Download 3. Representation- Mental Health and Restrictive Practice matters

Queensland Advocacy Incorporated
Systems and Legal Advocacy for vulnerable people with Disability
The Executive Director
Australian Law Reform Commission
GPO Box 3708
Sydney NSW 2001
Email: [email protected]
20 January 2014
Dear Commissioners
We submit here our comments in relation to the Commission’s inquiry into Equality, Capacity and
Disability in Commonwealth Laws.
Yours sincerely,
Michelle O’Flynn,
Acting Director
Phone: (07) 3844 4200 Fax: (07) 3844 4220 Email: [email protected] Website: www.qai.org.au
2nd Floor, South Central, 43 Peel Street, STH BRISBANE QLD 4101 (PO Box 3302 STH BRISBANE BC QLD 4101)
QAI endorses the objectives, and promotes the principles, of the Convention on the Rights of Persons with Disabilities.
Patron: Her Excellency, Ms Penelope Wensley, AC Governor of Queensland
About Queensland Advocacy Incorporated
QAI is an independent, community-based, systems and individual legal advocacy organisation. Our
mission is to promote and protect the fundamental needs, rights and lives of the most vulnerable
people with disability in Queensland. In addition our efforts extend beyond the defence of civil and
political rights to the defence of rights without a legal foundation, including rights to belonging, respect
embodied in the simple quality of human dignity.
We hold ourselves to account by including people with disability as paid staff, in our membership, and
in key board positions. Our board members have experience in advocacy, institutional living,
community legal services, private legal practice, legal aid, accountancy and community work. QAI is a
member of the national Disability Advocacy Network of Australia (DANA) and Combined Advocacy
Groups Qld (CAGQ).
As well as traditional systems advocacy Queensland Advocacy Incorporated's Human Rights Legal
Service provides individual legal advocacy to people with a disability in relation to guardianship,
administration, discrimination and restrictive practices and assists people required to appear before the
Mental Health Review Tribunal. We also provide non-legal advocacy to people with disability at risk
from the criminal justice system by working with legal and community.
2
Recommendations

Recognition of Capacity
Guardianship, administration and mental health legislation must do more to recognize a
person’s right to exercise their capacity. Any statutorily empowered person or tribunal must
proceed on the presumption that all persons have capacity and are capable of determining
their own best interests. The burden of demonstrating that a person is not capable of
determining their own best interests must lie with the statutorily appointed person or
administrative body.

Legal representation: Mental Health Matters and Restrictive Practices Matters
We recommend that a person’s eligibility to government supported representation according to
their prospect of being subject to custodial orders of any kind. Increased provision for
government assisted representation for persons with diminished capacity facing the prospect
of custodial orders or Restrictive Practices

A National Human Rights Strategy
That our National Human Rights Action Plan and National Disability Strategy be amended to
mandate an intergovernmental process to implement State and Territory parliamentary
scrutiny, strengthening the links between Commonwealth human rights commitments and
State and Territory action.

Improved Protocols For The Identification Of Persons With Intellectual Disabilities And
Reduced Capacity In The Criminal Justice System
We recommend exploration of a common (to all jurisdictions) test for intellectual disability
administered by police after arrest, or by duty lawyers or court liaison officers.

Performance Benchmarks for Police
The administration of such a test would need to be monitored by the setting of performance
benchmarks re: screening/identifying /supporting persons with intellectual disability. Divisional
Commanders would set identification benchmarks for which they would be strictly accountable
to the Commissioner.
3

Improved training to police, the judiciary, court staff, duty lawyers, prosecutors and
private solicitors involved in the criminal justice system
Regular training and adequate resourcing, developed in consultation with people with cognitive
disabilities and their advocates, should be provided to the police, the judiciary, court staff, duty
lawyers, prosecutors and private solicitors involved in the criminal justice and civil law systems
in order to improve their identification and understanding of the needs of clients with any
cognitive disability, and to enable those clients to be assisted to engage effectively with all
aspects of the legal system. Training and associated resourcing should include information
about different forms of cognitive disabilities, the statistical representation of people with
diminished capacity and ways in which diminished capacity affects criminal liability.

Increased availability and accessibility of criminal justice legal services
Commonwealth and State Governments must increase funding for specialist legal community
centres and Legal Aid lawyers with expertise in disability, in order to enable people with
disability to have free/affordable access to legal representation, irrespective of the complexity
of their matter. We need more funding to enable people with disability, their families and
carers to access specialist advocacy services so that they can more easily negotiate the justice
system.

