Prison - Our Best Treatment for Acquired Brain Injury? - Fact Sheet

Public outrage would greet any proposal that people with mental illnesses should be locked away in prison instead of being provided with support. Sadly, there is only silence over imprisonment still being the main ‘treatment’ for people with brain injuries who display challenging behaviours.

Prior to his brain injury, no one could have pictured Jason (not his real name) in prison. He was employed, had a steady relationship, and enjoyed a range of activities with his friends. But a car accident in 2003 left Jason with many effects, including an inability to manage his anger. Jason went from being a likeable easy-going young man, to frequent outbursts in which he often attacked other people. Jason is now serving a sentence for assault occasioning grievous bodily harm.

Since starting his sentence, he has been increasingly unable to manage his anger, and has been verbally abusive towards prison staff on many occasions. Jason is now heavily medicated for his aggression, but he is angry that his needs are not being addressed. He realises that he has specific triggers and has been struggling to learn ways to distract himself, but in prison he finds it almost impossible to do so. To make matters worse, he cannot access the necessary counselling or behaviour support. Without support, he fears that he may never learn coping strategies for his anger, and will never be released.

The invisible disability

Historically, we only need to go back a single lifetime to find that prison was often the likely outcome for people with mental disorders. Only as society came to fully understand the nature of mental illness did more humane treatment and supports emerge.

Unfortunately, this same understanding has not been achieved for people with acquired brain injuries. The lack of support and rehabilitation means that people often develop problems with impulsivity, anger management, and inappropriate communication and behaviours. When severe enough, these problems mean many people with brain injuries end up in the prison system.

The effects of a brain injury are often not physically obvious in the same way a mental illness may be. This ‘invisible’ nature of acquired brain injury as a disability goes a long way to explain why we are still imprisoning people with acquired brain injuries, instead of providing the necessary supports to help them develop appropriate behaviours and communication skills.

The forgotten people

People with acquired brain injury remain the forgotten group in the criminal justice system. Indeed it seems that brain trauma is so common among the prison population that it is not considered outside the ordinary or subject to particular attention.

But there are small but encouraging signs of hope. The Victorian, Queensland and NSW Governments have acknowledged that there is a serious problem with over-representation of brain injury in the prison and remand systems¹³. The Queensland Department of Justice and Attorney-General has accepted that people with a brain injury have special needs and are disadvantaged in the criminal justice system.

The Criminal Justice System

The criminal justice system is a combination of police, courts, correctional facilities and institutions. Checks and balances ensure that fairness is observed at each step of the process, but these don’t cater for the complex needs of people with an acquired brain injury.

At its core, the criminal justice system has an assumption of responsibility for one’s actions. This assumption may not be correct where an individual with a brain injury is concerned:

Impulsivity is a common problem. This affects a person’s ability to control their emotions and behaviour, and can result in assault, manslaughter, petty theft and other offending behaviour¹¹.

Prison is often justified as a ‘correctional’ institution because it is a consequence of wrongful actions, and it is meant to act as a warning. These justifications are frequently irrelevant to people with a cognitive disability¹³ due to a lack of insight and impaired self-control.

A brain injury can impact upon balance and communication skills, as well as cognitive abilities. People regularly report that their brain injury is misinterpreted as being drunk, on drugs, or as the effects of a mental illness, which can lead to inappropriate police involvement.

Strategies used by police officers to communicate with people who are drunk or under the influence of illegal drugs are not appropriate or effective with a person who has a brain injury.

Improved outcomes have followed from simple training courses teaching police officers how to communicate over the phone with people who have a communication deficit following a brain injury¹⁶.

Genuinely forgetting to pay for purchases, and a limited ability to understand the terms and conditions of contracts, are common triggers for contact with the criminal justice system.

A person with acquired brain injury may have lost the skills to provide a calm and logical response to a situation that they perceive to be unjust or threatening, yet that same person may show no evidence of having a disability when attending court with the support of a duty solicitor, or when being interviewed by a psychiatrist.

Impulsivity, impaired anger management skills, short-term memory loss, susceptibility to suggestion, and impaired social skills, can result in a person being charged, convicted and sentenced, instead of treated, rehabilitated and supported in the community.

