Inquiry into market readiness for provision of services under the NDIS

Legal Aid NSW submission to the Joint Standing Committee on the National Disability Insurance Scheme

March 2018

323 CASTLEREAGH ST HAYMARKET NSW 2000 / DX 5 SYDNEY

EXECUTIVE SUMMARY ……………………………………………………………………………………………………………………. 4

Summary of Recommendations …………………………………………………………………………………………………………….. 5

BACKGROUND ………………………………………………………………………………………………………………………………. 6

People with cognitive impairments in the criminal justice system ……………………………………………………………… 8 Vulnerability in custody ………………………………………………………………………………………………………………………… 9

THE LACK OF A SERVICE PROVIDER OF LAST RESORT IN NSW ……………………………………………………………… 10

The lack of an effective and independent advocate………………………………………………………………………………… 11

BAIL AND ACCOMMODATION FOR CLIENTS WITH COGNITIVE IMPAIRMENTS ……………………………………….. 12

Safer in custody? ……………………………………………………………………………………………………………………………….. 16

TRANSITIONING FROM CUSTODY …………………………………………………………………………………………………… 18

Sentenced prisoners …………………………………………………………………………………………………………………………… 18 Forensic patients on limiting terms ………………………………………………………………………………………………………. 21 The crucial role of the Community Justice Program ………………………………………………………………………………… 22 Identification of suitable and specialised placements ……………………………………………………………………… 23 Supervision of patients on transitional leave ……………………………………………………………………………………. 23 Risk assessments and reports for CJP clients seeking conditional release before the MHRT …………………………. 24 Independent case management …………………………………………………………………………………………………………… 24 Ongoing risk assessments ………………………………………………………………………………………………………………… 25 “Justice gap funding” ………………………………………………………………………………………………………………… 25 Drop-in supports ………………………………………………………………………………………………………………… 26 Specialist expertise ………………………………………………………………………………………………………………… 26 Summary ………………………………………………………………………………………………………………………………. 28

PREVENTATIVE DETENTION IN NSW ……………………………………………………………………………………. 29

CONCLUSION ………………………………………………………………………………………………………………………………. 30

RECOMMENDATIONS ………………………………………………………………………………………………………………… 30

About Legal Aid NSW

The Legal Aid Commission of New South Wales (Legal Aid NSW) is an independent statutory body established under the Legal Aid Commission Act 1979 (NSW). We provide legal services across New South Wales through a state- wide network of 24 offices and 221 regular outreach locations, with a particular focus on the needs of people who are socially and economically disadvantaged.

We assist with legal problems through a comprehensive suite of services across criminal, family and civil law. Our services range from legal information, education, advice, minor assistance, dispute resolution and duty services, through to an extensive litigation practice. We work in partnership with private lawyers who receive funding from Legal Aid NSW to represent legally aided clients.

We also work in close partnership with LawAccess NSW, community legal centres, the Aboriginal Legal Service (NSW/ACT) Limited and pro bono legal services. Our community partnerships include 29 Women’s Domestic Violence Court Advocacy Services.

The Legal Aid NSW specialist Mental Health Advocacy Service (MHAS) provides representation to civil patients under the Mental Health Act 2007, forensic and correctional patients under the Mental Health (Forensic Provisions) Act 1990 and people under the Guardianship Act 1987.

For forensic and correctional patients, the MHAS represents people at reviews before the MHRT, appeals at the Supreme Court or the Court of Appeal, and applications for extension of forensic patient status before the Supreme Court.

Since the NDIS pilot began on 1 July 2013, Legal Aid NSW has been funded by the Commonwealth Department of Social Services to provide legal representation services for applicants before the Administrative Appeals Tribunal where their National Disability Insurance Scheme (NDIS) matters raises a complex or novel issue.

Legal Aid NSW welcomes the opportunity to make a submission to the Legislative Council’s Inquiry into Market Readiness for provision of services under the NDIS. The case studies provided in this submission are drawn from the current and recent practice experience of our lawyers and their clients. The names of clients have been changed.

Should you require any further information, please contact:

Harriet Ketley Manager, Strategic Law Reform Unit, Policy, Planning and Programs redacted

Executive summary

Legal Aid NSW has significant concerns about market readiness for the provision of services under the NDIS. There are a range of issues in this area, including the ability of the private market to service people with disabilities in rural and remote areas, and the challenges arising in the interface between the NDIS and state-based systems such as health, mental health and child protection. This submission focuses on the readiness of the private market to service clients with cognitive disabilities who are in contact with the criminal justice system. We are concerned that the NDIS market is failing these clients, who typically have complex, specialised or high intensity needs, and/or challenging behaviours.

Through selected case studies, our submission highlights the impact, both actual and potential, of NDIS market failure on these clients at the following critical points in the criminal justice system:

At bail hearings, where a court is left with no options but to refuse bail due to a lack of crisis accommodation and appropriate community based supports.
At parole hearings, when a parole authority is considering the release of a sentenced prisoner.
When forensic patients subject to a limiting term are seeking conditional release, or are the subject of an application for extension of their forensic patient status.
When sentenced prisoners are the subject of preventative detention applications.

We provide detailed information about the NSW Ageing Disability and Home Care’s (ADHC) Community Justice Program which currently supports some of these clients, and our concerns about the withdrawal of that program with the full roll-out of the NDIS.

Our casework with clients with cognitive impairments at various points in the justice system raises serious concerns around market readiness, including:

the readiness and ability of these clients to navigate the NDIS market (TOR (b)), particularly in the absence of an effective independent advocate or National Disability Insurance Agency (NDIA) coordinator of supports
the development of the disability workforce to support the emerging market (TOR(c)). In short, Legal Aid NSW is not confident that the private market has the capacity, skills, expertise and willingness to meet the needs of these clients, particularly the ability to provide the services currently provided in NSW by the ADHC Community Justice Program

the need for market intervention to address thin markets (TOR(f)), and in particular, the critical need for provider of last resort arrangements in NSW, including for crisis accommodation (TOR(i)).

We consider the issues raised in this submission should be given the highest priority by the Inquiry due to the extreme vulnerability of such clients in correctional centres, and the considerable but avoidable risk of short- and long-term physical and mental harm to these individuals and the broader community.

Summary of Recommendations

As a preliminary matter, Legal Aid NSW recommends that the roll-out of the NDIS be slowed. This will help ensure that issues with NDIS market readiness, including those outlined in our submission, can be identified and addressed.

To address the specific issues raised in our submission, Legal Aid NSW recommends that:

NDIS participants who remain in custody because of a failure to secure disability services should be identified by the NDIA and state governments as a matter of urgency. Priority in this audit should be given to prisoners with a cognitive impairment.
The NSW Commonwealth Bilateral Agreement for the NDIS should be amended to provide a clear framework for a ‘provider of last resort’ including in the context of the provision of accommodation.^1
The NDIA should publish its policy on provider of last resort, providing clear indications to participants about how to engage the NDIS for assistance in urgent matters.^2
COAG’s Disability Reform Council should consider the adequacy of provision of housing stock and infrastructure for people with cognitive impairment and complex needs in the criminal justice system.^3
COAG should review its Principles to Determine the Responsibilities of the NDIS and Other Service Systems.

^1 Consistent with Recommendation 9 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017). ^2 As per Recommendation 18 of the Joint Standing Committee on the NDIS Report on Transitional Arrangements for the NDIS (February 2018). ^3 Consistent with Recommendation 8 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017).

The NSW Government should review NSW policies and procedures that flow from the COAG Principles, including the NSW Mainstream Interface Working Arrangement: Operational Guidance.
The NDIA should develop and implement a strategy to address thin markets,^4 including the retention or establishment of block funding arrangements/direct commissioning of disability supports in appropriate cases.
The NDIS should establish a Criminal Justice Unit, which would, amongst other things, develop expertise in planning and funding for people with disabilities in the criminal justice system, and ensure that people with disabilities in the criminal justice system have access to the full range of disability supports and protections provided through the NDIS.^5
The ADHC Community Justice Program should continue, with funding from either the Commonwealth or NSW Government.
The NSW Government should introduce a Public Advocate, following consideration of how existing models in Victoria and Queensland most effectively advocate for and represent the interests of people with cognitive impairments in an NDIS market.

