Recognition of the need for this inquiry grew out of this committee's
2015 inquiry into violence, abuse and neglect against people with disability
(abuse inquiry), during which a range of evidence was presented on the
indefinite detention of people with cognitive or psychiatric impairment.
The committee heard that people who have been charged with a criminal offence
and found unfit to plead, or not guilty by reason of mental incapacity, can
find themselves detained for the purpose of involuntary therapeutic treatment.
This form of detention is indefinite, as it has no specified end date.
Detention often occurs in prison, even though the person has not been found
guilty of any offence, and too often the therapeutic intervention, the
purported reason for the detention, is either not adequately provided or not
provided at all.
In its report for that inquiry, the committee wrote:
The indefinite detention of people with disability is an
issue of serious concern to the committee. This is made more serious by the
sometimes arbitrary nature of such detention without appropriate periodic
review, and where that detention occurs in a criminal justice facility.
Concurrent to the 2015 inquiry, two cases received greater media and
advocacy attention: that of Mr Marlon Noble
in Western Australia, and Ms Rosie Ann Fulton
in the Northern Territory—both Aboriginal people deemed unfit to plead due to
intellectual impairment, both imprisoned indefinitely without trial.
The terms of reference (ToR) for this current inquiry take account both
the evidence presented during the abuse inquiry as well as the mounting public
evidence on the issue of indefinite detention. The ToR (which are provided in
full at the end of this chapter) direct the committee to investigate aspects of
the indefinite detention of people with a cognitive and/or psychiatric
impairment, including: the prevalence, the experiences of individuals, the
legal frameworks, the quality of therapeutic treatments, diversion programs to
reduce the number of people entering detention and programs and pathways to
assist people to transition from indefinite detention.
This inquiry deals with two discrete groups of people who are subject to
indefinite detention. There are two common pathways by which a person with a
cognitive or psychiatric condition may find themselves in indefinite detention:
a forensic (or criminal) order;
a civil route via a scheduled order under mental health,
disability or guardianship frameworks (the more common pathway).
This chapter outlines the structure of the report, provides a number of
definitions and a summary of how the inquiry was conducted.
Structure of the report
As the two pathways to indefinite detention are subject to different legislation
and processes, the Senate Community Affairs Reference Committee (committee) has
chosen to write this report in two parts to discuss the pathways separately.
Accordingly, the report is structured as two parts with nine chapters.
Chapter 1 is an introductory chapter which outlines the context and
administrative details of the inquiry.
Part A (Chapters 2–5): Forensic
2 provides background and context to forensic orders with a summary of the
pathways, a description of the statistics and the people being detained,
relevant legislation and recent reviews.
3 examines issues relating to sentencing and access to justice for people with
cognitive impairment including law reform options and additional legal support
for people with cognitive and psychiatric impairment to negotiate the legal
4 looks at the experiences of people who are indefinitely detained in prison,
the treatment options available, and how to improve the transition of people
out of prison.
5 focuses on alternatives to prison for secure treatment delivery, pathways
back into the community and the role of the National Disability Insurance
Part B (Chapters 6–8):
Involuntary mental health orders, involuntary treatments and other involuntary
6 provides background and context to mental health treatment orders with a
summary of statistics, relevant legislation and recent reviews.
7 considers involuntary mental health orders with a focus on the use of
emergency services as transports for mentally ill patients, review mechanisms
for involuntary mental health orders and transition back to the community from
8 focuses on guardianship and the use and regulation of involuntary treatments
and restrictive practices in the aged care and disability sectors.
Report conclusion (Chapter 9)
9 draws together the committee's conclusions and recommendations from both
parts of the report.
The terms 'mental illness', 'mental disorder', 'psychiatric impairment' and
'psychiatric disability' and 'cognitive impairment' are viewed similarly by
state and territory mental health legislation and all may lead to an individual
being placed into indefinite detention. The Australian Institute of Health and
Welfare (AIHW) has outlined some of the difficulties in fleshing these concepts
out into discrete definitions
and this is discussed in greater detail below.
