The inappropriate use of prison for forensic patients
If he's not guilty
what is he doing here?
...They are not
prisoners, they are not convicts and they should not be treated as such.
This chapter focuses on the experiences of people subject to forensic
(custodial) orders who are indefinitely detained in prisons, and the lack of
therapeutic options available to forensic patients in this environment.
The committee received evidence from Mr David Egege, Executive Director
of the Disability Advocacy and Complaints Service of South Australia which
highlighted an example of a forensic patient's experience in prison:
Mr X was found guilty of an offence by reason of mental
incompetence and he was sentenced to a limiting term of 13 years. After
spending a couple of months of his sentence at the forensic facility James Nash
House, he was transferred to Yatala Labour Prison, where he was incarcerated
for seven years. A number of those years were spent in G-Division and a number
of those years were also spent in solitary confinement. The public advocate has
been very involved in this case. Patient X was, at times, kept on handcuff
regime in a cell, where he slept on a concrete slab. I believe, as a forensic
patient, he clearly should have had access to a clinical program available to
any person who is in that situation, in custody, and who is a forensic patient.
In its submission to the committee, Barriers 2 Justice described the
circumstances of a person with an intellectual disability held in prison:
The individual had been in prison for approximately one
month. During this time he had been sexually propositioned by other prisoners.
Although it is understood no abuse occurred, those with an intellectual
disability in prison are likely to be at a higher risk of assault due to their
increased vulnerability. It is also believed the individual may have been
showing more extreme behaviours due to his reaction to the prison environment
and his treatment by other prisoners.
Ms Alison Youssef noted that some forensic patients are confused as to
why they are being held in prison, with mental health issues emerging as a
Christopher and Kerry have suffered mentally during their
time in prison. They both feel sad that they are unable to see family members
and be part of their community... A neuro-psychological assessment conducted for
the review recommended that it was not appropriate for Christopher to be in
prison, and that his mental health was going to deteriorate markedly if he
A number of submitters, in particular the Royal Australian New Zealand
College of Psychiatrists (RANZCP), disagreed with the use of prisons to
accommodate people with a cognitive or psychiatric impairment who had not been
found guilty of any offence:
Persons found unfit to stand trial or acquitted on an
insanity finding must only be treated in appropriately designated health
facilities, outside of prison environments, that are appropriate to individual
clinical and risk management needs. They must not be treated as convicted
criminals for that offence. A key principle is that prisons are not hospitals
and should never be viewed as such.
Experience of prison for people with cognitive and psychiatric impairment
The Aboriginal Disability Justice Campaign (ADJC) has raised concerns
about the 'use of maximum security prisons as default accommodation and support
options' and 'the lack of clinical treatment which focus[es] on reducing the
person's risk of harm to others'.
As noted in the previous chapter, people with cognitive and/or psychiatric
impairment are held in prisons because there is a lack of other supported
options in the community. In its submission to the committee, the Criminal
Lawyers Association of the Northern Territory (CLANT) noted:
People with complex cognitive and psychiatric needs and
offending behaviours, or who are assessed as a risk to the community, are
incarcerated and held indefinitely in maximum-security prisons in the [Northern
Territory] NT largely because there is no or no sufficient alternative
provision and no services to effect crime prevention through health and welfare.
The ADJC agreed, adding that:
prisons are not safe spaces for people with cognitive and
psychiatric disabilities. Human rights breaches occur and people who remain
unconvicted often languish in this centre with no exit pathway. It is a
convenient place for governments to hide people away who have inconvenient
circumstances who require intensive and expensive treatment, but does nothing
to meet the legislative criteria that pertains to this group of people: that
people are detained for the purposes of treatment in order to reduce their risk
of harm to others and to keep the community safe and that this occurs in the
least restrictive manner possible.