Background

The shift to a market-based provision of disability services under the NDIS has amplified longstanding concerns of Legal Aid NSW about the particular vulnerability of people with cognitive impairments and associated complex needs in the criminal justice system.

In principle, the NDIS should offer effective interventions to reduce the risk of offending and incarceration. However, the recent case work experience of Legal Aid NSW solicitors has indicated a clear risk that the transition to the NDIS may lead to increased levels of incarceration of the most vulnerable members of our community. In some cases, this may include indefinite detention.

Legal Aid NSW is well placed to highlight these concerns. We receive federal funding to represent clients in appeals to the Administrative Appeals Tribunal against decisions of the NDIA raising issues that are “complex or novel”. Our work in this area has

^4 As per Recommendation 17 of the Joint Standing Committee on the NDIS Report on Transitional Arrangements for the NDIS (February 2018). ^5 As per Recommendation 23 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017).

increased fourfold in the last 12 months.^6 In an effort to meet demand Legal Aid NSW now engages private practitioners to provide legal representation in NDIS matters.

More generally, in the last six months Legal Aid NSW has provided the following legal services to people who identify as having a disability^7:

Grants of legal aid for casework to 3318 people (or 17.5 per cent of our clients)
In-house duty services to 7331 people (17.3 per cent of our clients)
Advice to 6811 people (15.1 per cent of our clients)
Minor assistance to 2915 people (17 per cent of our clients)

In the same period Legal Aid NSW has provided the following legal services to people who identify as having some form of cognitive impairment:^8

16,443 grants of legal aid for casework
23,443 in-house duty services
33,625 advice services
10,015 minor assistance services

Legal services from our Criminal Law Division^9 have been provided to 2167 clients who identify as having some form of cognitive impairment (4.6 per cent of overall numbers of clients receiving criminal law services).^10 While this client group represents a relatively small number of our overall clients, they are consistently higher service users than those clients who have not disclosed such disabilities.^11

^6 In the 2016-17 we made 25 grants of aid for NDIS appeals to the Administrative Appeals Tribunal; in the current financial year to date, the number has increased to 99. ^7 That is, in the period August 2017 – January 2018. ^8 For Legal Aid NSW’s data collection purposes, this is defined as clients who are identified in their application for legal aid under the following categories: intellectual/learning, head injury/stroke/brain damage, acquired brain injury, cognitive disability or autism/spectrum disability. ^9 That is, legal representation, in-house duty, advice and minor assistance. ^10 We provided duty services to 541 clients in that category; and 324 clients seeking advice or minor assistance. ^11 Nearly 30 per cent of our clients with one of the identified disabilities who received an in-house duty service received three of more such services, compared to 21.2 per cent with no disability. In relation to minor assistance services, 42.6 per cent of our clients with one of the identified disabilities received more than two services, compared to 30.6 per cent of clients without such disability. These figures are consistent with Legal Aid NSW’s 2012 Study into High Service Users which found that just under one third of high service users had developmental issues. Twelve of these 13 high service users were described as having ‘low to borderline IQ’ or a mild to moderate ‘intellectual disability’: Van de Zandt, P. & Webb, T. High service users at Legal Aid NSW: profiling the 50 highest users of legal aid services, Legal Aid NSW, Sydney, 2013, 12.

People with cognitive impairments in the criminal justice system

As highlighted in estimates already provided to the Joint Standing Committee on the NDIS, between 20 per cent and 25 per cent of people in the criminal justice system have a cognitive impairment. This rises to over 50 per cent in the youth justice system.^12 As with other people with a disability, they have enhanced susceptibility to homelessness, substance misuse, poor general health, low levels of community support, visibility to police and ultimately criminal engagement.^13

People with cognitive impairment are significantly overrepresented in prisons.^14 This is due to interacting factors of disability, lack of access to disability services, interaction with the juvenile justice system, additional complex needs (such as substance abuse), disadvantage, being in out of home care, discrimination, lack of safe and appropriate housing, social isolation and lack of support from family or community.^15 A NSW study of a cohort of people with cognitive impairment who had been in prison and had contact with a range of other criminal justice agencies and human services found that:

having a cognitive impairment predisposes people who experience other forms of social and economic disadvantage to greater contact with the criminal justice system early in life
members of the cohort had experienced low rates of disability support as children, young people and adults
Indigenous members of the cohort had the lowest levels of service and support, and
most members of the cohort were themselves victim of crime.^16

People in the study with cognitive impairment and additional complex needs, such as a history of substance use, went into custody more often, and were more likely to cycle between community and custody in prison, than people with a single diagnosis.^17 They were also more likely to reoffend than other offenders. Significantly, prisoners with complex needs are likely to spend a shorter time in custody than those with single or no

^12 Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017), 5.4. ^13 Baldry, Dowse & Clarence 2012; Holland, Clare & Mukhopadhyay 2002; Mackelprang et al. 2014; Simpson 2013. ^14 NSW Law Reform Commission Report 135: People with cognitive and mental health impairments in the criminal justice system (June 2012), 4.116ff. ^15 Added factors from, or adapted from, Baldry et al (2012), 49. ^16 Baldry E., Dowse L. and Clarence M. (2012) People with intellectual and other cognitive disability in the criminal justice system. Sydney, University of NSW 4, 34. ^17 Ibid, 20.

diagnosis. This may be attributable to the fact that their offences are generally low in seriousness, rather than trends in sentencing practices.^18

The disproportionate representation of cognitively impaired people in the criminal justice system raise particular concerns in NSW in light of recent increased incarceration rates. Between December 2011 and December 2016, the prison population in New South Wales grew by 33 per cent (an additional 3150 prisoners).^19 There were 12 989 people in custody in NSW at the end of December 2017. Of these, 4447 were on remand and 8542 were sentenced to custody.^20

Between 2013 and 2016 the NSW Indigenous imprisonment rate grew by 25 per cent and is now 13.5 times higher than the non-Indigenous imprisonment rate.^21 There were 2814 Indigenous men and 322 Indigenous women in custody (remand and sentenced) at the end of December 2017.^22 Aboriginal and Torres Strait Islander people are significantly overrepresented amongst those in prison with complex disability support needs. Cognitive impairment has been identified as a factor contributing to the disproportionately high rate of imprisonment of Aboriginal and Torres Strait Islander people, along with other forms of disability, homelessness, inadequate housing, poor health, low education, lack of employment and substance abuse.^23

Vulnerability in custody

The inherent vulnerability of people with a cognitive impairment is exacerbated in custody. Research by Baldry et al has demonstrated the serious consequences of imprisonment for people with intellectual disability, including:

entrenchment within a culture of criminality because of a desire to be accepted by peers
vulnerability to assault and mistreatment in the mainstream prison environment
significant trauma experienced by the use of segregation and isolation as behaviour management tools, and

^18 Ibid. ^19 The following statistics and observations are sourced from the NSW Bureau of Crime Statistics and Research New South Wales Custody Statistics Quarterly Update December 2017. ^20 Increases in the prison population have been attributed to a combination of higher arrest rates and tougher sentencing policies, particularly in relation to assault, drug trafficking, sexual assault and breaches of court orders: See Weatherburn, D. & Holmes, J. (2017). Indigenous imprisonment in NSW: A closer look at the trend (Bureau Brief No. 126). Sydney: NSW Bureau of Crime Statistics and Research, 1 ^21 Across Australia the rate of incarceration of Aboriginal and Torres Strait Islander people has increased by 77% between 2000 and 2015: Australian Law Reform Commission Incarceration rates of Aboriginal and Torres Strait Islander Peoples: Discussion Paper 84 (July 2017), 1.30. ^22 Ibid. ^23 Ibid, 1.12.

post-release readjustment problems because of impaired adaptive skills.^24

Most recently, such vulnerabilities have been documented in the Human Rights Watch Report on the Abuse and Neglect of Prisoners with Disability in Australia.^25 This research is reflected in the recent casework experience of Legal Aid NSW’s solicitors which has reported disturbing instances of targeted assaults on cognitively impaired clients in custody (see, in particular, the cases of Paul and Ross below).

