Judges call for specialist neuro-disability courts
Two senior judges have thrown their weight behind moves to set up solution-focused specialist courts for offenders with neurological disabilities.
The idea was mooted last August for adults with issues such as foetal alcohol spectrum disorder (FASD), autism, communication disorder, dyslexia, acquired brain injury and traumatic brain injury.
Since then, Chief District Court Judge Jan-Marie Doogue and Principal Youth Court Judge John Walker have been reviewing data from other jurisdictions to gain a better understanding of how overseas courts deal with young adults aged 18 to 25.
Specialist courts have sprung up in New Zealand during the past decade to deal with offenders with complex needs or specific backgrounds. Examples include the Matariki and Rangatahi courts, the Pasifika courts, and those for new beginnings and special circumstances (in Auckland and Wellington respectively), serving homeless offenders.
For neuro-disabilities, Judges Doogue and Walker are in the first instance focusing on innovations that don’t require legislative change. There are several possibilities.
“We could time-block a period of the day in a smaller court, or a whole day in a larger court, for any cohort,” Judge Doogue says.
“What experience tells us is that when we put a particular cohort into a particular identified period of the day, that makes it easier for everyone to collaborate.
“In this case, we would be acknowledging that we have, in that time-block, people who neuroscience would say do not necessarily have fully mature brains, and are more susceptible to impulsive decision-making or risk-taking or antisocial behaviour.”
Other changes could focus on court process and enhancing the role of judicial officers.
“Without any legislative change, judicial officers could be asked to rearrange the courtroom in a slightly more friendly way,” Judge Doogue says.
“That may just mean judges choose to sit in different parts of the court and rearrange the furniture in a more inclusive and collaborative way. We could also have screening for any disabilities that this cohort might have. We need to persuade other agencies of our rationale, and to attempt to get very high-level support, because what we’re actually looking for are resources to be able to screen disabilities.”
Judges are not experts in identifying or knowing how to deal with disabilities, she says. “We require expert assistance on that.
“We can also look to engage with iwi because we know Māori are over-represented amongst those who appear before us. If they’re urban Māori, they can be really advantaged by becoming reacquainted – or acquainted for the very first time – with their identity and with some connection back to family.”
The move towards a court for the neurologically impaired was sparked by what Judge Doogue calls “a constellation of material and research”, revealing the higher-than-anticipated number of people in our criminal justice system with disabilities.
This research includes a report by the UK Children’s Commissioner, another by the New York-based Centre for Courts Innovation (on the treatment of young adults in the Youth Courts in that state), and a report on treatment of young adult offenders in Germany, the Netherlands and Croatia.
Notable local work includes a report published last June by the Prime Minister’s then Chief Science Advisor, Sir Peter Gluckman, on preventing youth offending, and the 2018 Justice Sector Population Report.
“The aggregate of all those caused us to examine what we might be able to do within our current resources and what might necessitate a bigger-picture approach with other extra partners,” Judge Doogue says.
Any changes may adopt or adapt processes already operating in the Youth Court.
National President of Brain Injury New Zealand, Brett Morris, welcomes any moves towards better understanding of these issues, saying the size of the problem should not be underestimated.
In New Zealand, support for offenders with traumatic brain injury has historically been ad hoc, he says, usually through regional brain injury associations, and family and friends, rather than the courts.
“Whilst it has been accepted practice to provide translators for offenders with limited or no comprehension of our language in the courts, it is not the same for offenders with brain injuries, who will often have serious problems understanding the court process. It is both refreshing and extremely pleasing to see senior judges taking note of the problems and looking for solutions.”
Chief Executive of Autism New Zealand, Dane Dougan, says his organisation sometimes provides letters to judges in support of offenders and offers support to witnesses with autism, but this is done on a casual basis.
“Awareness, understanding and training are our main focuses,” Dougan says. “As the saying goes, when you meet one person with autism, you’ve met one person with autism, illustrating that we all have to treat each person with a disorder like autism very differently from any other.”
