Governments must set a path to justice for people with disability

30 November 2016

Disability service provider Endeavour Foundation has backed the strong stance taken by the Senate Community Affairs Reference Committee Report on the Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia.

The report, just released, provides a set of recommendations to address issues of major concern in the justice system, which the Senate Committee identified in the 2015 Abuse Inquiry.

Endeavour Foundation Chief Executive Officer Andrew Donne said the report set out a comprehensive roadmap for governments to address long-standing issues which allow people with a cognitive impairment or mental illness to be indefinitely detained without either conviction or receiving treatment.

“People with an intellectual disability deserve to be treated with fairness and justice within the criminal justice system,” Mr Donne said.

“We are concerned about the high number of people who are detained indefinitely without a conviction, and an inconsistent approach to how people can achieve release, if at all. It is time for governments to take action and address a situation where people can virtually be imprisoned for life, having never been convicted,” he said.

“While it has been difficult to know how to address these issues in the past, the Senate Committee has laid out a clear path for changes that will make a genuine difference to people with an intellectual disability who come into contact with the justice system.”

Endeavour Foundation’s Specialist Behaviour Service Manager Simon Wardale said it was of great concern that the only form of indefinite detention that was legal in Australia was reserved for people with intellectual disability or mental illness.

Mr Wardale noted that that this significant problem arose because the forensic mental health framework uses Mental Health legislation to deal with people who have cognitive impairment.

“The legislation provides a pathway to release for people whose condition improves through detention and treatment. However cognitive impairment is generally a permanent condition, and so it is not appropriate to place people with intellectual disability on a treatment order which results in indefinite detention,” he said.

“What people require is not an attempt to ameliorate their disability, but rather a considered, therapeutic response which will improve their personal capacity and ultimately reduce risk to the broader community.

“This places the court and those parties who appear before it in an untenable position to exercise their joint responsibility to the law and society.

“We also know that many people who face the court for other reasons are given community sentences. This option should also be available for people with intellectual disability and mental illness and could include mandated therapy rather than community service,” Mr Wardale said.

Endeavour Foundation also calls on the Council Of Australian Governments to place a specific focus on the following aspects of the report.

  1. Where appropriate, therapeutic interventions should be made available and people with intellectual disability or mental illness should be supported in a suitable, therapeutic environment rather than incarcerated in punitive maximum security environments which may exacerbate mental illness or create emotional disruption.
  2. Victoria has developed what we consider to be the best practice model for support and diversionary service for people with cognitive impairment. Other jurisdictions should adopt this model, along with appropriate screening and diagnostic tools when people first enter the criminal justice system, to help identify people with mental illness, cognitive impairment, hearing loss and foetal alcohol syndrome disorder.
  3. The provision of effective early intervention would have a major impact in addressing and arresting the development of forensic issues at a young age. This would prevent people from entering the criminal justice system at all, and would benefit the community at large by reducing public spending in the criminal justice system and indefinite detentions.

Note to Media: Mr Wardale is available for interview.

Media contact: Kirrily Boulton, 0429 077 886 – k.boulton@endeavour.com.au

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