Cognitive impairments are permanent conditions which can be acquired
such as resulting from traumatic brain injury or through substance abuse, or
genetic conditions that people are born with such as downs syndrome. People
with cognitive impairments such as intellectual disabilities 'are highly likely
to have severe limitations in all three core activities of daily
living—self-care, mobility and communication'. The AIHW noted that even for
people with cognitive impairment who can:
function relatively well in the familiar routines of
self-care and domestic life, and be independently mobile, people with
intellectual disability often have considerable difficulty in managing emotions
and relating to other people. It is therefore important to also consider the
level of support that is needed in non-core activity areas, especially making
friendships, maintaining relationships and interacting with others.
Cognitive impairments can co-exist with psychiatric impairments. The
next section will explore the conflation of cognitive and psychiatric
impairments within legislation.
Conflation of psychiatric and
Psychiatric and cognitive impairment are interchangeable within all
state and territory mental health and forensic mental health legislation. In a
paper entitled Disability at the margins: limits of the law, Professor Eileen
Baldry notes that:
Generally, cognitive impairment is elided in the law with
mental health impairment: that is, people with cognitive impairment usually
have been dealt with under mental health legislation. This regularly results in
cognitive being thought of as an illness, similar to mental illness, and
therefore to be treated in the same way.
The No End in Sight report by the Aboriginal Disability Justice
Campaign points to significant problems created by the conflation of
psychiatric and cognitive impairment within the forensic mental health
framework. The report found that most mental health legislation is founded on
the idea of treatable illness, whereby initial detention, treatment and
pathways to release are based on the premise that a person has a treatable
condition which rendered them unfit to plead or not guilty of the offence. This
premise is incompatible with the issue of cognitive impairment, which is
generally a permanent condition that is not treatable in the same way as a
mental illness. As such, a person with a cognitive impairment cannot meet the
basic requirements of release from an indefinite forensic mental health order, which
is an improvement in their condition.
With this in mind, the NSW Law Reform Commission offers two separate
definitions for these concepts that reflect the respective temporary and
on-going nature of each condition. "Mental illness" (or psychiatric impairment)
temporary or continuing disturbance of thought mood, volition
perception or memory that impairs emotional wellbeing, judgment or behaviour so
as to affect functioning in
daily life to a material extent...
arise from anxiety, affective, and substance induced disorders or psychoses (although
not limited to these), but excludes personality disorders.
And "cognitive impairment" as an:
impairment in comprehension, reason, adaptive functioning, judgment, learning
or memory that is the result of any damage to, dysfunction, developmental delay
or deterioration of the brain or mind. It may arise from but is not limited to
intellectual disability, borderline intellectual functioning, dementias,
acquired brain injury, drug or alcohol related brain damage and autism spectrum
The terms "mental illness", "mental disorder" and
"cognitive and psychiatric impairments" are umbrella terms used to
describe a range of symptoms and illnesses that impact on a person's mental
processes of perception, memory, judgement and reasoning, or describe a
clinical diagnosis of a disease or disorder. Although legislation relevant to
this inquiry will be examined in later chapters, it is useful to highlight here
that this legislation does not specify the types of 'cognitive and psychiatric
impairments' that may lead to indefinite detention.
For the purposes of this inquiry:
cognitive impairments or conditions may include (but are not
limited to) acquired conditions such as acquired brain injuries (ABI) and
traumatic brain injuries (TBI) and progressive and degenerative neurological
diseases such as dementia and Parkinson's disease; intellectual disabilities
such as Downs syndrome, specific learning or attention deficit disorder,
developmental delay and severe autism; mental and behavioural disorders caused
by substance abuse (including foetal alcohol spectrum disorder); and
psychiatric impairments may include (but are not limited to)
bipolar affective disorder, schizophrenia, and major depressive episodes
leading to psychosis.
It is also possible that some psychiatric conditions lead to, or may co-exist
with cognitive impairments.
