JUSTICE FOR ALL
Treatment of defendants and detainees with
intellectual and/or psychosocial disabilities
peutic needs of persons with intellectual and/
or psychosocial disabilities.
• Provide sufficient staffing, resources and
capacity of inpatient and outpatient medical and mental health care services in order
to ensure compliance with international
human rights standards for defendants
and detainees with intellectual and/or
psychosocial disabilities.
• Ensure that all health and medical professionals (including psychiatric professionals)
obtain the free and informed consent of
persons with intellectual and/or psychosocial
disabilities, if needed, through supported
decision making mechanisms prior to any
treatment; ensure there is a possibility to
withdraw consent.
• Guarantee comprehensive medical assessment upon admission to a custodial
facility and ensure that medically relevant
information is shared between healthcare
providers in the community and in custodial settings on a need-to-know basis to
facilitate continuity of care.
• Ensure early and adequate treatment,
where needed, including in pre-trial detention. Upon admission, where needed,
develop a therapy plan jointly with the
person concerned and ensure that treatment is available, accessible and can be
commenced as soon as possible.
• Ensure that detainees with intellectual and/
or psychosocial disabilities are continuously
informed of their treatment, medication,
condition, etc. in a comprehensible manner
and ensure that their understanding is
genuine and informed.
• Maintain adequate updated and accessible
records on any non-consensual treatment
to ensure effective remedies and access to
justice for the person concerned. Ensure
that these cases are also discussed with the
person concerned in hindsight to ensure
full understanding and transparency.
• Define clear legal requirements to offer
therapeutic measures to the person concerned, especially of a kind that is not only
related to recidivism prevention but also
(other) psychosocial needs of the person.
• Amend legislation, where appropriate, to
bring prison healthcare under the auspices
of ministries of health instead of ministries of
justice to ensure treatment and conditions of
detention are adapted to the specific thera-
2.7. ALTERNATIVES
AND PROBATION
2.7.1. PREVENTION AND DIVERSION
International standards prescribe that deprivation of liberty should be a measure of last
resort (see Section 1.2). Generally, there
has been a broad consensus throughout
the project, where experts from all types of
professional backgrounds were consulted,
that a shift towards prevention is necessary.
Experts in the consultation workshops have
called for strengthening measures that
prevent a person with intellectual and/or psychosocial disabilities from going through criminal proceedings, such as community-based
services and social support structures. Such
measures should be low-threshold, comprehensive and high-coverage services, and
should serve persons with intellectual and/
or psychosocial disabilities in the community
before and regardless of any criminal offence
committed. For example, according to the
Bulgarian Ombudsman, in Bulgaria, psychiatric hospitals have patients (e.g. homeless
persons) who live there permanently due to a
lack of sufficient residential social services for
people with intellectual and/or psychosocial
disabilities.267
When persons with intellectual and/or
psychosocial disabilities are the subject of
criminal proceedings, the judiciary should
consider options that would either dismiss the
charges completely or not bring any charges
to begin with, in favour of diversion measures.
For example, in Germany, the prosecutor has
the discretion to pursue diversion without
further reaction, meaning the prosecution
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