How prison can make things worse

Attention deficits make it difficult for prisoners with a brain injury to focus on a required task or sequence of instructions. Mental confusion may be misinterpreted as an act of defiance by prison staff⁶, and memory deficits make it difficult to understand or remember rules or directions, leading to disciplinary actions by prison staff.⁶

Impulsivity and poor anger management can lead to conflict with other prisoners, which may result in disciplinary action or further injury.⁶

Slowed verbal and physical responses may be misinterpreted by correctional officers as uncooperative behaviour.⁶

Uninhibited or impulsive behaviour, including problems controlling anger and unacceptable sexual behaviour, can provoke other prisoners, and may result in disciplinary action, physical abuse or further injury.⁶

Section 27 (Insanity) of the Queensland Criminal Code allows for a person to be held not responsible for their actions if they were in “such a state of mental disease or natural infirmity” that they couldn’t understand what they were doing, couldn’t control their actions, or couldn’t know right from wrong. In many ways a brain injury could qualify as a natural infirmity. However, authority for determining this status rests with the Mental Health Tribunal, and acquired brain injury is not a mental illness.

For these reasons, the review of the Queensland Mental Health Act 2000 recommended that “…a review of the provisions of the Mental Health Act 2000 affecting people with an intellectual disability be conducted as part of any reform to provide secure care for people with an intellectual or cognitive disability who exhibit severely challenging behaviour.” ¹²

The Guardianship and Administration Act 2000 (Qld) states that an adult has decision-making incapacity if they are unable to understand all the factors involved in a decision, come to a decision freely and voluntarily, and communicate that decision to others¹³. This incapacity is a legal status confirmed by the Queensland Civil and Administrative Tribunal (QCAT). This status does not automatically bring Section 27 of the Criminal Code into play during a criminal trial, despite the similarity between the criteria.

Some possible steps forward

The Queensland Police Service has developed a Disability Service Plan in response to the Disability Services Act 2006. The Scope of the Plan acknowledges that “Preventing crime by addressing its causes contributes to safe and secure communities”¹⁵, and raises significant concerns about increased vulnerability of people with disabilities. However, it does not consider those people with a disability who commit criminal acts. Acknowledging that a disability can put a person at a greater risk of committing a criminal act would be a positive step toward the introduction of diversionary programs and appropriate rehabilitation and support.

The New South Wales Police Force is trialling a specialist mental health unit to help officers deal with mentally ill people in a safe and efficient way¹. No such unit exists for people with an acquired brain injury. Giving officers the skills to identify and defuse potentially violent situations involving a person with a brain injury could help prevent future contact between officers and that individual.

The Brisbane Magistrates Court has implemented two diversion programs, one for the homeless, and one for minor drug offences. Both programs aim to prevent reoffending by addressing causes or contributing factors. No such options exist for people with an acquired brain injury who commit petty offences, despite the evidence that an overwhelming percentage of defendants will have a brain injury.

The Guardianship and Administration Tribunal (GAAT) has high-court powers to rule on the decision-making capacity or incapacity of adults, and to appoint guardians (non-financial matters) and administrators (financial matters). Giving GAAT similar authority to the Mental Health Tribunal in determining the legal status of responsibility for an act would give more offenders a chance to be referred to appropriate treatment or rehabilitation instead of imprisonment.

Behavioural treatment options, including Positive Behaviour Support (PBS)² and Applied Behaviour Analysis (ABA)⁹, have proven to have high rates of success with treatment of challenging behaviours, even after severe brain injury¹⁰. In the UK, the Brain Injury Rehabilitation Trust (BIRT) is receiving referrals directly from courts to their York residential behavioural rehabilitation facility³.

The Disability Services Queensland report, Investing in Positive Futures, calls for the development of a “centre for excellence in positive behaviour support” to address the support needs of people with an intellectual or cognitive disability who exhibit severely challenging behaviours⁵.

Positive Behaviour Support, combined with the development of secure residential facilities for intensive behaviour rehabilitation, will provide a sentencing option that yields long-term benefits for the person and the broader community. The establishment of a service in Queensland is to be applauded. But it will take more than the Centre of Excellence recommended by Disability Services Queensland to address the long-term impact of many years of neglect in this area.

The time for change is now

Any move back to imprisoning people with intellectual disabilities or mental illnesses would be met with public outrage. Sadly, the historic neglect of people with brain injuries is only met with silence. It is hoped that the growing awareness of prisons as an inadequate ‘treatment’ for acquired brain injury will rapidly lead to the necessary changes in our criminal justice system and support of people with acquired brain injuries.

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