Aboriginal Assessment Project (AAP)
Dr Robin Murray, Clinical Neuropsychologist, DC delegate for Patient Voice Initiative on Health Technology Assessment
Dr Molly Schafer, Clinical Neuropsychologist
According to the Australian Bureau of Statistics, Aboriginal and Torres Strait Islander people make up approximately 2% of the general population aged 18 and over while they represent 28% of the prison population nationwide.i In order to address this inequality, the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) made 339 recommendations for change. It recommended that imprisonment be used as a last option. Yet, for the 11-year period (1991-2001) following the Royal Commission, the incarceration rate for Aboriginal and Torres Strait Islander people rose by 5.7 % per year, a rate twice as high as that of the non-Indigenous population.ii
In more recent times, the gap between indigenous and non-indigenous people has only widened. From 2013-2016, the Aboriginal and Torres Strait Islander incarceration rate grew by 25% and was estimated to be 13.5 times higher than the non-Indigenous incarceration rate.iii This discrepancy becomes even more striking when comparing it to the African American incarceration rate in the US, which is 5.6 times higher than the incarceration rate for white Americans.iv Similar rates of incarceration of indigenous people occur in Canada where more than 30% of inmates in Canadian prisons are indigenous although they make up only 5% of Canada’s population.vIn New Zealand, Maori people make up only 13% of the general population but their prison population is 52%.vi
Baldry et al (2015) found in their research that Aboriginal and Torres Strait Islander people with mental health issues and cognitive disability were over-represented in their contact with all aspects of the criminal justice system. In fact, many Aboriginal and Torres Strait Islander people have never had their disability formally diagnosed until they enter custody due to a lack of access to specialists for diagnosis, lack of recognition of the diagnosis or a hesitancy to be diagnosed and labelled with a disability due to cultural bias.vii Information on cognitive impairment found in the indigenous populations of Canada and New Zealand is not readily available but the comparison is worth considering as it appears that there are probably similar causes for the over-representation of Indigenous people in countries with colonised populations.
1 Dr Robin Murray received her PhD in clinical psychology, with specialization in neuropsychology at the California School of Professional Psychology. She has worked in this field for 27 years. Her experience has included the treatment of Post-Traumatic Stress Disorder within the Native American communities in the San Francisco area and with Aboriginal people in Canberra and Sydney. She has provided medico-legal neuropsychological assessments for those suffering with neuro-degenerative disorders and acquired brain injuries.
2 Dr Molly Schafer received her doctorate in clinical neuropsychology from the University of Sydney and has worked as a clinical neuropsychologist for over 12 years. She specialises in working with adult patients who have sustained a brain injury or were born with a neurodevelopmental disorder. She worked at NSW Corrective Services for five years where she was responsible for providing neuropsychological services to NSW gaols and co-facilitating memory rehabilitation programs for inmates. Over the past seven years, she has worked in private practice with a focus on medico-legal work including clients represented by Legal Aid and the Aboriginal Legal Services.
The number of Aboriginal and Torres Strait Islander people with cognitive impairment facing court was clearly seen on the ground in rural areas of New South Wales by Ms Jane Meredith, a solicitor who worked for Aboriginal Legal Services NSW/ACT Ltd (ALS).
Ms Meredith, who had a background in nursing before she became a solicitor noted, ’I was continually dismayed by the number of clients in rural and remote areas (both indigenous and non-indigenous) who were dealt with in the justice system who had undiagnosed developmental disabilities. Three things struck me, firstly that these clients had gotten through the school system, medical appointments, and the legal system with no one picking up their disability. Secondly, if their disability had been diagnosed early and support for these highly vulnerable individuals and their family given, the outcomes for them within society and the justice system would have been vastly different. Lastly if neuropsychological tests were mandatory and Magistrates and Judges better trained to understand the tests, then support such as the NDIS could be swung in behind these clients. This would make our communities safer and ultimately cost the taxpayer much less than footing the bill for gaol. I have excellent examples of this in my practice.