The lack of a service provider of last resort in NSW

The NSW Government’s Bilateral Agreement with the Commonwealth for the NDIS does not address those situations where there is insufficient market supply, and/or provider failure (for example, where a service provider fails or is unwilling to provide a service).^26 By contrast, the Commonwealth’s Agreement with the Northern Territory states that the NDIA is responsible for ensuring that provider of last resort services are in place for all participants in the NT, where other services are not operational.^27 These provisions were added to the NT agreement because of the significant risk of service failure where there are thin or non-existent markets, including limited supply and very low demand for services. The same risks are clearly apparent in NSW.

The primary concern identified by Legal Aid NSW for our clients with cognitive impairments is not about the level of NDIS funding support provided, but rather the willingness of non-government (NGO) service providers to accept the NDIS funding and provide appropriate services to complex needs clients. A recurring theme in the response of NDIS service providers to this client group is evident in the statement of one such provider to a Legal Aid NSW solicitor that “because [our client] is difficult…no accommodation service will touch him. Unfortunately keeping him in gaol is a realistic future.”

Legal Aid NSW does not agree that gaol is either a safe place for our clients, or that it can ever be appropriately used as a temporary form of accommodation.

Reflecting the experience of many other stakeholders who have made submissions on this issue to the NDIS Joint Standing Committee, including Victoria Legal Aid and the NSW Intellectual Disability Rights Service, the absence of a safety net for some of the most vulnerable of our clients has become a key contributing factor preventing or delaying their release from custody. In NSW, this is exacerbated by the lack of an effective and independent advocate for people with cognitive impairments.

^24 Above note 14, at [4.129]. ^25 https://www.hrw.org/sites/default/files/report_pdf/australia0218_web.pdf ^26 Bilateral Agreement between the Commonwealth and New South Wales: Transition to a National Disability Insurance Scheme, 16 September 2015. ^27 Bilateral Agreement between the Commonwealth and the Northern Territory: Transition to a National Disability Insurance Scheme, 5 May 2016, Schedule K, “Arrangements for provider of last resort during transition”.

The lack of an effective and independent advocate

The difficulties faced by people with cognitive disabilities in the criminal justice system is exacerbated by the absence of appropriately skilled, independent and specialist advocates to represent their interests in securing services, including long term, safe accommodation. The NDIS goals of choice and control cannot be realised for people who lack capacity to advocate for a provider, and when there are no family members to advocate on their behalf. In the majority of the cases that Legal Aid NSW is aware of, these acutely vulnerable clients are under the care of the Public Guardian, whose role is generally one of decision maker rather than advocate.

We have also observed that NDIA coordinators of supports have been unable or unwilling to advocate for our client’s best interests where conflict arises with the service provider. The NDIS funds positions within service providers who are said to be coordinators of supports for a person. However, in many cases involving cognitively impaired individuals with complex needs, there is an inherent conflict of interest when the coordinator of supports and/or the service provider is the source of conflict or the very issue with which the client needs assistance (for example, where the provider’s property has been damaged by conduct of the cognitively impaired client, leading to criminal charges). The consequences of this gap are most acute when a person is evicted from their accommodation by a service provider and where that service provider is the only “support” the person has. Such clients are faced with a situation where they can only receive support coordinator services once they have entered other accommodation, but their critical and most pressing need is for someone to advocate for and facilitate their entry to other accommodation. In other cases, no NDIA funding has been provided for a support coordinator for the most vulnerable of clients. A stark example of this, and the consequences in terms of risk of re-offending, is provided in the case study of Matthew in Attachment A.

Unlike other states such as Victoria and Queensland, the NSW Public Guardian does not have advocacy functions. In a number of recent matters in which the NDIS market has failed Legal Aid NSW clients, the NSW Public Guardian has not provided much needed support for, and advocacy on behalf of, the vulnerable person. Instead, the Public Guardian has made clear that its role is limited to that of substitute decision- maker, and not of advocate. In our view, those of our clients without any engaged family members, and under the care of the NSW Public Guardian and/or the NSW Trustee and Guardian, are at heightened risk of incarceration.

In light of these observations, Legal Aid NSW supports the recent proposal of the NSW Law Reform Commission for a Public Advocate with new advocacy and investigative functions, including seeking help for people who need decision-making assistance from government agencies (including the NDIA), institutions, welfare organisations and

service providers, and negotiating of their behalf to resolve issues.^28 In our view, the most pressing issue for our cognitively impaired clients is accommodation. A Public Advocate may be able to further assist by identifying systemic problems in this area and advocating for their resolution.

There are a number of key points in the criminal justice system in New South Wales where the consequences of this systemic failure of state and federal government agencies and the NDIS market are most evident. These are discussed below.

Bail and accommodation for clients with cognitive

impairments

Legal Aid NSW has recently acted in a number of cases where a lack of suitable accommodation, forward planning and other supports has led to increased interaction of vulnerable clients with the criminal justice system. There has been a cycle of recurring entry to and from custody, and in some cases, the unnecessary and harmful detention of extremely vulnerable individuals.

A number of case studies from Legal Aid NSW’s recent practice experience are set out below. Other examples are provided in Attachment A. Each of the case studies are characterised by the following common elements:

an individual with an underlying cognitive impairment as well as other physical, mental or social vulnerability leading to complex and challenging behaviours which are well known to the NDIA service provider
an underlying cognitive impairment contributing to a cycle of re-offending following periods on remand
the absence of an independent advocate to promote the best interests of the individual to secure long term, stable and appropriately supported accommodation
an attitude in the NGO service provider that the best interests of their client are served by a period of incarceration
lengthy delays and multiple adjournments: in one case, for example, Legal Aid NSW has appeared in court to date on 19 occasions (see Joel’s case below)
charges involving relatively minor offending which are ultimately dismissed under the mental health diversion scheme, and
susceptibility of clients to assault by other prisoners.

^28 NSW Law Reform Commission Draft proposals for the Guardianship review (February 2018): Proposal 9.1.

Case Study: Jason

Jason is a 27 year old Aboriginal man with a moderate intellectual disability. He had a difficult childhood and early adulthood, living with various family members until he began living in residential supported accommodation in 2013. The Public Guardian became his guardian in 2013. Eventually he transitioned to an NDIS provider and has lived in a number of residences auspiced by that provider since then.

Because of his disabilities, Jason exhibits challenging and occasionally violent behaviour and has a history of assaulting another former co-resident and damaging property. Criminal charges against Jason have usually been dismissed under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFPA). His NDIS service provider addressed the ongoing issues between Jason and his co- resident through segregation and the use of secure areas.

The service provider has withdrawn services from Jason twice over the last two years following his interaction with the criminal justice system, resulting in Jason being effectively homeless, unable to be bailed, and having to spend a number of weeks in prison until alternative accommodation could be found for him.

On the first occasion in 2016 Jason was arrested for an alleged assault within the group home. Despite not refusing his return on any occasion previously, and despite Jason’s behaviour not having deteriorated or changed in any substantive way, The service provider refused to take him back. He was remanded in custody until alternative accommodation could be found. He was in custody for over a week, and his matter was dealt with under section 32 of the MHFPA.

The second occasion occurred in 2017. At this time Jason was living in a group home for people with complex behaviours who have had some interaction with the criminal justice system. It is a locked residence, and has 24 hour staffing. There was an interaction between Jason and another resident, the police were called, and Jason was arrested for assault and taken into custody.

At a number of bail hearings, the service provider advised the Magistrate that it was not able to accommodate Jason any longer, and that they were submitting a service change request to the Department of Family and Community Services (FACS). The service provider provided letters to the Magistrate stating that it wanted Jason to be refused bail, and that he should be detained in prison while FACS found new accommodation for him. Jason’s guardian, the NSW Public Guardian did not participate in the court proceedings and had no view about where Jason should live. The service provider’s coordinator of supports no longer had any responsibility for Jason because Jason was no longer a resident of their group home.

Despite having knowledge of the ongoing problems between Jason and his co- resident, and extensive knowledge of Jason’s challenging behaviour, the service provider failed to make alternative arrangements for crisis accommodation in the event that the problems continued. FACS had great difficulty in finding any alternative accommodation.

