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The harsh reality of a solitary confinement cell (Image via YouTube screenshot)

Notes for a talk presented to the Citizen Advocacy Trust of Australia fundraiser at the Supreme Court Library, QEII Courts Building, George Street, Brisbane on 21 June 2018, by Stephen Keim.

WARNING: This piece contains descriptions of violence and abuse that may disturb and upset some readers.

Introduction

I am honoured, this evening, to be speaking in support of the Citizen Advocacy Trust of Australia and its work supporting and advancing citizen advocacy across Australia.

Citizen advocacy was developed in the '70s in response to the increasing isolation and lack of support experienced by people with intellectual disability. According to an accepted definition, it is a means to promote, protect and defend the welfare and interests of – and justice for – persons impaired in competence, diminished in status or physically isolated through one-to-one voluntary commitments made to them by people of relevant competencies.

Citizen advocates work one-on-one with people suffering disabilities to help them negotiate the vicissitudes of life in modern society, by helping the person to deal with agencies such as Centrelink, medical service providers, utilities, creditors, legal representatives and the courts and justice system.

People needing such advocacy have often survived in society by remaining with and receiving assistance from their parents but, as their parents or other relatives age, become sick and pass on, the persons with the disability are left increasingly isolated and unprotected.

Support for citizen advocacy has been funded by governments, but such programmes are vulnerable when governments are under pressure to save money by cutting services.

The Citizen Advocacy Trust of Australia was founded in 2005 to provide independent funding to support the creation, maintenance and integrity of programs and to reinforce good practice consistent with citizen advocacy principles that are known to be successful and sustainable. The Trust makes grants which are particularly directed at supporting advocates to connect with and support one another, and to travel to meetings where they can receive training and encouragement to support their own voluntary work as citizen advocates.

There is a mutuality of relevance between the subject of my talk and the work of citizen advocates. Citizen advocates reduce the vulnerability of the people they assist and help them to live satisfying lives. In particular, they reduce the chance of their clients falling victims of the justice system.

As the report confirms, many people with disabilities, through lack of support, find themselves on a pathway to prison and they are treated badly when they arrive, being deprived of the support in prison that was not provided to them in the community.

The topic

When Christine gave me the opportunity to speak, tonight, I was very keen to do so. One of the reasons why I was so keen is the sheer magnificence of the research project, which produced the Human Rights Watch (HRW) report entitled 'I Needed Help, Instead I was Punished: Abuse and Neglect of Prisoners with Disabilities in Australia'.

Between September 2016 and January 2018 (including ten weeks of actual fieldwork), HRW interviewed 275 people including 136 current or recently released prisoners with disabilities across Western Australia, Queensland, Victoria and New South Wales. The ages of the prisoners ranged from 17 to 78 years. 63 of the prisoners were Aboriginal and Torres Strait Islander men and women. The interviewees also included 44 prison staff, 31 health or mental health professionals, 27 advocates (disability rights advocates, advocates for the rights of Aboriginal and Torres Strait Islander people, 14 lawyers, five academics, five family members or guardians, six service providers and seven government officials).

The researchers visited 14 prisons, including three women’s prisons and two forensic or secure units. The Queensland sites visited were the Arthur Gorrie Correctional Centre, Wolston Correctional Centre, Brisbane Women’s Correctional Centre, Lotus Glen Correctional Centre, Woodford Correctional Centre, Southern Queensland Correctional Centre, Helena Jones Community Custody Centre and the Princess Alexandra Hospital Secure Unit.

HRW drew on the expertise of Aboriginal and Torres Strait Islander organisations, disability organisations and prisoners' community legal services to assist the research including assistance with the identification of prisoners with disabilities for interview and research purposes.  

The report is extensive and it is disturbing. It provides a moral challenge to all of us.

Background

An important context to the treatment of prisoners with disabilities is the overcrowding of prisons, which is an increasing phenomenon. In 2017, the Australian prison population reached an all-time high of over 41,000 prisoners — a 40% increase over the preceding five years.