Ms Amanda Muller of the Geraldton Resource Centre likened Mr Marlon
Noble's indefinite detention as a forensic patient in a prison thousands of
kilometres from his home of Geraldton to her own experience of leaving home to
go to university. Both left the support networks of home, but for vastly
I felt very isolated, very lonely, and that had quite an
impact on me in terms of wanting to keep going and being able to make a go of
that. Then I think about Marlon, who at a very similar age, as a teenager as
well, got sent away from his home and his family. All those feelings that I
experienced he would have experienced. But I was away for a positive reason; he
was away because he had a disability. And I knew that I had to serve only five
years; that was the length of time I had to do before I could return to my home
and family. He had no idea how long he was going to be away. I was able to
communicate on a regular basis with my family when I wanted to. There were four
times a year when I was able to return home to them. He was not able to return
home even when his mother went missing, and then when eventually she was found
murdered his opportunity to return home for her funeral was with the
embarrassment of being a prisoner and accompanied by a prison officer.
In its submission, Barriers 2 Justice noted that 'forensic patients have
complex psychiatric, medical and social needs that cannot be adequately
addressed in a prison environment' adding that correctional officers often are
not trained to provide support for forensic patients. This submission went further
Holding forensic patients in the unsuitable prison
environment causes their condition to deteriorate. Those placed in the general
prison population are also at risk of both physical and sexual assault. According
to Dr John Brayley: 'People in prison on the James Nash [South Australia
forensic hospital] waiting list can exhibit a combination of distress and
bewilderment. Their situation is reminiscent of historical descriptions of 19th century mental hospitals before modern treatments
The committee has received evidence suggesting that not only do people
on forensic orders lack access to therapeutic services, but that being in
prison exposes them to substances and behaviours that result in further
restriction and confinement. Ms Taryn Harvey of Developmental Disability WA
highlighted the case of Jason who had been:
...denied his right to a leave of absence, as given to him by
the Mentally Impaired Accused Review Board under the act, by virtue of the fact
that he was in Acacia Prison. Acacia Prison does not do day releases, so for
many, many months he was denied that right—one of the very few rights that he
has—because of the security rating that he was given. That rating had nothing
to do with any [violent] pattern of behaviour or aggravated behaviour within
prison. It was a long-standing issue around substance abuse, regarding
substances that he was having ready access to in prison and substances that he
was not getting any support with in prison to address. Also, be aware that in
Western Australia we have no adapted drug and alcohol treatment programs for
people who are living with impairments.
Chapter 5 will discuss the inappropriateness of Corrective Services
being responsible for the therapeutic and support needs of forensic patients. Two
case studies of people with cognitive and/or psychiatric impairments held in
prison under forensic orders are presented below in Box. 4.1
Box 4.1—Inappropriateness of prison for people with
cognitive and/or psychiatric impairments
CASE STUDY 1: Mr X
X was arrested and taken to the Silverwater remand centre (NSW) in March 2001
after assaulting a friend during a psychotic episode. Despite his psychosis and
long history of violent crime, he was placed in a cell with [an offender] who
had requested protective custody. Mr X kicked [the other man] to death within
15 minutes and was later charged with murder.
the next three years, Mr X who had previously attempted suicide in prison, was
kept in segregation cells at various jails. During this time he suffered severe
psychotic symptoms (auditory hallucinations, suicidal urges and a belief his
mind was under control of the Australian Security Intelligence Organisation
(ASIO)), for which he received no hospital treatment. In letters from jail, Mr X
said he felt he was being slowly tortured to death. Mr X's clinical notes show
that psychiatrists and nursing staff at Goulburn jail repeatedly requested his
transfer to Long Bay jail hospital. One nurse wrote personally to a senior
bureaucrat in the Health Department to express his concern. Instead, Mr X was
isolated to a cell in the jail's high-risk-management unit in early 2003. A departmental
letter to his family claimed that the transfer would help manage his condition.
a court hearing three months later, one psychiatrist testified that the impact
of Mr X's schizophrenia had a detrimental impact on his wellbeing. Two other
psychiatrists disagreed with each other over Mr X's mental state; one said Mr
X's psychotic symptoms had dissolved completely because of medication, the
other said he was only in minor remission and required long term care.