Improved data collection
Justice databases including police, court and corrective services systems do not reliably record
data about people with reduced capacity. This makes it difficult to gauge the extent of
overrepresentation.

We further recommend in relation to the criminal justice system:
•
making the presence of a third person during the police interview of persons with
impaired capacity compulsory;
•
expanding the jurisdiction of Queensland’s Mental Health Court to include summary
offences OR
•
establishing a cluster of ‘problem solving’ courts like the Special Circumstances Court
trialled here in Queensland;
•
introducing a provision in Queensland equivalent to Mental Health (Forensic
Provisions) Act 1990 (NSW) s32 which allows Magistrates to adjourn, grant bail or
4
dismiss a charge or defendant on certain conditions, but does not require the accused
to plea (as the former special circumstances court did);
•
introducing a sentencing list similar to that which has replaced the Murri Courts here in
Queensland;
•
introducing Magistrate Diversion Programs targetting defendants with mental health
and intellectual disabilities. This will facilitate more effective early intervention. We
also recommend the establishment of day programmes to support court orders and
community-based programmes that emphasize prevention and rehabilitation;1

Forensic Process Recommendations- Reform of Chapter 7 Part 2 of the Mental Health
Act 2000 (Qld)
1. Allow the Mental Health Act 2000 (Qld) Chapter 7 Part 2 process to proceed by election. To
cater for people who do not have capacity to make such a decision, there could be an opt out
clause, a requirement that such a person have legal representation and/or power of the Courts
to refer a matter to Chapter 7 Part 2.
2. Allow Chapter 7 Part 2 should be available to all people who wish to rely upon a defence of
unsoundness of mind or unfitness for trial.
3. Where an alleged offence is a relatively minor indictable offence allow section 238 reports to
be prepared by someone with sufficient experience and training- not necessarily a consultant
psychiatrist.
4. Better collection of data and data transparency in relation to the preparation of section 238
reports, leading to increased public scrutiny, improved analysis of reasons for delay and
improved strategies to address delay.
5. Amendments which will encourage a change in the culture of acceptance that section 238
reports need not be provided within the stipulated timeframe of 21 days. For example,
penalties or incentives.
6. Establish a diversion and support program which can help a person who is not guilty by reason
of impaired capacity to access treatment and avoid entrenchment in the criminal justice
system.
7. Amend the Justices Act 1886 (Qld) or some other Act to provide for the determination of
summary offences where a person is unfit for trial or was of unsound mind.
8. Dispensing with section 241 which allows the Director of Mental Health to defer reference for
up to 4 months if the DMH believes that the person is likely to be fit for trial after that period.
1
Cf Vanny, K., Levy, M., Hayes, S. (2008), People with an Intellectual Disability in the Australian Criminal Justice System.
Psychiatry, Psychology and Law. 15(2), 261-271.)
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Contents
1. Capacity to instruct solicitors- avoiding conflicts of interest
2. Promotion of Supported Decision-Making
3. Representation: in MHRT matters and Restrictive Practices matters before the QCAT
4. Restrictive Practices
5. Commonwealth Anti-Discrimination Reforms
6. Federal Strategy for Enforcement of Human Rights Conventions
7. Criminal Justice Recommendations
6
1.
Capacity to instruct solicitors
QAI’s Mental Health Legal Service and Human Rights Legal Service represent clients in mental health
and forensic matters and guardianship, administration, anti-discrimination and restrictive practice
matters respectively. When considering the capacity of potential clients they must consider-





