Missed & Misdiagnosed: The Importance Of Screening For Neurodiversity In The Criminal Justice System

By Helen Arnold-Richardson

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Neurodiversity in the Criminal Justice System

From teaching and leading in youth and adult prisons for many years, I gained a great insight and understanding of the complexity of the lives and adversity faced by those I worked with. Many had faced traumatic events that some of us could only imagine! These included a lack of family support, substance misuse and addiction, mental health issues, homelessness, and a negative experience of school. Many had been told they from their formative years that they were useless, lazy and would never amount to anything, therefore reinforcing the negative image they have of themselves. Don’t get me wrong, I am not excusing that they had committed crimes or the ripple affect of this on their victims; however, I believed that if I was able to support one person to believe in themselves and live a crime free life, I had done my job.

What I knew, but could not prove at the time, was that many were also Neurodiverse. I saw many children and adults who were incarcerated not know they had difficulties or they masked their challenges and presented this through their negative behavior and actions as their only means of communicating their needs.

Without the appropriate, timely and accurate identification, it was hard to know how to deliver targeted support. One thing was certain- each person had strengths that needed to be harnessed to support them in engaging with interventions , managing relationships, and subsequently reducing the likelihood of reoffending.

Today, there is increasing evidence that many children and adults in prison have additional learning challenges. We are moving to use the term neurodiversity to embrace these differences.

What is neurodiversity?

Neurodiversity is a term which has come from a sociological background and has been increasingly used over the last few years. It moves away from the traditional deficit and more medical model and terms such as Specific Learning Difficulties and Learning Difficulties and Disabilities which have a more negative connotation. These umbrella terms were variably used to encompass such conditions as Dyslexia, Dyscalculia, Attention Deficit Hyperactivity Disorder (ADHD), Autistic Spectrum Disorder (ASD), Alzheimer’s and Development Coordination Disorder (DCD)/Dyspraxia.

Neurodiversity embraces the diversity of our brains and how they work. It allows us to consider ways we can harness the person’s strengths and emphasizing that different thinking is good; whilst promoting inclusion to support challenges they may have internally and in the context of their lives.

Where’s the evidence?

In the UK, the prevalence of neurodiversity (although referred to as Learning Difficulties and Disabilities-LDD ) in the Criminal Justice System (CJS) has received increasing attention over the last decade. Various publications including Unlocking Potential-A review of education in prison[i] and The Bradley Report[ii] discussed the difficulties of knowing the exact numbers of people with LDD in custody, with even less information regarding those on community sentences. The ‘Coates Review’ and the ‘White Paper’ cited that 1 in 3 people who are in contact with CJS have an LDD. These documents gave a greater emphasis on action not only for identification of offenders who have LDD, but also in staff having the skills to support at all stages within the CJS.

A more recent paper published in 2020 by Rt Hon Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice[iii] also highlights the difficulties that can be faced:

“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.”

Missed and Misdiagnosed

Many people in the Justice System will not come with a formal diagnosis as their pathway may have been a ‘messy’ one.

Children and adults are often missed or misdiagnosed, therefore not having their needs recognized or supported.

• Looked After Child or Young Person (LACYP)/In foster care. The child or adult may have moved from school to school making a referral and follow-up harder to do despite evidence of high levels of learning difficulties.
• The person, carers or parents do not know there are barriers. This is especially significant with underrepresented groups such as BAME (Black and minority ethnic) groups or females, where there is less knowledge about their presentation.
• They could be or have been excluded from school. There is a high level of undiagnosed people in this group with ADHD and Developmental Language Disorder and Autism Spectrum Disorder for example, but there remains no mandatory screening for at present.
• Left school early or not attended school regularly and not been in a ‘system’ at all.
• Not recognized as needing to be diagnosed. They may have come from social settings where their parents had similar patterns of difficulties but were never diagnosed. As a result, the parents do not see that the challenges in their child as anything to be concerned about.
• Come from another country where neurodiversity is less well recognized or they don’t have English as first language and so people assume challenges are related to this.
• Homeless and not have a regular physician to make a referral.
• Other reasons for symptoms may not have considered. There is increasing interest in the association between Traumatic Brain Injury (TBI) and ADHD. It can be difficult (especially if the question is not asked) to know whether attention problems are due to ADHD or to a head injury or potentially a combination of the two. In Williams’ report [iv] ‘Repairing Shattered Lives’ , he cites that there is evidence from England that up to 60% of young people in custody have reported having experienced a traumatic brain injury.

The negative impact of not identifying

It is so important that people in the Criminal Justice System are able to understand what is happening to them, what is required of them and have a means of communication they can use to articulate their needs and wants.

If they are neurodivergent, they may have difficulties with:

• Identifying their strengths
• Understanding the requirements of a statutory order and any conditions associated with it.
• Understanding the words used within the Criminal Justice System
• Understanding that they may be required to take part in programs to reflect on their offending behavior
• Attending appointments on time and on the right day
• Stating aloud to others that they have difficulties

With children specifically there is also the safeguarding concern, in that children with communication difficulties can be at greater risk of abuse than other children (Snow, 2009[v]; Stalker & McArthur, 2010[vi]). Young people with speech, language and communication needs are extremely vulnerable as their difficulties may stop them from informing someone what has happened to them.[vii] 

The need for the ‘whole person approach’ to screening and guidance for Criminal Justice Practitioners-What are the barriers currently?

