A Victorian man with a profound intellectual disability will be released from jail on Monday after spending two months in isolation because he did not have an accredited care provider.
Announcing his decision to release 20-year-old Francis on bail on Thursday, supreme court judge Lex Lasry reportedly said he was “horrified” by the conditions he had been kept in while in custody and that releasing him to the care of a new service provider was an “acceptable risk”.
Victoria Legal Aid said the case has exposed a gap in the National Disability Insurance Scheme in Victoria and has called for the state to introduce a provider of last resort to prevent people with an intellectual disability from being unnecessarily detained for minor offences.
Francis, whose last name is not used for privacy reasons, was arrested on 16 September and charged with a minor assault which occurred while he was living in a Department of Health and Human Services home under the care of a previous service provider.
That service provider pulled out of its contract to provide 24-hour intensive care and support for Francis two days later, citing him as a “business risk.”
Without a care provider, Francis was denied bail and held in isolation 23-hours a day at Melbourne Assessment Prison.
Disability services minister Martin Foley intervened in Francis’s case after being contacted by the ABC earlier this month and prompted a new service provider, ACSO, to step in.
Representatives from ACSO told Lasry on Thursday that they would ideally have taken longer to transition Francis into their care and his new house, which is still undergoing renovations, but that they would be able to care for him from Monday.
Lasry told the court that the risk of releasing Francis on bail “has been made acceptable through the provision of supports and that his offending was at the lower end of the scale”.
“‘He’s in 23-hour lockdown at Melbourne Assessment Prison,” he said. “I can’t imagine a worse place for him. The longer he is there the more he will be damaged. Who knows what damage has been done already?”
ACSO will be funded through Francis’s existing $1.5m intensive support package under the NDIS.
His lawyer, Lucy Geddes, told the ABC earlier this month that Francis had been wearing a shirt that was “covered in blood stains and his fingers appeared to be bloody.”
“It was particularly distressing five days later when I appeared in court on behalf of Francis and Francis appeared – wearing the same T-shirt and then the next day when I had a further video conference with him, so six days after that initial visit, he remained in that bloodied t-shirt,” she said.
In a statement released by Victoria Legal Aid, Geddes said she was thankful for Francis’s release but concerned for those in similar circumstances who remained in prison.
“The system requires urgent change to ensure that this doesn’t ever happen again to Francis or to anyone else,” she said.
Legal Aid mental health and disability advocate manager, Sonia Law, said she was aware of at least three other similar cases in Victoria, pointing to a systemic problem with the design of the NDIS.
Most were people who had transitioned out of state care to a private care provider funded under the NDIS, and said there were questions to be asked about whether all privately-run providers either had the expertise or were prepared to accept the risk of taking on a particularly complex case.
“If you go out to the market, how do you know that these market-based providers who rush in to fill this gap, will they be able to adequately manage behaviour so that it doesn’t become a criminal justice issue?” she told Guardian Australia.
Law said that without ministerial involvement in Francis’s case, he would not have been able to find an alternative care provider.
“It didn’t tackle the systemic issue of why that support wasn’t there in the first place, and it didn’t make a difference to anyone else ... it could just happen again,” she said.
Legal Aid has recommended the National Disability Insurance Agency introduce a provider of last resort as a failsafe for particularly complex cases where a care provider has withdrawn or cannot be found.
It has also recommended an urgent audit to uncover anyone detained in jail under similar circumstances.
