New Bill to remove right to disability pension for people in psychiatric confinement

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In December 2014 the Government announced, as part of its Mid-Year Economic and Fiscal Outlook (MYEFO), that current laws which enable Disability Support Pension (DSP) to be paid to certain people who are undergoing a course of rehabilitation in psychiatric confinement after being charged with a criminal offence would be repealed. 

NWRN has been working with the Aboriginal Disability Justice Coalition (ADJC) which spearheaded a campaign seeking to reverse this policy decision. The advocacy of the ADJC was partially successful, with Department of Social Services altering its policy position slightly.  The Bill that has now been introduced to parliament will give effect to the MYEFO measure, but only for people who are considered to have committed “serious offences”.

This means that the exception which allows persons in psychiatric confinement to receive income support payments won’t be abolished. However it will only apply for people who weren’t charged with a “serious offence” and, for reasons explained below, there are problems with the proposed definition of serious offence.

The bill also proposes a new exception for people in psychiatric confinement during “a period of integration back into the community”. They would be deemed to no longer be in psychiatric confinement and could receive payments. The minister will proscribe what “a period of integration back into the community means”.

Problems with the current policy and the drafting of the bill

A detailed analysis of the bill can be found at the Welfare Rights Centre (NSW) blog here. A summary of the problem with the Bill is as follows:

  • A person who is in psychiatric confinement will be ineligible for DSP even on days when they are not in the psychiatric institution (unless it is part of a period of integration back into the community). This is unfair. It is harsher even than the treatment of other prisoners on periodic detention (who are ineligible only on the days that they are actually detained). There is no justification for this harsher treatment for people who found to be not morally or legally culpable due to severe mental illness, brain damage or intellectual disability.
  • The definition of serious offence is too broad. It includes offences punishable by life in prison or a sentence of at least 7 years, if the offence involves loss of life or serious risk of loss of life, serious injury or serious risk of injury to a person or serious damage to property where this endangers the safety of a person. The reason it is too broad is that the person who was put at risk may be the person themselves. Thus this measure may also affect people who meant no harm to any other person, but put themselves at risk.
  • The Federal Government says basic needs (eg food, clothing, shelter) will instead be met by State or Territory governments responsible for psychiatric institutions. However, we are unaware of any steps being taken to ensure that State and Territory governments have adequate measures in place prior to the removal of income support.
  • The Federal Government says this will make the treatment of all people in gaol and psychiatric confinement more equal. However, this ignores the fundamental question of whether the same punitive withdrawal of payments should apply to people in psychiatric confinement, given that they were found to be not morally or legally culpable due to severe mental illness, brain damage or intellectual disability.
  • There is no grandfathering. The bill proposes that the measure will apply not only to people who enter psychiatric confinement in the future, but also to people currently in psychiatric confinement at 1 July 2015.
  • The meaning of “a period of integration back into the community” will be set by the Minister and so will not be part of the bill as debated in parliament and will not be subject to the same scrutiny.
  • It’s hard to see how the costings can be right. Both the original MYEFO measure, and the more limited measure in the Bill, indicate exactly the same amount of savings.
  • There is no evidence of consultation with experts working with people in psychiatric confinement about the impact of this measure prior to its announcement in the MYEFO.  The media has reported on concerns mental health experts have about the measure and the potential impact on people’s ability to successfully re-enter the community and maintain stable housing: see here.  

The government should drop this measure altogether. Certainly, the bill should not pass in its current form. NWRN is hopeful that the Bill will be referred to a Senate Committee for consideration.