The systems in place may preclude appropriate screening or assessments being made:

• Paper- based systems may not be accessible for those who cannot read the questions, e.g. with low levels of literacy or for the 10% of people in the UK where English as a second language[viii] (but there may not be a means of assessing their needs in their home language resulting in limited or little information about their prior educational experiences).
• Questions relating to the ‘other’ factors may not be asked concurrently so conclusions may be biased by the data collected.
• A lack of confidence and training by the non-specialist staff to have a conversation with the person if identified as being neurodivergent. There can also be a lack of knowledge to know what to do and how to provide support for the person or make reasonable, practical adjustments.
• A lack of tools in place to assist may prevent the process of screening happening. Or the tools may take too much time or be too confusing to administer. Therefore, missing key information on the rehabilitation barriers the person may have. A scoring system can be categorical and so one point below means nothing received and so people then miss out on gaining personalized support according to need and not to label.
• Lack of pathways for onward referral or waiting lists for assessment- there may not be a system in place to know what to do if a person is identified with ADHD or Dyspraxia traits or how to make reasonable adjustments.
• Labelling-making subjective judgements on the person based on prior experiences for example diagnostic overshadowing – seeing the person has having attachment challenges rather than recognizing they have receptive language difficulties.
• Not focussing on the strengths- many systems only look at the challenges and not the strengths, therefore reinforcing the deficit model.

The negative impact of ignoring neurodiversity

In reality, the negative impact of being neurodiverse may mean that some offenders in the community may not be able to use public transport to get to meetings or community payback. They may miss appointments due to not being able to plan. In custody, they may react badly to a new situation or in the community they may not fully understand what they must do to adhere to their community order. The person may not recognize the great strengths that they have and the value they can bring to society.

If the Probation or Correctional Officer knew the offender’s strengths, they could build upon these to reduce the potential of the person reoffending and if the offender these barriers, practical adjustments and strategies could be put in place to support the offender achieving their outcomes.

The benefits of screening offenders- using technology to help

The reality is that even though around 1 in 3 offenders may be neurodiverse there is a need to understand all barriers and strengths to support their rehabilitation and move towards developing their skills and gaining meaningful employment.

This requires a bio-psychosocial approach- therefore screening in all areas so as not to miss key information about the person that is needed to prepare reports, to plan their intervention or understand why they are not adhering to, for example, Probation or Correctional Services rules.

One tool that is currently used with offenders in custody across the UK is the Do-IT Profiler which provides:

• a bio-psychosocial approach to identifying the strengths and challenges for the offender through a modular based system completed online.
• Quick, consistent screening for traits and provides assessment tools and resources relating to literacy, numeracy, wellbeing and training for work skills.
• The integration and analysis of the data through the management information platform which provides instant person-centered feedback for the individual, as well as guidance for staff and reports.

The use of such a system could benefit the supervision of offenders by providing:

1. Probation and Correctional Officers training and guidance on how to recognize if someone is neurodiverse and the means to make practical adjustments to help that person attend and participate with their supervision meetings and/or community orders.
2. A system that is accessible for all, both staff and people in the Criminal Justice System, e.g. written material/forms/ letters are available in different formats, and there are easy read materials as options.
3. Consistent, systematic and time efficient approaches using robust tools that screen and capture information on the strengths and barriers of the offender, therefore providing more information to support the offender in achieving their outcomes.

 

For more information about Do-IT Profiler, please visit www.doitprofiler.com or contact Helen@doitprofiler.com

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[i] Coates, S (2016) Unlocking Potential A Review of Prison Education. Ministry of Justice. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/524013/education-review-report.pdf (accessed 9 November 2020)

[ii] 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.

[iii] A Smarter Approach to Sentencing by Lord Chancellor and Secretary of State for Justice, Ministry of Justice, September (2020).

[iv] Williams. H (2012) Repairing Shattered Lives, Barrow Cadbury Trust available from https://barrowcadbury.org.uk/wp-content/uploads/2012/11/Repairing-Shattered-Lives_Report.pdf (accessed 9 November 2020)

[v] Stalker, K. and McArthur, K. (2010) Child abuse, child protection and disabled children: a review of recent research, Child Abuse Review.

[vi] Coles, H; Gillet, K; Murray, G; Turner, K (2017) Royal College of Speech and Language Therapists Justice Evidence Base Consolidation available from https://www.rcslt.org/-/media/Project/RCSLT/justice-evidence-base2017-1.pdf (accessed 9 November 2020)

[vii] Coles, H; Gillet, K; Murray, G; Turner, K (2017) Royal College of Speech and Language Therapists Justice Evidence Base Consolidation available from https://www.rcslt.org/-/media/Project/RCSLT/justice-evidence-base2017-1.pdf (accessed 9 November 2020)

[viii]   13% Prison Population HMP data (2006)