their duties pursuant to the Solicitor’s Rules 2 to take instructions only from competent persons;
the CRPD obligation to recognize that ‘persons with disabilities enjoy legal capacity on an
equal basis with others’ 3 and the International Covenant on Civil and Political Rights (‘ICCPR’)
provision that ‘[e]veryone shall have the right to recognition everywhere as a person before the
law’.4
a solicitor’s duty not to take instructions when aware that a person lacks capacity for a matter; 5
a solicitor’s duty to leave the determination of a person’s ability to instruct to the court; 6
a solicitor’s ethical duty not to take instructions from a person who is the subject of a
guardianship order without making every reasonable effort to gain the involvement of the
guardian;
(NB In guardianship and administration matters only, when a solicitor is not satisfied that a
person has capacity to instruct that adult may ask the tribunal to approve an agent. 7
Where a person appears unrepresented the tribunal may adjourn proceedings and appoint
another to represent that person8 - a ‘separate representative’.)
Regardless of an adult’s right to recognition of capacity on an equal basis with others pursuant to
Article 12 CRPD, QAI solicitors must comply with statutory requirements and their own Rules. In
Mental Health Review Tribunal matters QAI solicitors adopt a very low capacity threshold. They will
take instructions from any adult able to express an objection to treatment (for example, orders to take
medication or undergo ECT).
The Solicitors’ Rules require a solicitor to ‘follow a client’s lawful, proper and competent instructions’- Section 8.1 Australian
Solicitors Conduct Rules, (‘Rules”) Commenced 1 June 2012.
3
Article 12 (2) of the Convention on the Rights of Persons with Disabilities.
4
Article 16 of the International Covenant on Civil and Political Rights.
5
See, for example, Goddard Elliott v Fritsch [2012] VSC 87 at 418 - where counsel argued, ‘There appears to be no reported
case in which a court has held it be a breach of a lawyer’s duty of care to take and act on instructions from a client who the
lawyer knew or should have known lacked the mental capacity to give instructions. [but] existence of the duty is an aspect of the
general duty of care which a lawyer owes to their client, for it is always to be expected of a lawyer exercising ordinary skill and
competence that they are reasonably satisfied of the client’s mental capacity to instruct.’
6
Re Magavalis [1983] 1 Qd R 59 at 63–64 - McPherson J ordered the person to be medically examined by a doctor reporting to
the court; Till v Nominal Defendant [2010] QSC 121 (22 April 2010).
7
Guardianship and Administration Act 2000 s 124 (2).
8
Guardianship and Administration Act 2000 s 125.
2
7
In guardianship or administration matters QAI solicitors are guided by the statute’s 3 part capacity test
set out in Schedule 4, Guardianship and Administration Act 2000 ). It requires that an adult must be
capable of understanding the effect of decisions and voluntarily making and communicating those
decisions.9 Section 67 sets out a caveat that allows a decision-maker to ignore an adult’s wishes
when they object to health care in certain circumstances.
QAI is of the view that lay advocacy and legal advice and representation should be available to people
with diminished capacity independently of the views of Tribunal-appointed guardians.
But a conflict of interest arises when a QCAT-appointed guardian (wrongly, although lawfully, in our
view) rejects an adult’s request to litigate a matter simply because in the Guardian’s view it is not in
that person’s best interests. QAI solicitors seeking to represent the adult may have to tackle the Adult
Guardian’s reluctance to appoint us. Should they go ahead and appear in a tribunal matter they may
have to do so while in a legal limbo: without proper instructions, but wanting to uphold the presumption
of the person’s capacity.
Clients subject to statutory guardianship10 have approached QAI with requests for legal representation.
In response to our inquiries the Office of Adult Guardian (‘OAG’) has indicated to us that it is up to an
appointed guardian to decide whether an adult ought to have that legal representation. The appointed
guardian makes this decision on the basis of the person’s best interests - as the guardian sees them.
Guardians are reluctant to agree. Should the person wish to challenge the appointment of the
guardian, for example, the OAG may oppose it on the basis that such a challenge would not be in the
client’s best interests.
Such would be a conflict of interest for the guardian. It has happened. It indicates that guardians do
not always take an adult’s views into account when making a decision, despite the guardians obligation
to do so pursuant to the ‘General Principles’ 7(1), 11 to the Convention on the Rights of Persons with
Disabilities12 and to the International Covenant on Civil and Political Rights.13
Case example:
A young man wanted to challenge the interim plenary appointment of the Adult Guardian. He sought to
engage QAI. Our Human Rights Legal Service solicitor attempted to contact the delegate guardian
on his behalf on three separate occasions, but all these contacts were ignored. Finally the guardian
contacted us and informed us that she was not prepared to give consent. She gave no reason other
than that she did not think any action was warranted.
The guardian chided the young man (and his supporter) for contacting us in the first instance without
