Six mentally disordered prisoners, “detained for years” at the governor general’s pleasure after being charged on separate indictments for criminal offences but were found unfit to plead, will have to remain behind bars indefinitely after a court found last month that there was no assistance from “any State or private institutions or any family members” to take them in.

The six, who were represented by the Legal Aid Council and whose cases were heard between December 2022 and September this year, are among 14 for whom the council has filed applications before the courts “seeking a review of each applicant’s detention and their potential release, with or without conditions”.

The inmates, on whose behalf separate applications were filed, sought orders from the court for their terms of detention to be substituted to the convenience of the court in lieu of the governor general; to be released unconditionally; or alternatively that they be released on parole with condition; and any such and further relief deemed fit by the court.

Last month, Supreme Court judge, Justice Leighton Pusey, in handing down his decision in the matter and refusing the applications, was at pains to point out that the ruling was not to be seen as any indication by the court “that the conditions in the correctional facilities are good or ideal for the applicants”.

“Rather, the court considers the correctional facilities to be a ‘less bad’ solution than releasing them without supervision and resources. In view of this, the court has exercised its judicial discretion to refuse the orders sought for the release of the applicants in the circumstances. While this decision to deny release is regrettable, it underscores the urgent need for systemic reform and the provision of appropriate resources. The court hopes that its recommendations are heeded and that tangible progress will be made to prevent such unfortunate circumstances in the future,” the senior jurist declared.

“The dearth of private and public resources which could accommodate these applicants, coupled with the unavailability of family members to assist, contributes greatly to the court’s position on this issue. Having reviewed the evidence provided by the applicants the court is of the view that the applicants continue to be unfit to plead and there is no likelihood that, even with treatment, these applicants will ever be fit to plead. Therefore, the applicants remain vulnerable individuals within these correctional institutions and are solely dependent on the correctional services for care,” the judge continued in his ruling.

Additionally, he said “the evidence indicates that the applicants’ familial connections and mental faculties have not endured incarceration”.

“It highlights that their pre-existing mental disorders were exacerbated by their detention, resulting in a further decline over time. The evidence also implies that it is not likely that these applicants, even if they keep up with their medication regime, will become functioning and independent members of society,” he noted further.

In pointing out that in Jamaica it is the courts that fulfil the protective role for vulnerable individuals on behalf of the State, Justice Pusey said “The court is charged with ensuring the well-being of the applicants and safeguarding against their abandonment in destitution if they are released.”

“Additionally, the court has a responsibility not only to the applicants but also to the State and the public to prevent their release into unfavourable conditions that could pose a threat to society,” the judge said.

Pointing out that the case of the six inmates harked back to that of Noel Chambers — who spent more than 40 years in custody at the court’s pleasure before dying at Tower Street Adult Correctional Centre in 2020, drawing much furore from Jamaicans — Justice Pusey said, “Unfortunately, the attention drawn to the plight of these inmates has not yet worked in their favour.”

“The arrangements for the care and treatment of these inmates are inadequate and under-resourced, creating an unsatisfactory set of circumstances. Urgent legal reforms are needed to address these issues and adequate financial and personnel resources are needed to implement the necessary reforms,” the senior jurist said.

He lamented that “after almost two years of adjournments to allow the Legal Aid Council to seek appropriate accommodations for the applicants,” the court had no other recourse.

“Regrettably, despite their efforts and assistance from others, including the Office of the Public Defender, the Legal Aid Council was unable to find appropriate accommodations. Unfortunately, the applicants in these matters have not been as lucky as other applicants in a similar position. The applicants could not secure the assistance of any State or private institutions or any family members to aid them in this time of need,” he said in his ruling.

“The court acknowledges that the issues involved in these cases are sensitive and multifaceted. It emphasises the need for an approach that balances the interests of the applicants with those of the public. Given the circumstances, the court believes that this approach does not support the unconditional release of the applicants. Although correctional facilities are ill-equipped to meet the needs of the applicants, they offer a more stable environment than releasing them into the unknown without any means of self-care. Such a release would perpetuate a cycle of neglect which would significantly deteriorate their mental health and potentially harm society at large,” Justice Pusey said.

In the meantime, Justice Pusey said, “The discourse surrounding the lack of resources to care for mentally disordered persons remains more relevant than ever and needs to be urgently addressed.”

Furthermore, he said, “The shift in focus at the Bellevue Hospital towards rehabilitation of mentally disordered persons has resulted in the neglect of more chronic patients in need of admission and long-term care, such as those in the correctional facilities.”

Pointing out that in other Caribbean territories like Barbados, The Bahamas and Trinidad and Tobago, there are forensic psychiatric facilities that deal with the care and treatment of mentally disordered defendants, though they are not housed at these facilities, Justice Pusey said the absence of such a facility in Jamaica to provide support to the correctional facilities contributes to the ongoing worries regarding the safety and care of the applicants and other mentally disordered inmates.

“The failure of the State to adequately address the issues faced by mentally disordered inmates may suggest a missed opportunity by the State to better support some of its most vulnerable citizens,” Justice Pusey said in calling for implementation of the recommendations of the Mental Health (Offenders) Inquiry Committee Report, which was released in 2020.

The committee was commissioned by Chief Justice Bryan Sykes to probe the reasons for the failures leading to hundreds of mentally ill people in conflict with the law being detained in correctional institutions for protracted periods, some as much as five decades with half listed as awaiting trial.

Justice Pusey said the court was of the opinion that the position of the applicants would be significantly addressed if the recommendations for the establishment of penal psychiatric institutions to care for inmates with severe mental illnesses and for enhanced cooperation between the Ministry of Health, Ministry of National Security, and other relevant government agencies to create a comprehensive management strategy for mentally disordered inmates are acted upon.

“The judiciary stands ready, willing and able to assist in creating the legal framework by providing the requisite orders and supervision for these persons,” he said while also calling for the recommendations for the development of robust community-based programmes offering housing, health care, counselling, and/or vocational training to support the reintegration of mentally disordered individuals into the community to be heeded.