Neuropsychological assessments are essential for the diagnosis of cognitive impairment, such as an intellectual disability, acquired brain injury (ABI) or Foetal Alcohol Spectrum Disorder (FASD). When the assessment findings are provided to court, they can have a significant impact on the sentencing outcome. Solicitors who worked for Aboriginal Legal Services and who participated in the AAP project had the following comments about the impact of the AAP neuropsychological report on their client’s sentencing:
‘The AAP provided the resources and expertise for neuro-cognitive assessments that are otherwise [largely] unavailable for ALS clients at this level of the criminal justice system. We referred at least 30 clients for assessment by the AAP and every report contained relevant findings that crucially assisted our clients. The reports [assisted to have] … clients … linked with appropriate treatment, services and rehabilitation addressing their underlying criminogenic factors. In some cases the findings in the AAP reports enabled clients to be registered with the NDIS and the services that flow. Secondly, the reports provided the Court with insight into the offender, … which often led to the grant of bail and reduced or more appropriate sentences. The criminal justice system applies specific principles, and in some cases separate laws, to offenders with mental health and cognitive issues. In some cases these offenders are diverted out of the criminal justice system, and instead are dealt with under specific mental health legislation with requirements such as complying with a community treatment plan or treatment in an appropriate facility. The AAP reports provided the evidence the Court required to divert clients out of the criminal justice system, in the best interests of the community, to rehabilitate offenders, rather than punish them.’
‘The report for … has been used for a sentencing exercise and for 2 successful bail applications to rehabilitation programs. I appeared on both bail applications and the report provided the basis for recognising that prison would not assist … and that [the client] needed a high level of support and intervention in the community to address [the client’s] identified issues.’
The client ‘had multiple driving matters and the AAP report identified difficulty with decision making and mitigated the sentence [the client] would have ordinarily received. [The client] received bail a number of times and received a community-based sentence as a result of the mitigation attracted as a result of the AAP report.’
The client ‘was facing 2 years imprisonment with a NPP of 12 months however as a result of the AAP report we were able to convince the court to reduce the sentence to an Intensive Corrections Order (ICO) which is supervised in the community. This was a significant and life changing reduction in sentence.’
‘The Magistrate noted the significant impairments [the client] had in some areas and how that has contributed to a life of offending and incarceration in imposing a shorter sentence than he would ordinarily impose. He also set an even shorter NPP noting that [the client] needed more time in the community under supervision given [the client’s] issues. The Magistrate also noted the testing where [the client] scored well and noted that it provided hope and prospects of rehabilitation and encouraged the client in this respect. Ultimately, [the client] received a shorter sentence and an even shorter NPP as a result of the AAP report.’
Mick Gooda, the former Aboriginal and Torres Strait Islander Commissioner for Social Justice, in a 2014 address described the importance of the knock-on effect of Indigenous incarceration in communities as an inter-generational problem. “We know people in houses or families where people have been put in jail are more likely to go to jail themselves. So these inter-generational effects start happening and building on each other and we’re getting this cohort of people basically institutionalised really young and that continues through to adult age.” viii
In order to stop this cycle, we hoped that we could provide neuropsychological assessments to Aboriginal people who were suspected of having cognitive impairment and that as a result a significant number of those with cognitive impairment could be sentenced to community based treatment rather than prison. By receiving treatment and support in the community, they might be less likely to commit further crimes and more likely to contribute to their community.
The aim of the Aboriginal Assessment project (AAP) was to reduce the number of Aboriginal and Torres Strait Islander people given a custodial sentence by assessing those suspected of cognitive impairment before they were sentenced in court. We hoped to divert those found to have cognitive impairment to rehabilitation and support services in the community including the National Disability Insurance Scheme (NDIS).
Funding for travel expenses was provided by the NSW Department of Communities and Justice in the form of a grant. Funds were managed through the ALS. We provided our professional neuropsychology services on a pro bono basis. That is, we did not bill our time for travel, the assessment or report writing. The majority of our referrals came from the ALS and most of our neuropsychological assessments were conducted at the ALS offices in the Northern Region of NSW. Some were conducted in New South Wales correctional centres while three brief assessments were conducted via audio-visual link in the Legal Aid NSW office in Sydney.