Queensland has the second largest prison population in Australia, with 8,300 adult prisoners.

An estimated 18% of Australians have a disability. The over-representation of people with disabilities in the prison population may be seen in the circumstance that almost half of all persons entering prison have a mental health issue (the report uses the term “psychosocial disability”), with more than 25% reporting that they were on medication. These statistics call into question the fairness and effectiveness of the Australian justice system. They also reflect the reality that the lack of comprehensive mental health and social services creates a pathway to prison for people with disabilities.

The nightmare continues, of course, in prison. People with disabilities, once in prison, are unlikely to get the support and services they need and are likely to get harassed, abused, assaulted and raped by fellow prisoners and staff.

The literature associates the increased and disproportionate rates of people with disabilities in prison with deinstitutionalisation of people with psychosocial disabilities, which has not been accompanied or replaced by adequate capacity within the community-based mental health care system.

The over-representation of people with disabilities in prisons becomes exacerbated when combined with the over-representation of Indigenous people in the same prison system. Aboriginal and Torres Strait Islander people represent 2% of the Australian population, but 28% of the Australian full-time adult prison population. The number of Aboriginal and Torres Strait Islander prisoners has grown by 88% since 2004 compared to 28% growth for the prison population as a whole.

Data also indicate that Aboriginal and Torres Strait Islander people have a higher incidence of disabilities than the general population, with one study suggesting that nearly half of the Aboriginal and Torres Strait Islander people over 15 years old are living with a disability. Many Aboriginal and Torres Strait Islander children have disabilities that are neither recognised nor supported.

The result is that 73% of Aboriginal and Torres Strait Islander men and 86% of Aboriginal and Torres Strait Islander women in prison have a diagnosed mental health condition.

One might think that caring and supporting for people with disabilities should be one of the highest priorities for corrective services departments.

It would not surprise anyone engaged in citizen advocacy that the literature is replete with information concerning barriers to justice experienced by people with disabilities, especially cognitive disabilities.

A violent milieu

HRW documented at least 32 cases of sexual violence against prisoners with disability perpetrated by fellow prisoners or staff. 15 of these incidents were perpetrated against men and 17 against women. Most victims said that the attacks were not reported because of shame or the fear of retaliation. The authors of the Report suggest that most cases of sexual violence in prisons go unreported for these reasons.

The Report is at its most moving when it quotes actual statements by the people interviewed.

One quote is from a male prisoner with a cognitive disability, who said:

I was going to take a shower and I saw three male prisoners… one of them ran towards me… the other two held me down and they made me kiss his penis. I tried to shout out to the prison guards. I could not do anything because I would be labelled a dog. When I finally managed to find someone to tell and the guards found out, they put me in a punishment cell. I was told there was nowhere else to put me and it was for my own safety… I could just hear the guards giggling outside.

And from a woman prisoner with a psychosocial disability, who said about life in a female prison:

“I got hit on sexually by officers quite regularly, even though I’m old. Male predators work in that gaol next to young vulnerable girls. They catch you when you are working on yourself and touch your boobs, bum, or put a hand around your waist. Or they make stupid comments like, ‘You’ve been here for a while. You must be horny’.”

A particular problem concerns prisoners appointed as carers for persons with disabilities who have high support needs. While prison staff claimed to HRW that every effort was made to choose suitable people for these highly sought after and comparatively high paid jobs, HRW documented many occasions where the appointed carers had past histories of violent sex crimes or of harassing or manipulating other prisoners.

The most horrific documentation of this came from a senior nurse who works in a Queensland prison.

Having first mentioned that six of the eight persons working as carers at the time of the interview were convicted sex offenders, she said:

“We had a case where a prisoner with a disability was recently raped by his carer. During a random cell search, officers found blood and faeces on his bedsheets. Only then did the victim disclose he was raped on numerous occasions. Before that, he was too scared.”

Of course, the practice of doubling up in cells because of overcrowding, due to the rapid increase in prisoner numbers makes the vulnerability of high needs prisoners acute. The prisoner with the disability and the carer are locked away together from 6 pm until the following morning.

