Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011)
The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the Director’s decision on the basis it was not satisfied that the applicant had met the application requirements under the relevant Act.
Read MoreTTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011)
The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest relative”, his brother, objected to an application for detention and treatment being made under the Mental Health Act 1983 (UK) (‘MHA’).
Read MoreBennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)
An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force. In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems. Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed. This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreBritish Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010)
Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education. He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely learning disabled (‘SLD’) students by failing to sufficiently accommodate their learning disabilities in the provision of educational services contrary to s 8(1) of the Human Rights Code, British Columbia's anti-discrimination act.
Read MoreMcDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010)
The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use a commode during the night, and instead requiring that the individual use incontinence pads and special sheets (in circumstances where the individual was not incontinent), did not breach the right to privacy in art 8 of the European Convention on Human Rights.
Read MoreAntunovic v Dawson & Anor [2010] VSC 377 (25 August 2010)
On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) for the imposition of a residence condition in a community treatment order (‘CTO’) is the only lawful means of controlling the residence of a person subject to a CTO. If this power is not exercised, there is no lawful basis for restraining the person's liberty, which includes freedom of movement. As the applicant's place of residence was being controlled without the existence of a residence condition in her CTO, Bell J ordered her immediate release.
Read MoreIn the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010)
Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) so that he could be transferred from Port Phillip prison to a forensic psychiatric facility. Mr Percy asked Coghlan J, in making his decision, to have regard to the Charter of Human Rights and interpret the Act in a way that is compatible with human rights.
Read MoreDale v DPP [2009] VSCA 212 (21 September 2009)
In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted 'exceptional circumstances' as defined by the Bail Act 1977 (Vic). Unless the appellant was granted bail, he would likely be remanded into custody for over two years. While in remand, the appellant was kept in solitary confinement for six months 'for his own protection' not because he was a risk to others. As a result, he suffered mental illness.
Read MoreConroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009)
The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the Disability Act 2008. The first Notice alleged that the Applicant endangered the safety of other residents or staff; the second, that he caused serious disruption to the proper use and enjoyment of the premises by other residents.
Read MoreR v Kent [2009] VSC 375 (2 September 2009)
On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions.
Read MoreN, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)
The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful. Specifically the Court held that art 8 of the European Convention of Human Rights does not protect the right to smoke.
Read MoreAC (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.
Read MoreFaizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)
This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits. The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding. In light of this security risk, the use of handcuffs did not constitute degrading treatment. Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.
Read MoreVCAT Makes Declaration of Breach of Human Rights in Major Charter Test Case
On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a much anticipated decision which discussed in detail important aspects of the application and operation of the Charter. The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic).
Read MoreKracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)
On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter.
Read MoreState of Victoria v Turner [2009] VSC 66 (4 March 2009)
In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of law in a decision relating to a proceeding commenced prior to 1 January 2007.
Read MoreNichoson & Ors v Knaggs & Ors [2009] VSC 64 (27 February 2009)
The Victorian Supreme Court adopted a human rights approach to the issue of legal capacity for those who have disabilities. In accordance with the UN Convention on the Rights of Persons with Disabilities (the 'CRPD'), Vickery J accepted the wide construction given to legal capacity and found that courts must ensure that the rights of people with disabilities are given support that is proportional to their needs and that conflicts of interest and undue influence do not occur.
Read More09-085 [2009] VMHRB (23 February 2009)
In this case, which concerned the review of a community treatment order ('CTO') that prescribed a drug with serious side-effects, a number of significant issues arose in relation to the Charter:
XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009)
The Victorian Civil and Administrative Tribunal has confirmed that society's interests in an individual's rehabilitation can override the principle of 'Open Justice' and the right to freedom of expression. Herald and Weekly Times Pty Ltd ('HWT') applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver's licence. VCAT declined to revoke the order because publication of the man's identity could adversely affect his rehabilitation.
Read MoreSavage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (10 December 2008)
The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’. This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital adequately safeguard life.
In addition to this ‘general obligation’, hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.
Read MoreXFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Read MoreRJM, R (On The Application of) v Secretary of State For Work and Pensions [2008] UKHL 63 (22 October 2008)
The Social Security Contributions and Benefits Act 1992 (UK) provides for a 'disability premium' for people receiving welfare payments, except where the person is 'without accommodation'. In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights.
Read MoreRenolde v France [2008] ECHR 5608/05 (16 October 2008)
On 16 October 2008, the European Court of Human Rights held that the suicide of a mentally ill prisoner in France was attributable to the authorities’ failure to provide adequate medical care. This failure was a breach of the deceased’s right to life and right to be free from inhuman or degrading treatment.
Read MoreLM (Guardianship) [2008] VCAT 2084 (9 October 2008)
LM is a 25 year old woman with a borderline to mild intellectual disability and a history of psychological and behavioural problems dating back to her childhood.
In 2004 LM was placed on a two year community based order following various convictions. In 2007 LM was charged with a number of offences and was released on bail to Furlong House in Parkville. While resident at Furlong House LM had a number of incidents which included non-epileptic seizures on roads, walking into oncoming traffic, physical aggression towards other people, threatening self-harm or suicide, and assaulting staff at Furlong House. In February 2008 LM was convicted of a number of offences relating to these incidents.
Read MoreMG v Germany, Communication No 1482/2006, CCPR/C/93/D/1482/2006 (2 September 2008)
The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR. The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions and did not hear from the author personally before making the order.
Read More09-003 [2008] VMHRB 1 (8 July 2008)
In this case, concerning the failure of the Mental Health Board to conduct a review of the involuntary treatment of a patient under the Mental Health Act, a number of very significant Charter issues arose.
Read MoreX v Croatia [2008] ECHR 11223/04 (17 July 2008)
The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights.
Read MoreMM (Guardianship) [2008] VCAT 1282 (26 June 2008)
VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others. The Tribunal referred to, but undertook scant analysis of, the interpretative provisions of the Charter and the requirement that any limitation on a right be demonstrably justified in a free and democratic society.
Read MoreMH6 v Mental Health Review Board (General) [2008] VCAT 846 (7 May 2008)
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Read MoreShtukaturov v Russia [2008] ECHR 44009/05 (27 March 2008)
In this case, the European Court of Human Rights considered human rights issues arising from involuntary admission and treatment on the ground of mental illness.
Read MorePankiewicz v Poland [2008] ECHR 34151/4 (12 February 2008)
In this case, the European Court of Human Rights considered the legality of:
The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life.
Read MoreThe European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention. The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, a person’s mental health, may amount to a violation of the prohibition on torture and ill-treatment.
Read MoreThe Grand Chamber of the European Court of Human Rights has held that the education policy in the Czech Republic, which resulted in the majority of Roma children being placed in special schools designed for the mentally handicapped, violated art 14 of the European Convention on Human Rights. Article 14 of the Convention enshrines the right to non-discrimination and the equal enjoyment of human rights. The Court held that the education policy indirectly discriminated against the applicants on the basis of their race in relation to their right to education.
Read MoreThe applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism. The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment. He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility. While detained, he was subjected to the practices of restraint and seclusion.
Read MoreR v White [2007] VSC 142 (7 May 2007)
The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria.
Read MoreR (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant's position and subsequently ordered the claimant's discharge under s 73 of the Act on the condition that, amongst other things, the claimant 'shall comply' with medication prescribed by a specified doctor. The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'.
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