John and Susan's son has been in jail for four years, but not because he was convicted of a crime.
He is in custody under a controversial law the West Australian government promised to reform urgently in 2016, but six years later it remains unchanged.
Thomas, 49, who has an acquired brain injury from birth, was accused of a series of offences but deemed unfit to plead or stand trial due to cognitive impairment.
Under the Mentally Impaired Accused Act, Thomas and others who are considered to be "mentally impaired" can be held in custody indefinitely at the attorney-general's discretion.
John and Susan, who are using pseudonyms for privacy reasons, say the fight to have their son released, or at least held in custody somewhere other than a jail, has taken over their lives.
"It's been a nightmare," John said.
"We are collateral damage.
"The lives of families can be destroyed by this."
John and Susan are among several families in WA whose relatives remain in custody under the Act, which mental health groups have been fighting to change for a decade.
McGowan government promised reforms
In 2016, a year before his government was elected, Mark McGowan promised to reform the legislation within one year of gaining power.
"Our justice system is designed to protect the community and, while this is paramount, vulnerable members of the community need to have access to natural justice, fairness and the treatment they require," Mr McGowan said at the time.
"WA Labor's reforms are urgently needed."
But more than five years after coming into power in 2017 the reforms have not been made, prompting concern from families and criticism from Western Australian Association of Mental Health (WAAMH) chief executive Taryn Harvey.
She said the legislation was drafted in 2019.
"How are we three years later, and we haven't yet even got a piece of legislation to parliament to take it through the processes?" she said.
The government's failure to act means there are still no limits on the amount of time a person can stay in custody, and constraints remain on the circumstances in which judges can order community-based custody.
It also means there are fewer avenues of appeal than for those who are fit to stand trial, and fewer opportunities for their custody status to be reviewed.
As a result, people who are deemed mentally unfit to stand trial under the Act can remain in custody longer than they would have if found guilty of the crime.
The Mentally Impaired Accused Review Board, an arm of the Prisoners Review Board that is led by a judge, can recommend a person be released but it is up to the attorney-general, with sign-off from the governor, whether that recommendation is followed.
Pressure to change law
Pressure to change the Mentally Impaired Accused Act came after the high-profile case of intellectually disabled man Marlon Noble, who was held in jail for more than a decade despite having never been tried or convicted of a crime because he was deemed unfit to plead.
In 2016, the United Nations found that the WA government had breached its responsibilities under the UN Convention on the Rights of Persons with Disabilities, and it recommended law reform.
In the same year, a WA government review of the Act also recommended changes but did not call for an end to indefinite detention.
A state government spokesperson said the government still considered changing the law a priority because it was in "desperate need of reform".
"However, it is not simply a matter of amending the legislation," the spokesperson said.
"The management of persons with mental impairment in the justice system is a very complex issue, requiring a careful balance of human rights, the administration of justice and the protection of the community.
"Alongside the legislative reforms, a broader body of work is required across government to ensure WA's new criminal law mental impairment framework can operate effectively. This work is progressing."
But Ms Harvey from the WA Association of Mental Health, which publicly applauded Mr McGowan and WA Labor for its 2016 commitment to reform, questioned the explanation for the delay.
"I think the government's had ample time to do the work of preparing that draft and preparing the service delivery issues that need to be nutted out," she said
Ms Harvey, who has worked closely with people in custody under the Act, said she had witnessed the terrible impact being held in custody without a release date had on people.
Call for equal rights for mentally impaired
Ms Harvey said the proposed changes were about ensuring people with mental impairment had the same rights, and avenues to appeal, as those who did not.
"There really is no accountability or transparency around these decisions and that information is hidden from people," she said.
Susan and John said they had faced roadblocks at every attempt to advocate for their son, who had been in custody since 2017 after being deemed unfit to stand trial for a series of charges relating to an incident at the Graylands psychiatric hospital.
It was alleged Thomas threatened to kill a person, was in possession of cannabis and methamphetamine, along with accusations of criminal damage, stealing and burglary.
Susan and John have unsuccessfully fought to have Thomas sent to the Bennett Brook Disability Justice Centre — built in 2015 by the previous state government as an alternative to prison for people with mental disability.
The centre currently has 19 staff but only three of a possible 10 residents.
Thomas was once at the centre but was returned to jail after damaging property during an incident.
Thomas vulnerable in jail: psychiatrists
The Mentally Impaired Accused Review Board subsequently tried to send Thomas back to the centre, partly due to psychiatrists' concerns that he would be vulnerable in jail.
Documents show one psychiatrist said his behaviour at the Bennett Brook centre may have been due to him being unmedicated, facing new restrictions at the centre and not having been able to settle in there.
However, the recommendation was rejected by then minister for disability services Stephen Dawson.
John believes he has been in custody longer than he would have been if he was convicted of the alleged crimes.
"[Thomas] is not a paedophile, a rapist, a murderer, a child molester," John said.
He said he hoped his son might soon be released under a community-based custody order. But that decision was still at the discretion of the attorney-general.
"I suppose [this is] a stand … these people must be held accountable for what they do."
Susan said she understood her son was "difficult" and always had been, but his behaviour was linked to a permanent mental impairment that was no fault of his own.
"He's got complex needs," she said.
"Throughout all his life, nobody really wants him. He's just too hard. He's fallen through the cracks of the system and everybody just puts him in the too-hard basket.
"That's been his life."
