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Imagine you have been arrested and are presented with a document you cannot read or understand. You are in unfamiliar surroundings. You don’t have anyone you know who can speak up for you. The next day, you are in a crowded, noisy courthouse and find it confusing. You want to say your piece, but cannot find the words in the short time available.
Later that day, you find yourself in prison — a space where you can’t control how bright it is, how noisy it is, or how it smells. You are in a small space with other people, maybe on a mattress on the floor in a cell that also has a toilet.
Now imagine that you have an intellectual disability, and the sensory burden of each of those factors creates unmanageable stress. You cannot sleep and understandably become distressed. You are then told you “must see a psychiatrist” because you are upset.
This is the reality many prisoners in Ireland are living with. While it is essential victims of crime are at the centre of the criminal justice system, Ireland has formally committed to protecting and promoting the rights of people with disabilities but is failing, especially for those who are in prison.
Seven years ago, Ireland ratified the world’s most progressive statement of disability rights — the United Nations’ Convention on the Rights of People with Disabilities (UN CRPD). Ireland signed the convention 11 years earlier, but ratification in 2018 was supposed to ensure people with disabilities enjoy the same legal capacity and rights as people without disabilities. Despite this step forward, progress is agonisingly slow.
For example, Ireland’s prison population continues to grow and now exceeds the national prison capacity. People with intellectual disabilities are over-represented in prison, and there is growing concern about trans-institutionalisation — that prisons essentially function as institutions in which to “manage” people with intellectual disabilities, just as congregated settings and psychiatric institutions did in the past. This is not acceptable.
The UN is clear a psychiatric approach to disability is inappropriate, in prison or elsewhere. Mental illness and intellectual disability are different. The two can coexist but often do not.
People with intellectual disabilities require a person-centered, multi-faceted network of support that does not pathologise them, but recognises ability, empowers them, and ensures equal access to justice. The rate of imprisonment of people with disabilities is the precise opposite of all of these things.
How can we change this?
- First, the notice of rights that is read to people in police custody must meet the needs of people with intellectual disabilities. It currently does not. A pilot project has demonstrated positive change in this area is both necessary and possible;
- Second, advocacy services in police settings and court need to be expanded and better suited to the needs of people with disabilities. This is not an optional extra. Justice requires that voices are heard at all stages of the criminal justice process — including the voices of people with intellectual disabilities.
- Third, training and awareness programmes for legal professionals can go a long way towards ensuring effective legal representation. District courts can be busy, noisy, chaotic environments where procedural adjustments are needed for some people to participate. Simplification of information, checking understanding, and frequent breaks can enhance participation;
- Fourth, prisons are toxic for people with intellectual disabilities. Despite the best efforts of prison staff and visiting clinicians, prisons are structurally unsuited for the needs of people with intellectual disabilities.
Timely access to psychological support can go some way towards supporting people in distress. In addition, some autistic people find certain environments particularly challenging, including prisons. Simple measures can help, such as accommodating sensory profiles with food textures, lighting, or clothing.
Access to occupational therapy is essential to ameliorate some of these negative impacts of prison. In addition, some countries — but not Ireland — have low-stimulus environments in certain prisons to reduce distress in people who find stimulation challenging.
Too often, these accommodations are not made, with the result the person is preventably agitated and distressed in prison.
This can lead to “sick noting”, which means the person is too distressed to attend court, so their hearing is deferred. This delays or denies access to timely justice. Such people often spend longer on remand in prison. Such a practice, where it exists, should cease. The focus must be on support and enablement of participation rather than exclusion.
Despite these facts, some prisons have a culture of automatic referral of persons with disabilities to a psychiatrist instead. This must stop. This can be stigmatising, delay access to justice, and take away from the enabling approach envisioned in the CRPD.
Psychiatric interventions are best suited to treating mental illness, not just changing behaviours in the context of intellectual disability. Psychiatric medication should not be used to make up for a lack of environmental, psychological, social, or occupational interventions.
It is time for Ireland’s justice system to stop the marginalisation of people with intellectual disabilities and step up efforts to ensure equal access to justice. This is an attainable goal — and an essential one for the victims of crime, for prisoners, and for society as a whole.
Gautam Gulati is adjunct professor at the School of Law, University College, Cork.
Brendan D Kelly is professor of psychiatry at Trinity College, Dublin.
