Indigenous Australians with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System

The over-representation of Aboriginal and Torres Strait Islander peoples (Indigenous Australians) with mental health disorders and cognitive disabilities (MHDCD) in Australian criminal justice systems (CJS) is a matter of utmost importance to government, policy makers, Indigenous and non-Indigenous Australians.

The Indigenous Australians with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System (IAMHDCD) Project brings an Indigenous informed mixed method research approach to the study of this issue. Qualitative interviewed afforded new and in depth understandings from an Indigenous perspective and school education and welfare data were merged with our exsting rich dataset (MHDCD Project Dataset). The MHDCD dataset comprises data on 2,731 persons who have been in prison from Police, Corrections, Justice Health and other health areas, Courts (BOCSAR), Juvenile Justice, Legal Aid, Disability, Housing and Community Services to allow a whole of life picture of institutional involvement. The dataset was used to investigate the pathways Indigenous Australians with MHDCD take into, around and through the Human Service (HS) and CJS and their experiences of the systems and system interactions.

A predictable and preventable path: IAMHDCD Report

Indigenous Australians with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System

Report Authors: Eileen Baldry, Ruth McCausland, Leanne Dowse, Elizabeth McEntyre

Project Investigators: Eileen Baldry, Leanne Dowse, Julian Trollor, Patrick Dodson, Devon Indig

Project Researchers: Peta MacGillivray, Elizabeth McEntyre, Ruth McCausland, Han Xu, Julian Trofimovs

A Predictable and Preventable Path Report October 2015

Indigenous Australians are grossly over-represented in Australian criminal justice systems (CJS) and in prisons in particular where they make up 26% of the prison population. The rates of Indigenous incarceration are particularly high in Western Australia and in the Northern Territory. Indigenous Australians also experience higher rates of mental illness than other Australians (AIHW) and this appears to be mirrored in CJSs and prisons. Findings from the NSW Inmate Health Survey (Butler and Allnutt 2003) and indications from analysis of the MHDCD Project Dataset suggest that a higher proportion of Indigenous Australian persons in prison have MHDCD when compared with non-Indigenous persons. This is supported by findings in other states (Department of Justice 2007). The therapeutic needs of Indigenous persons are significantly different from non-Indigenous persons, as the trauma resulting from ongoing colonisation must be understood and addressed (Westerman 2002; Atkinson 2002; Sherwood 2009).

Current research suggesting that an array of problematic impacts, including loss of land, culture and spirituality, social disadvantages, discrimination, lifestyle, perceptions and system arrangements and failures all contribute to the higher likelihood that Indigenous Australians with MHDCD come into contact with the CJS, than any other disadvantaged group (Aboriginal and Torres Strait Islander Social Justice Commissioner 2008; AIHW). Significantly poorer physical health (AHRC 2009) may also be a contributing factor. Data supporting these claims are currently fragmented and siloed, deriving as they do from diverse agencies including education, health, income support, other HS and CJ sources.

System and agency responses are often poorly integrated and inappropriate, resulting in inadequate service and support across the life course of individuals concerned (Aboriginal and Torres Strait Islander Social Justice Commissioner 2008; AIHW). Previous work has attempted to conceptualise likely risk factors and possible responses to these individuals' complex needs. This is limited by the absence of a clear picture of their context and circumstances such as impacts of colonial and intergenerational trauma, the actual pathways individuals take from the earliest points of interaction and the possible multiple interventions by agencies such as school education, police, juvenile justice, health, community services and welfare (Westerman and Wettinger 1997a, 1997b). Hence there is no overall appreciation or understanding of the life course pathways taken by Indigenous persons with MHDCD in the CJS or of the meaning, experience and impact of their cycles of imprisonment and re-imprisonment.

The IAMHDCD ARC project is based on an earlier ARC Linkage project, People with MHDCD in the CJS, completed in 2010. The original project developed a large linked then merged static dataset capturing detailed information on the pathways and Criminal Justice and Human Service systems interactions for a groupn of people (2,731 persons) who have been in prison in NSW and who have MHD and/or CD. Of these, 25% (n=676) are Indigenous Australians.

Analyses indicate that Indigenous persons have the highest rates of complex needs (multuple diagnoses and disability) and that Indigenous women with complex needs have significantly higher convictions and episodes of incarceration than their male and non-Indigenous peers. These preliminary data highlight the potential added value to the understanding of the pathways and experience of Indigenous persons in the CJS that this new project can provide.

The mixed method adopted in the current project allows for multilevel pathways analyses of the new enhanced merged data set to be combined with qualitative thematic analyses of interviews and focus groups seeking Indigenous persons' direct experiences, views of specialist Indigenous agencies and community knowledge and opinions. This will provide theoretical and applied knowledge that can inform policy and practice to reduce the high level of Indigenous persons with MHDCD in Australian criminal justice systems.