seeking her consent to do so. She told him that he was not entitled to legal representation because of
the order.
9
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
10
In matters where the OAG has a plenary appointment or has been appointed for legal matters.
The guardian must recognise the ‘adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s
life’, Schedule 1, General Principle 7(1), Guardianship and Administration Act 2000 (Qld).
12
Article 12.
13
Article 16.
11
8
QAI gained this man’s consent to apply to QCAT, seeking appointment as his separate representative.
We were appointed, but although our appointment gave the man an opportunity to voice his concerns
and wishes it was no true legal representation. Why? - Because a separate representative has a
statutory duty to make representations that reflect both the adult’s views and his best interests. His
best interests did not always reflect his wishes. He was denied the ‘dignity of risk’. Most of us are not
denied that dignity. We are free to make our own mistakes- from which we sometimes learn, and have
the opportunity to develop our capacity.
The ‘separate representative’ mechanism does not allow a person to exercise their full legal capacity.
The representative is not required to take instructions. The representative must consult with the adult,
but the representative can act independently of instructions if they feel it is required.
2. Promotion of Supported Decision-Making
QAI supports the aims set down in Article 12 of the CRPD, particularly the right to enjoyment of legal
capacity, and we support the inclusion of this CRPD principle in statute. The National Disability
Insurance Act 2013 (Cth),for example, includes provisions [ss 4(8) & 5 (a)] that promote choice and
control and the right of people with disability to participate to the full extent of their capacity as equal
partners in decisions that will affect their lives.
Queensland’s Guardianship and Administration Act 2000 also includes provisions designed to
maximise an adult’s involvement in decisions. However QAI asks the ALRC to consider these points:
1. An across the board legislative mandate of Supported Decision-Making may not be the most
effective way to promote the capacity of people with intellectual or cognitive disabilities.
Supported Decision-making is already practiced informally in many contexts (e.g. in family life)
and regulation may be an unnecessary intrusion. However, Supported Decision-Making
should be prescribed when legislation already substantially deprives a person of their decisionmaking power (as it does in guardianship legislation).
2. Legislative principles that recognise and promote an adult’s legal capacity are easy to state but
difficult to realise in practice. Queensland’s guardianship legislation, for example, includes a
statement of general Principles that guardians ‘must’ take into account; but the legislation does
not set out a mechanism that guarantees that guardians actually do so. In practice guardians
have heavy caseloads and do not have time to consult with adults. Decision-making support
that underwrites real autonomy involves a considerable investment of time and money.
Legislative solutions a last resort: We generally exercise our capacity in private and in relation to
trivial matters. Legislative regulation of those everyday decisions would be unenforceable in practice
and an unnecessary intrusion. In our view decision-making support should be largely informal. Those
relationships are built on trust and mutual regard. For all the benefit regulation might achieve it would
inevitably undermine relations of reciprocal support between people with impaired capacity and their
supporters.
9
Legislating the principles: Queensland’s guardianship and powers of attorney laws 14 set down
principles of decision-making support that are largely consistent with the CRPD.15 The statement of
general principles, however, does not mean that their intent is realised in the day-to-day lives of people
subject to guardianship or administration orders or powers of attorney. The legislation does not
compel either the Queensland Civil and Administrative Tribunal (‘QCAT’) or appointed guardians,
administrators or attorneys to respect or implement clients’ views or decisions.
The imperative wording16 of the Guardianship and Administration Act 2000 (Qld) s 11 to the effect that
that guardians and the Tribunal ‘must apply the principles stated in Schedule 1’ - and of the Powers
of Attorney Act 1998 (Qld) s 76 to effect that the General Principles ‘must be complied with’ ought to
mean that the relevant body or appointee will to the greatest extent practicable seek and take into
account the adult’s views and wishes. 17
In practice this happens rarely. The OAG operates with limited resources and guardians typically work
with many clients at once. Guardians may not speak the adults for whom they are appointed, let alone
properly consult with them. To our knowledge guardians do not follow a mandatory procedure that
would guarantee that a general principle such as 7 (3) (b) - ‘to the greatest extent practicable, for
exercising power for a matter for the adult, the adult’s views and wishes’ - is put into practice. The
OAG is frequently a rubber stamp that provides lawful validation for actions carried out by others- for
example, accommodation providers or medical practitioners.
In fact the majority of guardianship appointments are sought not because an adult requires decisionmaking support but because a person’s other fundamental needs are not being met. Appointments for