HRW documented 41 cases of physical violence perpetrated by staff or fellow prisoners on prisoners with disabilities.

One prisoner suffering from a psychosocial disability described his experience as follows:

"I got beaten up in the detention unit. I had played up the day before so they were trying to teach me a lesson. Four officers tackled me. The senior officer stood on my jaw while the other hit my head in and restrained me. They said, ‘You don’t run this prison, you little c***. We do.’ They cut my clothes off. They left me naked on the floor of the exercise yard for a couple of hours before giving me new clothes."

The brutality of many of the histories obtained by HRW suggest inherent sadism on the part of the perpetrators of those abominations. But the systemic problems that lead to such conduct must not be ignored. Both prison staff and mental health professions told HRW that, due to lack of training, custodial staff fail to recognise behaviour as associated with a disability and, as a result, misinterpret a person’s behaviour as defiance or disobedience.

The following description came from a social worker working in a women’s prison:

“If one of the girls is going through a psychotic episode, guards hold onto a grudge and are brutal. They use fists and cuffs. They will lock her down for hours and hours, and it can be 42° centigrade with no fan, no air conditioning and no water. The guards will bruise the prisoner. They will strike them. Some are just on a power trip. They need to dominate them.”

The use of solitary confinement  

One of the worst practices identified by the report was the way in which solitary confinement is used to punish, or otherwise deal with, prisoners with disabilities. A contextual problem is that solitary confinement is often disguised and thereby not officially recognised as such, by using euphemisms such as “segregation” or “separate confinement” for prisoners placed in solitary confinement in maximum security, detention, crisis, observation or safety units.

The extent of use is reflected in the fact that nearly all units visited by HRW were full and most prisoners with disabilities interviewed had experienced solitary confinement. The practice is described by HRW as involving 22 hours or more a day locked in small cells, sealed with solid doors. The prisoner lacks opportunity for meaningful interaction with other prisoners, while most contact with prison and mental health staff is perfunctory and may be wordless, such as when meals are delivered through a slot in the cell door.

The two hours of exercise, if it occurs, does so in a fully caged, concrete exercise yard. Again, the overcrowding of prisons and the high rates of use of solitary confinement cells means that prisoners often do not get their opportunity for exercise every day. Prisoners often have no access to recreational or educational materials or activities, or other forms of mental stimulation, and are usually handcuffed and escorted by custodial officers when they leave their cells.

Prisons in Queensland use solitary confinement for various reasons, which include punishment, management, protection and, ostensibly, treatment of prisoners. Not surprisingly, HRW found that prisoners with psychosocial and cognitive disabilities are disproportionately represented in all solitary confinement regimes across the 14 different prisons visited for the report.

The reasons for this are not difficult to ascertain.

A psychiatrist who works with prisoners with disabilities told HRW:

“Prisoners are segregated for lengthy periods of time. The staff resort too readily to solitary confinement, and there’s a lack of investment in training and alternative strategies. Even the Office of the Chief Psychiatrist recognises that solitary confinement is traumatic and psychologically harmful.”

A nurse at a women’s prison said:

“Women with disabilities are over-represented in punishment cells. Some of the girls with mental health problems get sent down the back because they are seen as a management issue.”

Solitary confinement cells at Brisbane and Woodford Correctional Centres are called maximum security units. The legislation allows for the issue of maximum security orders, which permit detention in solitary confinement for three or six months. HRW ascertained that prisoners with disabilities could spend months and even years in solitary confinement on these orders. One man with a psychosocial disability spent 19 years (with a three week break) in the maximum security unit. HRW documented 19 cases of maximum security unit prisoners, of whom 15 had psychosocial or cognitive disabilities, and of whom at least five were Aboriginal and Torres Strait Islander prisoners with disabilities.

A psychologist working in Queensland prisons said:

“A large number of prisoners in the MSU have mental health issues. Some people have been there for years. In some cases, they are being punished for behaviour related to their disability. It’s a systemic issue. There should be an alternative.” 

