“INDEFINITE DETENTIION OF PEOPLE WITH DISABILITIES”

‘Nobody should be sent indefinitely into detention; everybody should have their day in court. “

Indefinite Detention has been defined as ‘all forms of secure accommodation of a person without a specific date of release... [including] detention orders by a court, tribunal or under a disability or mental health act and detention orders that may be time limited but capable of extension by a court, tribunal or under a disability or mental health act prior to the end of the order.

People with impaired capacity are overrepresented at every stage in the criminal justice process, as victims, suspects, defendants, offenders, prisoners and repeat offenders. This overrepresentation is costly to people with disabilities and their families and costly to the community and taxpayer, who fund policing, judicial and corrective institutions.

Persons with an intellectual, cognitive or psychiatric impairment who are Aboriginal or Torres Strait Islander are doubly disadvantaged, with the significant overrepresentation of these people well recognised.

Concerningly, a significant number of the people with intellectual, cognitive, psychiatric impairment who are indefinitely detained are deprived of their liberty for minor offences. A recent article in The Conversation mentioned recent cases involving persons deemed unfit to stand trial – one of whom was incarcerated for ten years for a crime he didn’t commit and another who was detained for nearly two years for relatively minor driving offences.

The article cites a current estimate that at least 100 people are currently detained in Australia in similar circumstances, over half of which are Aboriginal or Torres Strait Islander. 18 The incarceration of these people, for a period that exceeds the length of time they would have been imprisoned even if convicted of the relevant offences, for reason of their deemed incapacity, is of great concern from a human rights perspective.

There has been little research on the experiences of persons with intellectual, cognitive or psychiatric impairment within prisons and detention facilities within Australia. This is an appalling omission, particularly given that the research that has been done paints a dismal picture of their experiences.

It is now well known that the conditions of institutional settings can give rise to incidents of violence, abuse and neglect of people with disability within them. The ‘closed’ nature of institutional settings makes it difficult to detect, investigate and prosecute acts of violence, and the lack of reporting of violence and ‘cover ups’ by staff and management of institutions can prevent adequate investigation and prosecution of offences of this nature.

In 2013, the United Nations made an urgent call for investigations into violence against women and girls with disability in institutional environments. While these recommendations remained largely unaddressed for a significant period, a Senate inquiry into violence, abuse and neglect of people with disability in institutional and residential settings was recently instigated.

Prison in general and seclusion in particular may harm prisoners who already suffer from a mental illness. Institutionalisation and the control mechanisms such as segregation units and safe cells adversely affect inmates’ mental health. Solitary confinement is a known cause of psychotic behaviour. The experience of solitary confinement is ‘psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term emotional and even physical damage’

The Queensland government’s Forensic Mental Health Service is responsible for forensic services in and out of jails. They are not funded to provide professional psychological services to prisoners: a missed opportunity, for prison is an effective, if not ideal, location for therapeutic intervention.

For prisoners, the programs are a means to earlier release: willing completion strengthens a parole application. Of the approximately 10,000 people released from Queensland prisons each year, just 35 percent will have completed an intervention or transitions program prior to release.

It is not uncommon for prisoners with intellectual impairment to find it impossible to complete mainstream programs, yet a prisoner who has not been seen to address their offending behaviour is less likely to be granted parole.

Concerningly, there are a number of people who are indefinitely detained simply because they have fallen through the gaps. A principal reason is the person’s lack of fitness to plead - a sticking point that is far more common in relation to people with intellectual disability than topeople with mental illness. Lack of fitness to plead is the principal ground for the diversion of people with intellectual disability into the forensic system.

The natural justice reasoning behind it is that a person who cannot understand court processes cannot be fairly tried. The result, however, is that some people with intellectual disability do not get their day in court, and those who have committed serious offences may be locked away indefinitely rather than given the supports and training they need.

Approximately one in three people appearing as defendants in Queensland’s criminal courts have a degree of intellectual disability, yet little is done to adjust court processes to their needs. People with intellectual disabilities and others with diminished capacity may have considerable difficulty understanding court proceedings, yet out of longstanding habit, resignation and a fear of stigma they may not seek explanation or assistance.

Participation in general criminogenic rehabilitation programs offered by Corrective Services requires that participants be ‘responsive’, making it difficult for some prisoners with intellectual impairments to take part in those programs, gain early release and transition back to the community when they are released. It is up to Corrective Services to modify those programs, or adopt inclusive programs, so that people across the spectrum of intellectual capability can participate equitably.

The major problem, however, is the absence of affordable and secure post-prison accommodation. Persons with mental illness or intellectual disability are often segregated from the rest of the prison population or are under protection and may therefore have restricted access to programs and services. The parole board may be disinclined to release people with an intellectual disability because they have not participated in appropriate prison programs.

The lack of legal representation of many people with disability is directly counter to the recommendations of the CRPD, which places a strong emphasis on the importance of representation and advocacy for persons with disability. Article 12 of the CRPD demands that persons with disability be provided with the support they may require to exercise their legal capacity, while Article 13 requires that they be given effective and equal access to justice.

The right to legal representation is critical, and therefore it is highly concerning that it is not translated from the CRPD into Australian law, policy or practice. It is also discriminatory, as it is less favourable treatment on the basis of impairment, when compared with the right to legal aid provided to those without disability facing potential incarceration or like orders.

Even presuming the adequacy of advocacy support, many features of the criminal justice system are presently unjust and inequitable for people with an intellectual, cognitive or psychiatric disability. The criminal justice system, which has many limitations for people without disability, treats people with disability in a disproportionately harsh and inequitable way, where this system should specifically include features for their protection.

The criminal justice system is not designed to properly respond to people with intellectual, cognitive or psychiatric impairment or their support needs, notwithstanding their significant overrepresentation. A number of factors, including police procedures and the rules and requirements of court proceedings, actively disadvantage these already disadvantaged persons.

The indefinite detention of persons with an intellectual, cognitive or psychiatric impairment in Australia is a grave human rights concern. That we as a society can sanction locking up a person from an already wounded and disadvantaged group in society for an indefinite amount of time is contrary to many basic tenets of international human rights law and also challenges our national identity as a fair and humane country.

Imprisoning and detaining people with an intellectual, cognitive or psychiatric impairment in prisons, forensic and mental health service units is a costly business. It is incalculably costly from the perspective of the human rights violations and lost lives of those subjected to this But even from a pure economic analysis, it is too costly – the government can better spend its resources than on indefinitely detaining its vulnerable.

Sadly, it is trite to note that the marginalisation and disempowerment of vulnerable people, such as those with intellectual or cognitive impairment and forensic needs, is heightened by isolating them from the community. The decline in functional familial and social support networks and consequent lack of access to a supporter with the knowledge and ability to effectively advocate for their rights is a predictable result. These are also people who are seldom accorded sufficient attention in the popular press and therefore their plight continues largely unnoticed.