legal matters constituted 6% of guardianship appointments in the financial year to July 2012. The
table below breaks down the reasons for appointment.18
Guardianship Appointment types for 2011-12
Accommodation
25 %
Service provision
21 %
Health care
21 %
Restrictive practices
11 %
All personal matters
6%
Contact matters
6%
Legal matters
6%
Other
3 % 19
14
Guardianship and Administration Act 2000 (Qld) & Powers of Attorney Act 1998 (Qld)
The General Principles are included in Schedule 1 of both acts.
16
Guardianship and Administration Act 2000 s 11 states that ‘A person or other entity who performs a function or exercises a
power under this Act for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in
schedule 1 (the general principles [..]’.
17
Schedule 1 ‘General Principles’ in both acts, including Principle 7 (1) ‘An adult’s right to participate, to the greatest extent
practicable, in decisions affecting the adult’s life’.
18
Office of the Adult Guardian Annual Report 2011-2012
19
“Other” includes: Education, training & employment; Seeking help & making representations; Day-to-day matters; applying for
a licence or permit.
15
10
Housing need is the primary trigger for guardianship appointments, and (lack of) ‘access to services’
generally is by far the most common trigger (in 66% of cases) followed by the risk of self-harm or selfneglect (35%) or of abuse, neglect or exploitation (26%). Guardianship applications targeting
accommodation needs are typically made out by hospital staff who are at a loss to find housing or a
nursing home placement for people exiting mental health wards. The vast majority of applications for
first orders are made by health care or social workers (39%) or government or non‐government service
providers (39%).20
Guardianship appointments are an administrative solution to welfare need. The guardian’s role is to
find the client housing, or find an advocate who will do it for them. Decision-making is not their primary
role. By seeking a guardianship appointment a hospital social worker passes responsibility for the
person’s welfare from the hospital to the OAG. Once appointed the guardian will ask community-based
disability support organisations and accommodation providers to take the necessary steps to find the
person a place to live. Except for the delegation of these tasks the guardian will have little to do other
than sign or authorize the signing of a lease agreement.
Queensland’s guardianship system is that it is not what it seems to be. The people for whom
appointments are made do have needs, but from our experience supporting them we know that orders
are rarely made to address decision-making incapacity. 21
We know too that guardians do not enact the General Principles. Anecdotal evidence suggests that
the decision-making inclusiveness of housing, health and disability service providers follows similar
practice, and we know that OAG guardians do not always or even often talk to clients, let alone
include them in decisions. Furthermore, it is a mistaken belief often held by service providers and the
community in general, that without formal guardianship appointment family members or supporters
cannot assist someone to make their own decisions. Adults subject to administration orders have
reported that they have been stymied by bureaucratic red-tape when attempting to carry out simple
tasks like purchasing a mobile phone, signing a lease agreement or purchasing property are
indicative of how the right to be supported to make decisions and the presumption of capacity are not
commonly understood or accepted across our community.
In conclusion, there is rarely a ‘ground zero’ where guardians simply make decisions in accordance
with the General Principles. In practice guardians are less decision-makers than they are welfare
coordinators who delegate welfare support activities like finding accommodation or providing advocacy
to people much closer to the adult. Article 12 capacity aspirations would be better realised by ensuring
that the people who engage directly with the adult include the adult in their work, and thereby help
them to build their capacity.
20
Ibidem.
Most appointments are not plenary - only 10% or approximately 200 appointments were plenary in Queensland in 2012 - and
about 30% of appointments in 2011/12 were made for 3 months or less - Office of the Adult Guardian Queensland. Annual
Report 2011-2012.
21
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3. Representation- Mental Health and Restrictive Practice matters
Access to a lawyer is a fundamental right for a person faced with a legal process in which their liberty is
at risk.22 Nowhere is this risk more evident than in mental health tribunal review hearings about
detaining a person against their will, often when family or friends have initiated committal23 or in
matters where the application of physical and chemical restraint, containment or seclusion are
considered by a tribunal.
Representation in some Tribunal Matters is no less critical than for serious criminal matters- liberty is
at stake. The High Court’s decision in Dietrich v The Queen (1992) 177 CLR 292 established an
accused’s right to an adjournment pending the provision of legal representation. That decision is
applicable only to criminal proceedings in which the accused faces a custodial sentence. By analogy
we submit that the Court’s reasoning must also bear on the question of representation in civil matters
where the person before the court or tribunal:

