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Law Mentally Ill Offenders and Human Rights in Places of Detention Dr Bronwyn Naylor Working Within the Forensic Paradigm: Prato September 2011.

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Presentation on theme: "Law Mentally Ill Offenders and Human Rights in Places of Detention Dr Bronwyn Naylor Working Within the Forensic Paradigm: Prato September 2011."— Presentation transcript:

1 Law Mentally Ill Offenders and Human Rights in Places of Detention Dr Bronwyn Naylor Working Within the Forensic Paradigm: Prato September 2011

2 28th February 2011Presentation title2 Outline 1The picture 2Challenges 3My research 4Some relevant human rights 5Application of human rights 6Monitoring

3 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 28th February 2011Presentation title3

4 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 28th February 2011Presentation title4

5  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’s got to be treatment based. It’s got to be therapeutic.’  Clinical v legal/human rights obligations?

6 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 title6

7 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. 28th February 2011Presentation title7

8 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 title8

9 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 title9

10 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 title10

11  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 title11

12 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. 28th February 2011Presentation title12

13 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.

14 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 title14

15 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 Presentation title 15

16 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 title16

17 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.

18 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

19 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

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