Acquired Brain Injuries in the Justice System
An acquired brain injury (ABI) is an injury to the brain after birth changing someone’s neural activity, not caused by hereditary, congenial, degenerative factors or birth trauma. The effects of an acquired brain injury can present physically like seizures or changes in sensory input, or present psychologically, such as impacted memory, concentration or communication.
It’s also common for people with an acquired brain injury to experience behaviour changes, due to potential damage to the area of the brain responsible for regulating emotions and impulses. ABI behaviour changes could include acting more impulsive, irritable, agitated, inattentive, or lacking self-awareness, prone to verbal outbursts or engaging in inappropriate behaviours.
The varying ABI symptoms mean no two brain injuries are the same. Like other invisible disabilities, people with an acquired brain injury are more likely to fall through the cracks.
A study by Corrections Victoria found 42 per cent of male prisoners and 33 per cent of female prisoners have an acquired brain injury, and research by the Australian Institute of Criminology found 38% of young people in Victoria courts present with cognitive difficulties impacting daily functioning.
The report, Young people with acquired brain injury: Preventing entrenchment in the criminal justice system notes Australian jurists appear to incarcerate young people with complex needs rather than reserving detention as a “last resort”, describing current practices in youth detention as dangerous, ineffective, unnecessary and wasteful.
Interviews with people working closely with young people in the justice system highlighted the re-traumatising nature of detention, to punish immediately, and the inability amongst these professionals to even recognise symptoms of an ABI.
‘And that’s what we do, we’re re-traumatising traumatised people consistently, because they’ve been obviously medically somehow or innately traumatised in their brain. And then, we’re traumatising them for having a traumatised brain.’
Considering there is a huge representation of ABI, as well as persons with intellectual disability and mental illness within prisons, it is arguable that employees of the justice system work as much in the disability sector?
Why is there an overrepresentation of people with an acquired brain injury in our justice system?
The Victorian Law Reform Commission (2007) notes behaviour associated with cognitive impairment can lead to the criminalisation of a person with an acquired brain injury. Brain injury affects how the brain works, with some of the most common behaviours including impulsivity, poor judgement and difficulty regulating strong emotions.
It’s important to understand the cognitive impairments often experienced by an ABI impact a person’s everyday functioning and behaviour. If these behaviours escalate, they might fall on the wrong side of the law.
Some examples;
Poor memory and executive function: forgetting to pay for purchases or fines, not understanding the terms of a contract
Impulsive behaviour: compelled to shoplift an item
Poor judgement: unable to distinguish between safe/unsafe acts
Lack of self-awareness: crossing a personal boundary
Disinhibited behaviours: inappropriate/offensive public actions
Reduced frustration tolerance: heated personal exchanges
Just because acquired brain injury symptoms can include behaviour changes doesn’t mean someone with an ABI will display this way. The majority of Australians with an ABI won’t ever encounter the justice system, but for those that do, they experience significant disadvantages.
The reason why ABI and the justice system too often go hand in hand is not solely on individual behaviour, but on broader systemic issues at play. Whilst a brain injury doesn’t justify offending, it can help us understand offending behaviours. Through a deeper understanding of potential offending actions, we can mitigate more desirable outcomes for this cohort and others with a disability in the criminal justice system.
Let down by the system
People with ABI represent 2% of the Australian population and 40% of the prison population. This is mainly due to the lack of suitable programs and inadequate institutional responses to the needs of this group. Furthermore, individuals with an ABI are more likely to experience homelessness, misunderstand their legal rights/responsibilities and fail to receive the same support as other individuals with different disabilities. A similar proportion of Australians with an ABI to intellectual disability exists, yet ABI services (in the community, in prison and post-release) are under-resourced and considerably disadvantaged.
For example, a person engaging in low-level offending and serving a short custodial sentence usually renders them ineligible to join psycho-educational groups in prison or not ‘severe’ enough to qualify for intensive, personalised reintegration planning. Leaving the majority of mid-level presenting persons with an ABI to fend for themselves.
Furthermore, I am not drunk, I have an ABI’: findings from a qualitative study into systematic challenges in responding to people with acquired brain injuries in the justice system, noted the subtle “disclusion” of people with an acquired brain injury from disability support services;
‘There was a perception amongst participants that many services tended to ‘cherry pick’ clients with the highest likelihood of successful outcomes, in order to secure long-term funding or because they lacked ABI literacy and viewed ABI-affected clients as difficult.’
So what do we do?
People working with someone with a brain injury may find it difficult due to the uniformity of the acquired brain injury support needs. Hence why individualised and specialised support is vital by practitioners with adequate training on the nuances of brain injury.
In support coordinator roles, it’s important to understand someone with an acquired brain injury isn’t necessarily ‘better off' when leaving an institutional setting. There is an ironic discordance that people with an acquired brain injury are better off after being released from an institutional setting. Often they are released into homelessness with limited professional support or assistance on a one-time basis. ABI symptoms commonly include difficulty planning and organising, individuals may then struggle after leaving the structure and routine incarceration provided, further perpetuating the entrenchment of cognitive impairment and the justice system.
‘For many people with acquired brain injuries and their families in Western Australia, the system is not just broken; it barely exists at all. While some people with acquired brain injuries have access to disability services, many remain serviced by Health, as outpatients or in long-stay wards, or are in Mental Health institutions, or are in prison.’
Synapse (FKA Headwest Brain Injury Association WA Inc.) Submission 448 to the Productivity Commission. Long Term Disability and Support Inquiry
The system is broken if we view these acts solely through a criminal lens without adequate screening for ABI in the community and early intervention programs.
There must be a coherent strategy to build the system around trauma-informed practices, focusing resources on rehabilitation, reintegration and diversion. This would look like:
Training for legal practitioners (at every step of the justice system) on ABI and other disabilities
Greater supports and welfare based approaches
Advocating for a therapeutic, rehabilitation approach in the community by the justice system
Increase accessibility to Specialist Courts
Raising awareness about the experiences of someone with an ABI and advocating for systemic change to support therapeutic justice approaches
Supporting diversion programs and initiatives