A report tabled in the Victorian parliament last week outlined that a woman with a significant development disorder spent 18 months in prison after being found not guilty on the grounds of her impairment.
In the forward to the Investigation into the Imprisonment of a Woman Found Unfit to Stand Trial report, Victorian Ombudsman Deborah Glass remarked that this is the “saddest case” she’s dealt with in her current position as the state’s chief oversight official.
The case involved 39-year-old Rebecca – not her real name – who was remanded after being charged with breaching a family violence intervention order and resisting police. However, a court subsequently found her unfit to stand trial and then not guilty due to mental illness.
But, Rebecca remained in the Dame Phyllis Frost Centre for months on end, because there was nowhere for her to go, as authorities claimed they couldn’t find a suitable place for her. Whilst she was detained in prison, she was locked in solitary confinement for up to 23 hours a day.
What’s more, the judge in her case said that if she’d pleaded guilty to the charges and been sentenced, she’d probably only have received a one month prison sentence. And this is not the only case of an individual deemed unfit to stand trial spending a prolonged time in prison.
Ms Glass said that the case highlights the need for more adequate facilities for people like Rebecca. And she made a formal recommendation that the Victorian government invest in secure therapeutic alternatives to prison.
A systemic blind spot
“There are very few places in Victoria where people who are found unfit to stand trial can be detained,” Ms Glass told Sydney Criminal Lawyers®, “the main option being prison, which is not a therapeutic environment.”
The Victorian Ombudsman explained that a gap exists in the system, so at present a judge doesn’t have the option of sending a person who’s unfit to stand trial and on a custodial supervision order to a therapeutic facility “that is also secure to protect the safety of its residents and the community”.
“Victoria has a forensic mental health hospital,” Ms Glass continued, adding it has an acute shortage of beds. And there are also “two secure accommodation options for people with disabilities who have been found unfit to stand trial”. But, these aren’t an option for someone like Rebecca.
Rebecca was diagnosed with “pervasive development disorder” and “borderline intellectual function” at the age of 32. Prior to this diagnosis of intellectual disability, she was thought to have been suffering mental illness.
So, Rebecca then feel into a service gap. She was no longer eligible for mental health services. And she was also found ineligible for disability services. And on top of all this, there are no residential disability services available in the state for individuals with a development disorder like Rebecca’s.
Unfit to stand trial
All Australian jurisdictions allow for people with intellectual disabilities or cognitive impairment to be detained indefinitely, when they’re considered unable to understand the nature of the trial they were scheduled to stand.
The laws that apply to those unfit to stand trial in Victoria are contained in the Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997. An individual thought to be potentially unfit to stand trial undergoes a hearing in the County Court, where a jury decides on whether they are fit.
If an individual is found unfit to stand, the jury can find them either guilty or innocent of the offence, or not guilty due to their mental impairment.
And those found guilty or not guilty because of their condition can be detained under a custodial supervision order, or released under conditions or unconditionally.
The Victorian legislation makes clear that for those detained under a supervision order prison should be a last resort.
There’s no specialist unit for women with an intellectual disability within the Victorian correctional system. So, whilst inside, Rebecca was held in the Dame Phyllis Frost Centre’s Marrmak mental health unit. But, despite this, she was still locked in solitary confinement for 22 to 23 hours a day.
“She undoubtedly had challenging behaviours,” Ms Glass explained. “And the prison was concerned not only for her own safety, but that of other prisoners and its officers.” And, while Rebecca was being locked up by herself, she became so distressed that she lost half her body weight.
According to Ms Glass, “there were some less restrictive alternatives reasonably available”. These included implementing a comprehensive behavioural management plan, which could have established “a rewards system where she could have more time out of her cell”.
During the Ombudsman’s investigation into her case, agencies finally found suitable housing for Rebecca, along with a carer, and she was released in December last year.
Invasive strip searching
Along with investment in secure therapeutic alternatives, Ms Glass also recommended the prison review its policies and practices around the use of solitary confinement and strip searching in regard to inmates with mental impairment.
Ms Glass already recommended that the Dame Phyllis Frost Centre abolish its practice of routinely strip searching women before and after contact visits following a review last year. At the time, the Department refused. But, the Ombudsman was pleased to report its since taken up the suggestion.
“Strip searching should only occur when it is justified by intelligence or risk,” Ms Glass stressed. “It should not be forgotten that many women prisoners are victims of sexual abuse, for whom strip searching has the potential to inflict further trauma.”
A damaging practice
Regarding the use of solitary confinement, Ms Glass pointed out that international studies show that its use has multiple negative impacts upon both prisoners’ mental and physical health. And treating inmates so harshly undermines rehabilitation.
Indeed, the Nelson Mandela Rules – the UN standard minimum rules for the treatment of prisoners – provide that indefinite prolonged solitary confinement should be prohibited. And solitary confinement should never be used on a prisoner with disabilities if it exacerbates their condition.
Unjustly lost in the prison system
The Ombudsman’s report further found that Rebecca’s case is far from a one off. Evidence was uncovered during the investigation of multiple cases where individuals unfit to stand trial had spent long periods in prison, and sometimes in equally restrictive circumstances.
However, the numbers of people deemed unfit to stand trial being detained is unknown, as no data exists on them. No one minister or agency is charged with monitoring individuals in these situations. And cases like Rebecca’s usually go undetected.
“Rebecca’s Legal Aid lawyers told us they had worked with Rebecca prior to her time in prison and her condition had become worse” Ms Glass concluded. “For now, at least, she is out of prison, but at what cost – both to her and society?”
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.