March 2004, Mr X was found not guilty of murder by reason of mental illness. It
was recommended he be placed under supervision of the Mental Health Review Tribunal.
Nine weeks later, Mr X was found hanging in his segregation cell in the main
jail at Long Bay. At the time of his death, Mr X was still on the waiting list
for the hospital. The correction officers who discovered Mr X hanging from the
bars of his cell did not immediately attend to him, or attempt resuscitation,
as they feared that Mr X had faked his own hanging and helping him would put
their safety at risk.
X had sent his last letter to his mother three weeks before he died. He ended
the letter with a scrawled: 'HELP ME'.
CASE STUDY 2: Patient X
Patient X was found not guilty of an
offence by reason of mental incompetence and sentenced to a limiting term of 13
years. After spending seven months of his sentence at the main forensic
facility, James Nash House, Patient X was transferred to Yatala Labour Prison
where he was incarcerated for seven years.
In Yatala, almost all of Patient X’s
time was spent in solitary confinement. Solitary confinement, officially known
as ‘segregated custody’, is when a prisoner is detained in isolation from all
other prisoner in a segregated cell for all or nearly all of the day, with
minimal environmental stimulation.
For the first two and a half years of
his sentence, Patient X did not have access to psychiatric support. At one
stage, he was placed in a very small dark cell, known by prisoners as the
‘fridge’. Patient X was kept on handcuff regime in the cell, where he slept on
a concrete slab. Patient X in this period also requested time out of G
Division, to have time with others in B division. He also wanted to have time
in the gym to work out, a privilege that is usually available to forensic patients
(and can be available to prisoners.) Patient X was a forensic patient and
should have had access to a clinical program available to any person who is in
the custody, supervision and care of the Minister for Mental Health, whether he
was in G Division at Yatala or any other location.
It is worthy of note that in the 2011
United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Juan Méndez stated that there should be a
world-wide ban on the practice of prolonged solitary confinement except in very
exceptional circumstances and for as short a time as possible, with an absolute
prohibition in the case of juveniles and people with mental health issues.
Barriers 2 Justice, Submission 67, pp 6 & 8.
Cognitive and/or psychiatric
impairment in the general prison population
Although this inquiry is primarily focused on people subject to forensic
orders, the committee is concerned more broadly with people with cognitive and/or
psychiatric impairments who are in prison on regular custodial sentences. The
Aboriginal Legal Service of WA provided an example of why prison is also inappropriate
for many people with cognitive and/or psychiatric impairment:
...last year I acted for a young Aboriginal man from the south
west of Western Australia. At 17 he was diagnosed, fortuitously, with a brain
tumour. It was untreatable. He was operated on, but the tumour would grow back.
Some of the sequelae of the condition were epileptic fits and visual and
auditory hallucinations. During a drug fuelled psychotic episode he burnt down
the family home because he was aggrieved by his sisters giving his mother
alcohol. He then went on and committed some very serious further offences. He
was sentenced to a term of immediate imprisonment.
He would talk to himself in jail. He would get on the roof of
the jail when he was hallucinating. He would have epileptic fits. The prisoners
he was with in his unit could not cope and nor could the guards. The response was
to place him in solitary confinement. He is destined to spend many years in
jail in solitary confinement by dint of his impairment—no wonder he was also
The committee is extremely concerned about the inappropriate detention
of forensic (custodial) patients in prison. The needs of this vulnerable group
of people have not been met prior to their forensic or custodial order; equally,
the committee is not convinced that the needs of this group have or will be met
in a prison environment.
The committee is also concerned that legislative requirements to
maintain and protect the safety of the community appear to far outweigh
consideration given to the requirement to provide the least restrictive
environment for a forensic patient. It is the committee's view that a more
appropriate balance can be struck between these requirements that will deliver better
outcomes for forensic patients.
