People with disabilities dying in custody

The worldwide Black Lives Matter movement and protests have highlighted, once again, the ongoing prevalence of Australian First Nations people dying in custody. Less well known is the struggle of First Nations people with disabilities in prisons. Carissa Lee Godwin, Editor, APO’s First Peoples & Public Policy Collection, focuses on what needs to change with the treatment of First Nations people with a disability in custody.

Aboriginal and Torres Strait Islander peoples should be aware that this report contains images and names of people who have passed away. 

This report from Human Rights Watch “He’s Never Coming Back” People with Disabilities Dying in Western Australia’s Prisons,’ in APO’s First Peoples & Public Policy Collection is based on a review of the 102 cases of deaths in custody that occurred in Western Australia between 2010 and 2020. There is also an examination of the cases of eight people with disabilities who died in custody in Western Australia between 2015 and 2020, six of whom were First Nations people.

Key report findings

This report reflects on the 1991 Royal Commission into Aboriginal Deaths in Custody finding that Aboriginal people were more likely to die in custody in part because they were incarcerated at disproportionate rates. This remains true, with the Human Rights Watch report stating that Aboriginal and Torres Strait Islander people make up just 4 per cent of Western Australia’s population, but make up 39 percent of the state’s full-time adult prison population. Guardian Australia on 1 June 2020 reported that at least 437 Indigenous people have died in custody throughout Australia since 1991, and in over 40 per cent of cases, the person had a mental health condition or a cognitive disability. 

Other findings include:

• The current approach to mental health service delivery in prison is informed by diagnosis and medication but fails to take a culturally sensitive approach to Aboriginal mental health.
• The report’s review found that prison staff failed to provide support that could have prevented prisoners taking their own life or from being attacked by fellow prisoners, even in cases when they knew a prisoner had a disability.
• Although the Western Australian Department of Corrective Services have taken several measures to reduce the number of deaths in custody, the rates of self-harm are still very high for people with psychosocial or cognitive disabilities, particularly Aboriginal and Torres Strait Islander peoples.

Key policy recommendations

The report provides an extensive list of recommendations to specific government bodies in Western Australia. The report also calls on Australia’s federal, state, and territory governments to implement all the recommendations from the 1991 Royal Commission into Aboriginal Deaths in Custody, the Australian Law Reform Commission’s 2018 Pathways to Justice report, and the Change the Record Campaign. This includes repealing punitive bail laws; mandatory sentencing laws; and decriminalising public drunkenness and raising the age of criminal responsibility from 10 to at least 14 years.

Other recommendations include:

1. The Coroner’s Court of Western Australia needs to investigate deaths in prisons promptly to ensure the Department of Corrective Services can take swift action to prevent more deaths in custody.
2. Through legislative safeguards, the Australian Government needs to end the abuse, torture and solitary confinement of Aboriginal and Torres Strait Islander people in police and prison cells. This can be aided through the establishment of independent bodies to oversee the treatment of prisoners in accordance with Australia’s obligations under the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). 
3. Western Australia’s Minister for Corrective Services and Commissioner for Corrective Services needs to ensure mental health services in prison are culturally appropriate, providing an option for the disability or mental health assessment of First Nations people to be conducted in collaboration with First Nations mental health workers and/or significant members of the person’s community.

Far-reaching benefits

Human Rights Watch has found that little has been done to address the deteriorating conditions of imprisonment, including access to mental health services, and the overuse and harm of solitary confinement. The recommendations in this report iterate the need for culturally appropriate approaches to ensure the wellbeing of First Nations prisoners living with a disability. The report recommends that Western Australia’s Minister for Corrective Services and Commissioner of Corrective Services work in close collaboration with Aboriginal health services, to ensure mental health services are culturally appropriate for prisoners. In addition to all the above, it should be a priority of Australia’s federal, state and territory governments to end the over imprisonment of First Nations people altogether

About the First Peoples & Public Policy Collection

This article was first published by the Australia and New Zealand School of Government (ANZSOG). ANZSOG works in partnership with Analysis & Policy Observatory (APO) to increase knowledge of Indigenous culture and history. This partnership includes support for the First Peoples & Public Policy Collection on APO, launched at ANZSOG’s Reimagining Public Administration conference in February 2019.

The First Peoples & Public Policy Collection is curated from a broad selection of key Indigenous policy topics, and provides a valuable resource on Indigenous affairs, with a focus on diverse Indigenous voices.