The provision and continuation of services for NDIS participants in receipt
of forensic disability services
The final chapter of this report deals with term of reference (h) the
provision and continuation of services for NDIS participants in receipt of
forensic disability services.
The vast majority of people with disabilities who come into contact with
the criminal justice system have some form of cognitive disability, including
intellectual disability; mild to borderline intellectual disability; acquired
brain injury and foetal alcohol spectrum disorders.
The overwhelming majority of these individuals also experience a range of
psychosocial disabilities related to mental health impairments. The combination
of these issues impacts significantly upon the person's daily functioning, very
often resulting in compounding social disadvantage and complex support needs.
People with psychosocial disabilities are overrepresented in the
criminal justice system. This is often directly related to the interacting
factors of disability, disadvantage, discrimination, isolation and lack of
appropriate supports available to this group. The continuing lack of access to
appropriate service provision directly contributes to the criminalising of and
disproportionate representation of people with cognitive disability in prison.
For many, if they had received appropriate psychosocial and other disability supports
earlier in their life they may never have come into contact with the criminal
justice system. They are an exceptionally marginalised and vulnerable population
who often end up cycling in and out of prison and may end up in indefinite
There is no reliable data to estimate the number of people with a
cognitive impairment who are in the criminal justice system because each
jurisdiction measures disability differently. Estimates provided to the committee
suggest that somewhere between 20 per cent and 25 per cent of people in the
criminal justice system have a cognitive impairment. This goes to over 50 per cent
in the youth justice system.
Aboriginal and Torres Strait Islander people in particular are
significantly overrepresented amongst those in prison with complex disability
support needs. For example, in Queensland, 73 per cent of Aboriginal and Torres
Strait Islander men and 86 per cent of Aboriginal and Torres Strait Islander women
in Queensland jails have some form of mental impairment.
There are two common pathways into detention for people with complex
disability needs. The first one is a conviction for lesser crimes. Generally,
their disabilities are not recognised or taken into account during the course
of justice. This is often due to the lack of available expertise to identify
the impairment; masking of the impairment or lawyers advising their client not
to identify as a person with impairment due to the fear of indefinite
The second pathway into and out of detention is via state and territory
Mental Impairment legislative processes. The Mental Impairment / Unfit to Plead
pathway is an alternative pathway through the criminal justice system and is
designed specifically for people who are assessed as mentally impaired and as a
result are found unfit to plead. People who are deemed unfit to stand trial may
become subject to a forensic or criminal order. The court, or mental health
review tribunal, will assess that person's risk to themselves or others and the
need for ongoing treatment, and can impose forensic orders to detain the person
in a prison, hospital or mental health care facility. In some cases they may be
allowed to live in the community in a designated location.
An unintended but highly significant consequence of the Mental Impairment /
Unfit to Plead pathway for people with complex disability support needs is
Historically, people with disabilities who are in the criminal justice
system have had mostly poor experiences or no contact with existing support
systems. As described by Australians for Disability Justice, access to the NDIS
may be an opportunity to decrease incarceration rates for people with a
cognitive and psychosocial impairment, particularly for Aboriginal and Torres
Strait Islander people who are overrepresented amongst those in prison with
complex disability support needs.
To date, there is no data available on the number of people incarcerated
who are NDIS participants or in the process of applying to become participants.
Access to NDIS services for NDIS participants in prison
The NDIS (Supports for Participants) Rules 2013 state that the NDIS in
relation to a person in custody will be responsible for reasonable and
necessary supports other than the day-to-day care (including supervision,
personal care and general supports). The NDIS will also be responsible for
In their submission, the NDIA stated:
For people in a custodial setting (including remand) the only
supports funded by the NDIS are those required due to the impact of the person's
impairment/s on their functional capacity and additional to reasonable
adjustment, and are limited to:
- aids and equipment;
- allied health and other therapy
directly related to a person's disability, including for people with disability
who have complex challenging behaviours;
- disability specific capacity and
skills building supports which relate to a person's ability to live in the
- supports to enable people to
successfully re-enter the community; and
- training for staff in custodial
settings where this relates to an individual participant's needs.