Our assessments generally lasted four hours and included an interview with the participant, cognitive testing and an interview with a close family member or friend. We administered a range of tests measuring cognitive functioning. Of note, norms for New South Wales Aboriginal people have not been developed and the development of such norms should be a focus for Australian universities. Choosing the best selection of tests became a complex and difficult exercise. We consulted colleagues for their advice on appropriate tests for the Aboriginal population. We also took into consideration which tests were known and acceptable to the court. We decided upon a group of standardised tests that were known to be valid and reliable measures. In addition, we chose those that had less of an emphasis on acculturated learning and therefore more appropriate for those Aboriginal people who had poor educational attainment.
The tests measured the following cognitive domains, intellectual abilities, memory, visuo spatial processing, language and executive functioning (planning, organising, inhibition, problem-solving, reasoning and fluency). Additionally, assessments included measurements of academic achievement and adaptive functioning, i.e. their ability to function independently in their community. Additional time was required for review of background documents, scoring and report writing. In all, we dedicated approximately 12 hours for each assessment not including travel time.
When attending rural ALS offices, we found the presence of Aboriginal Field Officers extremely helpful in organising our assessments. For example, occasionally our clients did not have access to mobile phones and were unable to organise transport. In these instances, the field officer was able to contact the relatives of clients and organise transport. Occasionally, this involved them driving to the client’s home and bringing them to the assessment.
Although we anticipated that many of our participants would have some degree of cognitive impairment, we were surprised at the extent and pervasiveness of their impairment across all three of our broad measures, namely intellectual functioning, academic achievement and adaptive functioning. This latter measure is critical for people to be able to function independently in their community. Participants in the project were aged between 18 and 64. Their medical and psychiatric history included previous head injury and significant mental illness, including schizophrenia, bipolar disorder, depression and anxiety. We found that 72% had impaired intellectual functioning, 74% had impaired verbal comprehension skills, 74% of participants had reading skills at the Year 3 level, 97% of participants had mathematical skills at the Year 2 level and 88% of participants had impaired adaptive functioning.
More than half of our participants were recommended to the NDIS for support services. Our reports were designed to form part of the NDIS application process. However, we did not have the resources within our project to follow up with this process and report on the number who were eventually accepted into the NDIS.
Our reports were submitted to court before the participant was sentenced. The impact of our reports on court diversions was very encouraging. Nearly half of our participants were diverted from gaol and received a combination of a Section 32 diversion from custody for reason of cognitive impairment, a community-based sentence or non-custodial sentences including dismissals, suspended sentences, good behaviour bonds or fines.
When we requested information from solicitors, all respondents (representing 68% of our participants) noted that our report had a positive impact on the court outcome for their client and in some cases were used for community support services, including the NDIS.
Some of their comments included:
- The client’s ‘matters were discharged under s32 of the Mental Health Forensic Procedures Act from your report which was a really great outcome. They are trying to get on NDIS and are using your report to help in that process.’
- ‘The report … was incredibly helpful, and apart from putting [the client’s] behaviour into context it means that [the client’s] treatment in the community through NDIS is now targeting [the client’s] actual condition of FASD. Your diagnosis … would not have been possible without the project – this is the type of system we need on a permanent basis so as to understand the conditions that many of our clients suffer from.’
- The client ‘was dealt with under s32 of the Mental Health Forensic Provisions Act … [for] charges of act of indecency etc so the report was crucial in allowing [the client] to be diverted from being sentenced according to law.’
In addition to the solicitor’s comments, we met one Magistrate who saw many of our participants. We were encouraged by his comments. He noted the following:
‘What if the offender is not really bad, mad, addicted (although elements of these are regularly present) but instead has a cognitive age of five? Rehabilitation, retribution, specific and general deterrence, and even denunciation is put in a different context when confronted with such drastically low levels of cognitive ability. We don’t lock up five-year-olds for obvious reasons, and it calls into question why we should lock up those with an equivalent mental age either. I have been giving this some thought, and of course I would like to see this project expanded outside this region, state and nationwide if possible. But more than that, we need a far more therapeutic setting … than the traditional court system. Just like we have Children’s Courts and Drug Courts and Circle Sentencing we do not have specialised courts or approaches to deal with those who suffer from a profound intellectual disability other than discharging them into the mental health system. It is completely inadequate in my opinion.’
