‘He’s suffered enough’: The fight to release an artist with an intellectual disability from indefinite detention

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Painting his self-portrait, Malcolm Morton chose a rough swirl for the nose, a simple stripe for the frowning mouth. He made sure the eyes dominated — the whites dripping down the canvas from behind splodged black pupils.

“F***, look — that painting sings,” says Al Bethune, Morton’s former art therapist.

“Malcolm’s self-portrait is truly extraordinary.”

When asked about the feeling contained in the work — an entry in this year’s Archibald Prize — Bethune has to hold back tears.

“To interpret that emotion,” he says, “you need someone to tell you his life story.”

Malcolm Morton has spent half his life in custody.()

Born in 1990 in a community outside Alice Springs, Morton grew up with an acquired brain injury and a significant intellectual disability. In 2007, when he was 16, he fatally stabbed his uncle after a disagreement.

Found not fit to plead to charges because of his disability, he has been detained ever since – first in youth detention, then in Alice Springs’ maximum-security prison and now the forensic disability unit next door.

Northern Territory law allows him to be kept in custody so long as the Supreme Court is satisfied there is “no practicable alternative”.

His family and friends believe there is such an alternative and are fighting for his release.

“If he didn’t have a cognitive impairment, and he committed this particular crime, he would now be free and living in the community,” disability rights advocate Patrick McGee tells 7.30.

Patrick McGee has known Malcolm Morton since he was a child.()

“He would have served his time.”

Cruel and degrading treatment

The Australian Human Rights Commission released a report on Morton in 2014 after receiving a complaint that he had been tied to a restraint chair multiple times, sometimes for up to three hours, and frequently sedated.

The commission accepted he had been subjected to “the most severe treatment” in prison – including mechanical and chemical restraints – and concluded that the conditions were “cruel, inhuman and degrading”.

The report called for a plan to have him moved over time into the community.

Nearly a decade later, Morton’s aunt Margaret Campbell says he is lonely behind locked doors and isolated among the forensic disability unit’s staff, most of whom do not speak his language. The NT Department of Health confirmed only one staff member working in the unit speaks Arrernte.

Margaret Campbell says Malcolm Morton is lonely and isolated.()

“When he’s inside and he can’t communicate with those people who look after him, then he gets difficult to handle for the mob inside – the workers,” she says.

“I miss him, thinking he’s been in that place too long and I want him to come out. Been in there too long.”

Campbell also alleges that Morton has been inappropriately medicated, including being prescribed a drug for obsessive compulsive disorder without a formal diagnosis or consultation with family.

In 2012, the Northern Territory passed a law requiring the establishment of an independent panel that could review restrictive practices such as “chemical restraint” medication for people like Morton.

But the panel was only introduced two months ago. Morton’s family has yet to submit a complaint, unaware the panel had been established. 

‘Most dehumanised person in Australia’

Morton loves wearing cowboy clothes and watching the donkeys on country at Alice Well, south of Alice Springs, when he is allowed to visit.

For several years, painting became another source of satisfaction.

Malcolm Morton is now in a forensic disability unit.()

Bethune, an Alice Springs artist and long-time mentor to Morton, says they began using tins of old house paint and boards he picked up at the tip shop.

At first, Morton was fascinated by the process of removing the tin lids and mixing the paint. Over time he began rolling paint, squirting it from syringes, and scattering it across the canvas.

Artist and disability worker Al Bethune helped Malcolm Morton get back into art.()

“He’s probably the most dehumanised person in Australia,” Bethune says.

“His drug regime is incredible, so you’d have to actually bring him into his body, into the now, before you could even engage him.”

Over the course of several years, Morton produced dozens of paintings, mainly large abstract works in bold colours. Last year, a selection was exhibited in Melbourne at the Australian Catholic University’s gallery, earning $17,500 in sales.

Malcolm Morton’s paintings made their way to Victoria for an exhibition at the Australian Catholic University.()

The university’s dean of law, Professor Patrick Keyzer, has represented Morton for more than a decade and in January submitted a complaint to the United Nations Committee Against Torture.

“Malcolm’s indefinite detention in the forensic disability unit is a breach of Australia’s international human rights obligations under a number of treaties,” Professor Keyzer says.

“Australia’s signature on these treaties, it’s not worth the paper that it’s printed on.”

Patrick Keyzer says Malcolm Morton’s indefinite detention is unjustifiable.()

Release hearing

The custodial supervision order that keeps Morton in indefinite detention – while allowing him out for several hours a day — will be reviewed by the Northern Territory’s Supreme Court next month.

Morton’s family is pushing for an end to the order, to allow Morton to live in secure accommodation on the outskirts of Alice Springs, under the close supervision of NDIS support workers.

He has acted violently and inappropriately toward staff in the forensic disability unit, but McGee says Morton is well-behaved when visiting family on country and spending time in the community.

Patrick McGee says it’s time for Malcolm Morton to live with his community.()

“This is the behaviour we’re seeing at the moment at the forensic disability unit of someone living in a very restrictive environment, surrounded by people he doesn’t really trust or like,” McGee says.

An assessment by an independent forensic psychologist last year found Morton posed an ongoing risk of violence but also supported Morton being transitioned into the community as a matter of “the upmost importance”.

The NT Health Minister, Chief Minister Natasha Fyles, declined to answer questions about the use of medication, the complaint to the UN and whether the Health Department would oppose Morton’s release.

“The assessment of the custody of people detained under Part IIA of the Criminal Code is a matter for the Supreme Court,” a spokesperson for the chief minister says.

The NT Health Department also declined to comment on Morton’s case but says in a statement: “The Forensic Disability Unit partners with local National Disability Insurance Scheme (NDIS) providers to support clients transition into the community, using an individualised plan.”

Bethune describes the unit as jail-like and urges the government to facilitate Morton’s release into supervised living.

“Show him some respect as a human being,” he urges. “Give him another chance. He’s suffered enough.”

McGee is hopeful the Archibald entry – which he drove from Melbourne to Sydney to deliver to the Art Gallery of NSW – will draw attention and increase the scrutiny of decisions about Morton’s future.

“It’s time for Malcolm to live safely and securely in the community, in his own house, surrounded by family and friends, and people who love him,” McGee says.

“It’s time to do things a different way.”

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