Relevance of Human Rights to Sentencing of Prisoner with Mental Illness: Michael David Jones v R

On 19 October 2006, in conjunction with Victoria Legal Aid and Chris Boyce of Counsel, the Centre made submissions to the Victorian Court of Appeal in an appeal against sentence.  The submissions pertained to the relevance of international human rights standards to the sentencing of a person with a mental illnedd. MDJ was diagnosed with chronic paranoid schizophrenia.  In 2005, he was convicted on four counts of armed robbery, assault and kidnapping.  In his decision, the sentencing judge, Chettle J, readily acknowledged the extent of the appellant's mental illness, finding a nexus between his mental condition and the commission of the offences.  Nevertheless, MDJ was sentenced to an extended prison term of 6 years and 9 months, with a non-parole period of 4 years.

Justice Chettle acknowledged that MDJ would be best suited to detention in a mental health facility such as Thomas Embling Hospital, but that he could 'say that til the cows come home'; the lack of 'money, facility and appropriate places to detain people who are sick' meant that MDJ would still 'do his time in mainstream prison'.  In light of these limitations, his Honour expressed the view that Jones would be best accommodated at the Melbourne Assessment Prison, which contains a secondary psychiatric facility, the Acute Assessment Unit ('AAU').

MDJ's legal representatives, Victoria Legal Aid, appealed his sentence on the ground that the sentencing judge had, in the exercise of the sentencing discretion, placed insufficient weight on his mental illness and the burden of imprisonment on someone suffering from a mental illness, the effect being the imposition of a manifestly excessive term of imprisonment.  It was submitted that MDJ did not remain at the AAU and was frequently moved between prisons.  This negatively affected the continuity of his psychiatric treatment.  Further, there was evidence that he experienced ongoing difficulty obtaining adequate medication, and that the symptoms of his schizophrenia were regularly 'managed' by placing him in 23-hour solitary confinement for up to 8 days at a time.

In a recent decision of the Court of Appeal (Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 at [70]), a call was made by Maxwell P for practitioners to bring before the Court arguments of international law, to the extent that this would assist in the determination of cases.  The HRLRC identified the MDJ appeal as one in which the Court might benefit from submissions on international law relating to the rights of prisoners with a mental illness to adequate health care.  The HRLRC considered various options as to how such arguments might best come before the court, including making an amicus curiae application or co-counselling.  In the particular circumstances of this case, it was decided that the most effective approach would be to encourage and assist Counsel for the appellant to present the international law arguments to the court.

At the appeal, Counsel for the appellant submitted that international law supports the position at common law that a person imprisoned for committing a criminal offence should not suffer punishment over and above the deprivation of liberty which imprisonment entails.  Further, Counsel for the appellant submitted that international law adds to the common law in two respects.  First, unlike the common law, which does not expressly set standards of mental health care, international law sets minimum standards of care and defines a failure to meet these as a form of punishment over and above the sentence imposed.  Secondly, international law provides that where punishment occurs which is over and above the deprivation of liberty, the prisoner should be entitled to an effective remedy pursuant to art 2(3) of the International Covenant on Civil and Political Rights ('ICCPR') and General Comment 9 of the UN Committee on Economic, Social and Cultural Rights, which could take the form of a reduced sentence.  In putting these arguments reference was made to a number of international instruments which set out the right of prisoners to adequate mental health care, inlcuding:

• Art 10 of the ICCPR, which states that all persons deprived of their liberty must be treated with humanity and respect for their inherent dignity;
• Art 12 of the International Covenant on Economic Social and Cultural Rights, which provides for the right of everyone to the enjoyment of the highest attainable standard of physical and mental health;
• The UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, which state that incarcerated persons should have access to the best health care available in their country (Principle 20);
• The UN Basic Principles for the Treatment of Prisoners, which provide that prisoners must have access to health services available in their country without discrimination on the grounds of their legal situation (Principle 9); and
• The UN Standard Minimum Rules for the Treatment of Prisoners, which require that the prison system 'shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation (Rule 57).

The Centre considers that mentally ill persons are typically not adequately supported, or provided for, in correctional facilities.  In particular, limited resources mean that prisons are often unable to provide adequate professional services, including mental health professionals.  This results in inadequate screening, assessment, treatment, crisis intervention, institutional and post-release community management. The Centre further considers - and expert commentary supports the position - that inadequate provision of appropriate psychiatric treatment to mentally ill persons detained in prisons can exacerbate pre-existing medical conditions, such as schizophrenia.  The MDJ case could be said to illustrate the deficiencies in our prison systems in relation to the provision of adequate mental health care for prisoners.  International law is one tool to which the Courts are able to have recourse in trying to address such deficiencies.