Prisoners with intellectual disabilities held under custodial intervention orders in Australian jails are being denied proper healthcare in contravention of international law, an investigation by Central News can reveal.

Lack of facilities and properly trained staff, poor funding, and disagreements between federal and state governments over who is responsible, all contribute to vulnerable prisoners slipping through the cracks.

Documents obtained by Central News through the Freedom of Information Act reveal that while one in three prisoners in the Australian justice system have some form of disability, there are only 1,240 National Disability Insurance Scheme participants around Australia listed as ‘likely to be incarcerated’.

A little under 10 per cent of those participants do not currently have an approved plan – approximately 106 prisoners. A wider group of prisoners living with intellectual disabilities who have been unable to apply or had applications rejected may also have been effected by inadequate screening measures. And, additionally some prisoners who are on an NDIS plan are being held arbitrarily for longer than their sentence because their plan is insufficient to release them back into the community.

Australia’s lack of provision for these prisoners is in direct contravention of the United Nations Declaration of the Rights of Disabled Persons and the UN’s Nelson Mandela Rules for Protecting the Rights of Persons Deprived of Liberty by not providing full access to the NDIS for people with disabilities in custodial settings.

“The problem that we’ve got is that the majority of people with disabilities in prisons are not in need of ramps or handles in the bathroom,” said Australian Federation of Disability Organisations National Manager, Patrick McGee (pictured above).

“They’re needing specialist inclusive support, specialist behaviour support, specialist guidance on getting through the day.”

The NDIS has agreed that it will provide transitional support coordination for people with disabilities in custodial settings six weeks prior to their release. However, Mr McGee, believes that this process is impractical as jails are not given sufficient time to assess and process the needs of people with disabilities prior to their release.

“Most people with disabilities go in and out of prisons within six months,” said Mr McGee. “The process itself is not even set up to ensure that anyone can get access to anything because that six months is way too quick for them to act.”

Articles 12, 13, 15 and 16 of the UN Declaration of the Rights of Disabled Persons state that people with disabilities must have equal access to health and welfare within the criminal justice system, must not be discriminated against and must not face cruelty, abuse or unusual punishment. Similarly, the UN’s Mandela Rules state prisoners must have access to health care that is equal to the standard delivered to the wider community.

NDIS graphic

In Australia there are 43,073 prisoners nationally. In NSW prisons and forensic hospitals currently 374 men and women in custody with intellectual disabilities are on an NDIS plan.

Whilst there is no current legislation denying access to the NDIS for people with disabilities in custodial settings, the Council of Australian Governments (COAG) agreed applied principles and table of services (APTOS) only allow for limited support and reasonable adjustments to be covered by the NDIS in prisons.

“The NDIA is committed to ensuring participants have the reasonable and necessary disability-related supports they need,” said a spokesperson from the National Disability Insurance Agency.

“The NDIS funds reasonable and necessary supports in relation to the participant’s functional impairment required while the person is in custody. The NDIS was not designed to replace other mainstream government services such as justice, health, education or housing.”

Whilst a small number of individuals have been granted access to NDIS planning, experts have argued that the level of care provided does not meet the needs of most people with disabilities in custodial settings.

If an individual with a disability is not able to find adequate care or support from an NDIS provider, the correctional facilities are put in the difficult position of holding those individuals in arbitrary detention or releasing the individual into harmful situations.

Currently incarcerated in the Northern Territory, Tony* lives with a cognitive disability in the form of a severe mental illness and was sentenced to three years in jail under a custodial supervision order after he was found not guilty of a violent offence due to mental impairment. He has since served seven months longer than his term due to a lack of transitional community support from the NDIS.

In order to be released, Tony would require one-on-one 24-hour supervision to ensure his health and safety, and to ensure he does not reoffend.

In a letter received by Tony’s mother, the NDIS stated it would not provide the necessary support that would allow Tony to be released due to “his current custodial supervision order, as per NDIS rules and mainstream agencies agreement”.

The breaches of human rights in both prisons and forensic settings are pretty bad. It’s arbitrary detention, cruel and unusual punishment; serious level human rights abuses.

In a statement to the National Disability Insurance Scheme Quality and Safeguards Commission in May, Tony’s lawyer, Russel Goldflam detailed the discrimination faced by Tony in this process.

“This impasse so far has [had] him spend seven months longer in jail than he would have if he hadn’t been suffering from that disability in the first place,” said Mr Goldflam. “Ultimately, he wants to go and live with his father and be medically cared for. That would be the best thing for him.”

Currently, the Northern Territory, South Australia and Tasmania do not have forensic hospital settings for the custody of individuals who have been found not guilty of an offence due to mental impairment and sentenced to custodial supervision orders. Individuals with mental impairments who are remanded under such orders in these states are currently placed in prisons to serve their sentence.

