform/law-reform.php
Principles to determine the responsibilities of the NDIS and other service systems
A revised set of these was released after COAG approval in November 2015. www.coag.gov.au/node/497
The principles on interface with justice have both positive and negative features.
Positively, the applied principles give the NDIS substantial responsibility for disability support not just in the community but also for people on custodial orders. This includes therapy for people with complex challenging behaviour, disability specific capacity and skills building, support to re-enter the community and training for staff in custodial settings.
On the other hand, the applied principles ascribe to justice agencies responsibilities that they have never fulfilled in any systematic way and are very unlikely to fulfil in the absence of major budget enhancements. These responsibilities include for example:
accessible legal assistance services early identification and intervention programs, presentence psychological reports regarding cognitive ability assisting prison staff to understand individual needs especially in relation to triggers for challenging behaviour programs to address offending behaviour,
The principles also have areas of uncertainty which we argue should be resolved in favour of NDIS responsibility:
Supports required by participants to meet court imposed conditions. The NDIS operational guideline on interface with justice says this is NDIS responsibility. www.ndis.gov.au/operational-guideline-planning-and-ass-10
High levels of support and supervision to prevent reoffending. The existing operational guideline suggests that this is not NDIS responsibility. We argue that it is if the reoffending is likely to be related to the intellectual disability, for example the reduced impulse control and ability to deal with challenging situations experienced commonly by people with intellectual disability.
COAG does acknowledge that the NDIS Interface with Justice is complex and so the Interface will continue to be refined over time.
Will specialist skills be available in the NDIS environment?
The major gains that have been made in support services for offenders with intellectual disability in NSW and some other States have been strongly related to the development of specialist teams of case managers and behaviour support practitioners and related therapists.
These teams have not only provided case management and behaviour support but they have also been key to the training and ongoing support of non-government services who provide supported accommodation to clients with more complex needs.
We are sceptical about whether the market will by itself provide these specialised skills. By block funding or some other clear method, the NDIA needs to ensure that these specialised skills remain available and are provided in States and Territories that do not currently have them.
Early intervention
Through outreach and engagement and working closely with early childhood services, schools, child protection and juvenile justice, the NDIA should provide early intervention to children and young people with intellectual disability who are risk of lives of offending.
There is a net saving to governments from early action to meet the disability support needs of potential and actual offenders with intellectual disability rather than allowing justice systems to bear large cost from responding to their offending.
See the PWC/UNSW study at:
www.humanrights.gov.au/sites/default/files/document/publication/Cost%20benefit %20analysis.pdf
Elements of an appropriate NDIS response to this group In conclusion, we tentatively propose the following elements of an appropriate NDIS response to people with disability who have criminal justice involvement.
We shall be developing these elements further with our colleagues in Australians for Disability Justice:
-
Outreach, engagement and support to access appropriate support services including, where appropriate, to become a NDIS participant.
-
Skills in NDIA - LACs, planners and other relevant staff with specific skills in engaging and working with this group.
-
Early intervention in childhood and adolescence including strong collaboration with education, Indigenous, child and family and juvenile justice services.
-
Timely and often urgent preparation of plan, including a. Where the person is at risk. b. Where on remand or at risk of custodial sentence for want of disability support.
c. When in custody and equitable opportunity for early release is dependent on having disability supports.
d. Reviews of plans where circumstances change – many of this group have volatile and fast changing support needs.
- An informed planning process a. Considerable support for the person to form goals and perception of needs.
b. Input from people with expert knowledge of the person. c. Use of existing assessments and/or obtaining new assessments of needs. Expert multidisciplinary assessment will be needed in many cases.
d. Consideration of appointment of nominee or application for a guardian where the person cannot be supported to make decisions in their interests.
- Participant plans attuned to this group a. Provision for early development and ongoing maintenance of relationships with support providers:
i. In the community. ii. For people in custody, well in advance of first possible release and maintenance of relationship if person returned to custody.
b. Substantial support to assist development of the person’s understanding of their needs and development of skills in choice and control.
c. Support as needed to understand and avoid the risks of offending. For some people, this can extend to 24 hour support.
d. Holistic support across the range of a person’s needs including both disability support and support to access and work with mainstream services.
e. NDIS support in custody in accordance with COAG interface principles.
-
Active development of the market of service provider organisations, support workers, support coordinators, behaviour practitioners and other professionals.
-
Successful interplay with mainstream services a. Systemically and locally, strong collaborative relationships between the NDIS and justice, health, housing, Indigenous, child and family and other relevant services.
b. Development of equitable access to and reasonable accommodation in mainstream services.
c. Development of overall capacity of mainstream services and, in the meantime, NDIS being realistic about what they can/not provide.