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Neurology, acquired brain injury and criminal justice

Minutes of the All-Party Penal Affairs Parliamentary Group, held on 4 December 2012 at 5.00 pm in Committee Room 4, House of Lords

Professor Huw Williams, Centre for Clinical Neuropsychology Research, University of Exeter, and
Dr Maggie Atkinson, The Children’s Commissioner for England

Lord Ramsbotham, in the chair
Paul Goggins MP
Lord Hodgson of Astley Abbotts
Baroness Linklater
The Bishop of Liverpool

Lord Ramsbotham opened the meeting by saying that this topic had interested him since the time when, as Chief Inspector of Prisons, he had found a boy sitting, rocking, on a bed in YOI Glen Parva. The boy told him that he had been swung by the heels against a radiator by his father, at the age of three months. Staff at the YOI were concerned as to how to deal with him. Lord Ramsbotham then discovered that there was a brain injury unit at St Andrews, Northampton where the work was based on stimulating the brain - the opposite of what was happening in prison. When the Close Supervision Unit at Woodhill Prison was inspected, he asked that the medical records of the 41 inmates, all convicted of serious crimes, be checked for head injuries. 34 showed such injuries, with records incomplete on the others. Since then, he had tried to encourage the Prison Service to take this condition seriously, to complete such assessments at reception, and to recognise the impact on behaviour in prison. 

Thankfully Professor Huw Williams had been producing excellent reports at Exeter University showing what could be done. The timing was important, in the light of the upcoming Children and Families Bill, in which the needs of children with special educational needs would be considered. All children with acquired brain injury would come into that category. Acquired brain injury had not featured in many of those discussions until now. So it was very timely to put this on the agenda, and thankfully there was more evidence now, including a recent study by the Disabilities Trust on the numbers with brain injuries received into Leeds Prison. 

Tonight the focus was on young offenders, however. First Professor Williams would introduce the topic and then the Children’s Commissioner, Dr Maggie Atkinson, would talk about the report she had commissioned from Professor Williams and his colleagues.

Professor Williams began by thanking the meeting for its invitation to speak. He continued: ‘I guess the place to start is to talk about what the brain does, and how it develops, then to think about injuries and why they might be particularly relevant in the context of children and young people.  Our brains at the moment are full of wonder (what’s going to happen next in this meeting?), working memory, and thinking things through. I am looking at the screen over there, on the Crime and Courts Bill, and trying to pay attention to you as well. We also have to hold our impulses in check, not say something inappropriate, and also plan ahead for what to do next.  

The brain is incredibly important and we know that. It is not a static entity, but something that develops over time. A child comes into the world with 100 billion neurons and they come together through the synapses and pathways over childhood and into adolescence to then create the brain the person has throughout their lives. The brain is a dynamic entity, and this is a critical point.

So the brain is a critical organ for behaviour, but it is also developing. A backdrop to what I am going to say about brain injury and the numbers of people with brain injury in the justice system is that many of them, whether adults or young people, may have had injuries when they were young, when the brain was developing. The untoward effects of brain injury at a young age are terribly important, especially considering the Bills coming up about vulnerable children. 

In terms of traumatic brain injury (TBI), the kinds of injury we tend to find are those due to violence, falls, car accidents and so forth, where the brain has been changed to some extent depending on the dosage of injury.  There may be injuries from relatively mild to very severe, depending on the loss of consciousness, which is the dosage effect on the brain. So the individual is left with different degrees of problem, in being able to pay attention, concentrate, plan ahead and so forth, depending on the nature and severity of the injury.

Traumatic injuries of this kind are the biggest cause of death and disability in children, and one of the biggest causes of disability amongst working age adults. So it is a big issue, epidemiologically, and in terms of public health. About eight per cent up to about twenty per cent of the general population may have had a head injury at some point. Typically about eighty percent would be mild injuries. In the prison population they are much higher, as you can read in the report we have produced for the Barrow Cadbury Trust (Repairing Shattered Lives: brain injury and its implications for criminal justice, Transition to Adulthood Alliance, 2012), and our report - led by Nathan Hughes - for the office of the Children’s Commissioner, where we have reviewed the literature around brain injury and its prevalence in people in custody.

