Persons with a physical or a mental disability represent a significant number 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 people as diverse as persons with mental health problems or illnesses, learning or intellectual disabilities, as well as physical disabilities.
Despite this undeniable heterogeneity, they are all grouped together in this database because of the common risks they face when detained. The Convention on the rights of persons with disabilities (CRPD) constitutes a common umbrella establishing basic international rights standards for all persons with disabilities.
The CRPD (Art. 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 on an equal basis with others of all human rights. 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 victimization of the persons concerned. It is crucial that prison staff are adequately trained in responding to disabilities in detention. This includes specific training on identifying mental disabilities or disorders, distinguishing between intellectual and mental disabilities, de-escalation techniques to deal with detainees in decompensation, etc.
Despite the central principle of equivalence of care, access to health care and health services is known to be poorer in prison than in the outside world in most countries. This is particularly true for persons with disabilities, due to their needs of special treatment. Detainees with disabilities who do not receive adequate treatment are more likely to break rules, to cause behavioural problems (that will affect both staff and co-detainees) and they are 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 victimization that can lead to abuses, ill-treatment and violence, including rape, both from staff and fellow detainees. In some contexts, detainees with disabilities are held in specific areas, in worse conditions, with other detainees at risks 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, trainings and workshop.
Persons with mental disabilities in detention face specific risks and should not be detained in prisons in the first place, especially when they suffer mental illnesses. Co-morbidity, whereby a disorder co-occurs with a primary disease or disorder (often a substance dependence) is a widespread phenomenon in prisons and make the persons concerned all the more vulnerable. When detainees with disabilities have access to treatment, the CRPD requires a process of decision making which guarantees the patient’s informed consent in the treatment. Treatments should also foresee the continuity of care upon release.
In some contexts, restraints are being 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 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 also face some particular risks, especially regarding discrimination in accessing services, education, but also ill-treatment and abuse. Reasonable accommodation means that they may require special equipment (such as hearing aids, crutches, wheel-chairs, etc.) and services (such as handicapped accessible living areas and interpreters). Deaf inmates, for example, should have access to sign languages interpreters for educational programmes, medical consultations or parole hearings. By the same token, detainees with vision problems should have access to large print materials, books on tapes and books in Braille.
In practice, it is not rare that detainees who are wheel-chairs users do not have the same access to the shower or with 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 is aging and elderly detainees with physical disabilities are therefore particularly vulnerable.
- UN Convention on the rights of persons with disabilities
- Committee on the Rights of Persons with Disabilities, Guidelines on article 14, The right to liberty and security of persons with disabilities, Adopted during the Committee’s 14th session, September 2015