People falling through the cracks between the NDIS and mainstream services

In a new submission we are calling for the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission to take a stronger role in upholding the rights of people with disability to prevent contact with the criminal justice system and minimise the length and harmful effects of this contact when it does occur.

‘Our clients’ stories clearly show how people with cognitive disability and mental health issues are still falling through the cracks of responsibility between the NDIS and mainstream service systems,’ said Rowan McRae Executive Director of Civil Justice, Access and Equity.

‘Clear mechanisms are needed for accountability and oversight of access to the NDIS and services for people who are in the criminal justice system,’ she said.

We are the largest provider of legal services to people with disability in Victoria. In 2019–20, we assisted over 88,000 clients. Of those, 25 per cent or over 22,000 people disclosed having a disability or experiencing a mental health issue and 14 per cent were in custody, detention or psychiatric settings.

In 2017 our young client Francis, who was unfit to stand trial because of his disability, spent 180 days in jail after his NDIS funded supports withdrew meaning he could no longer live in his house. At the time, the judge said: 'He’s in 23-hour lockdown at Melbourne Assessment Prison. I can’t imagine a worse place for him. The longer he is there the more he will be damaged. Who knows what damage has been done already?'

In this recent submission we show how four years on, our lawyers continue to see:

• People with disability, including people on forensic orders, ending up in prison rather than appropriate accommodation, and without access to the right disability supports.
• People with cognitive disability subject to use of restrictive practices in the prison system, including chemical restraints, which are not regulated in the same way as restrictive practices outside custody.
• People who are unable to maintain or obtain NDIS supports while in prison, which limits pathways to transition out of prison or the forensic system into the community.
• People with disability, including those on forensic orders, spending disproportionately long periods in custody (prison or restrictive forensic settings) because of lack of clarity about who is responsible for providing disability support to people in prisons.

People with disability who shouldn’t be in prison

Our submission shares the stories of four people with disability, Peter, Alex, John and Jim (not their real names) who ended up prison. Peter and Alex were on forensic orders after being found unfit to stand trial, so should have been diverted from prison to supported accommodation appropriate to their needs. Because this was not available, they were in prison for a combined total of over five years.

Despite having complex disabilities, John and Jim were in the mainstream justice system, and both were unable to get out of custody because they didn’t have access to housing and services.

Jim is an Aboriginal man in his 20s with a history of childhood trauma and complex intellectual and physical disabilities. He ended up in custody for 200 days, mainly due to a vacuum of responsibility about which agency should provide his support services upon release. He told his lawyer ‘if I had housing and support, none of this would have happened.’

‘For each of these people, prison was particularly harmful because they were subject to restrictive practices, such as sedation, handcuffing and long periods of isolation in their cell to manage behaviour related to their disability and their inability to cope in the prison environment,’ said Dan Nicholson, Executive Director of Criminal Law.

‘This undermines rehabilitation and the development of living skills needed to support successful and sustainable transition out of custody,’ he said.

‘The issues raised in this submission reflect the broader debate about responsibilities between the NDIA and mainstream service systems, since the transition to the NDIS,’ said Rowan.

Recommendations for improvement

Our recommendations suggest that the NDIS Quality and Safeguards Commission should:

1. Support and regulate a system that can engage with complexity and prevent offending.
2. Provide leadership on the use of restrictive practices to manage behaviours related to disability for people in custody.
3. Improve access to disability services in custody and make sure that people with disability do not remain in prison simply because of a lack of appropriate support.
4. Address barriers to transitioning out of custody.

‘The NDIS must better engage with the complex issues in people’s lives and start to give more clarity about which agencies are responsible for which pathways out of the justice system,’ said Rowan.

More information

Read about our NDIS advocacy.