Where a person is remanded in custody, NDIS funding for
reasonable and necessary supports in the participant's plan will continue to be
available to the person when they are released.
As noted by the Office of the Public Advocate (VIC), given the
relatively early stages of the NDIS rollout, it is difficult to fully assess
the operations of the NDIA in relation to forensic services and their patients.
At this stage, it is impossible to evaluate the impact of the Scheme on this
However, the NDIA reported that supports are currently being delivered within
Whist it is not possible to provide a national figure at this
stage, the Vic West regional office in the Barwon region of Victoria confirm
that there are at least 12 NDIS participants incarcerated within local
facilities in the Vic West region. The NDIA funds reasonable and necessary
supports to each participant based on their needs and in line with the COAG
principles between the NDIS and mainstream service systems, particularly the
mental health and justice sectors. Some supports are currently being delivered
within correctional facilities while some participants who are on day release
may have funded supports outside delivered outside the facility to enable
successful transition into community life.
Nonetheless, there seems to be some lack of clarity and confusion around
the supports the NDIA provides to NDIS participants in custody. The committee
received evidence suggesting that the NDIA currently stops any individualised
package upon an individual being taken into custody.
For example, Ms Alison Churchill, CEO, Community Restorative Care,
I am not aware of any jurisdiction where an NDIS package is
currently following somebody into a correctional centre.
Similarly, the Mental Health Commission of NSW reported:
The Commission understands that the NDIA currently stops any
individualised package upon an individual taken into custody, and that the NDIA
will only engage in planning for community based supports once the individual
has a known release date, an is within 6 months of that date.
NDIS participant and indefinite
The case of an NDIS participant in indefinite detention was also brought
to the attention of the committee by Ms Pearce, the Public Advocate of Victoria
at a public hearing in Melbourne on 28 April 2017. The following account of
events raises important issues around the role and responsibility of the NDIA
to provide reasonable and necessary supports and to ensure a provider of last
resort service is allocated when no providers are prepared to work with a
participant. Additionally, it raises the issue of NDIA's ability to be
responsive and deal with complex issues in a timely and effective manner. Ms Pearce
Ms Z has been on remand for over 12 months. She is being held
in a prison mental health unit and is in lockdown 23 hours a day in part due to
her distressing behaviours. While she has a diagnosis of autism, she has also
spent time in mental health services in the community as well as in the Thomas
Embling Hospital, which is a Victorian high-security mental health forensic
service. Recently a jury found her unfit to stand trial and her charges are at
the minor end of offending. The presiding judge has expressed concern about her
lengthy incarceration in onerous conditions, that the systems are not meeting
her needs and that she remains incarcerated. She is allowed out of her cell for
one hour a day and, not surprisingly, she is extremely distressed. When she is
returned to her locked cell she spends hours and hours just screaming,
vocalising her distress. If she had accommodation and supports, it is
absolutely clear, she would be released. No-one wants to prosecute this case
but there are no options for her. Her basic care needs are difficult to meet in
a prison setting.(...) She urgently needs to be transitioned to a residential
environment with appropriate, ongoing clinical and therapeutic supports. The
inability to identify an appropriate service provider and her behavioural
presentations make it very difficult to successfully transition her to an
alternative, community based environment. (...) The really good news in terms of
Ms Z's circumstances is that NDIS has cut through all of that. She is, in fact,
an NDIS participant. However, there is a limit as to what can be implemented
while she remains in prison, in part because of the NDIS rules and the
interface with the justice system. Only support coordination has been funded
thus far, and other funded supports will not be available until there is a
release date. Multiple agencies have so far declined to accept a referral to
provide support coordination for this complex client.(...) There are no choices
when there are no providers prepared to work with her. In order to ensure
people with complex presentations who are involved with the criminal justice
system can participate in and benefit fully from the scheme, the NDIS must be
more flexible and responsive in its approach.
