Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Cognitive impairment
3.32 The term cognitive impairment is a broader term that can encompass a range of
disabilities and conditions. Cognitive impairment is described by the Law Reform
Committee as a term that is:
generally used to refer to a person who has suffered from a loss of brain function that
affects his or her judgement. Cognitive impairment is a broad concept that encompasses
learning disabilities, acquired brain injuries (ABIs), drug or alcohol abuse, neurological
disorders, tumours, and autism spectrum disorders. Often, although not always, the term
‘cognitive impairment’ refers to conditions acquired after maturity. 32
3.33 The term cognitive impairment could also encompass other disabilities or conditions such
as Alzheimer’s disease, dementia, multiple sclerosis, 33 a mental illness, personality disorder
or an intellectual disability that ‘affect[s] insight or make[s] it difficult for a person to
control his or her behaviour’. 34
3.34 People with a cognitive impairment are over represented in the criminal justice system
when compared with estimates of incidence of intellectual disability and cognitive
impairment in the community. 35
Acquired brain injury
3.35 Significant concerns have recently been expressed about the prevalence of acquired brain
injury in criminal justice populations. Acquired brain injury describes any type of brain
injury that occurs after birth. Examples of brain injuries that can result in an acquired
brain injury include those caused by motor vehicle accidents, chronic alcohol abuse and
substance abuse. Brain injuries can also occur where there has been a loss of oxygen to
the brain from events such as a stroke, heart attack or drug overdose. 36 Other common
causes are infection and neurological disease. 37
3.36 Acquired brain injury has been described as the ‘”hidden” or “invisible” disability’. 38
The reported prevalence rate of acquired brain injury in the Australian community is
only 2.2 per cent. 39 However, a recent Victorian study has shown that ‘[o]n the basis
of comprehensive neuropsychological assessment, 42 per cent of male prisoners and
33 per cent of female prisoners were assessed as having an [acquired brain injury]’. 40
A print media article on the issue highlighted the connection between acquired brain
injury and substance use and the effects the condition can have on behaviour, including
‘disordered behaviour, poor organisation, propensity towards substance use’. 41 Traumatic
brain injury has also been found to be highly prevalent among prisoners. 42
3.37 In its submission to the Law Reform Committee, Villamanta Disability Legal Rights Centre
stated that Victoria does not systematically identify and respond to prisoners with
an acquired brain injury. 43
38
32 Law Reform Committee, above n 23, 33.
33 Ibid 40.
34 Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, Report (2003) 115.
35 Law Reform Committee, above n 23, 14.
36 Suzanne Brown and Glenn Kelly, ‘Issues and Inequities Facing People with Acquired Brain Injury in the Criminal Justice System’ (Victorian
Coalition of ABI Service Providers Inc, 2012) 7.
37 Nick Rushworth, ‘Out of Sight, Out of Mind: People with an Acquired Brain Injury and the Criminal Justice System’ (Policy Paper, Brain Injury
Australia, Prepared for the Department of Families, Housing, Community Services and Indigenous Affairs, 2011) 4.
38 Ibid 4.
39 Australian Institute of Health and Welfare, Disability in Australia: Acquired Brain Injury (December 2007) .
40 Department of Justice, ‘Acquired Brain Injury in the Victorian Prison System’ (Corrections Research Paper Series, Paper No 4, Department of
Justice, April 2011) 22.
41 Jane Lee, ‘One in Two Inmates has Brain Injury’, The Age (Melbourne), 25 March 2013, 2.
42 Bill Slaughter, Jesse R Fann and Dawn Ehde, ‘Traumatic Brain Injury in a County Jail Population: Prevalence, Neuropsychological Functioning
and Psychiatric Disorders’ (2003) 17 Brain Injury 731.
43 Villamanta Disability Rights Legal Service, Submission No IDAJ55 to Law Reform Committee, Parliament of Victoria, Inquiry into Access to
and Interaction with the Justice System by People with an Intellectual Disability and Their Families and Carers, 7 November 2011, 8.