Understanding and supporting the needs of neurodivergent people in prisons is a human rights issue

In this expert blog written for PRI, Louise Finer highlights the urgent need for human rights approaches that consider the unique experiences of neurodivergent individuals in prisons. She discusses the significant overrepresentation of neurodivergent people in the criminal justice system, the critical human rights issues they face and the positive impact of individualised, supportive approaches. Finer calls for a reevaluation of international human rights standards to better address and support the needs of neurodivergent individuals in custodial settings.

Reflecting on the growing awareness of the number and needs of neurodivergent[1] people held in prisons, I believe that it is time for human rights approaches to take account of their particular experiences, needs and challenges. In this blog, I examine three main reasons why this is so important. 

Firstly, because we know that there are significant numbers of neurodivergent people in prisons and in contact with criminal justice systems more generally. There is a growing body of research that is shedding light on the prevalence of neurodivergence and on specific neurotypes[2]. In England and Wales, authoritative estimates suggest half of the prison population may have some neurodivergent condition (compared to 15-20% in the general population). A systematic review of international research suggested up 27% of people in prison have ADHD and recent estimates in England and Wales suggest the prevalence of dyslexia in prisons could be over 50%. There are many challenges to the task of producing conclusive data on neurodivergence. These include the inadequacy of systems for identification and diagnosis, as well as the practical ways of reporting them in databases and internal systems. There is also a good deal of debate about the methods used to calculate prevalence figures. These challenges aside, we can be in no doubt that neurodivergent people are overrepresented in prisons.  

For some if not many of these individuals, the failure to identify and support their needs as children, in education and in community health services, will be a factor in their journey into the criminal justice system. Some people may have been previously misdiagnosed, or may have not sought diagnosis due to unhelpful narratives about neurodivergence. We know that there are high rates of school exclusion for neurodivergent children and many cases of criminal exploitation of autistic people.  

More research is needed to understand whether neurodivergent people may be over-criminalised, for example when distress behaviors, stemming from unmet support needs, lead to criminal charges. Additionally, there is a need to investigate how inadequate support in court processes, including the lack of advocacy, communication aids and speech and language assistance, can further disadvantage neurodivergent people. It is important also to take note of evidence that autistic people are more likely to be victims rather than perpetrators of crime and the need to challenge stereotypes around particular types of crimes and manifestations of neurodivergence. 

Secondly, because differences in the ways neurodivergent individuals experience and are treated in prisons are deeply relevant to issues that are at the heart of human rights protections. For example:  

• Conditions of detention – the sensory environment of a prison may be particularly challenging for autistic people, as are unpredictable regimes and cell-sharing. For people with ADHD, limited possibilities for exercise and movement can be a major challenge. 

• Communication and relationships – neurodivergent communication differences may not be fully understood or supported in the prison environment, leading to misunderstanding, misinterpretation and bullying by peers or staff.  

• Restraint and use of force – many autistic people will have experiences of restraint, punishments and other restrictive measures in education settings that have resulted in trauma. For example, autistic ‘meltdowns’ (a state of overwhelm over which the  person has no control), which may be provoked by the environmental and communication challenges indicated above, might be misinterpreted and lead to restraint or force being used. Conversely, some de-escalation methods may heighten the stress of some neurodivergent people.  

• Segregation and solitary confinement – the extent to which segregation units may be used as a refuge for autistic people who have “engineered” their move to avoid noise or cell sharing needs to be considered. Additionally, it is important to determine whether unmet neurodivergent needs are relevant to the grounds for imposing segregation. Similarly, the needs of neurodivergent people in segregation must be met, such as providing regular physical activity for a person with ADHD. 

• The right to a fair hearing – To what extent is a person with a learning disability and/or autism supported during a prison disciplinary process to ensure they understand the proceedings and are treated fairly? 

•  Are these processes adequately capturing the perspective of the person who may not have understood an order, or whose response to a situation may have been mis-interpreted?  

• Healthcare – we know that autistic people generally are more likely to develop chronic physical and mental health conditions and so the particular healthcare needs of neurodivergent people in prison must be understood and supported, with healthcare delivered in appropriate ways to ensure that they can access and engage. This will need to include access to medication (eg ADHD medication), adapted mental health therapies and access to health-based diagnostic pathways.  

