Law
Mentally Ill Offenders and
Human Rights in Places of
Detention
Dr Bronwyn Naylor
Working Within the Forensic Paradigm: Prato
September 2011
Outline
1
The picture
2
Challenges
3
My research
4
Some relevant human rights
5
Application of human rights
6
Monitoring
Presentation title
28th February 2011
2
The Picture
 Mentally ill offenders:
– ‘Not guilty of grounds of mental impairment’/mental illness
– Found guilty but mentally ill at sentencing
– Found guilty; diagnosed with mental illness whilst in custody
 Locations
– Forensic psychiatric hospital
– Inpatient service in the prison system
– Prison psychiatric wards
 Statistics
– 28% Vic male prisoners with mental health conditions
– 78% NSW reception prisoners had ‘a psychiatric disorder’ in
previous 12 months
Presentation title
28th February 2011
3
Challenges for providing mental health
services in the criminal justice system
 People entering prisons tend to have poorer health
 Prisons introduce health risks
 Pressure on resources:
“…The situation is now such that patients are returned to prison partially treated to
allow more acutely disturbed patients to be transferred from prison to
hospital. International benchmarking of forensic mental health beds shows that
we are woefully behind other “like services”. For example, Scotland, with a
population close to Victoria’s, has 534 beds; the Toronto Metropolitan area, also
with a population similar to ours, has more than 350 beds, and this does not
include beds for psychiatrically unwell prisoners“. Victorian Institute of Forensic Mental
Health Annual Report 2008-2009 p.17
Presentation title
28th February 2011
4
 Is the person treated as a prisoner or a patient?
‘it’s a forensic hospital, it’s not a psychiatric prison’
 control v autonomy?
– Patient decision making; aged care decisions
– Use of medication
• ‘we don’t want staff to get the idea that we’re using
medication as a chemical restraint. ...it’s got to be treatment
based. It’s got to be therapeutic.’
 Clinical v legal/human rights obligations?
Australian Research Council-funded
project: ‘Applying Human Rights
Legislation In Closed Environments’
 Question: How can human rights be protected in
closed environments such as psychiatric facilities
and prisons, given their competing agendas and
obligations?
 Coverage: Prisons, police cells, immigration
detention, psychiatric and disability facilities.
Presentation title
6
International and national standards
 ICCPR
– Equality before the law
– People deprived of liberty to be treated with humanity
 Convention on the Rights of Persons with Disabilities (2007)
 UN Principles on Protection of People with a Mental Illness(1991)
 UN Standard Minimum Rules for Treatment of Prisoners (1955)
– Health services to prisoners are to be delivered at a standard
comparable to that available in the general community;
– Prisoners to be treated first as patients, from point of view of their
health, and only secondarily as prisoners.
Presentation title
28th February 2011
7
Some rights affected by being held in
detention
 Protection from cruel, inhuman or degrading treatment or punishment:
s.10 Vic Charter
 Right to humane treatment when deprived of liberty (Ch s.22(1)
 freedom of movement (Ch s.12);
 Privacy, family ‘not unlawfully or arbitrarily interfered with’ (Ch s.13)
 Right to practice culture and religion (Ch s.19)
 Right to a fair hearing (Ch s.24)
Presentation title
8
Limitations on rights
 s.7(2)A human right may be subject under law only to such reasonable
limits as can be demonstrably justified in a free and democratic society
based on human dignity, equality and freedom, and taking into account
all relevant factors including:
- nature of the right
- Importance of the purpose of the limitation;
- Nature and extent of the limitation; ...
- Any ‘less restrictive means reasonably available to achieve the
purpose’...
Presentation title
9
Cruel, inhuman or degrading treatment or
punishment
 Cruel – or inhuman – or degrading
 Inhuman: includes treatment that ‘deliberately causes severe suffering,
mental or physical’
 Degrading: arousing feelings of fear, anguish and inferiority, capable of
humiliating and debasing
Presentation title
10
 Treatment or punishment
- not extended to ‘normal’ punishment, eg prison sentence as such
- Corporal punishment has been held to breach the provision (UK)
- involuntary medical treatment? Courts tend not to intervene.
