Tricky question of how to deal with 'hidden' disabilities

GARY McKinnon never denied that he had hacked into dozens of US military computers during most of 2001 and early in 2002. Nor did he deny that he knew it was unlawful to do so.

He did explain freely that he had become obsessed with his pursuit of evidence that the US military had information about UFOs that it was withholding from the public.

His obsession grew to the stage where he lost his job and his girlfriend because he was up all night hacking away. His friends and family urged him to stop but he couldn't.

It was only after the US government came for him and sought his extradition for trial on serious charges that might lead to decades in jail that Gary McKinnon became national news and was interviewed on TV.

One of the TV millions was a man who believed he recognised McKinnon's behaviour as indicators of Asperger syndrome, a condition on the autism spectrum often associated with people who are of above average intelligence but display characteristic autistic difficulties with comprehending social interaction.

The viewer had Asperger syndrome himself and got in touch with Richard Mills, research director of the National Autism Society, who in turn contacted McKinnon's solicitors to suggest McKinnon be assessed.

He was seen by Dr Thomas Berney, a consultant in developmental psychiatry, and by Professor Simon Baron-Cohen, professor of developmental psychopathology at Cambridge University – but forever condemned to be known as "Ali G's smarter cousin".

They both agreed that McKinnon suffered from an autistic spectrum disorder and specifically identified him as characterising Asperger syndrome.

Baron-Cohen summarised the clinical condition as: "Asperger syndrome (AS) is a major subgroup on the autistic spectrum. The other major subgroup is classic autism. Both are diagnosed on the basis of difficulties in social and communication skills, from childhood onwards. Both also share the features of unusually narrow interests and strongly repetitive behaviour/resistance to change/need for sameness.

"These lead to what are called 'obsessions', though the term 'strong, narrow interests' is a preferred term. Asperger syndrome differs from classic autism in that the latter can include additional learning difficulties (below average IQ) and invariably includes a history of language delay, whereas the former does not."

The diagnosis was incorporated into McKinnon's appeal to the House of Lords asking that the extradition order be refused on the basis that his human right to be protected from inhuman or degrading treatment or punishment. His solicitors argued that imprisonment in the United States would be likely to affect adversely his mental health.

The appeal was rejected by their Lordships last month.

While McKinnon's legal team are considering what legal options they have left, the implication of their pleading was that he would fare less well in the US than he, or fellow sufferers with Asperger syndrome would in the United Kingdom.

The evidence on this is mixed. There are few statistics, not least because the condition is often unidentified. After all, Gary McKinnon had gone through his entire school career and several years of contact with the criminal justice system without his obsessive behaviour being recognised as a clinical condition.

Jenny Talbot, programme manager of the Prison Reform Trust, says: "People with Asperger syndrome look 'normal'. They may have a high IQ and be articulate within their own terms. Not only that, they may actually be resistant to being diagnosed. They don't want to be seen as having 'a condition'."

The statistics show that people with learning difficulties or learning disabilities are many times more likely to be victims than perpetrators of crime.

However, the Prison Reform Trust published a report last year – "No One Knows" – that estimated 20 to 30 per cent of offenders have learning disabilities or difficulties that interfere with their ability to cope within the criminal justice system.

Dr Nancy Loucks, chief executive of Families Outside, a Scottish charity that campaigns on behalf of prisoners' families, contributed the Scottish perspective to "No One Knows" and estimates that a quarter of the Scottish prison population has some sort of formal learning difficulty or disability. She also estimates a further 20 per cent have a "hidden disability" such as Asperger syndrome or dyspraxia – conditions that affect more men than women.

In numbers, that means around 1,600 of Scotland's daily prison population that teeters over 8,000 may have such a hidden disability.

Dr Loucks says: "The problem always comes back to diagnosis and the fact of life that, if the condition isn't identified and diagnosed, then it won't be well managed. The Scottish Prison Service isn't resistant to adapting its practice where it can. It's very keen to find ways of working with the diagnosis when it is made."

Currently, the Scottish Prison Service does not routinely screen prisoners for autistic spectrum disorder. However, the service is assisting a project to test the validity of a new screening instrument for autism in a number of prisons and young offenders institutions. The project is being run by a team from Edinburgh University and the charity Research Autism.

Richard Mills of the charity says the screening tool is a 20-question questionnaire that will be given to all prisoners on admission. A score that indicates an autistic spectrum disorder will underpin a move to full diagnosis: "The point of the project in the first instance is to see whether it works when the questionnaire is administered by professionals," he explains. "Then we have to see whether it will be robust enough to work on a more routine basis in prison. Up to now it has been a bit rough and ready. You might get asked what school you went to. If it was a special school of some sort the right box might get ticked. But if you say 'Eton and Cambridge University' you are unlikely to get put down as having special needs."

Scotland was chosen for the pilot because its prison population is relatively stable in the sense that most English prisons "are like railway stations" with prisoners transferring in and out with unsettling frequency.

The National Autistic Society Scotland suggests that, while people with Asperger syndrome appear significantly more likely than average to bump up against the criminal justice system, they are not so likely to get a custodial sentence,

When they do they often fare badly in prison. Their condition places a high reliance on routine and a sudden change may lead to refusal to comply because, in their terms, they do not understand what has happened. In prison terms that may be seen as a disciplinary matter.

Asperger syndrome is often associated with sensory difficulties – bright lights or certain noises can cause discomfort and provoke a reaction. Sufferers do not like to be touched and may lash out to their own disadvantage. Prisoners with the syndrome are more likely to be exploited or bullied by fellow inmates because of their suggestibility.

They are therefore more likely to commit further offences in prison that may result in the original term being extended. But should they have been in prison in the first place?

If criminal responsibility requires the mens rea to be established, can that apply to a man or woman with an autistic spectrum disorder?

"Yes and no," says Richard Mills. "It is often the case that the person will know he or she is doing something wrong but not have the capacity to understand the enormity of the offence. On other occasions they may not understand that they are committing an offence if it is part of their obsessive behaviour.

"For example, folk with Asperger syndrome appear less likely than average to be involved in crimes such as theft or violence. They are over represented in computer crime and stalking. In connection with stalking, they may not mean any harm to someone who has become a focus of their obsession, but they are unable to comprehend that the object of their attention has become alarmed. They are also more prone to 'getting back' at people who have done them wrong in some way.

"The headline message," he adds, "is that the criminal justice system, the prisons and the offenders themselves will all benefit from better understanding of the condition, better diagnostic tools and above all very assertive outreach and after care for those who fall foul of the criminal law. Even at its best a prison is still likely to damage someone with Asperger syndrome."

ASPERGER SYNDROME

A NEUROBIOLOGICAL condition, Asperger syndrome is named after the Austrian doctor – Hans Asperger – who first documented its effects.

In the 1940s, he observed a group of young boys who displayed certain patterns of behaviour despite seeming to possess normal intelligence and development levels. It was not until 1994 that the condition was officially placed on the autism spectrum.

The disorder causes sufferers to exhibit a range of behaviours that can include possession of poor social skills and undertaking obsessive or repetitive routines. People with the syndrome can become fixated on a particular subject and dislike change.

The condition can impair social interaction, both non-verbal and verbal. People with it find difficulty in offering emotional reciprocity. Because of excessive repetition and abnormal inflection, the speech of some individuals can seem odd, even if it is grammatically correct.

There is no cure or specific treatment for the disorder, but its symptoms can be addressed by psychotherapy, modification of behaviour and education. In some cases, extreme behaviour may be treated with drugs.