A legally different form of solitary confinement is known as “confinement to punishment or detention units”. A superintendent or visiting justice can sentence a prisoner to up to 21 days of separate confinement in a punishment cell.

The punishment cell is located in a detention unit. It has only a bed, a table, a shelf and a toilet.

One male prisoner, with a psychosocial disability, described his experience as follows:

"The staff terrorise people in the DU. ‘Heel, dog, heel’ they said to me. I was sobbing. They opened up the grate and were laughing at me… I swallowed batteries in front of them. One officer spat in my face. He said, ‘I will punch your teeth all over the cell’. Seven other officers were there. They said I was being disruptive. I cut my wrists open. They did nothing, just sat on the bed. Later, they took me to hospital. I fought with them. I didn’t want to go. I was handcuffed and my feet were shackled. I was in extraordinary pain. I started playing up… I needed to talk to someone but they ignored me."

Safety units exist for prisoners at risk of harming themselves. However, they are structurally and operationally similar to punishment cells and the effect, in terms of isolation and solitary confinement, is very similar.

The Report gives an example of a woman called Anna who had a physical disability and used a wheelchair. Because the residential unit was full, Anna was placed in solitary confinement in the medical centre. She was confined to a single room without access to sunlight or the exercise yard. She had contact only with her carer. The carer assisted her with meals and using the bathroom and shower but nothing else.

Anna could not raise herself without assistance, so she remained bed-ridden. She lost her pre-confinement ability to use crutches during this time, and the isolation and uncertainty of not knowing how long she would be there caused her to suffer insomnia and nightmares.

Lack of appropriate adjustments for people with disabilities

Prison overcrowding causes numerous problems for people with disabilities. Doubling up or living three to a cell means that a person with a disability may be subject to exploitation and bullying, as we have seen with the high needs prisoner. Equally, people with disabilities are forced to live at close quarters with other persons, who may themselves be under stress. The potential for annoyance, intolerance and bullying skyrockets in such circumstances.

Many prisons are not built to be accessible for people with physical disabilities. Basic facilities such as kitchens, toilets, showers and bathrooms did not have wheelchair access in nine of the 14 prisons visited by the researchers. Tasks such as going to the toilet or getting into bed become painful and humiliating for such prisoners.

In one prison, there was only one accessible toilet and shower in the whole 1,000 bed facility. Prisoners have to seek permission to leave their unit, wheel themselves 125 metres to the infirmary and wait in line when they get there. When prisoners are locked in their cells, they have no access to usable toilets and have to undergo the humiliation of urinating in bottles or wearing nappies.

A human rights analysis

The limited survey we have just done of the findings of the HRW report has only just scratched the surface of the inadequacies of our corrective services system in housing and justly imprisoning people with disabilities.

Our sampling of individual anecdotes of horrendous examples of injustices suffered by prisoners with disabilities is even more incomplete.

Of course, exhaustive as the research was, the Report is, itself, but a sampling of the systemic injustice inflicted by our prisons on people with disability. What we can say with confidence is that our prisons institutionalise callousness. Both the physical and human infrastructure ensure that prisoners with disabilities are treated cruelly. Since no one working within that system can provide appropriate care for such prisoners, or prevent the cruelty being inflicted, for many workers callousness to that cruelty is the only way they can cope.

The Report analyses these injustices and cruelties against the applicable human rights instruments to which Australia is a party.  

The Convention on the Rights of People with Disabilities (CRPD) obligates governments to guarantee equal and effective legal protection against discrimination on the basis of disability and to take all appropriate steps to ensure that reasonable accommodation is provided. This obligation extends and applies to situations where people with disabilities are deprived of their liberty in a prison or other legal place of detention. The CRPD Committee which monitors implementation of the treaty has stated that persons with disabilities who are sentenced to imprisonment should be entitled to reasonable accommodation in order to not aggravate incarceration conditions because of their disability.