The Magistrate sentenced Jason to a term of imprisonment with a non-parole period due to expire a week after the date of sentence to give FACS time to find him alternative accommodation. The Magistrate was reluctant to keep him in gaol, but did so because Jason was effectively homeless and would be at risk on his own in the community if released immediately under section 32 or some form of bond.

It took FACS four weeks to locate new accommodation for Jason, and he was finally released from custody on 24 December 2017. Jason currently lives in a group home in regional NSW that is managed by the same NDIS service provider that had earlier requested Jason be detained in custody.

Case Study: Lucy

Lucy, a young woman with an intellectual disability, is an NDIS participant and the Public Guardian is her guardian.

Lucy spent over two months in prison while different stakeholders attempted to obtain appropriate accommodation for her after she was charged with assault. Lucy has a history of offences of violence which have been primarily dealt with under section 32 of the MHFPA.

Lucy was refused bail because she could not return to her residence. Her case was then adjourned on 5 occasions over 2 and a half months. One residential option put forward during this period cost far in excess of Lucy’s NDIS funding and as result it fell through. Her guardian advised Lucy’s solicitor that she would not approve any temporary options because Lucy was “safer in gaol”.

Despite urgent notification to all stakeholders of the upcoming court date on which Legal Aid NSW was intending to have Lucy’s matters finalised, neither her guardian or the NDIS service came to court to support her. Lucy’s mother, with whom Lucy is not allowed to live, was the only person who supported Lucy at court.

Lucy was released on an unconditional order made under section 32 of the MHFPA and her mother took her home. While Lucy was remanded in custody Legal Aid NSW advocated on her behalf regarding her accommodation with her guardian, the NDIA and ADHC. The only response given was that ADHC was not responsible, and could offer only “in kind” support now that Lucy was an NDIS participant.

Even where there is a service provider willing to accommodate NDIS clients with complex needs, they may not be ready and sufficiently trained to provide that service when needed. This is despite providers being on notice that such clients are at clear risk of gaol should current accommodation be unsuitable.

This is demonstrated in Brett’s case:

Case study: Brett

Brett has an intellectual disability and suffers from paranoid schizophrenia. The Public Guardian is his guardian and he has NDIS funded accommodation. Brett is also supported by the Community Justice Program within the NSW Department of Family and Community Services. He has a lengthy history of dismissal of charges under the MHFPA. As such, he is well known to police and to services as at risk of gaol.

In 2017 Brett was charged with damaging property and released on bail on condition that he live at one of the service provider’s residential homes. Brett was arrested and charged again with a further offence of damaging property, this time belonging to the service provider. The Senior Manager of the service provider wrote to Legal Aid NSW “[recommending] that bail be declined” for the “safety of [the client] as well as the other residents]”.

At court, the service provider told Brett’s Legal Aid NSW lawyer they would ask the Court to refuse to give bail to Brett. Brett was refused bail because of the attitude of the service provider, and the lack of any alternative accommodation. The Magistrate requested that the service provider follow up alternative accommodation options within one week. This did not occur.

Several weeks later, Brett was granted conditional bail to reside at an alternative address under the care of the service provider. Brett remained in custody however because his NDIS funding was transferred to a second service provider. As the second provider was not a delegate of the first provider, Brett was not able to be released until bail was subsequently varied. It took several more days until Brett was released into the care of the second provider.

Several days later Brett self-harmed and was found in possession of a lighter and a knife. The service provider called the police, and Brett was charged with fresh offences and refused bail. The service provider wrote to the Court requesting that Brett stay in custody for at least 2 weeks to enable additional staff training, and the refinement of risk management strategies and support plans.

The Magistrate indicated on record that the Court would have been prepared to continue bail but for this letter. The prosecution also indicated they would not oppose bail if Brett’s accommodation could be confirmed. Several weeks passed until the

service provider advised the court that necessary training and renovations were complete. Brett was then granted bail. Apart from a brief period at the Pilgrim Foundation residence, Brett had been remanded in custody for over two months.

Safer in custody?

As noted at the outset, people with cognitive impairment are at particular risk of mental and physical harm if incarcerated. Prison is not a safe place for them. This is demonstrated by the following case studies.

Case study: Ross

Ross is a young man with a moderate intellectual disability. He also suffers from chronic schizophrenia and autism and lives in residential supported accommodation (RSA). His RSA provider was aware of his complex needs and resulting behavioural challenges. Ross was on bail when he was arrested for breaching an AVO and bail conditions protecting a co-resident.

Ross was granted bail on condition that he be released into the care of and reside at the place nominated by his RSA. However, his RSA refused to allow him to return to the residence because of concerns for the co-resident. Only after Ross was remanded in custody did the RSA approach the ADHC to source alternative accommodation. ADHC advised there was unlikely to be any vacancies across the state. RSA advised Legal Aid NSW that it was an option to seek private rental but that “this will take time to even commence.”

Ross had been in custody for over two weeks when Legal Aid NSW received two separate calls from inmates in the same gaol expressing concern about his welfare. They advised that Ross was being targeted and assaulted in the gaol. Legal Aid NSW contacted the Governor, the NSW Trustee and Guardian, ADHC and the RSA to express concern about the ongoing risk of harm to the client. Within 24 hours the RSA managed to negotiate approval for Ross to live at one of their Community Justice Program capital properties for a month pending consideration of private rental applications. Alternative housing was eventually found by the Community Justice Program after advocacy by Legal Aid NSW.

Case Study: Paul

Paul is a young man who suffers from blindness and other significant physical and intellectual disabilities that make him extremely vulnerable and hypervigilant. He lives in 24 hour supported accommodation provided by an NGO service provider that is funded from his NDIS package. He has been in out of home care since the age of 10. Paul has committed offences at railway stations and other public locations when not accompanied by staff.

Paul was arrested in relation to an incident at his residence involving another co- resident while he was on bail for other charges that were subject to proceedings under section 32 of the MHFPA. Paul was remanded in custody because there was no staff member from the NGO service provider at court when his case was considered. Two days later, staff from the NGO service provider told Legal Aid NSW that Paul may be able to return, but this required approval from an area manager. Paul was granted bail seven days later but the alternative accommodation was deemed unsuitable almost immediately based on the client mix.

Paul was transferred to another residence run by a different NGO service provider. Paul later attended the Local Court with a representative of the second NGO who refused to provide Paul with ongoing assurances of accommodation unless further bail restrictions were imposed on Paul preventing him from participating in any form of gambling or threatening staff. The Court declined to make these restrictions. This was conveyed to the service provider along with concern that they were seeking to coerce the court to impose what were essentially behaviour management conditions. Following a further incident involving threats towards staff, Paul was again arrested and charged. The service provider contacted Legal Aid NSW advising that: “because he is difficult and he does not have appropriate funding no accommodation service will touch him. Unfortunately keeping him in gaol is a realistic future for Paul.”

Paul was eventually granted bail back into the care of the same provider.

Following a subsequent incident of behavioural disturbance whilst in the care of the second NGO, Paul was again charged with further offences and arrested. He was released after a number of days back into the care of the same care provider. Legal Aid NSW was advised by Paul’s mother that shortly prior to his release, he was assaulted by several inmates, requiring hospitalisation for injuries.

Prior to finalisation of his court matters, Paul was again arrested and charged. As the offending behaviour occurred in the context of otherwise lawful conduct that the NGO had sought to prohibit by advocating for coercive conditions, they refused to allow him to return. The NGO approached a member of Paul’s family requesting, instead, that they provide accommodation. The family member was unable to do so.

Paul remained in custody for a period of time before again being granted bail back into the care of the same NGO.

Ultimately, all of Paul’s charges were dealt with under section 32 of the MHFPA.

The NGO (and NDIA service provider) that repeatedly argued for coercive bail conditions and refused on a number of occasions to accommodate Paul’s immediate return remains responsible for the provision of his care and treatment plans.

Transitioning from custody

NDIS market failure affects Legal Aid NSW’s clients with cognitive impairments at a subsequent critical point in the criminal justice system: when, as either sentenced prisoners or forensic patients, they seek to transition back to the community. Pre- release planning and the availability of appropriate accommodation and community- based throughcare supports and services are vital, both in ensuring release into the community and in minimising the well-known risks associated with the immediate period after release from custody, including the risk of re-offending.^29 The first three months is the highest risk-period for reoffending, homelessness and death.^30 Our concerns in relation to both categories of prisoners are set out in the following section.