is facing a term of incarceration against their will (whether therapeutic or
corrective is arguably moot, see discussion below); and

is disadvantaged by a capacity-related disability; and

is not well-versed in law and legal processes.
Administrative proceedings in relation to mental health treatment orders, forensic or not, often
determine whether the patient will continue to be held against their will. The Tribunal frequently makes
custodial orders. Punishment is not a part of the Tribunal’s remit, but the proceedings are no less
intimidating and often more so in the patient’s subjective experience.
Queensland Advocacy Incorporated’s Mental Health Legal Service provides legal representation to
people with intellectual disabilities and/or mental illness who appear in Queensland’s Mental Health
Review Tribunal. The Tribunal hears more than 11 500 matters each year, primarily relating to the
review of Intensive Treatment Orders (ITO), Forensic Orders (FO), Fitness for Trial (FFT) and
applications for Electroconvulsive Therapy (ECT).
Our Human Rights Legal Service represents people subject to Restrictive Practices, which are forms of
physical and chemical restraint, containment and seclusion regulated pursuant to the Disability
Services Act 2006 (Qld) and the Guardianship and Administration Act 2000 (Qld). These practices
often involve a serious infringement of people’s liberty- people who lack legal capacity, and who are
therefore unable to represent themselves in the Queensland Civil and Administrative Tribunal. As
recently as 1 October 2013 the South Australian Public Advocate noted that many of the Restrictive
Practices around this country are likely to be a breach of the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, a Convention this country has yet to ratify.
22
Gideon v Wainwright (372 US 335-345 (1963)).
Brakel, S.J. (2007). 'Searching for the Therapy in Therapeutic Jurisprudence'. New England Journal on Criminal and Civil
Confinement, 33: 455-499, 488.
23
12
In Dietrich the court recognized that most of us are not equipped to understand complicated legal
processes, and justice is better served by appropriate representation. Dietrich had been under
indictment for serious drug-related offences. At the time of the initial Victorian County Court hearing
he was in custody on remand, knew very little about the Australian legal system, and by his own
admission did not have the emotional resources to self-represent when so much, for him, was at stake.
The High Court’s Gaudron J quoted Dietrich’s own words to the County Court:
"I don't want to show any disrespect to this court. I'm not
emotionally and mentally fit to conduct my own trial, and I
don't want to take the brunt of ... I know my own character,
I know what's going to happen, and it's going to look bad in
front of the jury and I'm not prepared to take that chance.
I'll just sit here mute."
“He is doubly disadvantaged” said Gaudron J, “first by lack of knowledge and, then, by the stress of the
occasion”.
People with capacity-related disabilities appearing before the MHRT or QCAT share those
disadvantages, and although not tried criminally they also share similar custodial prospects.
Pursuant to an Intensive Treatment Order or Forensic Order a person may be detained in a mental
health facility for months, sometimes years and Forensic Orders often remain in place for years after a
person’s release from custody.
Recognised benefits of legal representation
QAI submits that legal representation is a necessary component of an acceptable system of involuntary
mental health treatment.
Under the Act, the Mental Health Review Tribunal is to exercise its jurisdiction in a way that is “fair, just,
economical, informal and timely” (s 438). While still observing natural justice, hearings must be
conducted with as little formality and technicality as possible and the Tribunal is not bound by the rules
of evidence (s 459). On this basis legal representation is considered unnecessary and by some an
obstruction to a fair and proper hearing.
However, the Tribunal is charged with the very important responsibility of determining issues of liberty,
freedom of choice and bodily integrity. It serves to protect vulnerable people with mental illness from
arbitrary state action.
Access to legal representation in such matters is fundamental and need not be incompatible with
informality.
Legal representation:

Improves the quality and efficiency of tribunal hearings by summarising the client’s case,
testing the evidence and highlighting the legal issues.
13

Supports vulnerable people with mental illness through a legal process which determines their
fundamental human rights. Many patients report high levels of anxiety about tribunal hearings
and, particularly those without a support person, find it an intimidating process. 24

Increases patient attendance at hearings. Anecdotally, many of QAI’s clients would not attend
hearings without the attendance of their lawyer or advocate. For some, we are their form of
only support. For others, a lawyer ensures a fair hearing and their voices heard, not just a
rubber stamp.

Enables the treating team to focus on their role of providing evidence, without feeling
responsible to the patient to represent their views and wishes.

Improves the patient’s perception of the review process.

Improves the patient’s understanding of the review process, the law and their rights.

Can improve understanding and communication between patient and treating team.

