Neurodiversity in the justice system Changing framing but the same challenges

A number of documents in the past twenty years in the UK have described a clear need to support individuals with learning difficulties and disabilities at all stages of the criminal justice pathway.

This includes, for example, the Unlocking Potential Review of Education in Prison[1], as well as the Valuing People Strategy for Learning Disability[2], Valuing people Three Year Strategy[3], The Bradley Review[4], and a series of No-One Knows reports by the Prison Reform Trust [5],[6],[7],[8],[9],[10],[11]. In the No one knows report by Loucks[12] specifically, it importantly estimated that between 20% to 30% of prisoners have learning difficulties or learning disabilities (LDD) that interfere with their ability to cope within the Criminal Justice System (CJS). Until recently, LDD was the term being used.

In 2020 there is a visible change to the use of the terms neurodiversity and neurodivergence. However, a clear definition of what neurodivergent actually encompasses has yet to be given which opens up the discussion about whom specifically requires support during any engagement in the justice sector and who may not.

This is always a challenge when we espouse the use of the social model of disability ( which I agree with 100%) as it sets up a dialogue with some that can begin with “So what has he got?” and without the person having a diagnosis and proof of ADHD or Dyslexia, for example, then support or adjustments may not be considered.

This may continue to be problematic for several reasons:

1.Lack of opportunity for an assessment - you need others to be aware to consider you may need adjustments. Awareness training needs to be provided to all those work in any aspect of the justice system to try to make adjustments for all ( a universal design and an anticipatory approach)

2. Neurodivergent conditions overlap with each other and are not in neat silos - so if we end up screening for 'only' speech and language challenges and not consider ADHD traits, for example, crucial adjustments may be missed.

3. If you don't know you don't know to ask. This is specifically important in those who are underrepresented or less likely to have a diagnosis e.g. those who are come from BAME groups, females, and those who do not speak English, those who are not in stable accommodation, and those who have been 'in care'.

4. Cumulative adversity rather than single adversity. How does one prove to the court someone is neurodivergent when they may have a spiky profile that doesn't meet one diagnostic category but in reality impacts that person i.e. they have cumulative adversity.

I use the analogy of 'balls in the bucket'. Those moving through the justice system have a lot of different coloured balls rather than one of a specific colour. Each coloured ball represents an area of cognition, language or emotion, literacy, numeracy, etc. In two recent research studies, completed with myself and colleagues, at a female and male prison, we had evidence of this. These will soon be published.

We saw a wide range of different combinations of challenges( heterogeneity) including social, motor, attention, language, and emotional challenges. This is along with other adversity in past and present life. For this reason, many of the people have not gained a diagnosis. What we didn't see often were people falling neatly into one category or another.

NOTE: BUT cumulatively the challenges they had were impacting considerably but using the medical model they didn't fit one box or another so failed to get support. Not bad enough in one area...

What is neurodiversity and what terms should we be using?

Neurodiversity reflects the cognitive diversity that we all have and the variations in how our brains work. Neurodivergence is where these variations diverge from the ‘average’ or ‘typical’ brain.

In some cases, neurodiversity is wrongly being used as a term synonymous with Autism Spectrum Disorder, in other cases neurodiversity, it is being used as a substitute term for specific learning difficulties/ and LDD. However, the change in terminology away from deficit and disorder does allow us to consider people’s individual strengths that someone can offer and this allows for a different dialogue.

There are have been several key papers in 2020 where there has been a change in terms used from learning difficulty and disability/specific learning difficulties to use of the term neurodiversity. This is a relatively new change, as in the Equal Treatment Bench in 2018 learning disability and difficulties was still being used.

For example, from the Equality Human Rights Commission “Existing evidence tells us that there are a lot of people with cognitive impairments, mental health conditions and neurodiverse conditions in the criminal justice system.”

The recent White Paper in 2020 from Robert Buckland ‘A smarter approach to sentencing’ uses the term Neurodivergence and Neurodiversity.

