ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES accommodation or adjustments to meet the needs of the prisoner. Article 2 of the UN Convention on the Rights of Persons with Disabilities defines ‘reasonable accommodation’ as the ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.52 The Essex Group noted that in addition to specific accommodation and adjustments tailored to individual prisoners, the prison itself and the way in which it is run can be adapted so that it is not disadvantageous to any prisoner with learning needs or a physical, intellectual or mental disability. Prisons have traditionally been designed and run with young, healthy men in mind despite the fact that many statistics show high levels of prisoners with mental or intellectual disabilities or needs.53 This calls into question both the justifications for and wisdom of incarcerating many of these individuals in the first place. This is addressed by Rule 109 which has three levels. It first recognises that certain individuals should not be held in prisons and if they are found to be, they should be transferred out of the prison. This is an assessment for the courts. The Essex Group noted that this Rule includes the requirement for ongoing and regular assessment as mistakes may have been made during the initial assessment or a prisoner’s health may deteriorate while in prison. The Essex Group also pointed out that ‘severe mental’ attaches to disabilities and health conditions. Second, Rule 109 identifies prisoners who may need to be accommodated within ‘specialized facilities’. Third, it places an obligation on the prison administration to provide psychiatric treatment to those ‘prisoners who are in need of such treatment’. The Essex Group emphasised that any assessment or treatment should only be provided where the prisoner provides his or her informed consent. Beyond Rule 109, a general shift is needed in the majority of prisons in addition to meeting individual prisoners’ needs. For example, written and oral instructions and signs can be produced and communicated in a way that is accessible and understandable to all prisoners. The Essex Group also noted that the prison administration must recognize that prison staff will not have all of the expertise and knowledge on strategies and approaches to put in place. Community partnerships are therefore needed so that prisons can benefit from expertise within the community and align prisons with best practice in the outside world in order to minimise differences between life in prison and ‘at liberty’. The Essex Group also noted the importance of cross-referencing Rule 5(2) with Rule 39(3) which addresses the impact of ‘mental illness or developmental disability’ on conduct and the need for the prison administration to take this into account when deciding upon disciplinary sanction. The experts noted that disabilities should also be taken into account in any reward or privilege system based on ‘good’ behaviour and assessment of risk reduction for release.54 The experts pointed out that if certain programmes or activities are only accessible to prisoners who progress in a certain way then some prisoners with mental, intellectual or learning disabilities may be excluded, which constitutes discrimination. They also recalled the first paper of the Essex Group in which the For direction on the application of reasonable adjustment/accommodation in prison, see The National Offender Management Service (England and Wales) policy on reasonable adjustments, Annexes G and H. 52  Prison Reform Trust, Prison, the facts (2016) available at: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/summer%202016%20briefing.pdf, at 9-10; Christine M. Sarteschi, Mentally Ill Offenders Involved With the U.S. Criminal Justice System (16 July 2013, SAGE open), available at: http://sgo. sagepub.com/content/3/3/2158244013497029; US State Department of Justice, Bureau of Justice Statistics: Special Report (September, 2006), available at: http://www.bjs.gov/content/pub/pdf/mhppji.pdf. KiDeuk Kim, Miriam Becker-Cohen, Maria Serakos, The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System (7 April 2015, Urban Institute), available at: http://www.urban.org/research/publication/ processing-and-treatment-mentally-ill-persons-criminal-justice-system/view/full_report 53  See rules 36-46 on discipline. 54  Penal Reform International and the Essex Human Rights Centre | 19