The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has made comments which are relevant to the practice of managing people with psychosocial or cognitive disabilities by placing them in solitary confinement. The Rapporteur pointed out that the CRPD affirms the right of people with disabilities not to be subjected to torture or degrading treatment. If pain is inflicted punitively on prisoners for conduct that reflects mental disability or in situations where prisoners cannot comply with staff orders because of mental or cognitive disability, it would constitute a violation of the CRPD.

The whole use of solitary confinement as documented in the Report would seem to evidence such violations of the CRPD.

Article 6 of the CRPD requires Australia to take notice of the multiple discriminations endured by women and girls with disabilities. It imposes a duty to take the required measures to ensure the full development, advancement and empowerment of women to guarantee them all human rights and fundamental freedoms. The Committee that monitors the implementation of the Convention on the Elimination of Discrimination against Women (CEDAW) has called on governments to introduce special measures to ensure equal access to health services and social security for women with disabilities, and has expressed concern for the situation of disabled women who suffer from a double discrimination linked to their special conditions.

I will finish my limited consideration of the applicable provisions of the international human rights instruments by remarking upon the fundamental right to the highest attainable standard of mental and physical health care. The right appears in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights and is reinforced by provisions of CEDAW and the CRPD.

It is a very significant departure from the highest attainable standard of health care to treat psychosocial and cognitive disabilities with extended periods of solitary confinement.

Recommendations

The Report makes a large number of constructive suggestions for changes to remedy the injustices revealed by it.

The recommendations at the Commonwealth level include a national inquiry into the use of solitary confinement of prisoners with disabilities, and an independent study of the condition of people with disabilities, particularly Aboriginal and Torres Strait Islander people with disabilities, in Australian prisons, including disaggregation of data by reference to various factors such as age, ethnicity and gender. The Report also recommends the implementation of the Optional Protocol to the Convention against Torture. The Protocol requires the establishment of a national mechanism to monitor prisons and other places of detention. This has been a policy at the federal level for some time, but progress has been glacial.

At the State and Territory level, recommendations include the introduction of policies that ensure that prisoners with disabilities cannot be held in solitary confinement, the ending of prolonged solitary confinement for any prisoner, and the systematic screening of all prisoners for all types of disabilities upon entry to prison. Also recommended are the provision of adequate resources to Corrective Services, and prisons to allow them to provide prisoners with disabilities with humane conditions of employment, reasonable accommodation, appropriate responses to their particular support needs and adequate access to support and mental health services.    

Conclusion 

Citizen advocacy is driven by the same underlying values as those which led to the adoption of the Universal Declaration of Human Rights. Citizen advocacy, like the UDHR, also proclaims the inherent dignity and the equal and inalienable rights of all members of the human family. Citizen advocacy is an expression of faith in fundamental human rights, the dignity and worth of the human person, the equal rights of men and women, and is determined to advance social progress and better standards of life in larger freedom.

Citizen advocacy seeks to advance social progress and better standards of life in larger freedom by assisting people with psychosocial, cognitive and physical disabilities in their lives in the world outside prison.

But none of us, if we believe in the inherent dignity and the equal and inalienable rights of all members of the human family, can allow our concerns to stop at the doors of corrective services facilities. Our concerns, like the force of law itself, must penetrate all of the dark spaces, and must fill them with the light of our belief in fundamental human rights and freedoms.

The most important reports, even in an electronic age, are prone to gather dust. 'I Needed Help, Instead I was Punished' was released in February. It gained headlines at the time. Its implementation, however, needs us to maintain the revulsion we feel when we read it for the first time and to persist in expressing our rage in articulate ways. Every one of us who has some influence in the way society and government behave must exert some of that influence to fix the injustices revealed by 'I Needed Help, Instead I was Punished'.

Let us all join together in that quest.

Postscript: The Queensland government, in a budget noticeable for several allocations to socially responsible projects, allocated $2.9 million to Queensland Corrective Services to improve service delivery for prisoners with a disability or mental illness. It may not be a massive advance, but it is a start.

Stephen Keim is a barrister and president of Australian Lawyers for Human Rights. You can follow him on Twitter @StephenKeim1.

If anything in this piece caused you distress, please contact Lifeline on 13 11 14.

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