At a public hearing on 12 May 2017, the committee was provided with a
progress update on Ms Z's case. Ms Pearce reported:
(...)We do believe we may now have a case planner, but they are
looking to see whether their services match the needs of this individual. This
is one of the issues for people in the criminal justice system who are eligible
participants—many of them will have high and complex needs, but, in a market
driven environment, service providers can choose who they wish to provide
services to. The NDIS still is unwilling to engage in any kind of service
planning (...) But, without the involvement of the NDIA in a more proactive way
than simply writing to my office and saying, 'This is what we are prepared to
fund,' we are just not getting the cooperative, coordinated working
relationships that we need to ensure that there is a smooth transition from one
service system to another.
The committee invited Ms Pearce to provide a further update on 28 July
2017. Ms Pearce reported:
(...)In May we found an agency who was able to do that, and at
the moment her plan includes funding for specialist support coordination, and
as I said, this is now being provided. A proposal has also been developed for a
plan that includes post-release supports. An NDIS funded provider has prepared
a proposal for a staged transition from prison, which includes a detailed
explanation of the types of supports Ms Z will require to safely transition
from her current restrictive environment to independence within the community.
The plan is quite substantive. (...)As I understand it, the proposal now sits
with the NDIA. Since my last appearance before you, the NDIA has been more
engaged. They were given the proposal in June and have informed me that it is
still under consideration and that approval is yet to be confirmed. In the meantime
we've mostly relied on the hard work and goodwill of agencies like the one who
prepared the proposal. For instance, a service provider included in the
plan—the same agency that would provide the support for Ms Z in her house—is
proactively collaborating with the prison. The prison has agreed to bend their
protocols around transitioning in order to allow the agency to enter the prison
and begin engaging with Ms Z in preparation for discharge. (...) As mentioned, we
are very thankful for the attention you've paid to this case. It has certainly
been a factor in the gains that have been made. However, despite recent
progress, all parties are now at a standstill until the NDIA approves the plan.
In other words, the case is progressing, but unfortunately not quickly enough
to prompt her release from prison.
Becoming an NDIS participant while in custody
While in custody, people can make an access request to the NDIS and
engage in the planning process to develop a plan.
The committee received conflicting information regarding process, availability
of planners and coordination for the implementation of plans in such
The committee heard that it is the correctional centre staff who are
currently holding the responsibility for completing access requests to the
NDIS. However, when packages are developed and funded submitters reported that
it remains unclear whose role it is to assist in the implementation of the plan
for the individual in custody.
The NDIA reported that during the Barwon trial, the NDIA staff worked
collaboratively with Corrections Victoria, local Correctional facilities,
Disability Liaison Officers and the Victorian Government Department of Health
and Human Services to streamline access and planning processes for eligible
NDIS participants who were incarcerated. This has included NDIS planning taking
place inside the facility; funded supports with the aim of supporting a
successful transition to the community; and maintaining engagement with
existing support workers following incarceration.
Barriers to participation
As previously discussed in this report, one major barrier is that people
may not see or wish to acknowledge their impairments. They are very unlikely to
seek out NDIS support of their own initiative and will often initially be
suspicious of suggestions to obtain NDIS assistance.
Mr Simpson from the New South Wales Council for Intellectual Disability
(...)this group is unlikely to seek out NDIS support of their
own initiative. They are living isolated lives. They will not be aware of the
NDIS. They will be initially suspicious.
Furthermore, many people with cognitive or psychiatric disability may not
have the skills or the supports required to know about the NDIS, go through the
process of becoming a participant and adequately represent their needs in a
planning meeting. This brings up the importance of availability of trained
staff and assertive outreach services being available in prison settings.
NDIA reported that staff have provided training to case managers and
prison staff about the NDIS and have developed working arrangements with the
Victorian Department of Justice.
However, submitters argue that relevant staff with specific skills are needed
within the criminal justice system to effectively engage and work with people
with complex disability support needs.