“ Too often, the criminal justice system fails to recognise or understand neurodiversity, with resulting poor outcomes and more reoffending” and goes onto say importantly the role in ensuring effective communication.

They go onto say:

“Neurodivergent offenders often have speech, language and communication needs.

Consequently, this cohort can experience difficulties understanding and processing

complex information, particularly in stressful circumstances, such as whilst serving a

community sentence. They are required to understand the processes and their

sentencing requirements, as well as be able to communicate proficiently with a wide

range of individuals. There is a risk that this cohort face extra challenges when trying

to comply with criminal justice processes and procedures.”

Later in the document, it goes on to say:

“additional support should take into account the communication styles and abilities of neurodivergent individuals.”

While welcoming the increased awareness relating to neurodiversity and change in terminology and framing, we need to move to a consistent and agreed use of the words we use. We also need to screen prisoners and those moving through the justice system consistently and effectively BUT taking a whole-person approach including understanding the context of their lives past and present.

Let us espouse to the guidelines in the International Principles and Guidelines on Access to Justice for Persons with Disabilities (2020)

as Michelle Bachelet says:

" Guaranteeing access to justice is indispensable to democratic governance and the rule of law, as well as to combating inequality and exclusion".

What we need to ensure as we move forward is all those who have not had the opportunity for support gain it and that systems are accessible and inclusive for all.

[1] Coates, op. cit. 

[2] Department of Health. (2001). Valuing People: A New Strategy for Learning Disability for the 21st Century. London: Department of Health.

[3] Department of Health. (2009). Valuing People Now: A New Three-Year Strategy for People with Learning Disabilities. London: Department of Health.

[4] The Rt Hon Lord Bradley. (2009). Lord Bradley’s Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System. London: Department of Health.

[5] Loucks, N. (2007). No One Knows: Offenders with Learning Difficulties and Learning Disabilities: Review of Prevalence and Associated Needs. Prison Reform Trust.

[6] Loucks, N., & Talbot, J. (2007). No One Knows: Identifying and Supporting Prisoners with Learning Difficulties and Learning Disabilities: The Views of the Prison Staff in England and Wales. Prison Reform Trust.

[7] Loucks, N., & Talbot, J. (2007). No One Knows: Identifying and Supporting Prisoners with Learning Difficulties and Learning Disabilities: The Views of the Prison Staff in Scotland. Prison Reform Trust.

[8] Talbot, J. (2008). No one knows: Prisoners’ Voices: Experiences of the criminal justice system by prisoners with learning disabilities and difficulties. Prison Reform Trust.

[9] Loucks, N., & Talbot, J. (2008). No One Knows: Identifying and Supporting Prisoners with Learning Difficulties and Learning Disabilities: The Views of the Prison Staff in Northern Ireland. Prison Reform Trust.

[10] Jacobson, J. (2008) No One Knows: Police Response to Suspects Learning Disabilities and Learning Difficulties: A Review of Policy and Practice. Prison Reform Trust.

[11] Jacobson, K., & Talbot, J. (2009). No One Knows: Vulnerable Defendants in the Criminal Courts: A Review of Provision for Adults and Children. Prison Reform Trust.

[12] Loucks, op. cit.

Equal Treatment Bench Book

https://www.sentencingcouncil.org.uk/wp-content/uploads/Equal-Treatment-Bench-Book.pdf  

Professor Amanda Kirby has a unique experience of straddling health, education, and the workplace. She is a qualified GP, and part of a very neurodivergent family. She is also an emeritus professor at the University of South Wales.

She is internationally recognized in the field of neurodiversity as both a clinician and researcher and published widely in the field. Amanda is also CEO of Do-IT Solutions, a tech-for-good company, that has developed unique person-centered computer profiling tools to support neurodiverse children and adults in a range of contexts including education, prisons, and employment settings and is used nationally and internationally.

More than 25,000 people have used Do-IT Profiler screening tools in prisons in the UK.

For more information: https://www.doitprofiler.com/sectors/justice-2/