Sentenced prisoners

A high proportion of prisoners exiting prison have been in custody for short periods of time. In December 2016, the average length of stay for remandees was less than seven weeks, while the average length of stay for sentenced prisoners was seven months.^3 As noted above, prisoners with complex needs are likely to have shorter periods in custody than those with single or no diagnosis. This may be attributable to the fact that their offences are generally low in seriousness, rather than trends in sentencing practices.^31

NDIS market failure when prisoners seek to exit custody at the end of a non-parole period, or when parole has been revoked as a result of reoffending, should not be considered in isolation from other related factors concerning NDIS market readiness, namely:

Obstacles to becoming an NDIS participant while in custody: While in custody, a person can make an access request to the NDIS and engage in the planning process to develop a plan. We are concerned that this principle may not be well-known amongst NDIA staff. In any event, this may not occur without the inmate having access to an advocate or support person to actively assist with the NDIS application process. As noted above, NDIS funded coordinators of supports are attached to service providers and casework services are therefore only available once a person enters accommodation provided by that

^29 See NSW Mental Health Commission’s Submission to the NDIS Joint Standing Committee Inquiry Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (February 2017). ^30 See Australians for Disability Justice’s Submission to the NDIS Joint Standing Committee Inquiry Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition JSC (March 2017), 15. ^31 Ibid.

service. Many people with a cognitive impairment may be unwilling to identify as disabled and may not recognise their own needs for assistance.

A lack of clarity and confusion around the supports the NDIA provides to people in custody: Legal Aid NSW’s Prisoners Legal Service (PLS) represents clients whose non-parole periods have expired and whose applications for parole are considered by the State Parole Authority. The PLS has represented a number of prisoners who have received inadequate support from the NDIS, both while in custody and in preparing an application for parole. In one ongoing matter, Statewide Disability Services (SDS) applied for NDIS funding on behalf of a cognitively impaired prisoner in August 2017. The NDIS planner made contact with the SDS wanting to organise a meeting with the prisoner to undertake the planning and assessment phase. When SDS explained that the NDIS applicant was in custody, the planner appeared to be shocked, advised she had to seek a supervisor and hung up. She did not phone back. At no stage did she provide her full name, phone number or the office she was working from.
The six month pre-release rule: Current NSW NDIS operational guidelines provide that where an NDIS participant is serving a long sentence, adult and juvenile justice correctional centres will support the person to request a plan review six months prior to their earliest release date.^32 However, for many prisoners there is no six month period for a planning cycle to be completed in accordance with NDIS rules. Even where an individual is sentenced, there is often only a short period between the imposition of sentence and their final release date, once time served on remand is taken into account. Forensic patients with no known release date face similar barriers, as they do not know their release date six months in advance.

The increasing use of gaol as a form of temporary accommodation for sentenced prisoners is highlighted in the following example, involving concurrent bail and parole proceedings.

Case study: Joel

Joel is a 35 year old Aboriginal man with both an intellectual disability and complex mental health and drug dependence issues. Both his parents have died and the Public Guardian is his guardian. Joel has a long history of offending behaviour including common assaults, property damage and possession of weapons. He is currently on parole for serious robbery related offences.

Since his release on parole he has been living in supported accommodation run by an NDIA service provider. Joel thinks he has NDIA funding but he is not sure.

^32 NSW Mainstream Interface Working Arrangement: Operational Guidance, 69.

In October 2017 police were called to the service provider by a carer. They charged Joel with breach of the peace following an incident with a co-resident. The police arrested Joel and took him back to the police station where he was involved in an altercation in the custody management area. He was injured. He was subsequently charged with intimidate and hinder offences. He was granted police bail in relation to these charges and returned to his residence. He was also served with an ADVO in relation to the earlier incident, but was not charged.

A few days later, the service provider called the police again and Joel was charged with intimidation of the same co-resident. The alleged conduct involved clenching a fist and making an angry face.

Before Joel’s first bail hearing, the service provider wrote to the court advising that Joel was no longer welcome at their residence. As a result, Joel was bail refused. Legal Aid NSW was contacted by the CJP who said they were looking into alternate accommodation for Joel. At a subsequent mention Joel’s solicitor asked the magistrate to make an order under section 28(5) of the Bail Act 2013 (NSW) for a report to be provided to the court as to the efforts that were being taken in order to find suitable accommodation for Joel. The CJP advised the court that this process would take six weeks and requested that Joel remain in custody in the meantime. Correspondence to the same end has been received on all subsequent court appearances - all requesting Joel remain bail refused.

At a subsequent bail hearing, bail was granted with a condition that Joel reside at his brother’s house. The court was prepared to make this order on the basis of a report from his parole officer that this address was suitable. However, the CJP considered that this was not a suitable address and asked that Joel remain bail refused.

On three occasions the CJP wrote to the court stating that he could not be accommodated by the service provider and that they had written to the State Parole Authority asking for parole to be revoked given his recent behaviour (which went beyond the alleged breach of the AVO and extended to him making threats against staff of the service provider).

Joel’s solicitor applied for dismissal of the charges against Joel under section 32 of the MHFPA, however in the absence of a service provider willing to either provide Joel with management plan or to provide the services, the court was not prepared to grant the application. Joel pleaded not guilty to both sets of charges. He was found not guilty of the hinder police charge and guilty of the intimidation offence. He is yet to be sentenced.

As of the date of writing the CJP is still attempting to find suitable accommodation for Joel. The latest correspondence from the CJP says “the CJP and redacted: s22 are recommending that Joel be required by the court to attend a

drug rehabilitation program prior to his release from custody.” However, Joel has been found unsuitable by Community Corrections to undertake the recommended program.

Legal Aid NSW has appeared on Joel’s behalf on 19 occasions, relisting the matter each week seeking bail for Joel. By recommending to the court that Joel attend a drug rehabilitation service, the service provider has effectively withdrawn its support. The State Parole Authority has also indicated it will not grant parole until suitable accommodation is found. It is unclear who is responsible for actually finding a rehabilitation facility for Joel. He remains in custody.

Forensic patients on limiting terms

Forensic patients in NSW can be detained under the provisions of the MHFPA following a special hearing where a limiting term is nominated, or after a finding of not guilty by reason of mental illness. A non-parole period is not set as part of a limiting term. As a result of amendments to the MHFPA in 2013, the Minister for Mental Health may seek an extension of the patient’s forensic status for a period of up to five years in the last six months of the patient’s limiting term.33 Further extensions may be sought and there is no limitation on the number of extensions that may be sought and granted. Extension of forensic status involves lengthy and costly Supreme Court proceedings. A person subject to an extension order remains a forensic patient and under the jurisdiction of the Mental Health Review Tribunal (MHRT). For an individual to be determined safe for release, the MHRT must be satisfied the safety of the patient or any member of the public will not be seriously endangered by the patient’s release. That necessarily requires appropriate services be provided, which ensure care and treatment are received by the patient. Without this, the patient’s condition is likely to deteriorate, resulting in an increased risk to the patient and the public.

Forensic patients who do not have a mental illness or condition but who have a cognitive impairment normally receive care, rehabilitation and case management from Statewide Disability Services in Corrective Services NSW (if in custody) or from ADHC if they are living in the community. As at 30 June 2017, there were 425 forensic patients in NSW.34 Reflecting the significant growth in the NSW prison population in recent years, the number of forensic patients has increased significantly by 32 per cent (102 patients)

33 Under the provisions of section 54A and Schedule 1 to the MHFPA. 34 Of these, 33 had been found unfit to be tried by a court, and then been found on the limited evidence available to have committed an offence, with a limiting term nominated or forensic patient status extended by the court; 20 persons had been found unfit by the court and referred to the Tribunal and remanded in custody. See NSW Health Review of Review of the Operation of the Mental Health Review Tribunal in respect of Forensic Patients Discussion Paper (2017) available at http://www.health.nsw.gov.au/patients/mhrt/Documents/mhrt-discussion-paper.pdf

since 30 June 2011.35 Each year the courts and Corrective Services NSW refer more people than are discharged from the forensic mental health system.36

As noted by the NSW Mental Health Commission, the NSW forensic health system was built around mental illness. This has resulted in a lack of secure facilities both within the community and in prison for people without a primary diagnosis of mental illness.37 Demand for appropriate in custody supports for such forensic patients far exceeds the capacity of the Additional Support Unit at Long Bay Correctional Complex which houses 60 men with intellectual disability and cognitive impairment. The balance of forensic patients with a primary diagnosis of cognitive impairment are held in a mainstream prison environment where there are:

limited options for therapeutic services and supports38
insufficient appropriately trained correctional officers to support people with disability and
risks of exposure of already vulnerable individuals to physical and sexual predation, and to extreme isolation—both within the prison and from the community.

