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Kelly, Loretta --- "10 Years On: The Continuing Poor Custodial Health of Indigenous People" [2001] IndigLawB 38; (2001) 5(8) Indigenous Law Bulletin 16


10 Years On:

The Continuing Poor Health of Indigenous Prisoners[1]

by Loretta Kelly

To the casual observer, it would be surprising to learn that Aboriginal incarceration rates have actually increased rather than decreased since the publication of the final report of the Royal Commission into Aboriginal Deaths in Custody (‘the RCIADIC’).[2] However, to regular ILB readers this is depressingly common knowledge. Despite the RCIADIC's numerous recommendations in relation to the prison experience and custodial health and safety, the prison system continues its long tradition of ruthlessly processing and degrading Indigenous people. This article explores the rights of Indigenous prisoners to culturally appropriate health services in accordance with the recommendations of the RCIADIC.

The Royal Commission into Aboriginal Deaths in Custody

In October 1987 the Royal Commission into Aboriginal Deaths in Custody was established. The RCIADIC investigated 99 deaths in custody (either in police lock-ups or correctional centres) that occurred between 1 January 1980 and 31 May 1989.[3]

The RCIADIC also examined official actions following the deaths, such as coronial and police enquiries. The RCIADIC took more than 3 years to complete its investigations. The RCIADIC made 339 recommendations designed to prevent Aboriginal deaths in custody.[4]

Historical factors were considered relevant to the investigation of these deaths. The RCIADIC commented on the ‘deliberate and systematic disempowerment of Aboriginal people starting with dispossession from their land and proceeding to almost every aspect of their life.’[5]

The RCIADIC concluded that the:

consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people.[6]

This inequality is most apparent in the poor health of the Aboriginal population and exemplified by the atrocious health of Aboriginal inmates. Out of the 99 deaths, 37 were of natural causes, such as heart attack and respiratory failure. The term ‘natural cause’ is an unfortunate term when used in relation to the death of Aboriginal people because it implies that death from preventable or treatable illnesses are simply a ‘natural’ part of life for our people. Commissioner Johnston stated: ‘[a]s the individual reports of the deaths indicate, generally speaking the standard of health of the ninety-nine varied from poor to very bad (the average age of those who died from natural causes was a little over thirty years)...’[7]

The RCIADIC noted the obvious vulnerability of Aboriginal people in custody due to their poor health.[8] That is, the diseases and injuries that caused many of the deaths in custody reflect the overall health status of the Aboriginal population.[9] The section below describes several prison deaths that have occurred since the RCIADIC’s final report was published and in particular the recent avoidable death of a 30-year-old Aboriginal man due to heart failure.

Implementation of the RCIADIC Recommendations

The recommendations of the RCIADIC cover various aspects of criminal justice reform necessary to reduce the number of Aboriginal people dying in prison. The RCIADIC made broad policy recommendations and particular program proposals to improve the life prospects of Aboriginal youth and to encourage strategies for dealing with Aboriginal health (including excessive alcohol consumption and drug dependence), educational opportunities and the state of housing and infrastructure in Aboriginal communities.

The RCIADIC made a significant number of recommendations concerned with prisoner welfare in terms of health and safety. The failure to implement the recommendations has led to widespread criticism by Aboriginal people and human rights activists, the most vocal activist being former Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson.[10]

Aboriginal people continue to be over-represented in the criminal justice system despite all of the recommendations of the RCIADIC and continue to die in prison at an alarming rate. During 1999, 22% of all prison deaths were Indigenous people.[11] Yet adult Indigenous people represent less than 2% of the Australian adult population.[12] The number of deaths of Indigenous persons in prisons increased from 39 in the period 1980-1989 to 93 in the period 1990-1999.[13]

The Federal and various state governments did, for a time, issue implementation reports annually, arguing that they are in fact implementing recommendations. Yet the reality is that the recommendations are not being implemented.

Behrendt and Cunneen stated as long ago as 1994 that:

many of those who have died have done so because key areas of reform highlighted by the RCIADIC have not taken place. Clearly despite the fact that all governments have publicly supported the vast majority of the RCIADIC recommendations, and with many governments claiming to have already implemented recommendations, the question remains as to whether these recommendations have been implemented to any meaningful degree.[14]

The report, Indigenous Deaths in Custody 1989 – 1996, [15] vividly demonstrates the frequent breaches of two recommendations relating to the provision of health services and health screening procedures (recommendations 152 and 126 respectively), despite all governments having acknowledged their support for them.[16] In that report, inconsistent implementation or non-implementation across jurisdictions is noted. Further, it observes that:

In nine of the 61 investigated cases concerning deaths in institutional settings there was evidence that police, prison officers and medical staff were unaware of their duty of care to detainees. There was also a noted absence of internal disciplinary proceedings to deal with breaches of instructions relating to the care of people in custody.