‘The Court considers that the position of inferiority and powerlessness
which is typical of patients confined in psychiatric hospitals calls for
increased vigilance in reviewing whether the Convention has been
complied with. While it is for the medical authorities to decide, on the
basis of the recognisable rules of medical science, on the therapeutic
methods to be used, … such patients nevertheless remain under the
protection of Article 3… The established principles of medicine are
admittedly in principle decisive in such cases; as a general rule, a
method which is a therapeutic necessity cannot be regarded as
inhuman or degrading.’ (Austria 1993)
Presentation title
11
Application (1): 09-085 [2009] VMHRB
 D convicted of a sexual offence in 2001.
 Receiving treatment for schizophrenia and also depo provera re sexual
inhibition since 2001. Developed severe osteoporosis due to the depo
provera.
 Appeal 2009. Living in the community under Community Treatment
Order.
 Argued: continued use of DP was cruel, inhuman or degrading
treatment or punishment and not justified under s.7.
Presentation title
28th February 2011
12
Held: measures which are therapeutic necessities will not be regarded
as cruel, inhuman or degrading. But even a therapeutic intervention
can potentially constitute cruel, inhuman or degrading treatment where
the side effects of the treatment reach a ‘minimum level of severity’.
Not the case yet but could cross the line with further deterioration of P’s bone
density.
Application (2) Brough v Australia (2006)
 Facts: 17 yo Aboriginal youth with mild intellectual disability.
 Held in solitary confinement; lights on all the time; stripped to
underwear and without a blanket.
 Held: given his youth, disability and status as an Aboriginal, the
treatment violated article 10 ICCPR - the right to humane treatment
when deprived of liberty (Ch s.22(1) )
Presentation title
14
Application (3) Kupczak v Poland (2011)
 Facts; K disabled from car accident: pain, managed with morphine
pump. Held in detention 2+ years; pump failed soon after detained. ->
significant pain levels.
 Held: Lack of access to pain relief = inhuman and degrading treatment.
Comments:
 ill treatment must reach a minimum level of severity to fall within CIDT/P
– ‘beyond that inevitable element of suffering or humiliation connected
with a given form of legitimate treatment or punishment’.
 This level is relative to the circumstances, duration of treatment, its
effects etc
15
Presentation title
Other European cases on CIDT/P find  May include overcrowding, inadequate lighting, inadequate ventilation,
insufficient sanitary conditions.
 State holding people in detention must provide appropriate health care
in detention.
 Lack of resources and logistical issues are not excuses
Presentation title
16
Right to a fair hearing
 Kracke v Mental Health Review Board [2009] VCAT 646
 Vic Mental Health Act provides for Involuntary Treatment Orders (must
be reviewed within 12 mths) and Community Treatment Orders (must
be reviewed within 8 weeks)
 VCAT held: breach of right to a fair hearing, as the right requires that a
hearing be conducted within a reasonable time.
 Not CIDT/P – provision in legislation for involuntary treatment was
permissible under s.7 to ensure necessary medical treatment given to
people with mental illness.
Monitoring and Oversight as proactive HR
protection mechanisms
 Internal monitoring
– Applying legislated standards – eg under MHA
 External monitoring (eg)
–
–
–
–
Vic: OCSR: oversees and does inspections of prisons.
WA: OICS – fully independent; reporting to Parliament
Vic: Chief Psychiatrist , Senior Practitioner (disability) – internal to dept
OPA + Community Visitors
Ombudsman
18
OPCAT (Optional Protocol to the Convention Against
Torture)
 Ratified in 48 countries
 Requires:
– NPMs – National Preventative Mechanisms
– Access for SPT
 NZ (2007) – 5 existing bodies
 UK (2009) – 18 existing bodies