Disability royal commission told of efforts to help Indigenous woman locked away for 20 years

After being locked away for more than two decades, Melanie* hopes for simple things: to cook, to have a pet dog, to go to the beach.

Warning: This story contains details of sexual assault and violence some readers may find distressing.

But efforts to move the First Nations woman with disability from indefinite detention into the community have encountered "barriers".

A second hearing of the disability royal commission about Melanie's case has heard of the challenge to find suitable accommodation so the 38-year-old can leave a forensic hospital but keep both her and the community safe.

Acting chief executive officer of the NSW Trustee and Guardian, Megan Osborne, told the hearing there were "barriers" but they were working to "release [Melanie] into the community for this year".

"We want to make sure that Melanie still maintains hope but for a long time we haven't been able to give her a date [for release] which is also very frustrating for her," Ms Osborne said.

Melanie has been at The Forensic Hospital at Malabar in Sydney's south-west for 10 years as an "involuntary patient", and is classified as a danger to herself and the community.

She lives with multiple disabilities including an intellectual disability, borderline personality disorder and extreme self-harm behaviour.

She is a National Disability Insurance Scheme (NDIS) participant and requires three-to-one care.

The royal commission first examined Melanie's case in February, where it was revealed forensic hospital staff were fearful of her and she had spent up to 23 hours a day for eight years in isolation at the facility.

Melanie was taken into state care when she was five years old and chlamydia was discovered in her throat as a result of sexual abuse.

She was prescribed anti-psychotic medication at the ages of seven and eight and spent time in multiple juvenile detention facilities.

Melanie was deemed unfit to be tried after a "very serious act of violence" when she was 17 that led to the death of a staff member at a juvenile detention centre.

A special hearing of the NSW Supreme Court found she had committed the offences of malicious wounding and manslaughter, and imposed a 10-year jail term.

Trying to help Melanie have a better life

Ms Osborne told the royal commission a NDIS provider had been delivering in-reach services to Melanie at the forensic hospital, and had agreed to continue to work for her transition to the community in Specialist Disability Accommodation (SDA).

The royal commission was told long-term accommodation for Melanie had been identified but construction hadn't started and an interim option was being sought.

Ms Osborne described securing funding from the National Disability Insurance Agency (NDIA) for SDA as a "lengthy process".

Royal commission chair Ronald Sackville acknowledged that transitioning to the community for people like Melanie was made "even more difficult" by the division of responsibilities between the Commonwealth and the states and territories.

Ms Osborne said it was "incredibly difficult" to find a place for Melanie to live on the private rental market because accommodation needed to be "robust", with particular fittings. 

"That means that the person can't unpick screws in the property or unnecessarily do damage to themselves," Ms Osborne said.

She said the public guardian had in-person conversations with Melanie when they could, and now regular phone contact, and was "her voice" in the governance group meetings to decide her future.

"We are actually talking about a human here that we are trying to [help] have a better life," Ms Osborne said.

Melanie is due to go before the Mental Health Review Tribunal in September, where a transition plan could be presented.

Ms Osborne said the plan needed to demonstrate there were sufficient supports for Melanie, and that the risk to the community, and her mental health were being "adequately treated".

"Melanie would like to live in the community. She would like to do simple things like cook and have a pet dog — she loves animals," she said.

"She would like to be able to access the community in such activities as going to the beach.

"I think her wishlist is reasonably simple and she has been consistent in her goals and hopes."

Culturally appropriate services help with progress

The disability royal commission also heard evidence about a man detained in the Northern Territory for 14 years who, like Melanie, is a NDIS participant.

Winmartie* lives with epilepsy and cognitive disability and was found not fit to plead after he killed his sole carer, his uncle, in 2007 at Santa Theresa.

A jury delivered a qualified verdict of guilty of manslaughter by reason of diminished responsibility and a custodial supervision order was imposed in 2009.

Winmartie remains in the Forensic Disability Unit (FDU) in Alice Springs.

The royal commission heard that prior to its February hearing, Winmartie's NDIS package had dropped "significantly" to $5,000 but after the inquiry it went up to $99,000.

Senior director with Northern Territory Health, Cecilia Gore, said the increased funding was for Winmartie's visits to country, but they were yet to make that happen due to his poor health.

A NDIS provider has facilitated visits to a house in Alice Springs twice a week where Winmartie is learning "living skills" like cooking and cleaning, and where his family have visited him.

Ms Gore said it was "absolutely impossible to put an actual timeline" on when Winmartie would be released into the community.

"We have some hope for horizons in the two to three-year space," Ms Gore said.

"But we can't put that on the table because it very much depends on his [Winmartie's] wellbeing, how things work and how things don't work."

Ms Gore said there had been "significant progress" for Winmartie's situation, with a full-time Aboriginal liaison staff member now employed at the FDU.

Winmartie's co-guardian Patrick McGee gave evidence at February's hearing but did not appear at this inquiry.

Mr McGee told the ABC that since the first hearing six months ago it had been "good and bad" for Winmartie.

"Winmartie has been transitioning into the community in Alice Springs and the work of the [organisation] supporting that transition is culturally appropriate," Mr McGee said.

"There are people working with him who he respects, and they talk to him using the Aranda language."

Mr McGee said working with more culturally appropriate services had seen Winmartie's behaviours of concern decrease and the need to give him psychotropic drugs to restrain him should also be reduced.

"What we're not seeing is an understanding by the forensic disability unit of the context in which they're operating and the need for transparency," he said.

"We're not seeing them account for the use of chemical restraint and it remains very high."

Asked about the use of medication for Winmartie, Ms Gore said there was "ongoing processes of review and improvement" with "collaborative case meetings" involving a clinician and senior doctors.

A man who 'wants to understand the world'

Mr McGee remains hopeful that Winmartie's situation will continue to improve and says family and culture is a vital part of that process.

"They are where the answers lie because they have the most ability to influence his behaviour, his outlook, his participation and his motivation," he said.

"What I see when family are involved with Winmartie is a happier Winmartie, a more participatory Winmartie, a Winmartie who wants to understand the world he's in and how to be in that world in a way that makes him safe and makes the community safe."

First Peoples Disability Network chief executive Damian Griffis said the royal commission hearing emphasised the need for Indigenous people with disability in prison to have fair and equal access to the NDIS.

"By the time that an Aboriginal or Torres Strait Islander person has come into contact with the justice system, they are likely to have had a lifetime of their disability-related needs having been unsupported," Mr Griffis said.

"While the NDIS and the states and territories refuse to sort out who is responsible for supporting people with disability, our community continues to suffer, and this has to end now."

The Network is calling for the NDIS to be transparent about the numbers of Aboriginal and Torres Strait Islander people with disability in prison who are receiving services from the scheme.

It also wants all First Nations people to be screened for disability six months before leaving jail so they can access the NDIS.

* The names of Melanie and Winmartie have been changed.

Source: ABC