Persons with disabilities

Persons with a physical or a mental disability represent a significant proportion of the prison population worldwide and are reported to be overrepresented in all types of custodial settings. Persons with disabilities do not constitute a homogenous group and include persons with mental health issues or illnesses, learning or intellectual disabilities, as well as physical disabilities.

Despite this diversity, they are discussed together here because of the common risks they face when detained. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) constitutes a common umbrella establishing basic international standards of rights for all persons with disabilities.

The CRPD (article 2) introduces the pivotal provision of “reasonable accommodation”, which implies an obligation to make appropriate modifications in the procedures and physical facilities of places of detention to ensure to persons with disabilities the enjoyment or exercise of their rights on an equal basis with others. The same provision is now enshrined in the revised United Nations Standard Minimum Rules for the Treatment of Prisoners (the "Nelson Mandela Rules"; Rule 5.2).The denial of reasonable accommodations may lead to living conditions that amount to ill-treatment and torture.

It has been documented that prisons tend to exacerbate poor health conditions and reinforce pre-existing disabilities. Detainees with severe disabilities should therefore always be diverted to non-custodial settings when sentenced or following initial screening upon admission, although this is often not the case. Depending on the context, initial screenings are either non-existent or can overlook disabilities or illnesses. For example, intellectual disabilities may not be taken into account in the assessment, which leads to further victimisation of the persons concerned. It is crucial that prison staff are adequately trained to identify and respond to people with disabilities in detention. This includes specific training on identifying mental disabilities or disorders, distinguishing between intellectual and mental disabilities, and de-escalation techniques to deal with detainees in decompensation, among other competencies.

Despite the central principle of equivalence of care, access to health care and health services is poorer in prison than in the outside world in most countries. This is particularly true for persons with disabilities, due to their requirements for specialised treatment. Detainees with disabilities who do not receive adequate treatment are more likely to break rules and to exhibit behavioural problems (that will affect both staff and other detainees). They are also less likely to obtain bail and therefore to stay in prison for longer periods.

All persons with disabilities in detention are exposed to higher risks of discrimination and victimisation that can lead to abuses, ill-treatment and violence, including rape, both from staff and other detainees. In some contexts, detainees with disabilities are held in specific areas, in worse conditions, with other detainees at risk who suffer discrimination because of their minority status, health condition or type of crime committed.

Detainees with disabilities often lack meaningful activities and may be discriminated against in accessing vocational programmes and training.

Persons with mental illness in detention face specific risks and should not be detained in prisons in the first place. Co-morbidity, whereby a disorder co-occurs with a primary disease or disorder (often a substance dependence) is a widespread phenomenon in prisons and compounds the vulnerability of the persons concerned. When detainees with disabilities have access to treatment, the CRPD requires a process of decision making which guarantees their informed consent in the treatment. Treatments should also be geared towards continuity of care upon release.

In some contexts, restraints are used disproportionately and for longer periods of time on detainees with mental disabilities. They also face the risk of being overmedicated, as a form of "chemical restraint". By the same token, persons with mental disabilities in detention are more likely to be held in solitary confinement to prevent behavourial problems, although their condition will deteriorate significantly in isolation. For these reasons, the UN Special Rapporteur on torture calls for the abolishment of the use of solitary confinement for persons with mental disabilities (SRT, A/66/268).

Persons with physical disabilities in detention face particular risks, especially regarding discrimination in accessing services, education, as well as ill-treatment and abuse. Reasonable accommodation means that they may require special equipment (e.g. hearing aids, crutches, wheel-chairs) and services (e.g. accessible living areas, interpreters). Deaf inmates, for example, should have access to sign languages interpreters for educational programmes, medical consultations or parole hearings. Likewise, detainees with vision impairment should have access to large print materials, audio books or books in Braille.

In practice, it is common that detainees who use wheelchairs do not have the same access to the shower or the same regularity, or that they do not have access to the yard or other common recreational premises and/or activities. Persons with physical disabilities are also more likely to be harmed during transfers and reasonable accommodation requires State authorities to ensure that transfer vehicles are adequately equipped to carry detainees with physical impairment.

The rise of persons with physical disabilities in detention is also related to the fact that the prison population as a whole is ageing. Elderly detainees with physical disabilities are particularly vulnerable.