The next section will discuss some of the issues with providing
therapeutic services to people on forensic (custodial) orders held in prison.
Therapeutic and behavioural treatment options in prison
A number of submitters and witnesses discussed the general principle
that where a person is detained because they have a cognitive or psychiatric
impairment, then there is a corresponding obligation to provide that person
with therapeutic treatment that condition requires. RANZCP submitted that:
Curtailment of individual liberties should be matched by
providing adequate interventions and resources to assist in rehabilitation/long
Associate Professor Dan Howard, a lecturer in forensic mental health at
the University of New South Wales, submitted:
For a person found 'not guilty on the grounds of mental
illness' to be detained in a prison is not acceptable by modern standards of
clinical practice and human rights.
Beyond a general principle of whether it is appropriate to accommodate
people not found guilty of any offence in a prison, submitters stated that
prisons were not an appropriate therapeutic environment for people with
cognitive and/or psychiatric impairment. The Aboriginal Legal Service of
Western Australia said that 'the services available for mentally impaired
accused in prison (and for convicted prisoners with mental health issues) are
In their submission, the Western Australian Association for Mental
Health outlined a report which found that accommodating people in prisons has
been found to have a detrimental impact on therapeutic outcomes:
The OICS [Office of the Inspector of Custodial Services] review
of mentally impaired accused persons in 2014 found that people detained in
prison were less likely to progress towards conditional or unconditional
release than those in hospital.
In its submission to the committee, the Northern Territory Government
summarised the legislative approach to provision of therapeutic supports for
Part IIA of the Criminal Code contemplates rehabilitation of
supervised persons and envisages a process of transition from Custodial to
Non-Custodial Supervision Orders, and ultimately, unconditional release. The
principle of least restriction in sections such as 43ZM permeates reporting and
decision making under Part IIA, and significant efforts are made to ensure a
Supervision Order is tailored and reviewed periodically so as to impose the
least restriction practicable in the circumstances having regard to the
resources available, and the risk profile and needs of the supervised person.
The committee acknowledges that provision of therapeutic supports and a
transitional pathway out of prison is the intent of the legislation and indeed
of the government. However, this is not the experience of forensic prisoners detained
in prison. Mr Ian McKinlay, Spokesperson of the ADJC noted the resources being
focused on a 'massive criminal justice infrastructure expansion' in the NT
which is 'testimony to a continuing prison focused culture and unwillingness to
build a community where all are accepted'.
A significant impediment to the provision of therapeutic supports to
forensic patients in prisons is that they are often not recognised as having
different needs to the general prison population. In its submission to the
committee, Barriers 2 Justice highlighted a common reaction of prison officers
to forensic patients:
In speaking with a veteran officer, with many years of
service at South Australia's Yatala Labour Prison, whom I have come to know
fairly well, I expressed my dismay that a forensic patient would be held in
solitary confinement in prison for so many years. His reaction was, "What
is 'forensic'?" I explained that it was someone who had been found not
guilty by reason of mental impairment and he asked, "If he's not guilty
what is he doing here?" Unfortunately, his reaction was far from unusual.
Many of the officers do not have any knowledge of what forensic means. And if
some do know, I found out that the daily notes given to officers about the
various prisoners never even stated that he (Patient X) was forensic. This
explained why he was treated exactly as though he had been found guilty with no
tolerance or understanding shown for his mental condition, (Antisocial and
Narcissistic Personality Disorder with Psychopathy) including his Obsessive
Compulsive Disorder, which caused him to ask for cleaning products and bin liners
(often denied) because he had to have his cell spotless.
Another impediment to the therapeutic environment is where there is a
blending of therapeutic objectives with the punitive nature of the corrections
system. The two different objectives, one being
to heal and the other being to punish and correct, have been described to the
committee as often being in conflict. Mr David Woodroofe of the North
Australian Aboriginal Justice Agency (NAAJA) described the original intent of
the new Complex Behaviour Unit (CBU), which was constructed as part of the new
Darwin Correctional Precinct.
