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VLRC: Enabling the disabled

Every Issue

Cite as: (2004) 78(1-2) LIJ, p. 85

The Victorian Law Reform Commission has produced a final report on compulsory care for people with intellectual disabilities.

A Victorian Law Reform Commission (VLRC) report, which proposes a comprehensive legal framework to regulate compulsory care and treatment for people with intellectual disabilities, was tabled in Parliament by Attorney-General Rob Hulls on 20 November last year.

The VLRC received a reference from Mr Hulls in December 2001 requiring it to inquire into the use of compulsory care and treatment practices in relation to people with intellectual disabilities who are a risk to themselves or other members of the community.

The reference was in response to the 2001 report of the review panel appointed to consider the operation of the disability services statewide forensic service. Justice Frank Vincent chaired the panel and its report, known as the Vincent Review, drew attention to deficiencies in the legislative and administrative framework for monitoring and controlling the use of detention and restrictive practices affecting people with an intellectual disability.

The VLRC final report addresses two types of practices that affect people who have an intellectual disability. First, it deals with decisions to detain people without their consent in a prescribed facility, so that they can be provided with services and programs in order to reduce a significant risk that they may seriously harm others. Second, it deals with decisions about restrictive care practices used in a variety of settings, and particularly in residential services, that affect the freedom of people who have an intellectual disability.

In relation to the small number of individuals with an intellectual disability whose conduct poses a serious risk of harm to others, the report recommends that in certain circumstances a person should be able to be detained in a prescribed facility in order to participate in a program designed to help them modify their behaviour.

The report recommends criteria that would need to be satisfied before a person could be detained and compelled to participate in such a program. These criteria are deliberately narrow and also require that the program must be beneficial for the individual concerned. Additional safeguards include a requirement for half-yearly reviews and a maximum limit of five years on the period of time that a person can be compelled to participate in such a program.

The report also proposes the creation of a specialist list in the Victorian Civil and Administrative Tribunal (VCAT) to hear applications for the placement of a person on such a program, the hearing of appeals and the conduct of regular reviews. Given the seriousness of these matters it is recommended that a judicial member of VCAT be required to be part of the decision-making process.

The report also proposes additional constraints on the use of “restrictive practices” in caring for people with an intellectual disability. The restrictive care practices that are considered in the report include “mechanical restraint” (for example, using a belt to restrain a person to prevent self injury or injury to others), “chemical restraint”, which involves prescribing a person drugs to change that person’s behaviour, and “seclusion”, which involves locking a person in a room apart from other people. These practices are currently used to prevent a person from harming him or herself or others. In April 2002 the application of restraint and seclusion measures was recorded in relation to 1285 people using Department of Human Services (DHS) services. It is likely that this figure is significantly underestimated.

The VLRC report contains a number of recommendations that are intended to provide a transparent and accountable legislative framework to regulate the circumstances in which people with an intellectual disability may be subjected to these restrictive practices. The proposed framework is intended to result in a systematic and multi-faceted approach to regulation using reporting, monitoring and independent audits as well as statutory restrictions on the use of such practices.

The report also recommends the establishment of an independent Office of Senior Clinician that would be responsible for overseeing the framework. It is proposed that the Office would work cooperatively with the DHS to promote systematic improvements in the use of restrictive care practices.

An additional issue that the VLRC was asked to consider was whether any future framework should apply to people with cognitive impairments (for example, an acquired brain injury or autism spectrum disorder) as well as people with an intellectual disability. In relation to the regulation of restrictive care practices, the report recommends a three-year phase-in of its application to people with a cognitive impairment. With regard to the framework governing detention orders requiring a person to participate in a behaviour modification program, it is recommended that this apply to people with a cognitive impairment as well as those with an intellectual disability.

The subject matter of this inquiry required the VLRC to engage in a difficult balancing act involving the rights of a profoundly marginalised sector of the community. The recommendations contained in the final report are intended to safeguard the rights and liberties of people with a disability, while at the same time providing for a transparent and accountable means of responding to situations where a person’s conduct poses a risk to themselves or others.

The report is available at http://www.lawreform.vic.gov.au. Alternatively, a hard copy can be obtained by contacting the VLRC on tel 8619 8619 or 1300 666 555 (toll free).


Contributed by the VICTORIAN LAW REFORM COMMISSION, tel 8619 8619. Further information and electronic copies of the report are available from the VLRC’s website http://www.lawreform.vic.gov.au.

viclawreform@liv.asn.au

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