Symposium on “Neurodisability and Therapeutic Jurisprudence”

The goal of achieving equal access to justice for every person is the foundation of the student-run pro bono initiative, the Equal Justice Project (EJP).

Recently, the EJP Access team hosted its first symposium of the year, which examined how individuals with a neurodisability fare when they encounter the justice system in New Zealand.

EJP decided to examine the intersection of neurodisability with the law because this is a complex issue, and one of growing concern. The most recent survey conducted by Statistics New Zealand in relation to disabilities indicated that one in four New Zealanders was limited by a physical, sensory, learning, mental health or other impairment. Correspondingly, there is a significant overrepresentation of individuals with a neurodisability within both adult and youth components of the criminal justice system (CJS), and a paradoxical shortfall in understanding the needs that come with these impairments.

The symposium was unique in its interdisciplinary combination of scientific and legal fields, reflected in the variety of the perspectives and knowledge of the panel, comprising Professor Warren Brookbanks from AUT (author of Therapeutic Jurisprudence: New Zealand Perspectives), Dr Anthony Duncan (former Deputy Director of Mental Health at the Ministry of Health and current National Advisor for the Intellectual Disability (Compulsory Care) Rehabilitation Act), Douglas Hancock (Head of the Disability Team at the Human Rights Commission) and Sally Kedge (Director and co-founder of Talking Trouble Aotearoa, court-appointed Communication Assistant, and NZSTA Expert Advisor on vulnerable children/youth).

The symposium began with Professor Brookbanks explaining therapeutic jurisprudence as a legal concept that seeks to analyse the destructive effects that the law has in cases of neurodisability-based vulnerability, and to theorise ways the justice system can build a better structure for these cases.

Dr Anthony Duncan subsequently discussed the definition of “neurodisability” from a scientific perspective. He noted the massive spectrum of the term which can range from more substantial disabilities to subtle physiological issues that inhibit the comprehension or logic of the individual. One of the main roadblocks in establishing a specific rehabilitative system for offenders with neurodisabilities is trouble surrounding their diagnosis. Dr Duncan noted that a system of diagnosis could start with adapting the training of police officers to understand signs of neurodisability.

Sally Kedge, a practitioner who has worked in her field overseas, developed this idea further. She noted that, in other legal jurisdictions in which she has worked, it is mandatory for police to have an adult interpreter with an offender that the police suspect of having a neurodisability before having full communication with him or her. This was agreed to be an avenue of interest for New Zealand.

Ms Kedge also noted a diagnostic issue – namely, that offenders often do not realise they have a neurodisability. Particularly in cases of subtle neurodisabilities, many New Zealanders reach adulthood without awareness of their disability. Based on their respective experience (as a court-appointed communication assistant and speech therapist, and a psychiatrist), Ms Kedge and Mr Duncan agreed that late diagnosis can not only be a huge frustration, but can also be a roadblock to treatment and exacerbate an offender’s lack of understanding of his or her trial.

As the head of the Disability Team with the Human Rights Commission, Douglas Hancock continued the discussion from a policy perspective, with the view that educational policy should be the primary stage in diagnosing and treating cases of neurodisability.

Other interesting points were touched on during the audience discussion. One was the place of neurodisabilities as a result of drug use. Whilst the panel agreed that drug use very easily reaches a point of physiological neurodisability (similar to that of victims of foetal alcohol syndrome), the element of self-determination and choice involved in this impairment prevented them from coming to a firm position on whether such offenders would or should be considered in the same category as offenders with naturally-occurring neurodisabilities.

Dr Duncan and Professor Brookbanks had some interesting observations on how our justice system could better respond to some of these issues, some of which took a critical approach to deeply-embedded concepts within the legal system. Professor Brookbanks saw the greatest potential for change in a restructure of the adversarial system and its inherent incompatibility with disabled minds. Dr Duncan argued that the concepts of retributive justice and vengeance for the victim embedded in social concepts of justice make it difficult to achieve a system of therapeutic justice which takes account of physiological neurodisabilities.

Overall, it was a very interesting and thought-provoking evening. EJP would like to thank the amazing speakers that shared their knowledge on the night, especially Mr Hancock and Mr Duncan who travelled from Wellington at their own expense to contribute. EJP also thanks those who attended and engaged with the discussion.

EJP’s final symposium for the year will be taking place at the University of Auckland in October. The topic is still to be confirmed – keep an eye on LawNews for further details in due course.

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