Reduces incidences of appeal.
Current position
In all cases where a patient has a right to appear before the Mental Health Review Tribunal, the patient
also has the right to be represented by a lawyer or, with the leave of the tribunal, an agent. An allied
person also has a right to attend the hearing to help the involuntary patient represent the patient’s
views, wishes and interests. If the patient is not represented, the presiding member may appoint a
person to represent the patient’s views, wishes and interests (a separate representative). (Chapter 12
Part 4)
The right to representation does not translate to actual representation. In 2011-12, 2.27% of patients
were legally or non-legally represented before the Tribunal. Overall, 32.4% of hearings were attended
by some sort of support person (including allied persons), and only 43% of patients attended their
hearings.
Despite the importance of legal representation there is a remarkable lack of resources allocated by
government to the representation of people before the Mental Health Review Tribunal. Legal Aid
Queensland is insufficiently funded to regularly provide aid in this area. QAI receives yearly project
funding to support 1 full time lawyer and a part time paralegal. The Advocacy and Support Centre
(Toowoomba) is funded to provide some representation in the Toowoomba area and ATSILS is just
starting to do more work in the area. QPILCH’s advocacy program is not government funded. Even if
a person has money to retain a lawyer, QAI is only aware of a handful of lawyers in the private sector
with experience in the Tribunal.
The Act overcomes this lack of resources in respect of confidentiality order applications by requiring
the Tribunal to appoint a lawyer, if there is none, in these matters. (s 458) This ensures that there is
someone to advocate for the patient who has knowledge of all the evidence to be considered by the
Tribunal, in line with the principles of natural justice.
It is submitted that the requirement for legal representation should equally apply to particularly
vulnerable patients, or where representation is desirable in the interests of justice, for example,
24
Terry Carney, Fleur Beaupert, Julia Perry and David Tait (2008). Advocacy and Participation in Mental Health Cases:
Realisable Rights or Pipe-Dreams? http://ssrn.com/abstract=1307346.
14

The proceeding is likely to involve complex questions of fact or law; or

Another party to the proceeding is represented in the proceeding. (Taken from Queensland
Civil and Administrative Tribunal Act 2009 (Qld), s 43 Representation)
Representation in forensic order and fitness for trial matters falls squarely into this category:

The Attorney-General has a right of appearance, and in 2011-12 attended 50.7% forensic
hearings. The significant power imbalance, by virtue of the Attorney-General’s position,
expertise and longitudinal knowledge of the matter (having been involved since the forensic
order was first made), makes it difficult for self-represented patients to adequately present their
own case. Further, the lack of patient representation creates difficulties for the AttorneyGeneral, whose role is to represent the community, not advocate for the patient.

The test applied by the Tribunal under s 204 reverses the onus of proof usually applied in
matters concerning state detention and restriction on civil liberties; the patient is required to
satisfy the Tribunal that the approval of less restrictive measures would not represent an
unacceptable risk to their own safety or the safety of others.