Detention in such circumstances is likely to lead to a regression in the behaviour of a person on forensic orders, ultimately leads to that forensic patient remaining in prison.39

The crucial role of the Community Justice Program

ADHC’s Community Justice Program (CJP) has proved vital since its establishment in 2006. The CJP supports people with an intellectual disability across NSW who have significant ongoing risk of offending, or who have committed serious offences and are beyond the capacity of regular disability services. Notably, forensic patients with other forms of cognitive impairment (such as acquired brain injury, epilepsy or dementia) are not eligible for the CJP.

Baldry et al’s 2012 study, People with intellectual and other cognitive disability in the criminal justice system, found that people with cognitive impairment who received services from ADHC were found to have had better outcomes, and have less

35 Ibid, 6. See further Mental Health Commission NSW’s submission to the 2016 Senate Inquiry into Indefinite detention of people with cognitive and psychiatric impairment in Australia. 36 Mental Health Commission NSW’s submission to the 2016 Senate Inquiry into Indefinite detention of people with cognitive and psychiatric impairment in Australia, 5. 37 Ibid. 38 Community Affairs References Committee’s Report on Indefinite detention of people with cognitive and psychiatric impairment in Australia (November 2016), Chapter 4. 39 Ibid, [4.31].

involvement in the criminal justice system compared to people with cognitive impairment who did not receive any services from ADHC.40

It is not clear whether the CJP will cease altogether when the NDIS is fully rolled out in NSW from 1 July 2018. Legal Aid NSW is extremely concerned that the loss of the specialist expertise of the CJP carries a significant risk that forensic patients will not be released, or that those who are already in the community will lose the support they need to remain there safely, leading to re-offending and their return to custody.

The CJP undertakes a number of vital functions for forensic patients with an intellectual disability that are not available under the NDIS. These are detailed below.41 There is presently a lack of clarity over responsibility for necessary supports for such patients once NSW has fully transitioned to the NDIA, including what agency will take responsibility for pre-release transitional planning and therapeutic treatment of this group of forensic patients. In our experience, the NDIA takes a narrower view of its role than the CJP and deems some of the CJP’s important functions as “justice” matters which are not the NDIA’s responsibility. We are therefore concerned that the potential withdrawal of the CJP will lead to significant service gaps for people with an intellectual disability in the criminal justice system.

Identification of suitable and specialised placements

Given the high complex needs and associated risk of Legal Aid NSW’s clients in the forensic system, it is often not possible to place them in mainstream disability placements. The CJP’s Vacancy Management team identifies potential placements for such clients and assesses their suitability. The independence of this function from the accommodation provider is an important safeguard of the patient’s interests.

Supervision of patients on transitional leave

High risk forensic patients often require a period of gradual and supported transition in the form of periods of leave in the community prior to their release, while they technically retain their custodial status. In the experience of Legal Aid NSW’s Mental Health Advocacy Service (MHAS) practitioners, the NDIA only provides funding once patients are discharged. Presently, the CJP assists in the transition process by taking clients out on leave and ensuring that they, and the community, are safe during this important period. CJP has recently provided such support to Legal Aid NSW’s forensic clients including a high risk recidivist paedophile and a client on an extension order. Without

40 Baldry E., Dowse L. and Clarence M. (2012) People with intellectual and other cognitive disability in the criminal justice system. Sydney, University of NSW, 48. 41 See also https://www.adhc.nsw.gov.au/sp/delivering_disability_services/community-justice- program

such support, the MHRT is unlikely to be satisfied that the safety of the patient or the public will not be seriously endangered by the patient’s release.

Risk assessments and reports for CJP clients seeking conditional release before

the MHRT

Section 74 of the MHFPA requires the MHRT to consider reports from both those providing care and treatment to the forensic patient as well as an independent report as to whether the patient’s or community safety will be seriously endangered by the person’s release (conditional or unconditional). The CJP provide such reports where they are the care provider and, in many cases where they are not providing care and treatment they provide the independent report. Under the NDIS it is unlikely a service provider will be in a position to provide a report and there is no funding for the provision of an independent report.

Independent case management

The CJP is often the nominated case manager on a Conditional Release Order for a forensic patient who does not have a mental illness. A conflict of interest would arise if this role were filled by the NGO care provider and the NGO subsequently decides if it not willing to provide the service to the person. The NGO care provider may also lack the necessary expertise and specialist supports required for this group of forensic patients. In the experience of the MHAS, where an NGO is invited by the MHRT to be case manager as well as service provider, they invariably refuse. This is demonstrated in the case study of Terry below, where the service provider refused to take on the role as Terry’s case manager because, as a mainstream disability service, they were not equipped or funded to manage “justice” matters.

Case Study: Terry and the role of the CJP

Terry is elderly and suffers from multiple physical health conditions and cognitive impairment. He has been living in the community with the support of his NGO service provider who had been caring for Terry in the community for many years. He is on the NDIS.

Terry was charged with a number of historic sex offences, and released on bail pending a special hearing due to his unfitness to plead to the charges. He was detained in custody on a limiting term despite strong remarks made by the judge that Terry should remain in the community.

In preparation for Terry’s application for conditional release by the MHRT, his solicitors arranged for the NGO to formalise the arrangement and be his case managers on a Conditional Release Plan. However, the evening before the hearing

the NGO advised the MHRT that they could not be Terry’s formal case managers for the purposes of the conditional release order. They were only funded to provide disability support, but not for the services required of a case manager on a forensic order.

Statewide Disability Services opposed Terry’s conditional release.

Due to the short notice provided by the NGO to the MHRT, Terry’s solicitors became de facto case managers, while the NGO continued to provide disability support services.

The Minister for Mental Health has been monitoring this case both before and after conditional release was granted.

Legal Aid NSW contacted the CJP, who agreed to become Terry’s case manager on the Conditional Release Order.

Since his release into the community, Terry has not received any NDIS funding for courses addressing his sexual offending due to ongoing conflict and confusion between Justice Health, NSW Health and the NDIA as to who is responsible for funding such treatment. Without the CJP, it is likely that Terry would still be in custody.

Ongoing risk assessments

The CJP also conducts ongoing 6 monthly risk assessments to both inform the MHRT of the risks at the placement and to provide advice to NGO services as to risk mitigation measures. Ongoing risk management role for people on CROs is considered by the NDIS to be a “justice” matter. Without the CJP, there will be no agency to undertake this critical quality and safeguard function designed to mitigate risk to the safety of both the community and patients.

“Justice gap funding”

For certain patients, the MHRT will only make release orders with additional conditions considered necessary to address the risk of reoffending. This may include conditions requiring:

supported accommodation
“line of sight” supervision
regular drug and alcohol testing
physical changes to premises needed to limit opportunities for absconding, such as light sensors and higher fences.

These are currently funded by the CJP but are not funded under the NDIS as they are not considered a “disability” issue.