One of the key things that is particularly concerning is the
need to have this sort of facility. The original purpose of this facility was
to be a health primary focus, but something that was adjacent to the prison
rather than being in the prison, and primarily being run by health professionals
rather than by corrections as part of the prison system. That is the primary
NAAJA has highlighted this 'as a significant lost opportunity', noting
that the CBU is 'now within the razor wire and part of the prison'. There are
no facilities for forensic patients outside of a corrections environment in the
Although the NT Department of Health (Office of Disability) is involved in
providing services to patients in the CBU, the CBU remains a facility operated
by corrections officers. Delivery of therapeutic and support services for
forensic patients is explored further in Chapter 5.
Despite these criticisms, submitters have noted that in the NT the
'bones of a functioning forensic system exist'.
The ADJC added:
This last point is one I wish to emphasise above all else:
the barebones facilities that exist in the Northern Territory—with a proper
expansion, with the proper clinical oversight and with the use of this
behavioural support methodology—is totally capable of seeing all of those under
current prison based supervision, after receiving initial behavioural support,
transition to less restricted disability support, ideally within home
communities and with family.
The next chapter explores in more detail how forensic pathways might be
improved and lead to enhanced outcomes for people with cognitive and/or
Site visits to correctional
As part of this inquiry, the committee visited three facilities where
forensic patients are held. Two such units, both in the Northern Territory, are
located within corrections facilities. The Western Australian facility is a
purpose built Disability Justice Centre, and is described in Chapter 5.
Following the committee's Darwin public hearing on 25 October 2015, the
committee travelled to the Darwin Correctional Precinct (DCP) south of Darwin
to conduct a site visit of the Complex Behaviour Unit (CBU) and the Step-Down
Cottages. These facilities were opened in September 2015 and are described in
box 4.2 below.
Box 4.2—Committee site visit
to the Darwin Correctional Precinct and Complex Behaviour Unit
Complex Behaviour Unit
the time of the visit, there were thirteen people on custodial supervision
orders (forensic orders) housed in the CBU, with four people having been
transitioned to the step-down cottages.
CBU currently accommodates male and
female forensic patients placed on a custodial supervision order or prisoners
with severe disabilities. A range of therapeutic treatment options, life
skills, rehabilitation and recreational options tailored to individual needs,
are provided in the CBU with the aim of providing a transition pathway to
supported living in the community. The facility provides a range of low, medium
and high dependency male and female accommodation, although the low security
part of this centre is not able to be staffed at this time due to a lack of
dedicated funding. Staff at the CBU provide reports to the Supreme Court for a
person's annual review. Staff will also develop and implement transition and
treatment plans for people subject to custodial supervision orders in the CBU.
CBU is housed in a corrections environment (different to the WA Bennett Brook
Disability Justice Centre which is operated by the WA Disability Services
Commission) and is operated by the NT Department of Corrections with support
from the NT Department of Health. The CBU is led by a Clinical Manager as
opposed to a corrections officer to ensure that the CBU is primarily focused on
therapeutic outcomes rather than feeling like a jail. A Senior Corrections
Officer and a number of Corrections Officers support the Clinical Manager and a
range of professional medical and disability staff to operate the CBU. These
Corrections Officers have volunteered to work in the CBU, and seek to fulfil a
wide range of disability support services in addition to their standard
corrective officer duties. DCP described a "partnership between Corrective
Officers and professional staff". DCP also acknowledged that the CBU is
still only new and developing new operating procedures and continually working
to improve and optimise performance of the CBU.
Similarly, forensic patients are also kept in the Alice Springs
Correctional Centre (ASCC) and in a separate step-down facility run by the
Department of Health, the Secure Care Facility (SCF). The committee's visit to
the ASCC and SCF on 26 October 2016 is documented in Box 4.3.
