542. A 2011 Victorian study into ABI in prisons333
notes that:
The very nature of brain injury presents challenges to the systematic identification of ABI in a correctional environment. No individual test can measure all aspects of brain functioning; hence no single measure has yet been found that will universally differentiate brain impaired from non-brain impaired individuals. Indeed diagnosis is often complicated by high levels of reported alcohol and substance use, particularly among offender populations.
332 The ABI ‘flag’ allows prison staff to identify prisoners with an ABI in the E-Justice information system.
333 Department of Justice, Acquired Brain Injury in the Victorian
Prison System. Corrections Victoria Research Paper Series,
543. The Clinical and Integration Services Manager at Port Phillip Prison echoed this, saying that many prisoners with an ABI related to substance abuse are probably unaware of their impairment and that it may not necessarily be picked up:
They wouldn’t have anyone pointing out … the way that they’re reasoning, the way they’re behaving, is probably different, and they’re probably sensing some difference but not really knowing what it is … really until they ‘pop up’ as causing an issue … they might fly under the radar. 544. In Victoria at present, prisoners are not
routinely screened for an ABI at reception. As a result, the responsibility for identifying a prisoner can fall to a number of different prison staff members, not just specialists. Staff are required to refer prisoners for a screening where they ‘suspect’ a cognitive impairment based on a prisoner’s behaviour or interactions, or where a prisoner discloses that they have an ABI. 545. Historically, correctional agencies have
not identified ABI as an issue of specific concern and there has been limited understanding of its prevalence or impact in the correctional system334. Witnesses
told my investigation that the identification of a prisoner’s cognitive impairment or intellectual disability at the earliest stage is crucial to understand how to address communication, placement, treatment and support needs. However, identification and assessment presents particular challenges, especially with ABI.
546. If a prisoner has an intellectual disability registered with the Department of Health and Human Services (DHHS) prior to their incarceration, information may be provided to Corrections Victoria or the prison at reception.
334 ibid.
547. The Correctional Management Standards require that prison General Managers refer prisoners to DHHS ‘whose behaviours, histories, mannerisms or thought processes indicate an intellectual disability’ and who have not previously been identified or previously registered as having an intellectual disability335.
548. This can present challenges in the prison environment, as DHHS’ assessment can take a number of months, meaning that prisoners on shorter sentences may not undergo this process during their term of imprisonment.
549. Corrections Victoria has developed a cognitive screening tool for prisoners who appear to be cognitively impaired336.
Corrections Victoria advised that the tool may be administered by case managers or clinicians at various stages during a prisoner’s term of imprisonment but not necessarily at reception.
550. Evidence provided to my investigation indicates that there is a lack of consistency in how prisoners with a possible cognitive impairment or disability are identified in the prison system.
335 Corrections Victoria, Department of Justice, Correctional
Management Standards for Men’s Prisons in Victoria, July 2014
and Corrections Victoria, Department of Justice, Standards for
the Management of Women Prisoners in Victoria, July 2014.
336 The tool was developed through a company called arbias Ltd, a not-for-profit company that provides specialist services for people with an ABI.
551. A psychologist involved in a study337
looking at the experiences of people with ABI in the criminal justice system raised concerns about the difficulties in prison staff identifying signs of a disability, saying that:
One of the most common things that was coming from people within the prisons was that the prisoners are reliant on somebody among the staff picking up the difficulty, and then having enough decision-making confidence to refer the person to appropriate disability- responsible staff, otherwise … the person gets missed. And that’s tough for prison staff, because given the prevalence of disability in prison they kind of operate a disability ward but they’re not disability providers.
552. The study found that the high number of prisoners with an ABI has made detection, assessment and referral to disability/ assessment services an unlikely outcome for many.
553. A prison chaplain who spoke to my officers described the current process for identifying and assessing prisoners with a cognitive disability as ‘haphazard’.
554. In 2011 the Acquired Brain Injury
Correctional Service Program was piloted, and its success led to the creation of an ongoing ABI clinician position responsible for screening, identifying and advising on prisoners with a potential ABI. Corrections Victoria’s Disability Framework describes the program as ‘innovative’ and outlines that over an 18 month period, the ABI clinician:
• conducted 751 offender screenings • identified 123 offenders with an ABI • provided 362 primary/secondary
consultations338.
337 S. Brown, and G. Kelly, Issues and inequities facing people with
acquired brain injury in the criminal justice system, Diverge
Consulting Inc, prepared for the Victorian Coalition of ABI Service Providers Inc (VCASP), September 2012.