Thirdly, it is important because neuro-affirmative, individualised approaches to supporting neurodivergent people in custody can have a positive impact on their experiences and wellbeing. There is a long way to go – a recent research report found that 70% of neurodivergent people interviewed in prison and on probation had no adjustments made to support their needs, and 76% felt staff did not understand their needs. It is therefore encouraging that the England and Wales Prison Service has reported a reduction in self harm and violence on its specialist wing for neurodivergent people at HMP Pentonville. Improvements have occurred with training, as well as the increased visibility of neurodivergent people and concern for their particular needs.  

“I loved the NDU [neurodiversity unit] and it helped me on loads of different levels. I went from unemployed to workshop laundry orderly, then #7 servery worker and also Wing Rep, which is a very trusted position. I even got my Enhanced status for only the third time in 20-plus years of a prison career. I was seeing therapists weekly, psychologists, and taking part in groups daily. I was growing as a human being; I was learning about my self-worth.”

-Stephen R in Inside Time 

Once we acknowledge that there is a human rights case for considering the particular needs, vulnerabilities and challenges faced by neurodivergent people in prison, we must turn to the question of whether the international human rights standards, guidance and analysis we already have can adequately support them.  

Apart from two important but limited references to “developmental disability” and “sensory disability” in the Nelson Mandela Rules and the inclusion of an important but brief section on prisoners with neurodivergent conditions in the UN Special Rapporteur on Torture’s recent report on prison management, key international standards do not explicitly speak to the needs or experiences of neurodivergent people in prison. Which raises the question: were the needs of neurodivergent people presumed to be captured by provisions on mental health, intellectual disability, or ‘mental disability’, -terms which we are so used to seeing in key documents such as the Nelson Mandela and Bangkok Rules? Or were their needs and experiences insufficiently understood and presumed to conflate with these terms? While there may be many ways in which the terms interconnect (e.g., some autistic people may also have a learning disability and many neurodivergent people will experience mental health issues) we cannot presume this, and these terms cannot be proxies.  

This is not just a terminology issue. This is about ensuring that crucial differences and experiences can be captured. Neurodiversity itself is an umbrella term, under which there is enormous difference and diversity of individual experience. This sits firmly within the scope of the non-discrimination principle which, as the Nelson Mandela Rules so unequivocally state, requires prison administrations to “take account of the individual needs of people in prison, in particular the most vulnerable categories in prison settings”.  

I believe that articulating the need to understand and support neurodivergent people in prison through the human rights framework will provide essential underpinning to those of us who seek to remind politicians, policy makers, prison management and staff, that one-size-fits-all approaches will not work. By failing to support the needs of neurodivergent people in prisons we risk discrimination, injustice, potential ill-treatment and make rehabilitation harder. As the UN Special Rapporteur on Torture recently acknowledged, “the threshold for what constitutes ill-treatment may be lower for neurodivergent prisoners”. Importantly, more explicit articulation of the human rights framework relevant to neurodivergent people in prisons will give authoritative support when arguing for necessary adaptations. These may need to include enhanced entitlement to exercise or time out of cell, adjustments to the way prison processes such as disciplinary hearings are run, exceptions to rules that could be detrimental to the wellbeing of a neurodivergent person, and others. A human rights based framework may also help us to navigate the risks of future efforts that may be well-intentioned, but which could exacerbate marginalisation or infringe on other rights. 

To achieve this, we must make rigorous efforts to hear, learn from and be informed by the experiences of neurodivergent people themselves, as has been the case in important work conducted in the UK by User Voice and Revolving Doors. And the human rights world would benefit from familiarising itself with the important body of research and practical tools that guide health, education and other services to understand and respond to the needs of neurodivergent people. In the UK, examples include the “SPELL framework”,  the “experience sensitive approach” as well as major training programmes including the ground-breaking National Autism Trainer Programme which is influencing practice across criminal justice and health settings, and which could be replicated elsewhere.  

Endnotes:

1. A note on terminology: there is now broad acceptance of the neurodiversity paradigm that moves beyond an out-dated deficit-based understanding of neurodevelopmental “disorders” towards the understanding that all human beings have unique brains and experiences. The term neurodivergence “represents groups of people whose communication, processing, perception and interaction permanently diverges from what would be considered ‘typical’ in a multitude of ways, but similarly enough collectively for them to be considered an identifiable group.” (Kieran Rose 2022) 
2. There is no conclusive list of neurodivergent or neuro-developmental conditions, many of which may co-occur, but these are widely understood to include autism, ADHD, dyslexia, dyspraxia, Tourette’s Syndrome, learning disability and acquired brain injury.