Proposal to establish an NDIA
criminal justice unit
Following discussions at public hearing on 28 April 2017, the Australian
for Disability Justice group and others have put forward the proposal of
creating an NDIA criminal justice unit, which would:
Provide expertise to the NDIA around the interface of criminal
justice and disability
Develop expertise in planning and funding for people with
disabilities in the context of the interaction of the national disability
system and the state and territory justice systems as well as other mainstream
agencies with inter sectoral responsibilities
Act as the NDIA point of contact for state and territory criminal
justice systems in the context of people with disabilities
Ensure people with disabilities in the criminal justice system
have access to the full range of disability supports and protections provided
through the NDIS
On 12 May, Ms Pearce, the Public Advocate (VIC) voiced her support for
In Melbourne, the committee asked whether speakers were in
favour of the implementation of an NDIA unit specialising in the interaction of
the scheme with the criminal justice system. I would like to reiterate my
support for this initiative.
Aboriginal and Torres Strait Islander peoples with disabilities in prison
Overrepresentation in the criminal
Aboriginal and Torres Strait Islander people are significantly
overrepresented amongst those in prison with complex disability support needs.
They are also significantly more likely to be very poor, come from places of
high socio-economic disadvantage, have low levels of education, be unemployed,
have experienced violence and abuse and have earlier and more police and
criminal justice events as both victims and offenders.
Aboriginal and Torres Strait Islander people with a cognitive impairment
are also overrepresented amongst people held in indefinite detention.
This was reported in the Senate Community Affairs Committee report Indefinite
detention of people with cognitive and psychiatric impairment in Australia, which
suggested that as many as 50 per cent of the people currently detained
indefinitely without charge in prison are Aboriginal and Torres Strait Islander
Sisters Inside, an advocacy group for the human rights of women in the
criminal justice system, reported that Aboriginal and Torres Strait Islander
women are the fastest growing prison population in Australia. A significant
proportion of these women have cognitive disabilities as well as an undiagnosed
mental health condition.
One of the reasons cited for this overrepresentation is the lack of
appropriate early diagnosis and culturally responsive support available for
Aboriginal and Torres Strait Islander children and young people with cognitive
The FPDN explained that the first time many Aboriginal and Torres Strait
Islander people with cognitive impairment are diagnosed is upon entering the
criminal justice system and that without access to holistic disability support,
Aboriginal and Torres Strait Islander people with cognitive impairment are at a
much greater risk of entering a cycle of offending and imprisonment.
Access to the NDIS
The committee heard on many occasions that there is currently a lack of
culturally appropriate tools and supports, including provision of interpreters,
for Aboriginal and Torres Strait Islander people to access and navigate the
For example, the Office of Public Guardian (NT) outlined the finding of
a review of the Barkly trial site in the NT. Low levels of cultural competence
amongst NDIS staff, the bureaucratic nature of the NDIS process, and the lack
of information provided in an accessible way to Indigenous clients (including
providing for individuals with literacy issues), resulted in resistance amongst
Aboriginal and Torres Strait Islander people to engage. Additionally,
remoteness provided a barrier to accessing information and resources about the
NDIS Scheme. The Office of Public Guardian (NT) concluded:
These findings demonstrate that without improvements in the
approach to engagement with all clients with mental illness, and particularly
indigenous clients with mental health issues, there is a considerable risk that
they will be left behind.
The FPDN noted that for many Aboriginal and Torres Strait Islander
people with cognitive impairment and complex support needs, the access to the
NDIS can be challenging and recommended that this group have access to an
advocate or support person to assist with the NDIS application process,
including within the criminal justice system.
Another issue raised was that many Aboriginal and Torres Strait Islander
people with cognitive impairment may be unwilling to identify as disabled and
may not recognise their own needs for assistance. It can also be due to
cultural factors. For example, in some Aboriginal and Torres Strait Islander
languages, there is no comparable word for disability.
Overwhelmingly, inquiry participants highlighted the need for culturally
safe planning services to help Aboriginal and Torres Strait Islander people to
access the NDIS.
Initiatives and suggested
strategies for better outcomes
The NDIA has recognised that engaging with Aboriginal and Torres Strait
Islander communities has been challenging and requires further work.
To address current challenges and advancing Aboriginal and Torres Strait
Islander participant representation in the NDIS (currently at 6 per cent), the
NDIA has developed an Aboriginal and Torres Strait Islander Engagement strategy
aimed to develop a collaborative planning and working model to inform practice
which can meet the needs of Aboriginal and Torres Strait Islander peoples with a
disability, their families, carers and communities.