A few years ago I visited a prison to do a workshop on memory. We were giving an overview of the brain, what it does, and how to improve your memory. Towards the end of the session, one of the inmates asked me ‘why is it, when I press this part of my head, I get these wonderful sensations, a bit like having a trip?’ I noticed an area of his shaved head where it looked as though there was a square piece of his skull missing, so he was pressing on his own brain. This made me wonder about his care needs, so I advised him to stop pressing the area and seek advice about surgery.  What had probably happened was that he’d had a head injury, a bit of his skull had been removed to decrease pressure, and because he was in prison a replacement titanium plate hadn’t been inserted.  It led me to wonder what the true scale of head injury was in the prison population. There are some very good studies in America and Australia, suggesting the rate is quite high.

In our first study, with adult prisoners, we found 60% reported some form of head injury.  But 16% had had “moderate-severe” injuries, sufficient to change their brains, and to put them at risk of not being able to pay good attention, control their impulses, and remember what has been said to them. This is rather crucial when you come into the justice system, to understand what you have been charged with, and the consequences of your behaviour, and so forth.  When we looked at their crime profiles they tended to have been in prison on a more frequent basis, so their offending was more prolific. Also we found an interesting thread around development, in that if there was a head injury history, these adults were five years younger when they came first into prison compared to the non-injured — an average age of 16 compared to 21.   

We then followed up that study with one in a young offender unit, where we were able to interview 90-95% of those we approached, with an average age of 16 years. They were typically in prison for violent offences and taking without permission and so on. They tended to have the same rate of head injuries, around 60%.  But importantly, 45% had had some kind of knock-out history.  There is increasing evidence in the brain injury literature that the brain, when it is going through these stages of development in adolescence, is more vulnerable.  Those with three or more head injuries were typically in prison for more violent offences. So there is something going on which perhaps means they are not able to hold their anger back,  maybe responding inappropriately, maybe not able to de-escalate a situation which is getting out of control.  Another set of features with this group was that they tended to have a greater risk of mental health problems and problems with drug misuse, particularly of cannabis. 

The studies I have mentioned were with males. There is a lack of research on women who offend and TBI. But what there is indicates similar trends. The rates of brain injury are very high, and the literature that is around, for example Brewer-Smith’s study, found links with domestic violence and forms of abuse, post-traumatic stress disorder, and lots of other complicating issues and vulnerabilities.

So the rates of traumatic brain injury, then, in the prison population, for youths and adults, are relatively high, and associated with more frequent and violent offending. It’s important to note that this cuts across gender. 

One  key issue in the links between brain injury and crime is that it may well be that the people who end up in prison tend to be risk taking individuals, who don’t know or care much about self-care, and would therefore be likely to get a head injury. It’s just part and parcel of their lives. So it may be just a coincidence that they have a head injury and they end up in prison.  There has been very interesting work over the past few years showing that there is a link, an increased risk of crime following TBI. And this work has been developing across a number of countries in different contexts.

One strong study in Finland, a birth cohort study, followed up about 10,000 people over 30+ years.  What they found was that if there was a head injury at some point, the person was four times more likely to become a mentally disordered offender by the time they were 30. In a much stronger study by one of our colleagues, Seena Fazel from Oxford followed up the total population of Sweden, looking at the health care records and crime records. He was able to explore possible links between having a hospitalised head injury and later offending. In the general population of non-injured we tend to find about 3% will go on to commit some form of violent crime. What they found in those with a head injury history, in hospital records, was a rate of nearly 9% – in other words they were three times more likely. Very importantly, they also looked at the siblings of the brain injured and what happened with them. Did they go on to offend? They did, and at a higher rate than the general population – about 4.5%.  So there was a risk from social and family issues that could increase the risk of offending, but when there is a brain injury, that ramps up the risk. That’s the crucial point. 

A very interesting study by Audrey McKinley in New Zealand has been following up children who have had mild TBI at the age of five.  This study shows us at the micro level what might be happening, to give us an idea what interventions might be helpful. 1,000+ children were followed up, and by the time they were six or seven or eight years of age the children with mild TBI relative to the general uninjured population are starting to show problems at school, not able to pay attention or concentrate so well. They start having problems with exclusions. By the time they are twelve, thirteen or fourteen they are starting to fall into problems with the law, tending to do impulsive things that get them into trouble. These are the kinds of issues that lead on to further offending.

What are the actions that could be taken to try to address some of these issues?  The first point would be to try to prevent injuries, and reduce the impact of injuries that occur. Better collaboration between A and E services, and GPs and schools, when children have brain injuries, even when they are concussion type injuries, to make sure that the children are effectively managed when they are back in school, and that they are included, rather than being on track to be excluded. As regards the criminal justice system, the first thing is to make sure that, pre-sentence, there are assessments of whether somebody has any kind of neurological disability or brain injury.  At this point one could think about whether the person can truly participate in the justice system. Are they able to follow proceedings in court, for example? 

