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Article by Bernadette McSherry | Published October 30, 2012
By Professor Bernadette McSherry. This article is part of our October focus on Disability Rights. Read more about this topic here.
People with severe mental and intellectual disabilities have traditionally had decisions made for them about where they should live, what medical treatment they should have and how their money should be spent. The era of institutionalisation of people with disabilities may be fading, but there are still human rights issues that need addressing in relation to the detention without consent of certain individuals with intellectual disabilities.
The notion of having guardians appointed to make decisions for those with mental and/or intellectual disabilities is probably a familiar one. All Australian jurisdictions have guardianship laws that enable a process of substituted decision-making for those considered unable to make their own decisions. These laws only come in to play when a person, by reason of his or her disability, lacks the capacity to make decisions about issues such as accommodation, health care, finances or employment.
There is a need to consider the human rights implications of indefinite detention on the basis of a possible risk to others
Less well known, however, is that some Australian states have laws that enable individuals with intellectual disabilities to stay in certain facilities without their consent and for indefinite periods of time. In South Australia, section 32 of the Guardianship and Administration Act 1993 gives special powers to the Guardianship Board to order that a person under guardianship be detained in a specified place. Further, the Guardianship Board may “authorise the persons from time to time involved in the care of the protected person to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.”
There is also specific legislation in Victoria and Queensland that enables the indefinite detention of individuals with an intellectual disability who have been charged with or convicted of an offence punishable by imprisonment. There is similar legislation in New Zealand under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Under section 152 of the Disability Act 2006 (Vic) an individual with an intellectual disability may be admitted to a residential treatment facility if all of the following elements are present:
This Act also establishes a scheme of supervised treatment orders. Under section 183, a supervised treatment order enables “the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.” The Victorian Civil and Administrative Tribunal can make an order where the person has shown a “pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm” and it is necessary to detain the person to endure compliance with a treatment plan that will be of benefit to him or her (section 191(6)).
While the term “pattern of behaviour” seems to imply something beyond occasional offending, there is no requirement that there be any particular regularity in offending.
Similarly, in Queensland, the Forensic Disability Act 2011 establishes a regime “to provide for the involuntary detention, and the care and support and protection, of forensic disability clients” (section 3). A “forensic disability client” is defined in section 10 as a person with an intellectual or cognitive disability who has been ordered by the Queensland Mental Health Court to be detained for treatment or care in the forensic disability service. When this regime was introduced, it was envisaged that there would be one 10-bed facility at Wacol in Brisbane intended to be declared as an authorised forensic disability service.
The individuals who may be detained under this regime are generally subject to a “forensic order” made by the Mental Health Court. Those subject to a forensic order have not been convicted of an offence, but are considered to be of “unsound mind” such that they are unable to stand trial. This means that the forensic order may remain in place indefinitely, and potentially for a period much longer than the relevant term of a sentence had the person been found guilty of the alleged offence.
Indefinite detention may also apply to those accused (but not convicted) of committing a crime if they are found “unfit to plead” because of an intellectual disability. In Western Australia and the Northern Territory, this detention occurs in prison, usually in maximum-security settings, while in other states such as Queensland, Victoria and Tasmania, a person who has been found unfit to plead may be detained in a secure psychiatric facility. Indigenous Australians with intellectual disabilities are over-represented in this group. There is a campaign at present to review this situation and, at the time of writing, a High Court challenge is being prepared questioning the constitutionality of laws that allow those with intellectual disabilities who have been found unfit to plead to be held in prison indefinitely.
The indefinite detention of individuals with intellectual disabilities on the basis that they may pose a risk to others raises substantial questions concerning human rights. The Convention on the Rights of Persons with Disabilities (the CRPD), which Australia ratified on 17 July 2008, clarifies the obligations on States Parties to promote and ensure the rights of person with disabilities and sets out the steps that should be taken to ensure equality of treatment. It goes into much more detail than previous general human rights conventions concerning what action needs to be taken to prohibit discrimination. Neither “disability” nor “persons with disabilities” is defined in the CRPD, but Article 1 states that the latter term includes “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.
Article 14.1(b) of the CRPD requires Australia to ensure that persons with disabilities “[a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty” [emphasis added].
The words “the existence of a disability shall in no case justify a deprivation of liberty” could be interpreted in two ways. These words could be interpreted to mean that laws enabling the involuntary detention of individuals with disabilities should be abolished or, alternatively, they could be understood more narrowly to mean that the “the existence of a disability alone” does not justify such laws.
During the drafting of Article 14, some States, including Australia, advocated that it should set out that any deprivation of liberty should not be “solely” based on disability. This approach would leave it open for detention to be allowed where other criteria such as the need for treatment or dangerousness coexisted with a criterion of disability. However, the word “solely” was not included in the final draft.
In 2009, the Office of the High Commissioner of Human Rights in paragraph 49 of its Annual Report on the CRPD stated that “[l]egislation authorising the institutionalisation of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished” . It stated that the legal grounds for detention of any person must be “de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis” . Any such statements from the Office of the High Commissioner of Human Rights, however, are not legally binding.
Perhaps of more significance are two statements by the United Nations Committee on the Rights of Persons with Disabilities, which monitors the implementation of the CRPD. In response to Tunisia’s report to the Committee, the latter recommended in a report on 13 May 2011 that Tunisia “repeal legislative provisions which allow for the deprivation of liberty on the basis of disability, including a psychosocial or intellectual disability” (para. 25). The Committee reiterated this position in response to a report by Spain, stating on 19 October 2011 that Spain must:
repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability; and adopt measures to ensure that health-care services, including all mental-health-care services, are based on the informed consent of the person concerned (para. 36).
In light of these comments, the involuntary detention of those with intellectual disabilities on the basis of a risk of harm to others may be viewed as discriminatory because those without mental or intellectual disabilities are not, as a general rule, indefinitely detained on this basis in the absence of a criminal conviction. Even if the High Court finds that such schemes are constitutional, there is a need to consider the human rights implications of indefinite detention on the basis of a possible risk to others and explore alternative options to ensure those with intellectual disabilities are treated on an equal basis with others as mandated by the CRPD.
Bernadette McSherry is a Professor of Law and Director of the Centre for the Advancement of Law and Mental Health, Monash University.