  1. To answer new questions emerging from initial MHDCD dataset analysis about Indigenous persons with MHDCD in the CJS, using the dataset to focus on Indigenous members of the cohort:
    • To encompass critical data not collected in the original study including school education (through NSW Education records) and welfare (through the use of Centrelink and SAAP records) and the most recent 2009 NSW Inmate Health Survey data.
    • To develop an in-depth picture of the interactions of diagnoses, vulnerabilities including chronic physical ill-health, complex support needs and intensive interventions and how these coalesce for Indigenous persons with MHDCD in the CJS.
    • To compare variously diagnosed Indigenous persons' pathways in relation to their Indigenous (without these disabilities) and the non-Indigenous peers and identify significant points of difference including the impact of timing of diagnoses.
    • To assess the impact of identifying or being identified as an Indigenous person on pathways into, through and returning to the range of services captured in the study.
  2. To use an Indigenous methodology framed by emancipatory and decolonising analyses:
    • To develop a new understanding of how Indigenous persons with MHDCD who are or have been in the criminal justice system, experience and interpret the conglomeration of events and interventions in their lives through a qualitative investigation of the experiences of Indigenous men and women who have been in these circumstances.
    • To gain an Aboriginal Community and service perspective on this problem by interviewing Aboriginal family and community members, leaders and other people who work in relevant Aboriginal and non-Aboriginal services.
    • To identify appropriate conceptualisations of disability and complex needs for this group, and effective interventions through linking this qualitative information with the pathway analyses.
    • To investigate the ways location in an urban, regional or remote area affect contact with and pathways into, around and through HS and CJ agencies.
  3. To map legislation, policy and service provision relevant to Indigenous persons with MHDCD in the CJS in NSW over the last 30 years.
  4. To provide research training for Indigenous persons and build the research capacity of the Aboriginal Community.
Conceptual framework

The Linkage Project upon which this proposal built identified two pressing conceptual issues that were analysed in the study. Neither a criminological nor a disability theoretical approach had the capacity to account for the findings that persons with MHDCD, Indigenous persons in particular, have a high re-imprisonment cycling rate, high rate of nuisance and cumulative offences, high rate of complex needs diagnoses, and that Aboriginal women with multiple needs and high rate of disadvantage have significantly higher rates of imprisonment than any other group. Each HS and CJ agency appears not to fully recognise the ramifications of its particular intervetion as individuals move around in the liminal space between the community, HS agencies and the CJS.

The absence of conceptual understanding of these persons' presence in this space is more significant when trying to account for the experience of Indigenous persons. There is a need to move thinking in the area beyond traditionally siloed disciplinary approaches. The previous project has begun to address this absence through the preliminary development of a hybrid critical criminology-disability approach integrating revived Critical Criminology with similarly innovative perspectives developing within the discipline of Critical Disability Studies (Dowse et al 2009; Baldry 2010). The IAMHDCD built on this work by bringing the specific sets of issues relevant to Indigenous persons into the centre of the analysis, in particular, insights afforded by decolonising and emancipatory perspectives (Denzin et al 2008; Green and Baldry 2008; Sherwood 2009). This approach to Indigenous research was refined in the project to re-conceptualise the complex matrix of concerns relevant to an intensely marginalised group of people.

Chief Investigators

The Project's Chief Investigators were all based at UNSW Sydney: Emeritus Professor Eileen Baldry (Faculty of Law & Justice), Emeritus Professor Leanne Dowse (Faculty of Arts, Design & Architecture), Professor Julian Trollor (Faculty of Medicine & Health) and Professor Patrick Dodson.

Partner Investigator

The Project's Partner Investigator, Dr Devon Indig, was the Head of Research at the Centre for Health Research in Criminal Justice (Justice Health & Forensic Mental Health Network) and Conjoint Lecturer at UNSW.

Project Staff
  • Han Xu (ME in Computer Science and Engineering, PhD candidate UNSW) was the data manager for the IAMHDCD Project.
  • Peta MacGillivray (BA LLB UNSW) was the Research Officer on the Project, and worked with Associate Professor Ruth McCausland (BA (Hons) MA Int Social Development, PhD UNSW) to manage the Project.
  • Elizabeth McEntyre, Aboriginal Family Health Worker, Social Worker and Accredited Mental Health Social Worker, was the PhD scholarship holder for the project and was supported by the NSW Health Centre for Aboriginal Health and her local Aboriginal Community.
Partner Organisations

Partner organisations in a Linkage project contribute both case and in-kind resources and participate directly in the research process. The IAMHDCD Project partner organisations were:

  • Justice Health and Forensic Mental Health Network
  • Housing NSW
  • Ageing, Disability and Home Care NSW
  • Legal Aid NSW.


Special thanks to Melonie Hawke for designing the IAMHDCD Project logo.