Drop-in supports

Finally, the CJP’s Drop-in Support service aims to mitigate risks associated with boredom or anti-social peers through provision of regular support and activities which reinforce positive role modelling and patterns of behaviour.42 This function recognises that most people with an intellectual disability currently in correctional centres require a level of support on release for a short to medium term in a stable accommodation arrangement. Without this support there is an increased likelihood that they will re- offend or become homeless.43

Specialist expertise

The vital role of the CJP goes beyond the level and category of functions it provides. In some cases, the CJP itself operates the intensive residential support residence. The expertise, experience and corporate knowledge of its staff is particularly crucial, as continuity in both case management and service provision is particularly beneficial for people with an intellectual disability. This same level of expertise and continuity may not be assured if the CJP’s role is replaced by private service providers, with an increased potential for staff turnover and use of casual workers. Pre-release planning and obtaining of necessary community supports to enable reintegration of CJP clients into the community are invariably complex and may take many months. In the following case study, the MHRT was prepared to grant the conditional release order on the basis of any risk of re-offending being responsively and adequately managed through the expertise and the monitoring structure of the CJP. Of particular relevance in this case was the CJP’s ability to directly communicate with its own staff at the CJP operated home.

Case Study: Marcus

Marcus is elderly and has an intellectual disability. He served a limiting term after being found unfit to be tried. Marcus’ case was complex and involved a history of re- offending.

As part of his release planning, the State Disability Service applied for CJP funding. CJP identified a 24/7 secured supported accommodation operated by an NGO for Marcus around 12 months before the end of his limiting term. MHAS applied for conditional release.

Just prior to the conditional release hearing, Marcus was faced with an allegation of sexual reoffending. Charges were not laid. The CJP offered to increase the level of

42 The full list of available supports is available here: https://www.portal.facs.nsw.gov.au/Guidelines/SourceDocuments/cjp_drop_in_support_model.pdf, p21-22 43 Community Justice Program Service Description: Drop-in Support. September 2010, p5.

staffing at the NGO accommodation to take account of possible increase in risk of offending behaviour. However, the service provider withdrew their offer of accommodation due to Marcus’s risk of re-offending. As a result, the first conditional release application could not proceed.

The CJP then identified a vacancy in the CJP operated 24/7 secured supported accommodation. The accommodation has been modified to enable a high level of supervision (e.g. staff room in centre of house with clear glass windows, CCTV cameras) and 24/7 staffing by disability support staff (including an active overnight). The same level of expertise and supervision could not be provided by an NGO operated home.

The MHAS filed a second conditional release application on Marcus’ behalf. The Minister for Mental Health opposed Marcus’ conditional release. It took approximately 12 months from the first conditional release application to the grant of conditional release in 2017.

Without such supports when Marcus transitions to the NDIS this year, there is an increased risk that he (and other high risk forensic patients like him) will remain in gaol for longer, either because there is no suitable community placement or because they are at increased risk of breaching conditional release orders. The NDIS planning process has commenced for Marcus and he will transition to the NDIS later this year.

The critical role of the CJP in providing transitional supports to people such as Terry and Marcus was further highlighted in a 2017 NSW Supreme Court decision in relation to K.44 In that case, a young man experiencing mental illness, intellectual disability, polysubstance use disorder, ADHD and antisocial personality disorder was detained in a correctional facility subject to a limiting term. With no transition to community living he was subject to an extension of his forensic status. The CJP were able to craft a plan for K’s gradual and safe reintegration to the community involving:

accommodation in an ADHC owned property staffed by CJP, and
a period of supervised leave to the property (including overnight leave) and supervised leave in the wider community.

The supervision provided by CJP staff in such cases ensures community transition is progressed in a safe and therapeutic manner by experts in such care. This also means that where the patient deviates from the MHRT’s order, the Tribunal is notified and can act to protect community safety, including ordering suspension or revocation of leave and detention where appropriate. In our experience, the MHRT relies on CJP’s expertise to communicate such issues and concerns.

44 The full judgment in this case can be provided to the Inquiry on request.

Notably, in K’s case, the court observed that keeping a man with cognitive impairments and associated complex needs in a custodial environment is

a blunt instrument in incapacitating him and protecting the community in the short term but it would be counterproductive and a retrograde step for both him and the community in ameliorating his risk in the long term. Counsel for Mr K submitted that “it is likely to potentially increase his overall risk”. … I accept this submission.45

Summary

It is not clear who will provide the above functions if, or when, the CJP is transitioned to the NDIS. Apart from the case studies provided, Legal Aid NSW is aware of a number of clients with cognitively impairments who will affected by this transition. Without the CJP, seeking conditional release before the MHRT will be akin to seeking unsupervised parole for a high risk prisoner. In reality, forensic patients on limiting terms will simply not be released.

It should be emphasised that this group of forensic patients have been found unfit to be tried. They have not been convicted, but found, on the limited evidence available, to have committed the offence charged. Before the introduction of the NDIS, concerns were raised by the United Nations Committee on the Rights of Persons with Disabilities as to Australia’s compliance with its international obligations where people who have not been convicted of a crime have been indefinitely detained, including for periods that can significantly exceed the maximum period of imprisonment for the offence.46

The Committee called on Australia, as a matter of urgency, “to end the unwarranted use of prisons for the management of unconvicted persons with disabilities, focusing on Aboriginal and Torres Strait Islander persons with disabilities, by establishing legislative, administrative and support frameworks that comply with the Convention”.47

The NSW Law Reform Commission also recommended that forensic patients should only be detained in correctional centres where there is no other practical alternative.48

It is of great concern that the transition to the NDIS may result in an increased number of people found unfit to be tried being indefinitely detained.

45 The relevant reference in the judgement can be provided to the Inquiry on request. 46 Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013). 47 Ibid, at [32]. 48 New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences, Report No 138 (2013), Recommendation 10.1.

Preventative detention in NSW

Legal Aid NSW observes that over the same period that the NSW Government has handed responsibility for last resort service provider arrangements to the NDIA, the NSW criminal justice system has increased its focus on preventative detention mechanisms.

The Crimes (High Risk Offenders) Act 2006 (NSW) enables the State to apply to the Supreme Court for orders for extended supervision in the community or detention of high risk violent and sex offenders once their original sentence of imprisonment expires. The Court can make the order where there is an unacceptable risk that the offender will commit further serious violence or sex offences if released from prison without supervision.

The scheme was introduced in NSW in 2006 on the basis that it would apply to only “a handful of high-risk, hard-core [sex] offenders who have not made any attempt to rehabilitate whilst in prison”.49 Since that time, the regime has been extended to apply to high risk violent offenders, and, to broaden the scope of offences within the high risk violent offender category. More recently, as a result of a statutory review of the legislation in 2016, the category of offenders for whom applications may be brought has been widened further and the threshold test for the imposition of continued detention orders has been lowered.50

Offenders who have cognitive impairments and Indigenous offenders are already overrepresented in the scheme51 and the NSW Government has acknowledged that the amended test is likely to result in more offenders being kept in custody on preventative detention orders.52

The existing shortage of suitable community based accommodation for prisoners categorised as “high risk offenders” has, in some cases, left the NSW Supreme Court with little alternative but to order the continued detention of cognitively impaired prisoners beyond their sentence.53 Legal Aid NSW is concerned that this situation will only worsen with the lack of a last resort NDIS service provider and associated

49 NSW Department of Justice, Review of the Crimes (High Risk Offenders) Act 2006 (NSW) (May 2017), 12, available at: https://www.parliament.nsw.gov.au/la/papers/DBAssets/tabledpaper/webAttachments/70903/Revie w%20of%20the%20Crimes%20(High%20Risk%20Offenders)%20Act%202006.pdf 50 The new test now requires a court to consider whether an offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender’s risk of reoffending over time (sections 9 and 17 of the Crimes (High Risk Offenders) Act 2006 (NSW). 51 Since the scheme’s commencement, there have been 107 offenders subject to an ESO or CDO of which 27% are Indigenous. 52 NSW Department of Justice, Review of the Crimes (High Risk Offenders) Act 2006 (NSW), (May 2017), 30. 53 See, for example decisions of State of NSW v Carr [2014] NSWSC 1348 and R v Bugmy [2016] NSWSC 1128.

challenges arising from the NDIS for post-custody transition for prisoners with cognitive impairments highlighted above.

Conclusion

A system that leads to the recurring and unnecessary remand of vulnerable people with cognitive impairments and the potential for their indefinite detention runs counter to the objects of the NDIA Act and the fundamental vision of the NDIS for an inclusive Australian society that enables people with disability to fulfil their potential as equal citizens.54 It is also contrary to Australia’s obligations as a signatory to the United Nations International Covenant on Civil and Political Rights and Convention on the Rights of Persons with Disabilities. The experience of Legal Aid NSW and other agencies who have identified similar concerns over the last 12 months would usefully inform a review of the justice principles in the COAG Principles to Determine the Responsibilities of the NDIS and Other Service Systems and the policies and procedures in NSW that flow from the Principles.