Judge Doogue acknowledges that innovation in dealing with adults with specific neuro-disabilities – and young adults generally - is still conceptual, but nevertheless worth pursuing.
“This is very aspirational,” she says. “We’ve read the research; we wish to respond to the research. We do not have control over the budget associated with courts and we also need to have conversations with all those other agencies we would need to be engaging to deal with young adults in solution-focused ways.
“It’s a little too early for us to be declaring anything until we have been able to have those engagements with other parties and get ministerial support for it.”
In a 2012 report Nobody made the connection: The prevalence of neuro-disability in young people who offend, the UK Children’s Commissioner canvassed several studies on specific conditions worldwide.
The report paints a grim picture of the overrepresentation of neuro-disability amongst youth offenders, especially when compared with the wider population. For example, one study found a 15% prevalence rate of conditions on the autistic spectrum among youth in custody, compared with between 0.6% and 1.2% in the general population.
FASD also came under the spotlight. The report notes its prevalence in young offenders, with rates of between 10.9% and 11.7%, compared to 0.15% in the general population.
Youth offenders in the UK are 10 times more likely to have a learning disability than young people generally: 60% to 90% have a communication disorder. The commissioner also reported that 95% of female prisoners, and almost half of all prisoners, have a traumatic brain injury.
Sir Peter Gluckman produced useful New Zealand data in his report It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand. It reveals that between 50% and 75% of youth involved in the justice system meet diagnostic criteria for at least one mental or substance use disorder compared with 13% of youth generally, and many have two or more disorders.
The report also states one in five youth offenders has a learning disability, with youth offenders three times more likely than non-offenders to have experienced a traumatic brain injury.
Judge Doogue draws particular attention to the Justice Sector Population Report of 2018, produced jointly by the police, Oranga Tamariki, the Ministry of Justice and the Department of Corrections.
This revealed 34% of those the police proceed against have a traumatic brain injury, while 36% charged in court and 46% of those imprisoned have the same condition.
“That started us thinking about the fact that these issues are identified and managed in the Youth Court, yet you turn 17 (soon to be 18), and you’re in the adult court and we don’t yet have processes or procedures to deal with those people in the same way,” she says.
“It seemed to be extremely arbitrary that age should determine this, as opposed to particular disabilities the defendant presents with.”
Judge Doogue believes more precise and pertinent information about adult offenders with neuro-disabilities is crucial and gathering it need not stretch the current rules.
“We can immediately, through judicial intervention, ask questions and attempt to get more information to ‘dimensionalise’ the defendant than perhaps might have routinely been the case in the past,” she says.
Legislative change may, however, be required in one crucial area.
“We possibly need to look at information sharing between the Youth Court and the District Court, and finding ways of breaking down silos between agencies and the courts about medical and mental health presentations,” Judge Doogue says.
Increased use of communication specialists, such as speech-language therapists, like those currently assisting the Youth Court, and more use of lay advocates in the adult District Court, may also require subtle change in the law.
Judge Doogue supports more wrap-around services where they’re needed.
“If a person suffers from FASD, we want somebody to be there who can tell us about the most humane, effective response to that,” she says.
“We want people who translate what a person with that kind of presentation is saying to us, so the procedural fairness is manifest in that we are talking to the person and we are hearing them.
“Continuity of legal representation for offenders transitioning from the Youth Court to the District Court may also be an option for the future.”
The two judges have taken these new ideas to some groups in the wider community and have discussed them with senior officials within the Ministry of Justice.
Judge Doogue has also put them before her advisory board, a group of senior judges, including the Principal Judges of the Youth Court and Family Court, with an encouraging response.
But change could be a long time coming.
“We had the tenth anniversary last year of the Rangatahi courts. That started as a court on the East Cape of the North Island and now we have 15 of them,” she says.
“So we know we’re at the beginning of a very long process, but that should never deter anyone from doing what they think is right.”
For more information on our related on-demand seminars Foetal Alcohol Syndrome Disorder and the Criminal Justice System, and Vulnerable Witnesses and Defendants: the use of a communication assistant, visit www.adls.org.nz/cpd/cpd-on-demand/