Reasons why the AAP was successful: comprehensive neuropsychological assessments include not only the cognitive strengths and weaknesses of a client but also the context in which disabilities may have occurred such as a history of birth complications, maternal alcohol dependence, childhood neglect and abuse and poor educational attainment. A comprehensive assessment brings together a client’s background history with their current cognitive functioning to determine a diagnosis. Another strength of the program was the availability of both neuropsychologists to travel at relatively short notice to assess a client. Cultural sensitivity was extremely important when conducting assessments and both neuropsychologists consulted Aboriginal stakeholders and elders in some of the communities where the program was conducted. We received positive feedback from clients and their family members who were appreciative of our services, especially when provided with the reason for the assessment and the possible benefits. The AAP reports were also helpful for the family to use when applying for support services, such as the NDIS. Many participants made a significant effort to attend their appointments despite having to rely on others for transportation and in some cases travel long distances.
Along with the successes of the AAP, there were of course some challenges. It was quite difficult initially to raise awareness of the project among ALS and Legal Aid NSW solicitors. Although we distributed flyers to advertise the program at legal conferences and the ALS head office raised awareness among its rural offices, it took several months before we received our first referrals. We believe that some solicitors were a bit wary due to the program’s novelty. Another challenge of the program was the need to have at least two clients organised in order to assure that the program was cost-effective. This requirement made it more difficult for smaller towns who struggled to organise two clients at once. Another challenge concerned assessments in correctional centres. Time was frequently limited by prison regulations and periodic lockdowns, and we occasionally discovered on the day of the assessment that the prisoner had been transferred to another correctional facility. Transportation was a challenge at times for those living in remote locations; and as our clients were often unable to drive, this often posed significant difficulties. Due to time constraints, we were unable to reach more remote places, such as Burke, which involved two modes of travel (plane and bus) and a considerable distance. Our trips generally involved one day of travel followed by two days of assessment. Lastly, we did not have the funding for social workers who could act as the ‘bridge’ between our recommendations and support services in the community.
Due to the success of the project in diverting Aboriginal people with cognitive impairment from custody, we recommend rolling out the program to rural and remote areas across NSW. Even without considering the social and cultural benefits, there would be a substantial financial benefit alone by expanding the scope of this project. Although there would need to be an increase in funding in the short term to cover the costs of neuropsychology services, there would be significant long-term savings. The average cost for keeping a person in custody for one day is approximately $294.31 or $107,423 per year.3 The approximate cost of a neuropsychological assessment is $3500 including travel or 12 days of gaol time. Thus, keeping one person out of custody for one year would represent a savings of $103,923.ix
There are far too few Aboriginal people trained as psychologists and even fewer trained as neuropsychologists in NSW. Additionally, there is a dearth of Aboriginal social workers in rural areas. It is our recommendation that the NSW government encourage Aboriginal people to undertake undergraduate and graduate degrees in psychology and social work through publicly funded scholarships.
ii Wijesikere, G, ‘Incarceration of Indigenous and non-Indigenous Adults, 1991-2001: trends and differentials’ (2004) 2, Australian and Aboriginal Studies, 54-63.
iii Australian Bureau of Statistics (2016), ‘Prisoners in Australia 2016.’ Canberra: Australian Bureau of Statistics. As cited in Weatherburn, D. & Holmes, J., NSW Bureau of Crime Statistics and Research, (paper 26), revised December 2017.
iv Carson, E. A. & Anderson, E. (2016). ‘Prisoners in 2015.’ US Bureau of Justice Statistics. Washington: US Department of Justice. As cited in Weatherburn, D. & Holmes, J. (2017). Crime and Justice Bulletin (No. 26). Sydney: NSW Bureau of Crime Statistics and Research.
vii Baldry, E., McCausland, R., Dowsel & McEntyre, E 2015. ‘A Predictable and Preventable Path: Aboriginal people with mental and cognitive disabilities in the criminal justice system. Mental Health Disorders and Cognitive Disability in the Criminal Justice System Project.
ix Australian Government Productivity Commission: Report on Government Services (2021), Part C, Section 8 Corrective Services, https://www.pc.gov.au/research/ongoing/report-on-government-service