Legal Aid NSW welcomes in principle the recent initiatives of the NSW Government to address the needs of those with cognitive impairment and associated complex needs in the criminal justice system, through the court-based diversionary Cognitive Impairment Diversionary Program (CIDP) Pilot at Penrith and Gosford Local Courts55 and the establishment of an Integrated Service Response (ISR) to provide short term coordination of mainstream services for NDIS participants with complex needs.

However, we do not consider that these measures are sufficient to meet the needs of our vulnerable clients. While the ISP has the potential to promote more integrated responses between otherwise siloed government agencies, this response falls short of the much needed role of an agency responsible for providing or maintaining critical supports, including—as a priority—accommodation.

Recommendations

Legal Aid NSW is concerned that there is no available data on the number of individuals in custody in New South Wales with cognitive impairments whose complex needs are affected by NDIS market failure. As a starting point, we therefore support the recommendation of Victoria Legal Aid that NDIS participants who remain in custody because of a failure to secure disability services should be identified by the NDIA and state governments as a matter of urgency. Priority in this audit should be given to prisoners with a cognitive impairment.

54 As per the National Disability Strategy 2010-2020. 55 Further information about the Pilot is available here: http://www.localcourt.justice.nsw.gov.au/Documents/Facts%20Sheets/Cognitive%20Impairment%2 0Diversion%20Program/CIDP-factsheet-stakeholders.pdf

In addition, Legal Aid NSW supports the following measures:

The NSW Commonwealth Bilateral Agreement for the NDIS should be amended to provide a clear framework for a provider of last resort including in the context of the provision of accommodation.56
The NDIA should publish its policy on provider of last resort, providing clear indications to participants about how to engage the NDIS for assistance in urgent matters.57
COAG’s Disability Reform Council should consider the adequacy of provision of housing stock and infrastructure for people with cognitive impairment and complex needs in the criminal justice system.58
COAG should review its Principles to Determine the Responsibilities of the NDIS and Other Service Systems.
The NSW Government should review NSW policies and procedures that flow from the COAG Principles, including the NSW Mainstream Interface Working Arrangement: Operational Guidance.
The NDIA should develop and implement a strategy to address thin markets,59 including the retention or establishment of block funding arrangements/direct commissioning of disability supports in appropriate cases.
The NDIS should establish a Criminal Justice Unit, which would, amongst other things, develop expertise in planning and funding for people with disabilities in the criminal justice system, and ensure that people with disabilities in the criminal justice system have access to the full range of disability supports and protections provided through the NDIS.60
The ADHC Community Justice Program should continue operation, with funding from either the Commonwealth or NSW Government.

56 Consistent with Recommendation 9 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017). 57 As per Recommendation 18 of the Joint Standing Committee on the NDIS Report on Transitional Arrangements for the NDIS (February 2018). 58 Consistent with Recommendation 8 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017). 59 As per Recommendation 17 of the Joint Standing Committee on the NDIS Report on Transitional Arrangements for the NDIS (February 2018). 60 As per the Submission of Australians for Disability Justice and Recommendation 23 of the Joint Standing Committee on the NDIS Report on Provision of services under the NDIS for people with psychosocial disabilities related to a mental health condition (August 2017).

NSW should introduce a Public Advocate, following consideration of how existing models in Victoria and Queensland most effectively advocate for and represent the interests of people with cognitive impairments in an NDIS market.

ATTACHMENT A: FURTHER CASE STUDIES

Case Study: Adnan

Adnan is 19 years old and has an intellectual disability and a mental illness. He came to Australia as a refugee with his mother and entered residential care when she relinquished him. The Public Guardian is his guardian. He was not permitted to return to his long term supported accommodation after he was arrested for assaulting a carer in 2017. The service provider did not attend the bail hearing, and provided information to the court that he was not able to return. As a result, Adnan was remanded in custody for four days. His charges were eventually dismissed under section 32 of the MHFPA.

Case Study: Malcolm

Malcolm is a young man with complex mental health conditions relating to having been assaulted as a child. He also has some intellectual impairment (not formally diagnosed). As a child he was under the care of FACS. He has been charged with a number of sex offences alleged to have been committed shortly after he turned 18. His NDIS coordinator of supports has no particular expertise in criminal matters with complex needs, and has been unable to identify any kind of accommodation for Malcolm in the community appropriate to his needs and willing to accept Malcolm. As a result, Malcolm has been refused bail. While on remand he became involved in an altercation with another inmate in the prison yard and has been charged with assault. Malcolm’s NDIS support coordinator has recently advised Legal Aid NSW that the NDIS grant will lapse if Malcolm remains in custody.

Case study: Matthew

Matthew is a middle aged man with a mild intellectual disability who has also been diagnosed with PTSD as a result of childhood trauma and sexual abuse.

Matthew has been in and out of out of home care since he was very young. As a young boy he was removed from the family home after he was sexually abused by a close family member. When he was 10, Matthew and his two younger siblings were sexually assaulted by a man who falsely presented himself to the family as a social

worker. The children were subsequently kidnapped and taken interstate by two men who intended to make them available to an active paedophile group.

Matthew’s mother also has an intellectual disability and was unable to explain the situation to the police. It was only after FACS intervened that police became aware of the situation. The children were then located with the men and taken into State care. Matthew engaged in counselling following the abuse and gained further counselling as an adolescent. However, despite wanting to engage in counselling as an adult to assist in the management of his PTSD, he has been unable to do so.

Matthew was referred to an NGO service provider in 2016 after being charged with Assault Occasioning Actual Bodily Harm the preceding year. The charge concerned his uncle who had been living with Matthew and his family at the time. One of the causes of Matthew’s offending was his belief that his uncle was a paedophile. The charge was dealt with under section 32 of the MHFPA. As part of his treatment plan, Legal Aid NSW’s Client Assessment and Referrals Unit applied on Matthew’s behalf for NDIS funding and referred him to an NGO service provider under a block funding arrangement which includes a case worker.

NDIS funding was granted. His package did not include a support coordinator. Matthew was not involved in a pre-plan meeting with NDIS, does not understand his NDIS plan and does not know how to access NDIS money. Further the plan does not take into account his accommodation or employment needs. He participates in a supported work program, but this is not linked to his NDIS plan. Matthew does not have the ability to coordinate his NDIS plan, is unable to source supports for himself and requires assistance to follow through and engage with supports. Accordingly, Matthew’s NDIS plan requires urgent review to develop a more appropriate and effective supports to meet his therapeutic, accommodation, social and employment needs.

Matthew has recently been charged with intimidation and common assault. The matter is proceeding under section 32 of the MHFPA. In that context, his lawyer reviewed the approved NDIS plan that Matthew provided. The plan directs him to access his NDIS funding by using an online portal and contact the NDIS if he has any further enquiries. Matthew has limited literacy skills and no access or understanding of how to access this assistance online. Matthew has recently been referred to the Cognitive Impairment Diversion Pilot.

Case Study: Vivianne

Vivianne has a complex mental health condition and an intellectual disability. She has a guardian and has been supported by the Integrated Services Program for Clients with Challenging Behaviour (ISP) within ADHC since 2007. She has a lengthy history of charges being dismissed under section 32 of the MHFPA.

In 2017 Vivianne was remanded in custody after being charged with assault on her carers and a co-resident. Just prior to this incident Vivianne had been charged and convicted of assault. She had committed this assault immediately after absconding from a mental health facility where she had been an involuntary patient.

Vivianne’s psychiatrist has recommended that she live in a secured unit. The ISP has not been able to find any suitable accommodation for her. Vivianne spent four months in custody because the Court will not release her on bail until she has safe and secure accommodation and a behaviour management plan is in place.

Ultimately, Vivienne was convicted and placed on a section 9 good behaviour bond for the first offence. The second offence was dismissed under section 32 of the MHFPA. She spent over three months on remand due to a lack of alternative accommodation.