De-briefing procedures have not been properly utilised to prevent future deaths in the same circumstances. Avoidable deaths occurred in almost identical circumstances in a number of cases.[17]

The report describes in detail numerous incidents of breaches of recommendations.[18] For instance, the report summarises the case of a 33-year-old man who died in Long Bay Correctional Centre (Sydney). The Coroner concluded that Long Bay had not implemented his earlier recommendations concerning exchange of information between prison and medical officers. Poor communication between correctional and medical officers eventually contributed to the man's death. The report also outlined the death of a 30-year-old woman in Mulawa Correctional Centre (Sydney). This woman was not given medical attention despite evidence that she lay in her cell all night, moaning audibly. During the investigation of the death of a 19-year-old man at Parklea Correctional Centre (Sydney), the Coroner questioned whether the Prison Health Service comprehended the duty of care that they owe to inmates under their supervision, after medical staff failed to communicate ‘at risk’ information to corrections officers. Cunneen and Behrendt identified this failure two years earlier. Despite the unanimous governmental support for Recommendation 152f,[19] this continuing lack of communication between prison and medical staff is contributing to the death of Indigenous inmates.

Recommendations as Rights

That word ‘rights’ it's a funny thing. We have no rights as black people. This is even more the case on the inside. I was on the inside for many years and I had no rights. I still don't think that Aboriginal inmates have many rights today.[20]

The recommendations of the RCIADIC are arguably a source of rights for Indigenous prisoners. Although the recommendations have no statutory basis, they can have legal implications under common law. For instance, if a prisoner dies in custody and circumstances amounting to a breach of RCIADIC recommendations contribute to the cause of that death, the custodial authority may be liable for damages in negligence.

Rosa argues that prior to the RCIADIC there was little recognition by the Department of Corrective Services and the Corrections Health Service of the issues facing Indigenous prisoners and their special needs in the custodial system.[21] She describes how the implementation of some of the recommendations has strengthened the ‘rights’ of Indigenous prisoners. However, in practice, these rights are not being observed. An Indigenous person working with Indigenous prisoners[22] commented to the author on the frequency with which these ‘rights’ continue to be breached.

The following section describes some of the ‘rights’ relating to health, as contained in the recommendations of the RCIADIC, and how these rights have been violated.

A Right to Basic Health Care

RCIADIC Recommendation 126 may be read as a right to basic health care because it prescribes processes to ensure that prisoner health is adequately assessed and managed as soon as a person enters an institution.

The author has received anecdotal evidence, from another Indigenous person working with Indigenous prisoners in New South Wales, that there have been numerous incidents when a risk assessment was not completed, or only partially completed. The author’s informant stated that although the Department of Corrective Services claim to be doing risk assessments, several individual Aboriginal inmates said that a risk assessment was not performed on them.

Recommendation 150 states that the health care available to people in correctional centres should be of an equivalent standard to that available to the general public and that a 24-hour service should be available. Once again, the author received anecdotal evidence, this time from a different Aboriginal worker, about numerous incidents where the health needs of Indigenous inmates have not been adequately met. This informant described an incident in a Sydney correctional centre where a woman in chronic pain had requested access to a doctor (who was supposed to be available on a 24-hour basis). Prison authorities denied this request and instead gave her Panadol.

Another Aboriginal worker informed the author of an incident where an Aboriginal inmate was given Panadol for a severe headache by prison authorities. Fortunately, the inmate persisted in requesting medical attention and subsequent tests revealed a brain tumour.

Over the last year there have been a number of Aboriginal deaths in custody where the cause was heart attack. This is a concern, particularly given the relative youth of some of the heart attack victims. Following the death of a 30-year-old Aboriginal male inmate, the Coroner confirmed that the arteries in his heart were clogged and that he had died from a massive heart attack. Earlier that evening, the deceased was involved in an altercation with another inmate (a physical fight). Despite a documented medical history of heart disease, the deceased was not given a medical examination following the altercation.

It is therefore no surprise that the Indigenous Deaths in Custody 1989 – 1996 report found that ‘medical staff and prison officers were often not aware of cross-cultural health issues, particularly heart disease.’[23]

The necessary implication of the RCIADIC’s recommendations on custodial health is that a proactive stance on the medical treatment of Aboriginal inmates is required. Although a medical practitioner from the Aboriginal Medical Service is available to see prisoners in the Sydney metropolitan area, such a service is available on request only.[24] Corrections staff need to identify prisoners at risk and when an incident occurs that increases that risk (say, of a heart attack) then medical attention should be provided.

Recommendation 150 provides that health services should be accessible and appropriate to Aboriginal prisoners. The Corrections Health Service has made agreements with some (not all) regional Aboriginal medical services to access country correctional centres.[25] All correctional centres should have agreements with regional Aboriginal medical services.

