Navigating prison with disability

“They couldn’t accommodate my needs as someone with a disability.”

Phillip Jenkins is reflective when asked about his experience as a prisoner with a disability. He begins by almost downplaying what he went through – before admitting he still suffers trauma from his time in jail.

He would self-medicate with drugs before finding the right medication for his condition. He was “in and out of custody” for drug-related offences.

Entering prison was a shock to his system, because once he entered, he was no longer able to access his medication.

“To find the right medication to be on in the community and then to go into prison and not be given that … I was beside myself. I spent everyday – and I mean every day – asking a nurse of asking an officer for medication, just to be met with hostility.”

It was not just himself who suffered in prison. Phillip recalled seeing an older man, around 80 years old, who was Indigenous and a double amputee, being “absolutely pummelled” by two prison officers.

“It’s an 80-year-old man that was wheelchair-bound [sic] and it was because he was incontinent. Because he went to the toilet in the bed.”

The incident scared and scarred him, and Phillip has been left with lasting trauma from his prison experience.

He’s not alone.

Participants in the research shared how they were subjected to demeaning practices in prison, including being watched in the shower, needing to beg for sanitary products, and experiencing prisoner-on-prisoner violence. One prisoner, a proud Arrente man, was held in solitary confinement and would hit his head when agitated; he was forcibly restrained and injected with a tranquiliser until unconscious.

One single father held in police custody was unable to contact his children to let them know of his situation. Indigenous people with disability said they felt they were “preyed on” by staff, with prisons showing a lack of cultural safety and sensitivity.

Taylor Budin is a First Nations woman who was held in maximum security prison for three and a half months. She has autism and an acquired brain injury, and said those months dragged on and felt like years. She was refused access to her medication for the first three weeks, and was unable to see a psychologist or psychiatrist in that time.

“Because of that, I was in my cell hitting myself and very distressed and overwhelmed and didn’t really know what to do,” she said.

“It got to the point where they punished me for my autism behaviour and threw me into a dry cell for a week.”

A dry cell has no toilet or shower, she added; just a mattress on the floor. Taylor was put in wearing nothing but a hospital gown.

Her sensory issues around food were also disrespected. Taylor is unable to eat food if certain coloured ingredients – like peas, carrots and corn, standard prison vegetables – are touching.

“When I was telling them that, one of the head sergeants turned around and said to me – and it scarred me for life – ‘I don’t give a f**k if your peas touch your carrot [or] touch your corn, you autistic dog’,” Taylor recalled.

Patrick McGee, Churchill Fellow and a co-author of the report, said for people with a disability, punishment doesn’t end with release from detention.

“Their experience of the justice system, right from the work go, is much more skewed towards an enhanced punishment and a more significant loss of rights – and that occurs in the context of cognitive impairment, it occurs in the context of being overwhelmed, it occurs in the context of needing health care. This arbitrary detention then brings with a vulnerability to cruel, inhuman and degrading treatment. People with disability are very, very vulnerable to this – not only individual instances of cruelty and degradation, but a systematic cruelty and degradation.”

He said restrictive practices – including chemical and physical restraints – are commonly used against people with disability, with a lack of oversight.

Co-designing the future

The Australian Institute of Health and Wellness states that around 39 per cent of people entering prison have a disability.

The UNSW report isn’t the first to find evidence of mistreatment in prison. Previous reviews – including the Disability Royal Commission – have noted the “systemic violence and abuse committed against young people in detention, including the disproportionate use of solitary confinement… for young people with disability”.

Maree Higgins, a co-author of the UNSW report, said there are “workable alternatives” to the cruel treatments uncovered in prisons, that will “prioritise people’s human rights and that are much more trauma-informed”.

“But there’s also a normative culture that stigmatises and prioritises management of risk over a recognition of the trauma that people come into these systems with, and that they may leave these systems with or exist with as a result of being in these systems,” she added.

LSJ put the allegations detailed in the report to the Attorney General’s Department. In a written statement the Department responded that it is “carefully considering” the report from the Disability Royal Commission, including its 24 recommendations relating to the experience of people with disability in the criminal justice system.

The Department said the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) had been considered at the Standing Council of Attorneys-General meeting in February.

“Participants agreed to work together on OPCAT-related recommendations of the Disability Royal Commission that give rise to joint Commonwealth, State and Territory responsibility. Australia’s obligations under OPCAT are to designate a National Preventive Mechanism – an independent domestic body or bodies to undertake visits to places of detention and make recommendations regarding the prevention of torture and ill treatment, and facilitate visits to places of detention by the United Nations Subcommittee on Prevention of Torture,” the response read.

“Addressing the very serious issues raised requires national effort.”

An important component of the UNSW report is suggestions from participations about how to improve their treatment in prison.

Participants in the research said restrictive practices should either be banned outright, or their use altered with stricter requirements on when they could be applied. They also identified a need for access to Medicare and the NDIS in prisons (where it can be difficult to apply for the scheme). As well, participants called for improved access to independent health advocates who would be able to assist people with disability to feel safe, call out wrongdoing and navigate the processes involved within the prison system.

An important recommendation out of the report was for the development of a National Action Plan, which would set out the goals needed to improve treatment of people with disability in prisons. It would be based on various reviews, including the Royal Commission into Aboriginal Deaths in Custody and the Disability Royal Commission, and would act as a “comprehensive, coordinated and formalised approach to reporting on Australia’s progress, or lack of progress, towards the reduction and elimination of cruel degrading and inhuman treatment of people with disability in Australia’s places of detention”, the report states.

A National Report Card, which would analyse state and federal governments’ progress towards implementing the Disability Royal Commission’s recommendations and the UN Convention Against Torture Concluding Observations, could also guide progress.

But no matter what resolutions are put in place, Phillip said it must be co-designed with people with disability.

“With the support of the researchers, we [need to be put] centre front to design policy, because it concerns us. We’ve been through it and we need it to be better for those that may have to go through it in the future. We need to make sure that it’s … trauma-free, violence-free,” he said.