Linda Steele, Leanne Dowse & Julian Trofimovs, ‘Who is Diverted?: Moving Beyond Diagnosed Impairment Towards a Social and Political Analysis of Diversion’ (2016) 38(2) Sydney Law Review 179-206
In an article recently published in Sydney Law Review, LIRC member Linda Steele together with UNSW collaborators Assoc Prof Leanne Dowse (chair in Intellectual Disability and Behaviour Support) and Julian Trofimovs (researcher) have questioned the extent to which court diversion can address the complex social marginalisation of people cognitive impairment and mental illness in the criminal justice system. The article makes this argument via quantitative analysis of data on the diagnostics, demographics and criminal justice pathways of a cohort of individuals diverted pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The data is drawn from a large linked dataset which forms part of the ARC funded project Australians with MHDCD in the CJS Project. The dataset consists of a ‘cohort of 2731 men and women,41 both Indigenous and non-Indigenous, who have been in prison in NSW and whose cognitive impairment and/or mental illness diagnosis is known. The quantitative analysis examines aspects of identity including Indigeneity, gender and age; as well as criminal justice involvement over time in order to provide a nuanced account of the operation of diagnosed impairment and its intersections with social disadvantage and criminal justice pathways for individuals who are the subject of s 32′. Key findings indicate that many of the diverted individuals in the sample experience social disadvantage such as homelessness, time in out of home care as children and poor educational outcomes. Moreover many experience early and ongoing criminalisation, including time with juvenile justice and multiple prison episodes as well as contact with police via civil mental health legislation. On the basis of the key findings from the empirical data, the authors conclude that while diversion ‘might arguably perform an important function by identifying people in the community who need help and linking them with services, we have argued that this function is limited because diversion acts only on impairment (in a narrow, diagnostic sense) and its consequences, and obviates attention to the complex social production of impaired offenders.’
This work was supported by an Endeavour Foundation Endowment Challenge Fund Student Grant awarded to Linda Steele.
Diversion from the criminal justice system pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is increasingly being deployed as a key response to the issues facing people diagnosed with cognitive impairment and/or mental illness in the criminal justice system. The ‘medical model’ of disability, which is focused on disability as an internal, individual pathology, contributes to the marginalisation of people with disability, notably by providing a legitimate basis for the legal and social regulation of people with disability through therapeutic interventions. The scholarly field of critical disability studies contests the medical model by making apparent the social and political contingency of disability, including the intersection of disability with other dimensions of politicised identity (such as gender and Indigeneity) and the role of law and institutions (including the criminal justice system) in the disablement, marginalisation and criminalisation of people with disability. Applying critical disability studies to s 32 problematises the characterisation of the legal subject with diagnosed impairment and this provides a new basis for questioning the coercion of people with disability through the criminal justice intervention of diversion. An empirical analysis of the diagnostics, demographics and criminal justice pathways of a sample of individuals who have received s 32 orders provides some material foundations for a more politically and socially directed analysis of s 32 and for a broader reflection on the role of the criminal law in issues facing people diagnosed with cognitive impairments and mental illness in the criminal justice system.
Dr Linda Steele