Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter
AC (Guardianship) [2009] VCAT 1186 (8 July 2009) This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was placed on a Supervised Treatment Order (‘STO’) under the Disability Act 2006 (Vic). The STO required him to be under constant supervision and allowed him to leave Sandhurst only in restricted circumstances and under the supervision of two staff members. In 2009, AC applied to the Victorian Civil and Administrative Tribunal for review of the STO. AC wanted the STO to be revised so that he could come and go from Sandhurst as he wished during the daytime and have much more freedom in the community. AC stated that he was prepared to remain at Sandhurst and receive treatment voluntarily. The Department of Human Services opposed AC’s application.
STOs under the Disability Act
Under the Act, the Tribunal may make an STO if it is satisfied that the matters specified in s 191 apply, namely: the person must have an intellectual disability, be receiving residential services and have a treatment plan in place that has been approved by a Senior Practitioner. In addition, the Tribunal must be satisfied of the following elements:
- The person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;
- There is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;
- The services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;
- The person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person; and
- It is necessary to detain the person to ensure compliance with the treatment plan and prevent the significant risk of serious harm to another person.
Decision
Before determining whether the criteria in s 191 of the Act had been satisfied in respect of AC, the Tribunal was required to identify the correct meaning of s 191 and, in particular, the meaning of the term ‘serious harm’ when in interpreted in accordance with s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). AC argued that the STO limited a number of his human rights under the Charter and that the interpretative obligation contained in s 32(1) therefore required the Tribunal adopt a narrow interpretation of the term ‘serious harm’.
In determining the application of the Charter to the Act, the Tribunal applied the ‘four step’ approach set out by Justice Bell in Kracke v Mental Health Review Board & Ors [2009] VCAT 646 – that its, engagement, justification, reinterpretation and (for the Supreme Court alone) declaring inconsistency.
At the ‘engagement’ stage, the Tribunal interpreted the provision ‘according to the standard principles of interpretation’. This included adopting an interpretation that was consistent with international treaties such as the Declaration on the Disabled Persons and applying the principle of legality which states that freedoms cannot be abrogated without clear intent. The Tribunal held that the legislative purpose of the Act was to benefit persons with an intellectual disability but also to protect other members of the community. It went on to say that the meaning of ‘serious harm’ according to standard principles of interpretation; was ‘harm – physical or mental – that is, when compared to other cases of harm or potential harm “very considerable” and more than significant or marked’.
The ‘engagement’ stage also required the Tribunal to identify the scope of the rights engaged and to determine whether the provision limits the scope of those rights. AC submitted that the STO limited his rights to non- discrimination, to be free from medical treatment without consent, to freedom of movement, to privacy and not to be subjected to arbitrary detention. The Department argued that the last two rights were not engaged because the limitation of those rights was not arbitrary. The Tribunal rejected this argument and stated that where rights are expressed in terms that contain a specific internal limitation such as ‘arbitrariness’, this does not reduce the nature and content of the right. Rather, the specific limitation is seen as an indication of what might be considered at the later stage of determining whether the limitation is justifiable. The right to privacy was clearly engaged as the STO limited the ability of AC to express himself, to enter into relationships, and to develop personally in the way that he would wish for. In relation to the right not to be detained arbitrarily, this right was engaged since the question of whether or not AC’s detention is arbitrary also arises at the later ‘justification’ stage.
Having found that five of AC’s human rights had been engaged by the Charter, the Tribunal then moved on to the second stage of the Charter analysis, determining whether the limitation on those rights was justifiable in accordance with s 7(2), taking into account each of the five factors listed in that section. The Tribunal noted that at the source of all of the rights engaged was a core value of autonomy – that is, the right to make decisions about oneself in all areas of life. The Tribunal recognised that ‘this may involve taking risks, making decisions that others disagree with and being accountable for decision making.’ The Tribunal found that there were two purposes of the legislation, to enable AC to receive appropriate treatment while at the same time to protect AC and others from a significant risk of violent and dangerous behaviours. The Tribunal recognised that the limitations placed on AC were significant but pointed to the safeguards provided by the Act which were designed to ensure that the limitation was as minimal as possible. The Tribunal then examined the relationship between the limitation and its purpose, highlighting the complexity of the treatment plan and the fact that it was aimed at the reduction of supervision and the gaining of greater autonomy for AC. Finally, the Tribunal examined the evidence and concluded that the only less restrictive option, receiving treatment voluntarily, was not realistic given AC’s past history.
Weighing up all of these considerations, the Tribunal found that while AC’s pattern of violent and sexualised behaviour had not yet caused serious harm to another person, there was a significant risk of serious harm occurring if the STO was modified. The limitations were therefore justifiable under s 7(2) and it was not necessary to move on to the third step of the Charter analysis. The Tribunal confirmed the STO in relation to AC.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1186.html.
Lisa Mortimer is a lawyer with Allens Arthur Robinson