When it comes to sentencing, it is vital that any issues relating to brain injury or any other neurological disorders, could be taken into account in the orders or the sentence that is delivered. For example in looking at anger management, or restorative justice, so that account can be taken of problems with remembering, paying attention, impulsivity and so on. And the third thing would be when people come into custody. It is important that we know who has got any kind of neurological disability, because it will probably interfere with their ability to gain from the rehabilitation that might be being offered. That requires screening systems, and again there is some really nice work being done by the Offender Health Management Group on developing a comprehensive health assessment tool for identifying children where there have been multiple disorders and mental health issues, and the Disabilities Trust are trialling a similar system with adults in Leeds. So there are screens which are becoming available, which will help us to be more effective at picking up these disorders so that we can improve the rehabilitation that these kinds of young and older offenders might get. Hopefully in so doing we could enable them to stay in society rather than having to come into custody.’

Lord Ramsbotham thanked Professor Williams very much for his presentation and introduced Dr Maggie Atkinson, The Children’s Commissioner. 

Maggie Atkinson began by saying this was a hard act to follow. She continued: ‘We published in 2011 a report called ‘I Must Have Been Born Bad’. Those were the words of a young offender in a secure setting, interviewed by members of my team. They were talking about the difficulties in getting proper support and help from mental health services whilst they were incarcerated. It became very clear, within the research that was being done as part of that investigative study, that the team was encountering young people who were incarcerated, and who clearly, more than the general population we were meeting in youth groups and school and elsewhere, had some degree of neurological disability. So we commissioned some research, from Huw at Exeter, in collaboration with Nathan Hughes in Birmingham. 

The two universities working together, supported by an expert advisory group of psychiatrists, psychologists, campaigners and our own staff, have published a report which we put out in October of this year called ‘Nobody Made the Connection.’ It is based on a very strong literature review around what the prevalence is of neurodisability in the offending population. If I give you some comparisons, in the general population, the rate of reported prevalence of TBI among young people was between 24% and around 32%. In the custodial group of young people, that percentage is between 65% and 72%.  Foetal alcohol syndrome, which is one of the neurological conditions that you will find in difficult, traumatised and troubled populations, ranges from less that 1% to 5% of children in the general population. In the incarcerated young offender population, it’s anywhere between 10 and 12%.   We were not just looking in this study at acquired or traumatic brain injury, we were looking for research based evidence of the prevalence of neurological conditions in the young offender population much more generally.  The prevalence of conditions like autism, autistic spectrum disorders, attention and hyperactivity disorders, dyslexia, dyspraxia, and specific language difficulties are all higher in the incarcerated young offender population than they are in the comparative cohort of children of their age.

The work for ‘I think I must have been born bad’ led to this study, and what we said in October was this: ‘The failure to identify such disorders is a tragedy in many ways. It directly, certainly negatively, affects the lives of the victims of these children's crimes, of the children themselves, their families, the services seeking to change offenders’ lives for the better, and more importantly wider society. 

Our key message is that it is essential that we learn to identify, much earlier in their lives and their pattern of problems, what their difficulties actually are. Doing so is, surely, the most effective way to avoid the huge individual, social and financial costs of the criminal behaviours they may otherwise continue to display in the longer term.’

I will pause here to remind us all of the well-known unpublished figure that it costs more to incarcerate a young person in a young offenders institution, a secure training centre and certainly a secure children’s home than it would to send them to a top ranking public school as a boarder. 

What we also talk about, in Huw and Nathan’s report, is the co-morbidity of conditions. You may have foetal alcohol syndrome and an acquired brain injury; you may have a specific language difficulty, and a traumatic brain injury, and autism, all stacked up against each other. And you may have had lousy nutrition in a poor household where attachment is atrocious. And you may not have made connections with the adults in your life. So the co-morbidity factors are also higher in the young offending population, both those incarcerated and those in touch with community dispersals and restorative programmes and community rehabilitation.