Box 4.3—Committee site visit to the Alice Springs
Correctional Centre – G Block (John Bens Unit)
Alice Springs Correctional Centre (ASCC) is located 20 minutes' drive
south-west of Alice Springs. At the time of the visit, there were two people
on custodial supervision orders (forensic orders) housed in the ASCC in G Block
(John Bens Unit). One of the people living in G-Block visits the SCF three to
five times a week on day trips as part of his transition plan.
John Bens Unit (Unit) is a repurposed part of the maximum security wing
(G-block) of the ASCC, designed to cater for people on custodial supervision
orders. The Unit is sectioned off from the rest of the maximum security
prisoners as a means to protect vulnerable people on custodial supervision
orders from bullying and being taken advantage of.
placed in the Unit are provided with a transition and treatment plan developed
and coordinated by ASCC in conjunction with the Office of Disability, the Adult
Guardian and medical professionals. This report may be commented on by the
Supreme Court at the annual review; however, the development and on-going
review of these plans can commence prior to the annual review and continue to
occur over the rest of the year without input or oversight by the Supreme
Court. Typically, these plans will have five stages whereby a person is
progressively given greater freedoms, introduced to the SCF (a few hours then
expanding to day trips) and a gradual removal of correctional officer in the
presence of positive behaviours. ASCC and SCF utilise opposing behavioural
approaches and philosophies reflective of the underlying purpose of each
department—ASCC is more disciplinary—"you do this; you lose that";
whereas the SCF focuses on rewards—"you can have whatever you want if you
display good behaviour". ASCC noted the vast improvement in specific
individual's behaviour when exposed to the SCF approach, with a noticeable
decrease in violent behaviour, and improved impulse control and understanding
of consequences that flow from actions. An example of positive behavioural
change is that if good behaviour is displayed when travelling to and from day
visits at the SCF, then this will result in future visits to the SCF. Positive
behaviour results in progression through the stages and can ultimately result
in complete transfer to the SCF from the ASCC; likewise regressive behaviour
results in demotion through the stages within the plan.
the committee's visit to G-Block, the committee was shown to the cell of one
custodial supervision (forensic) patient (Prisoner B). Prisoner B's cell is
cordoned off from a central courtyard used by other prisoners. Prisoner B is
not allowed to access the courtyard when other inmates are present; and is
generally not allowed to mingle with other inmates. When Prisoner B does use
the courtyard to play basketball, the other inmates are told not to speak to
Prisoner B in case they aggravate or unsettle him. Prisoner B spends much of
his day isolated and alone in his cell.
committee commends the hard work and dedication of the corrections officers and
other support staff who work with Prisoner B. The committee acknowledges
Prisoner B's extremely challenging and sometimes violent behaviour and commend
the corrections officers and disability support staff of the SCF who facilitate
Prisoner B's day-trips to the SCF. Notwithstanding this, the committee is
firmly of the view that a maximum prison is not an acceptable place for a
severely intellectually impaired man to be indefinitely detained.
The committee notes there are limited options for therapeutic services
and supports to be delivered to forensic patients within a prison environment.
The committee acknowledges that there are practical considerations to support
people with profoundly complex needs in prison, which include that correctional
officers and their departments are generally not trained to support people with
disability and there is limited funding within the corrections department to
provide specialist disability supports and therapy.
In addition to the lack of therapeutic support, the committee is
concerned that placement of people on forensic orders in prison unnecessarily
exposes them to physical and sexual predation, and to extreme isolation—both
within the prison and from the community. It is the committee's view that these
two factors—lack of therapeutic support and exposure to a negative
environment—lead to a regression in the behaviour of a person on forensic
orders. So much so, that at the time of a regular review such regression
ultimately leads to that forensic patient remaining in prison. It is the
committee's strong view that in order to recalibrate this paradigm, forensic
patients should not be held in prison.
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