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VLRC : At risk: people with intellectual disabilities

Every Issue

Cite as: (2002) 76(10) LIJ, p.81

The VLRC examines the need for a new legislative framework to allow compulsory care and treatment of people with intellectual disabilities who are a risk to themselves and the community.

In December 2001, the Attorney-General Rob Hulls requested the Victorian Law Reform Commission (VLRC) to examine the need for a new legislative framework to allow compulsory care and treatment for people with intellectual disabilities who are a risk to themselves and the community. The reference also asked the VLRC to comment on the relevance of such a framework for people with other cognitive impairments, such as acquired brain injury.

The VLRC published its discussion paper for this reference in July 2002 and, during August and September, conducted a series of public consultations, which were attended by people with disabilities, parents, service providers and others.

Some critical issues raised during the consultation period have included:

  • the human rights and discrimination issues that arise when considering a framework that allows compulsory care and treatment for people with intellectual disabilities;
  • the difficulties of defining to whom the framework should apply;
  • the lack of adequate services for people who exhibit behaviour that places themselves or others at risk;
  • the lack of clear professional expertise in the therapeutic treatment of people with intellectual disabilities exhibiting difficult behaviour; and
  • the importance of a multi-disciplinary approach in making decisions about compulsory care.

Balancing these concerns and translating them into workable and effective recommendations is the challenge that now faces the VLRC.

HUMAN RIGHTS AND DISCRIMINATION

Consultations consistently raised concerns about the potentially discriminatory nature of a framework that allows detention of people with a disability on the basis of what they might do in the future, when people without a disability are rarely detained in this way.

It appears simplistic to suggest that a diagnosis of intellectual disability – or of any cognitive impairment – should be the primary criterion for determining to whom the framework could potentially apply, as the actual diagnosis of disability is unlikely to be the most significant factor in determining the appropriate response.

There are, indeed, a number of factors which potentially influence the sort of response that the law should make in relation to a person with a cognitive impairment who may be at risk of harming themselves or others. These factors include the degree of dangerousness involved, the degree of restriction that might be needed to avert that danger, as well as the actual disability diagnosis of the person concerned.

The VLRC has been considering a framework which allows different responses, with different degrees of safeguards, depending on a combination of factors, including the degree of restriction of liberties being proposed, and the seriousness of the risk to the community’s safety.

LACK OF SERVICES

Consultations highlighted widespread concerns about the lack of adequate services for people with intellectual disabilities, particularly for those who have complex needs or who exhibit difficult or aggressive behaviour.

Concerns that a framework for compulsory care – with its potential capacity to detain people for significantly long periods of time – may become an easy “way out” for an under-resourced service system were also expressed.

The VLRC is considering the importance of addressing service system issues as part of the development of a framework for compulsory care. This could include requiring that a Care Plan be developed, and approved, as part of the process of authorising any compulsory care and treatment.

This would mean that questions about detention or restraint or any other restriction of liberties could only be considered alongside other questions about how the person will be supported, and how they will benefit from the services that are provided.

LACK OF PROFESSIONAL EXPERTISE

Unlike the mental health area, there is no clear professional discipline with regard to intellectual disability, particularly with a therapeutic focus. The VLRC is therefore considering the need for some sort of Senior Clinicians Office – similar perhaps to that of the Office of the Chief Psychiatrist in the mental health field – that could provide professional support and consultation, particularly in the development and implementation of Care Plans.

The lack of professional expertise was also linked to issues of assessment of future risk.

MULTI-DISCIPLINARY APPROACH TO AUTHORISING COMPULSORY CARE

Consultations stressed the importance of ensuring that any decision-making body that may have the power to authorise compulsory care and treatment must have a multi-disciplinary approach, and have the capacity to draw on a range of expert and professional perspectives as required.

The importance of balancing clinical expertise with a rights-based community perspective was also stressed. These views indicate the need for some sort of tribunal or body with appropriate powers to be the body responsible for decision-making in this area.

WHERE TO FROM HERE

Since the completion of the public consultation phase at the end of September, the VLRC has continued to consult with key stakeholders and experts as it develops its final report and recommendations.

It is anticipated that a final report will be presented to the Attorney-General before the end of the year.


NOTES

Contributed by the VICTORIAN LAW REFORM COMMISSION. Further information can be found on the VLRC’s website http://www.lawreform.gov.au or telephone 8619 8619.

viclawreform@liv.asn.au

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