What we said in October, is that those children with these very complex conditions which the report highlights, may show few or even no overt signs of brain damage, or brain injury. I was a secondary school teacher, and I look back at my troublesome year nines enlightened by this work in the Barrow Cadbury report and the work we have had done since and the research that underpins it all, and I know that the ones who used to end up outside my drama studio rather than in the lesson, were likely to be dealing with some of these conditions. Had I only known, had my training only taught me, about normative and non-normative brain development, about the fragility of the adolescent brain, I might actually have kept them in the lesson rather than standing them outside, and some of them might actually not have ended up being excluded from school.

We said in October that some of them may show no signs of brain damage, or of loss of cognitive ability, or difficulties in managing their feelings of anger, frustration, confusion or distress. Children who are troubled, in my long experience of working with them, learn extremely skilled and sophisticated methods for hiding the fact that they are troubled and need you, rather than that they are troublesome and hate you. There is a great difference between those two things. We said: ‘Given the conditions explored often also entail language delay or difficulties, they may not have the language to understand, still less to describe, their feelings, symptoms, or the difficulties they face in dealing with both. Their feelings, all too often, then spill out into difficult behaviour which, unless it is changed by concerted professional intervention, can become ever more problematic as the child grows up’. Though these children may know the difference between right and wrong, that is not the issue. Children with these difficulties are less likely than their peers to understand the consequences of their sometimes violent and criminal behaviours. They then fail also to understand the processes they go through in the sophisticated linguistic and other coded atmospheres of the court system, of the prison system, of custodial settings, and therefore their difficulties compound each other, and co-morbidities rest on other co-morbidities. It is very difficult then to intervene or to give them the means to address their behaviours. 

We recommended in this report concerted multi-agency action from a public health standpoint: how do you prevent it in the first place? How do you ensure that parenting and families are strong enough and secure enough that nobody needs to hurt their children, that nobody needs to over-chastise, and throw a child or hurt a child or twist a child? How do we ensure that that kind of support is available in our communities, particularly our more challenged communities? 

This is where the work of the Troubled Families Unit comes into play. We recommended, through Huw and Nathan’s extremely good research, and through talking to children and young people in prison, that we need a proper risk assessment tool that is part of the culture of youth justice management. Risk assessment lies at the heart of what we do with young offenders. We need to add assessing the risk of brain injury and other neurological conditions into the stock in trade of youth justice professionals. We need to add to the work force’s training how you spot when brain development is normative and when it’s not. We need to add to the work of Health Watch, Health and Wellbeing Boards, local commissioning arrangements in health, to get upstream of the problem, so that there is a health intervention as well as a youth justice intervention.

I am delighted to have been asked to come and address this group because the work Huw has talked about feeds directly into our work, and the strong recommendations that we are talking to government about through this report. That everybody in the judiciary, magistrates, all the way through to judges, certainly prosecutors and advocates, needs to understand what they are dealing with, that children and young people do not understand rhetorical language at the best of times, and if you have a brain injury or a neurological disability you are still less likely to understand language like: ‘So I put it to you that you went to his house did you not?’

If I am eleven but I am operating at the mental, emotional and cognitive levels of a four or five or seven year old, and you ask me that question, what I will spend my time doing whilst looking at you and you think I am being dumbly insolent, is try to work out what you were asking me. What do you mean when you say ‘put’? Do you mean you gave me something? That you put something down? When you say ‘did you not’ do you mean did I? or didn’t  I? Those are the things that will run through the mind of a child whose neurological development has been severely compromised. They will not answer your questions because they cannot. There is a better way of dealing with youngsters who come from every sort of disadvantage. Many of them will have added disadvantage.

The other part of the realm that I work in as Children’s Commissioner includes some work on education exclusions. The most excluded group from any school in any part of the publicly funded system contains the children with special educational needs. Come at it from the other side of things and look at the young incarcerated population, and the HMIP report from July last year, which looked at 18 year-olds released from custody, concluded from their accounts of their life stories that nine out of ten of them had been excluded from school before the age of 14 and never re-engaged with education. That is not to say that every excluded child becomes a prisoner. It is to say that nine out of ten young prisoners will have been excluded from school. You can bet your bottom dollar that there will be a special need in there somewhere for most of them. This is serious societal stuff, and saving the money that needs to be saved by not locking them up, but intervening early and with all the professionals lined up together, is where we need to get to. So Lord Ramsbotham  is right to see the special needs clauses of the forthcoming Bill as potentially strong grounds for some very mature debates about what we do with our troubled children.'

Lord Ramsbotham thanked both speakers for two very powerful presentations, and encouraged those present not to let this opportunity slip. It was fortunate that this excellent research existed, to inform those who wanted to take part in the debate.