Concerns regarding people in prison | External submission

Date: 25 March 2021

Joint Standing Committee on the National Disability Insurance Scheme PO Box 6100 Parliament House Canberra ACT 2600

Dear Committee

RE: Independent Assessments under the National Disability Insurance Scheme (NDIS)

I write on behalf of the Prisoners’ Legal Service (PLS), a community legal centre that assists people in prison in Queensland with legal issues relating to their incarceration. PLS provides targeted assistance to people with disability in relation to prison conditions and obtaining release on parole. PLS plays an active role in assisting vulnerable people in prison to both access the NDIS and increase the level of funding available under existing plans.

People in prison have higher rates of disability than people in the general population.1 In the 2019- 20 financial year, 87.5% of the clients for whom PLS provided legal representation had disabilities and 35.7% of our clients identified as First Nations people.

PLS is concerned that independent assessments will be used to limit people with disability’s autonomy and their access to the NDIS. We are also concerned that First Nations people will be disproportionately affected and have not been properly consulted.

PLS supports the entirety of the submission and recommendations lodged by Queensland Advocacy Incorporated in February 2021. In this submission we provide specific concerns regarding people in prison.

1 https://www.aihw.gov.au/reports/prisoners/health-australia-prisoners-2018/summary

Prisoners’ Legal Service Inc. Justice Behind Bars Postal Address: GPO Box 257 BRISBANE QLD 4001 Telephone: 07 3846 5074 ABN: 15 677 129 750 Facsimile: 07 3229 9222 Web: www.plsqld.com Email: pls@plsqld.com

       A free service providing legal assistance with prison conditions and parole applications.

  PLS respectfully acknowledges the Aboriginal and Torres Strait Islander peoples as the traditional owners and custodians of this land
                            and acknowledges their Elders, past, present and emerging

The critical role of NDIS packages and the option of independent assessments

Appropriate NDIS packages are extremely beneficial to people with disability who are in prison or enmeshed in the criminal justice system. In our experience, NDIS support increases the likelihood that people in prison who are eligible for parole will be granted released from custody onto parole orders. Also in our experience, it reduces the chance of people with disability returning to prison.

PLS fully supports the availability of independent assessments for participants or prospective participants who request them. Many PLS clients have complex and chronic disability with clear functional impacts that are not documented, for example because of their history of incarceration, barriers to continuity of care when in the community, accessibility issues exacerbated by their disability, cultural and linguistic factors and/or poverty. Accessible independent assessments can be extremely valuable for people in this situation.

However, PLS also works with many people who have safe and established relationships with health and allied health practitioners who can provide reliable information relevant to NDIS access (or would be able to if they were given time and funding to do so). Mandatory independent assessment will deny some participants and prospective participants this choice. In some cases, mandatory assessments will result in people being forced to relieve significant trauma with a professional with whom they have no established relationship. For example, many of our clients have significant mental health diagnoses stemming from institutional abuse. Further, psychosocial disability, which is prevalent in prison, is complex and has diverse functional impacts for different people. The proposed assessment framework risks people with psychosocial disability not having their full experience of disability captured.

For these reasons, we consider that mandatory independent assessments will result in some people with significant needs losing some or all supports, either because they are not comfortable complying with the assessment process or because they receive less comprehensive evidence than they would from another professional who they trust and/or who understands their history. The Tune Review recommended independent assessments as an option for people who did not have the means to procure an assessment.

There is also evidence to suggest that over time, the limited panel of assessors and rigid assessment tools will create structural bias and lead to assessments that do not meaningfully address criteria relevant to NDIS access. This has occurred in the context of psychiatric opinions procured by the government under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney-General (Qld) v Carter, Justice Jackson describes problems relating to evidence being obtained from psychiatrists from a small pool of applicants who often produce many reports for the government and are paid by the State government.2 There, psychiatric reports did not answer the question relevant to the court.3

2 [2020] QSC 217 at [41] 3 At [69]

First Nations people and communities

PLS’ current experience is that the majority of First Nations clients with disability in Queensland prisons are not aware of the existence of the NDIS, let alone the proposed independent assessment process. PLS supports submissions that call for better and further consultation with First Nations participants and communities, such as the submissions by the South Australian West Coast ACCHO Network and the Aboriginal Health Council of South Australia.

We echo the concerns these submissions raise about cultural safety and standardised assessment tools. In respect of tools, we add that psychological and psychiatric assessments for First Nations people in prison frequently apply tools that are not validated for use with First Nations groups in Australia and have no cultural applicability.4 We are concerned this issue will be replicated in independent assessments for the NDIS.

PLS notes that the issues raised in our submission may apply to other marginalised communities. Our focus is due to our client demographics and the disproportionate representation of Aboriginal and Torres Strait Islander people in prisons.

PLS intends to make a submission to the Committee on general issues around the implementation and performance of the NDIS. However, if in the interim the Committee has any enquiries about our comments on independent assessments we would be pleased to assist.

Yours faithfully

Helen Blaber Director / Principal Solicitor Prisoners’ Legal Service Inc.

4 See issues raised by Alfred Allan et al., ‘Assessing the Risk of Australian Indigenous Sexual Offenders Reoffending: A Review of the Research Literature and Court Decisions’ Psychiatry, Psychology and Law (2019) 26(2): 274-294. Issues with non-validated tools have also been judicially noted: Attorney General for the State of Queensland v Jacob [2015] QSC 273 [26]; Director of Public Prosecutions (WA) v Mangolamara 169 A Crim R379 [166]