The NDIA has identified 10 key engagement priority areas for Aboriginal
and Torres Strait Islander peoples with a disability,
Communication and sharing of information
Sharing Best Practice
Leveraging and linking
Supporting internal infrastructure
Inquiry participants suggested a number of initiatives to help make the
NDIS services more accessible including:
Support for Aboriginal controlled organisations to continue
providing culturally appropriate mental health services;
Appropriate funding and resourcing for ACCHS to build capacity in
the disability area, especially in rural and remote locations;
Higher proportion of skilled Aboriginal workers in the NDIS
Targeted outreach services.
Australians for Disability Justice suggested strategies to reduce the
negative experience in the criminal justice system of Aboriginal and Torres
Strait Islander peoples with complex disability support needs:
Development of cultural inclusive safety principles that are
formed by Indigenous Australians with cognitive impairments and mental health
disorders, their families and communities;
Translation, interpreting and plain language services to enable
Indigenous Australians with cognitive disability to access information; and
Involvement of community Elders in creating pathways back into
community for Indigenous Australians who have complex disability support needs
and have been in prison.
The need for strong collaborative relationships between the NDIS and
justice, health, housing and other relevant mainstream services was also
highlighted by participants.
Provision of reasonable and
The committee has received numerous reports during the course of the
enquiry about NDIS participants having their disability supports funded through
the NDIS suspended while in custody. This is a cause of concern for the committee
as the NDIA has a statutory responsibility to provide reasonable and necessary
supports and transition supports while an NDIS participant is in custody.
In light of the reported case of Ms Z in indefinite detention, the
committee believes it is imperative that the NDIA takes a more proactive and
collaborative approach to fulfil its responsibility of ensuring a provider of
last resort is found in all circumstances. The committee is also aware that, in
Queensland, The Mental Health Act 2016 (Qld) now allows Magistrates to
refer defendants who are unfit for trial to expressly named support services,
including the NDIA. The NDIA must develop a strategy to ensure people in
custody, including in indefinite detention, have access to an NDIA planner and
be provided with NDIS services.
NDIA criminal justice unit
The NDIS can make a real difference in the incarceration rate of people
with a cognitive impairment. The committee heard a positive story of a man who
prior getting into the NDIS went to court 50 times over the 2½ years leading up
to his NDIS package. Since he had his NDIS package, he has only been to court
twice and is now doing well.
Therefore, it is important that people are referred to the NDIS and that the
interface between the NDIA and the criminal justice system works effectively.
The committee supports the proposal of an NDIA criminal justice unit. This has
potential to address critical issues, which have been brought to the attention
of the committee, including for people in indefinite detention.
Engaging with Aboriginal and Torres
Strait Islander peoples
The recent work undertaken by the NDIA in developing an Aboriginal and
Torres Strait Islander Engagement strategy is a positive step in addressing
some of the critical issues raised throughout the course of this inquiry in
relation to Aboriginal and Torres Strait Islander peoples' access to the NDIS,
the current lack of culturally appropriate services, the need for targeted
outreach services and the lack of services due to thin markets in rural and
remote Aboriginal and Torres Strait Islander communities.
It is too early to assess the effectiveness of the strategy, which has
only been completed in early 2017. However, it remains imperative that the NDIA
works collaboratively with Aboriginal and Torres Strait Islander communities
and service providers to realise the goals for the strategy. With the high rate
of Aboriginal and Torres Islander peoples with disabilities in the criminal
justice system, the committee recommends the NDIA develops a specific strategy to
ensure early intervention and culturally appropriate services are delivered for
this group by specialised trained staff.
The committee recommends the NDIA urgently clarifies what
approved supports are available to NDIS participants in custody and how it
monitors and ensures NDIS participants access the supports they are entitled to
while in custody.
The committee recommends the NDIA establishes an NDIA unit
specialising in the interaction of the Scheme with the criminal justice system.
The committee recommends the NDIA develops a specific strategy to deliver
culturally appropriate services for Aboriginal and Torres Strait Islander
people with disabilities who are in the criminal justice system.
Kevin Andrews MP
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