338 Corrections Victoria, Embracing the Challenges: Corrections
Victoria Disability Framework 2013-2015, 2013.
555. A paper written by the former ABI clinician339 describes the complex profile
of this cohort, indicating the need for a specialist response:
… what has emerged in the first 18 months of the ABI program is the presence of co- morbidities, including mental health and substance use issues in addition to the prisoner/offender’s cognitive impairment. 556. Corrections Victoria has since abolished
the position of the ABI clinician and responsibility for these functions now sits with the Specialised Offender Assessment Treatment Services.
557. Concerns about the impact of the abolition of this position were raised by a number of witnesses. The Clinical Services and Integration Manager at Port Phillip Prison told my investigation:
I think that’s been a big issue over the years, is this idea of someone getting flagged for an ABI … how does an actual assessment occur. It used to be, Corrections some years ago had a dedicated clinician and they used to be really an invaluable kind of resource because they would do the screenings, they would then refer off to arbias, or organisations like that, and then they would find funds to be able to fund those assessments. With that clinician leaving a couple of years ago, there’s been a real gap I think.
558. A psychologist specialising in ABI work said that in the past, staff working at the reception prisons with expertise in cognitive disability had told him that the prisons are like ‘a river flowing through and their job is to try to catch as many as they can as they go past, and get them appropriately identified for services’. He said now that there’s nobody in that specialised role, ‘they just flow through’.
339 J. Famularo, ‘Corrections Victoria: ensuring responsive practices for offenders with complex needs’, Journal of Learning Disabilities
559. Similarly, the Executive Officer of a community organisation that works with people with an ABI, told my investigation that:
The concern now is that there is not an ABI clinician there … to do that ‘catching’ as people are coming in through the door … we’ve already got these quite high figures … and we’re talking about people who are repeat offenders frequently as well, that’s just going to escalate. The likelihood is it’s just going to escalate because … people are less likely to get ‘caught’, less likely to be found, assessed and then have actual responses developed that are going to be appropriate to support their needs … With the loss of that role … we’ve lost specialisation and the capacity to respond to a specialist need. 560. Failure to identify and assess a prisoner’s
ABI or intellectual disability can lead to a lack of adequate specialised support, mismanagement of their behaviour and potentially to unreasonable punishment. The Executive Officer said that behaviour commonly associated with ABI can often be interpreted or labelled by prison staff as ‘antagonistic’, ‘non-compliant’ or ‘difficult’, and the perception is often that ‘this person’s just a pain’. She stated that if the ABI is identified, prison staff are more likely to have an understanding of the reasons a prisoner is behaving in a particular way, and identify better ways to communicate with them and deal with that behaviour, which will produce completely different outcomes. 561. A review by Professor James Ogloff340
also highlighted consequences when a prisoner’s ABI is not identified:
Although it was not initially considered to be a major focus of the review, the Review Team was struck by the rate of cases of prisoners with evidence of Acquired Brain Injury. These cases were uniformly difficult and resulted in prisoners being identified as being behaviourally problematic by prison staff (sometimes excessively so), with almost no recognition of the fact that many of the behaviours presented were the product of a brain injury.
340 J. Ogloff, Review of the Mental Health and Psychosocial
Needs of Prisoners Detained in Restrictive Environments, Final Report, Prepared for Justice Health and Corrections Victoria,
September 2008.
Generally speaking, it was usually the case that once prison staff did understand that the prisoners had a mental illness or acquired brain injury, at least their attributions of the prisoners’ behaviours seems to have varied in a positive way. They were often left, nonetheless, with difficulties managing the prisoners’ behaviours.
562. My officers examined the screening
processes in Victorian prisons for prisoners with an ABI or intellectual disability during the 2014 Investigation into Deaths and Harm
in Custody341. In the report, my predecessor
commented on the importance of a robust, measurable assessment process to identify prisoners with an ABI or intellectual disability and noted that while a screening tool had been developed:
• there was no prescribed use for the screening tool
• Corrections Victoria had not collected any data from staff about its use • there were no policies or procedures
guiding staff about how to consistently apply the tool.
563. The investigation concluded that more needed to be done to ensure early detection and appropriate management of prisoners with a cognitive disability and made a number of recommendations to address this, including that procedures be established in each prison on the use of the ABI screening tool, and that training on intellectual disability and ABI be delivered to all prison officers.