This week, the royal commission into the violence, abuse and neglect of people with disability will begin hold hearings on a shameful subject that has long been neglected: the indefinite detention of people with cognitive impairments and/or mental illness in our criminal justice systems.

Indefinite detention is what happens to defendants in criminal cases when they are deemed unfit to stand trial.

In common law, this “unfitness test” is based on whether the accused has sufficient mental or intellectual capacity to understand the proceedings and make an adequate defence.

If a person is found unfit to plead, they can instead be detained in a prison or forensic unit for the purposes of treatment. This detention can be indefinite if the person is deemed to be a risk of harming themselves or others and is not seen to improve.

Article originally published by The Conversation on the 17th February 2021. To read the full article click here.