Sentencing Seniors: The Need for “Dementia-Friendly” Prison Environments

In recent years, the sentencing of an increasing number of offenders over the age of 65 has been evident in Australia, predominantly in relation to sexual offences.

There are a number of factors influencing this trend, including increased life expectancy with medical advances, the investigation and prosecution of historical sex offences, and increasing use of online technologies for sexual offending behaviour. Recent data published by the Australian Institute of Criminology reported growing evidence of live streaming technologies being used to facilitate child sexual abuse by older Australian males (e.g., online sex tourism by Australians exploiting Asian children). This behaviour increased during COVID-19 lockdowns most likely due to travel bans preventing sex tourism. The data from the analysis of financial transactions for Australians paying for live streaming of child sexual abuse showed that the average age of males engaging in this behaviour was 59, and extended upwards to age 82. This is one example of a current trend that has led to the incarceration of older offenders in Australia, some for the first time in their lives.

In addition to newly sentenced individuals over the age of 65, the prison population is aging commensurate with the broader community. Long-term prisoners are more vulnerable to the earlier development of health problems such as dementia due to heightened risk factors such as social isolation, acquired brain injury, and alcohol and drug abuse history.

Dementia is a progressive neurological condition, defined by impairment in multiple cognitive domains (e.g., memory, attention, reasoning, moral processing, visuospatial, language and behaviour) that significantly interferes with activities of daily living (e.g., personal grooming, feeding, toileting, mobility, and sexual behaviour). Dementia is a heterogenous description for a broad range of neurological conditions including Alzheimer’s disease, Frontotemporal dementia (FTD), vascular brain disease, and Lewy Body Disease. Dementia is essentially the progressive loss of brain functioning due to structural changes in the brain over time (e.g., nerve cells in the brain and their connections stop working properly).

Impaired executive function and memory loss increase the risk of criminally vulnerable behaviour in individuals with dementia (e.g., sexual offences, acts of aggression, shoplifting, and unsafe driving). Notably, not all individuals with dementia will commit crimes. However, symptoms of dementia may lead to behaviours that violate social norms and result in criminal charges. There is no clinical evidence to suggest that dementia will change pre-morbid sexual attraction (e.g., heterosexuality, homosexuality or pedophilia), however the expression of an individual’s sexual interests may become more disinhibited with the progress of dementia, and the sexual drive can become more intense and demanding as dementia progresses in some individuals (i.e., this symptom is termed hypersexuality). This can result in aggressive and sexually violent behaviour. These issues can place spouses, partners, personal care providers, nursing home peers, health staff, and members of the general public at risk of violence and sexual violence.

The evidence-based literature presents international data on the correlation between dementia and offending behaviour, particularly in relation to acts of aggression and sexual offending behaviour. This correlation is related to the decreased behavioural control and increased behavioural disinhibition that is associated with dementia. The literature also details the social and ethical concerns regarding the incarceration of elderly offenders with dementia, and if incarceration is the only option, how to best equip prison environments to provide the required supports and health services for elderly offenders to survive.

With respect to the prosecution of charges against the elderly, issues of insanity defence, fitness to stand trial, and Verdins considerations may require assessment during various stages of the legal proceedings. As dementia is progressive, deterioration in capacity may occur if the legal proceedings take a lengthy period to resolve, and assessments at different points in time may be needed to ensure the defendant is able to instruct and fairly participate.

The Verdins limbs provide important considerations for sentencing elderly defendants in criminal law matters when the defendant has impaired mental functioning at the time of committing the index offence and/or at the time of sentencing. The Verdins limbs include consideration of how the defendant’s mental health problems may be relevant to the sentencing process with respect to: moral culpability, the nature of the sentence and the conditions in which it should be served, general and specific deterrence, and the impact of imprisonment on mental health. Aside from general health concerns such as depression, anxiety and trauma, elderly offenders are at significant risk of presenting with impaired mental functioning due to dementia processes. These issues may or may not have been present at the time of the offending behaviour, but due to delays in prosecution procedures the defendant’s cognitive status may be of concern at the time of trial and sentencing. This may raise issues of fitness to stand trial, and Verdins considerations regarding the impacts of incarceration as a sentencing option. In addition to dementia, there may also be other physical health issues for elderly defendants that pose challenges for care in a prison environment if incarceration is the sentencing outcome.

The international evidence-based literature provides models for “dementia friendly” prisons, which apply the broader knowledge regarding dementia-friendly communities to the prison setting. The models include: prioritising education regarding dementia for prison staff; training for prison peer-supporters; providing opportunities for prisoners with dementia to engage in activities that they are able to do and to promote their wellbeing; designing accommodation units that are user-friendly for prisoners with dementia; limiting disruptive changes to the environment during the prisoner’s sentence that can increase confusion and disorientation; increasing contact with family and access to memory prompts such as photos of family, home and pets; providing appropriate health aids to assist with mobility and self-care; providing prisoner access to medical and allied health specialists in dementia care; providing routine assessments of cognitive impairment in standard health checks for prisoners aged over 50; and ensuring that prisoners are engaged with referral pathways to dementia-support services prior to release.

Specific examples of features of “dementia-friendly” prison environments, according to a review undertaken by Alzheimer’s Australia in 2014, include: visual aids such as large print signage and pictures, calendars to indicate the date and routine events, handrails, non-slip floors, absence of stairs, peer or staff supported meal-times and walking routines, and brain-stimulating activities such as the use of music, card games, Tai Chi, gardening and art.

In terms of structural solutions, there are prisons that adapt existing accommodation units to be more “dementia-friendly” and who dedicate dementia-trained staff to that unit. Other prison systems that are more well-resourced have designed and established new facilities that are fit for purpose. Purpose-built facilities that are based in the broader community are more likely to attract specialist health staff to service to work in the unit, and are more likely to integrate effectively with family visits (e.g., able to provide a more welcoming environment for families).

The Tasmanian Prison Service is currently very limited in the resources and accommodation available for elderly prisoners. Discussions are currently taking place between Health and Justice staff regarding how to best utilise the options available, however the available resources seem to fall well short of the current and increasing demands. Just as there is a current focus on the increasing needs of the ageing population in Australia in the broader community, consideration is required regarding the specific needs of elderly prisoners, not only for their safety and wellbeing, but for broader community risk management.

Tasmania is fortunate to have the Wicking Dementia Research and Education Centre (UTAS) which currently offers highly accessible free MOOC (Massive Open Online Course) training in Understanding Dementia, Understanding Traumatic Brain Injury, and Preventing Dementia. For legal practitioners and other professionals working within the Justice system, these courses may be a helpful professional development activity. More information is available on the website: mooc.utas.edu.au The Wicking team is also keen to provide professional development seminars for interested organisations to increase community awareness of dementia.

Dr Georgina O’Donnell
Forensic and Clinical Psychologist