Who is Diverted?: Moving Beyond Diagnosed Impairment Towards a Social and Political Analysis of Diversion

Publisher:
Sydney Law School
Publication Type:
Journal Article
Citation:
Sydney Law Review, 2016, 38 (2), pp. 179 - 206
Issue Date:
2016-01-01
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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.
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