Another recent Aboriginal death in custody concerned an inmate who committed suicide after his transfer from a juvenile correctional facility to an adult correctional centre. His record as a juvenile showed that he suffered from schizophrenia and had previous self-harm incidents. His juvenile record was apparently not transferred to adult corrections, so he was not identified as being a person at risk of self-injury. It is widely known that juvenile inmates being transferred to adult prisons suffer from anxiety and fear of their new institution. How much more anxiety would this young man have been subjected to at the time of his suicide?

The provision of basic health care is certainly questionable when it comes to Indigenous prisoners. Moreover, given the poor health of Indigenous inmates, basic health care is insufficient. The well-known principle in the law of negligence, that you take the plaintiff as you find them or the ‘egg-shell skull’ rule, must be emphasised to those working in corrections. The application of this rule means that greater than average diligence amongst corrections workers is required when dealing with Indigenous inmates. Indeed, it may be necessary for corrective services to implement a presumption of poor health for Indigenous inmates!

The painful Indigenous experience of incarceration continues to subvert official announcements of the implementation of RCIADIC recommendations. The fact is that at the ‘coal face’, recommendations of the RCIADIC are not being implemented. Furthermore, studies “support the view that the mere commonsense and moral authority of the recommendations have not led to full implementation”.[26]

There have been several suggestions for achieving more effective implementation of the recommendations. These include enshrining the recommendations in legislation, using various legal remedies at both domestic and international levels, as well as establishing new structures, institutions or dialogues to secure the goals sought in the recommendations.[27]

Where RCIADIC recommendations can be effectively implemented by legislation, this should be done. Legislative backing for those recommendations relating to custodial health and safety measures is essential. It is also essential that Indigenous inmates become more aware of the potential use of the courts under the present law to provide remedies, and are encouraged to use existing structures such as the Office of the Ombudsman and anti-discrimination bodies.

Loretta Kelly is an Aboriginal woman from the north coast of NSW and is a lecturer in the School of Law and Justice at Southern Cross University, Lismore. She is the Many Rivers ATSIC Regional Council’s nominated director of the NSW Aboriginal Prisoners and Family Support Service.

[1] This paper is based on a chapter by Loretta Kelly entitled ‘The Rights of Indigenous Prisoners’, in Human Rights and Equal Opportunity Commission, Prisoners are Citizens (2001) (forthcoming). The author would like to thank Tony Barac for his research and editorial support.

[2] See, eg, Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice, Australian Deaths in Custody and Custody-related Police Operations 1999 by V Dalton, No. 153 (2000) and Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice, Deaths in Custody: 10 Years on from the Royal Commission by P William, No. 203 (2001).

[3] E Johnston, National Report of the Royal Commission into Aboriginal Deaths in Custody: Overview and Recommendations (1991) 4.

[4] See E Johnston, above n 3, for an overview of the recommendations.

[5] Ibid 8.

[6] Ibid 11.

[7] Ibid 6.

[8] Ibid, See E Johnston, ‘The Vulnerabilities of Those in Custody’, Volume 3, Part E, above n 3.

[9] Ibid.

[10] See, eg, M Dodson, ‘Linking international standards with contemporary concerns of Aboriginal and Torres Strait Islander peoples’ in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998).

[11] V Dalton, above n 2, 6.

[12] Ibid 1.

[13] P William, above n 2, 2.

[14] J Behrendt & C Cunneen, ‘Report to the National Committee to Defend Black Rights: Aboriginal and Torres Strait Islander Custodial Deaths Between May 1989 and January 1994’ [1994] AboriginalLawB 22; (1994) 3(68) Aboriginal Law Bulletin 4.

[15] Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Aboriginal and Torres Strait Islander Commission, Indigenous Deaths in Custody 1989 to 1996 (1996), also available at www.atsic.gov.au/issues/rciadic/idc (8/6/2000), para 8.1 – 8.3.

[16] J Behrendt & C Cunneen, above n 14, 6.

[17] Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 15, para 8.1 – 8.3.

[18] See generally J Behrendt & C Cunneen, above n 14.

[19] Ibid 6.

[20] Loretta Kelly, interview with Neville Brown, Chairperson, New South Wales Aboriginal Prisoners and Family Support Service (2000).

[21] S Rosa, Prisoners’ Rights Handbook (2000) 197.

[22] The author spoke at length with several Indigenous workers who work in correctional centres with Indigenous inmates. These workers wished to remain anonymous for fear that their prison clearances and 'privileges' would be jeopardised.

[23] Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 15, para 8.7e.

[24] S Rosa, above n 2, 197.

[25] Ibid 198.

[26] See generally, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 15.

[27] Ibid.


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