“The breaches of human rights in both prisons and forensic settings are pretty bad,” said Mr McGee. “It’s arbitrary detention, cruel and unusual punishment; serious level human rights abuses.

“Normally, if you’re an NDIS participant and you have an NDIS plan you can go to the QASC if you’re in conflict with them. Funnily enough, if you’re in a forensic setting, because it’s a state-funded setting, you can’t go and seek resolution of rights-based issues to the QASC.

“That’s not the truth of it, the truth of it is it’s open at anytime it’s just the mechanics and the logistics of it aren’t there. So anyone who’s put on a plan in prison at the moment has to be a) there longer than six months, b) the prison has to know that they have a disability.”

He added some prisons are screening people now but not all.

“Queensland is about the only state that’s doing active screening and the ACT (Australian Capital Territory),” he said.

Long Bay Correctional Complex Forensic Hospital

Forensic hospitals, like that at Long Bay Jail in Sydney, often house inmates who have been found not guilty of an offence due to mental impairment. Photo: Grace Stranger.

“Effectively the prison is the mechanism through which the person who needs the NDIS would be referred. Usually it would be a social worker or project person who works in that prison who makes sure that everyone who’s got a disability is referred to the NDIS.

“But the framework in which you can catch persons with disabilities in prisons is pretty weak. So you’re not gonna get anyone who’s in there less than six months and you’re not gonna get anyone who doesn’t look like they’ve got a disability.”

Australians for Disability Justice currently estimate over 1,000 people with cognitive disabilities are imprisoned in Australia each year. Up to 30 per cent of those incarcerated with cognitive disabilities are Indigenous. Research has also shown that individuals with cognitive impairment are three to nine times more likely to be incarcerated than their non-disabled counterparts within New South Wales.

In recent years, Australia has routinely been held to account by United Nations member countries over its human rights record regarding its detention policies. Earlier this year the Australian government appeared before the UN Human Rights Council for its Universal Periodic Review to answer questions on the high rates of incarceration for First Nations peoples.

Not only do the state and federal governments bear the social cost of high incarceration rates but also the economic costs. Research from the University of New South Wales has revealed that without proper support and early intervention, the cost of prison and crisis support to the government across the lifetime of one individual can be as much as $1 million per annum.

Initiatives and programs have previously been established to limit the incarceration rates of people with disabilities. The Cognitive Impairment Diversion Program which ran through the Gosford and Penrith local courts was established to divert people with cognitive disabilities who had committed low-level offences away from the criminal justice system and into community-care services.

A report presented to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability showed the program reduced recidivism by 11 per cent for people with cognitive impairments. However, the Attorney General deemed the program unsustainable and ceased funding it in June 2020.

“None of this stuff is easy and no one cares about it. This is about either people who’ve committed crimes, black people who have committed crimes, or it’s about people with disabilities in prisons which is really hard to comprehend,” said Mr McGee.

The problem that we’ve got is a matter of political will. Because everyone knows what to do and everybody knows how to do it.

Concerns have also been raised in recent years over the use of chemical restraints, restraint chairs and spit hoods for people with disabilities in custodial settings. Mr McGee is currently the custodian for an Aboriginal man living with an intellectual disability, Malcolm Morton, whose case was referred to the United Nations Human Rights Council in 2016 after he was repeatedly tied to a restraint chair and injected with the anti-psychotic drug olanzapine.

“The self-harm policy is written for people with capacity, but they’ve got all these people without capacity in prison right now who are self-harming,” said Mr McGee. “So, the intervention is based on the fact that if we intervene and restrain you, you’re gonna go ‘right I’d better not do that again.’ Whereas that doesn’t work without capacity.”

Adequate funding, policies and procedures that would ensure not only the health and safety but the rehabilitation of people with disabilities in the criminal justice system remain an issue despite numerous submissions to both the NDIS Quality and Safeguards Commission and the Disability Royal Commission, according to Mr McGee.

“The problem that we’ve got is a matter of political will,” he said. “Because everyone knows what to do and everybody knows how to do it, it’s just that we don’t want to.”

Speculation remains surrounding the leaked changes to the NDIS regarding the removal of access to the NDIS by people with disabilities in custodial settings entirely. Whilst reporting has suggested that Minster for the National Disability Insurance Scheme, Senator Linda Reynolds, has signalled a pause in the controversial reforms, the Minister’s office is yet to provide an official statement on plans to stop any of the proposed reforms.

*Name has been changed for privacy reasons.

Main image of Long Bay Jail and Patrick McGee supplied. Canva graphic.