The committee also notes that for the purposes of this inquiry:
- indefinite detention includes all forms of secure accommodation of a
person without a specific date of release; and
this includes, but is not limited to, 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.
In the committee's recent abuse inquiry (November 2015), the committee noted
evidence about the extent to which people with cognitive and psychiatric
impairment were being indefinitely detained. Box 1.1 details the evidence and
view on this issue.
In light of this evidence, the committee made the following
The committee believes that there is a need for further
investigation of access to justice issues, with a focus on...
The indefinite detention of people with cognitive impairment or
This inquiry was referred by the Senate for inquiry on 2 December 2015.
The inquiry lapsed on 9 May 2016 with the dissolution of the Senate; however,
was re-referred to the committee at the commencement of the 45th
Parliament. Details of the inquiry are available on the committee's website.
The terms of reference for this inquiry are:
- The indefinite detention of
people with cognitive and psychiatric impairment in Australia, with particular
the prevalence of imprisonment and indefinite detention of individuals
with cognitive and psychiatric impairment within Australia;
the experiences of individuals with cognitive and psychiatric impairment
who are imprisoned or detained indefinitely;
the differing needs of individuals with various types of cognitive and
psychiatric impairments such as foetal alcohol syndrome, intellectual
disability or acquired brain injury and mental health disorders;
the impact of relevant Commonwealth, state and territory legislative and
regulatory frameworks, including legislation enabling the detention of
individuals who have been declared mentally-impaired or unfit to plead;
compliance with Australia’s human rights obligations;
the capacity of various Commonwealth, state and territory systems,
including assessment and early intervention, appropriate accommodation,
treatment evaluation, training and personnel and specialist support and
the interface between disability services, support systems, the courts
and corrections systems, in relation to the management of cognitive and
access to justice for people with cognitive and psychiatric impairment,
including the availability of assistance and advocacy support for defendants;
the role and nature, accessibility and efficacy of programs that divert
people with cognitive and psychiatric impairment from the criminal justice
the availability of pathways out of the criminal justice system for
individuals with cognitive and psychiatric impairment;
accessibility and efficacy of treatment for people who are a risk of
harm to others;
the use and regulation of restrictive practices and their impact on
individuals with cognitive and psychiatric impairment;
- the impact of the introduction and application of the National
Disability Insurance Scheme, including the ability of individuals with
cognitive and psychiatric impairment to receive support under the National
Disability Insurance Scheme while in detention; and
the prevalence and impact of indefinite detention of individuals with
cognitive and psychiatric impairment from Aboriginal and Torres Strait Islander
and culturally and linguistically diverse backgrounds, including the use of
culturally appropriate responses.
Conduct of the inquiry
The committee received 78 submissions from a diverse range of
individuals and organisations. The committee acknowledges those who contributed
to the inquiry through submissions or as witnesses. A list of the individuals and
organisations who provided submissions to the inquiry is available at Appendix
Public hearings were held throughout Australia: Brisbane on 23 March
2016; Melbourne on 29 April 2016; Perth on 19 September 2016; Darwin on 25
October 2016; Alice Springs on 26 October 2016; and Canberra on 8 November
2016. Transcripts of these hearings are available on the committee's website, and
a list of witnesses who gave evidence at the public hearings is provided at
The committee acknowledges the Northern Territory (NT) Government's
submission and appearance at the committee's Darwin hearing; the appearance of
the Western Australian (WA) Disability Services Commission at its Perth hearing;
and the submission from the NSW Government. The committee also thanks the NT
Department of Corrective Services and the NT Department of Health (Office
of Disability) for facilitating site visits for the committee to the Complex
Behaviour Unit (Darwin Correctional Precinct) and the Cottages in Darwin; and
the Alice Springs Correctional Centre and the Secure Care Facility in Alice
Springs. The committee also thanks the WA Disability Services Commission for
facilitating a site visit to the Bennett Brook Disability Justice Centre in
Perth. The committee extends its sincere gratitude to all of the residents who
warmly invited the committee into their homes during these visits.
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