Given amendments to the Act earlier this year that empowers the Director of Mental Health to
impose monitoring conditions on forensic patients, it is even more imperative that forensic
patients have access to legal representation.
Patients subject to applications for ECT should also have access to legal representation, given the
nature of the treatment, the power imbalance between the applicant (that is, the consultant psychiatrist)
and patient, and the inherent reduced capacity of the patient to represent themselves (if they are so
unwell as to warrant ECT). The same reasoning could be applied to patients who, at the time of
hearing, are subject to seclusion and are usually not allowed to attend their hearing.
Legal representation should also be available for Chapter 7 Part 2 patients who are in detention
(whether in prison or an authorised mental health service), given the complexity of their status and the
potential for these people to be “lost in the system”, leading to lengthy and possibly unwarranted
detentions.
At the same time, it is important that a person’s right to choose their own representation, including the
right to have no representation, is respected. In cases where the patient does not have capacity to
choose legal representation or instruct, and the legal guardian (if any) refuses to give instructions, the
Tribunal should appoint a separate representative.
Proposed Solution
Ideally, all patients appearing before the Mental Health Review Tribunal and all persons who lack
capacity and who are subject to, or may be subjected to, Restrictive Practices should have access to
legal representation. However, given the 10,972 hearings conducted in 2011-1225 in the Mental Health
Review Tribunal alone, we accept that this may not be possible.
25
Mental Health Review Tribunal Annual Report 2011-12 at p 10
15
QAI submits that where the patient is not represented by a lawyer or agent, representation in mental
health related matters must be appointed in the following matters (in order of priority):
Matter type
Statistics in 2011-12
(1) Forensic order and fitness for trial review hearings
1390 hearings(Forensic order)
20 hearings (Forensic order (disability))
22 hearings (Fitness for trial)
Total: 1432 hearings26
(2) Electroconvulsive therapy applications
545 hearings27
(3) Matters concerning a patient who at the time of the
hearing is held in seclusion
Not known
(4) Matters concerning Chapter 7 Part 2 patients in
detention (whether in prison or an authorised mental
health service)
Not known
(5) People with another vulnerability in addition to mental
illness, impacting on their ability to self-represent, eg,
children, Aboriginal and Torres Strait Islander people,
people under personal guardianship, people with
intellectual disability, people from non-English speaking
backgrounds.29
Not known
(6) People who have been in inpatient care for longer than
12 months.
Not known
963 patients subject to Ch 7 Pt 2,
detained and non-detained28
1317 hearings for Indigenous patients,
19.4% or 255 related to forensic order
reviews30
We further submit that representation should be available on request for any matter in relation to
Restrictive Practices.
It is imperative that any representation appointed is appropriately experienced and qualified and
understands their role to be to represent, and act on the instructions of, the patient/person.
However, representation should not be appointed if the tribunal knows that the person objects to being
represented. If the person does not have capacity to give instructions, and the legal guardian (if any)
refuses to instruct a representative, the tribunal must appoint a separate representative.
26
Mental Health Review Tribunal Annual report 2011-12
Mental Health Review Tribunal Annual report 2011-12
Director of Mental Health Annual report 2011-12
29
Multiple vulnerabilities is discussed in more detail at Chapter Error! Reference source not found. of this submission
30
Mental Health Review Tribunal Annual report 2011-12
27
28
16
Another option to consider is to implement a duty lawyer system at, for example, The Park, in SE
Queensland, along the lines of the experimental domestic violence service recently introduced at
Holland Park Magistrates Court. This service provides much more intensive support and assistance to
people involved in domestic violence matters than is normally delivered through the standard duty
lawyer model. This may offer a stop-gap measure that would at least offer something until more
complete services could be provided.
4. Restrictive Practices
QAI’s Interest: Queensland’s Health and Community Services Parliamentary Committee is now
(January 2014) considering the Minister’s proposed restrictive practices amendments to the Disability
Services Act 2006 and the Guardianship and Administration Act 2000. QAI has tendered a
submission on this and on every other legislative initiative in this field since statutory regulation in
Queensland began in 2008. Our Human Rights Legal Service has provided legal representation to
clients suffering many of the most egregious human rights abuses under the regime, including:

a client who was tied to a chair for 8+ hours a day because staff found his movement around
the floor (he is not ambulant) inconvenient;

Queensland Civil and Administrative Tribunal authorization of the containment of a client in a
locked unit for 3+ years. Staff monitored this young man with an intellectual disability from
behind a Perspex screen because of his fearsome reputation. Staff taunted this client with
jibes about his gender, sexuality and paternity. QAI’s advocacy convinced QCAT to authorize
his return to the community.
Queensland Developments: Introduced through amendments to the Guardianship and
Administration Act 2000 and the Disability Services Act 2006 in 2008, this State’s restrictive practices
regime is currently under review. Parliament is at this moment considering the Disability Services
(Restrictive Practices) and Other Legislation Amendment Bill 2013.
At the 7 December 2013 public hearing of Queensland Parliament’s Health and Community Services
Committee the Executive Director of Queensland’s Disability Services said that the proposed
amendments must be ‘modest’ because-

there is a national framework for restrictive practices under development;31 and
31
Draft Proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service
Sector http://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-
17

‘we do not want to take on the world at a point when the NDIS is on its way’. 32
Modest indeed- QAI is disappointed that the amendments are less about minimizing the use of
restrictive practices or increasing safeguards than they are about reducing service providers’ red tape.
However, as the Director indicates, we now have an opportunity to help develop a Federal framework
more consistent with the Commonwealth’s human rights obligations under the CRPD, the Convention
on Torture, and other relevant UN instruments.
We encourage the Commonwealth to adopt a policy framework made up of three broad strategies
and based in a person-centred approach to support and a commitment to reduction of the use of
Restrictive Practices -
1. Legislative strategies,
2. Development of a positive organisational culture, and
3. Individualized strategies.
1. Legislative strategies
Legislation sets standards, defines terms, mandates person-centred plans and specifies procedures
for their assessment, approval, review and alteration, directs and guides the institutional decisionmaking infrastructure, sets up mechanisms to ensure accountability, transparency and recourse if
rights are breached, and given proper scrutiny and other safeguards provides immunity from liability
to service providers who apply restrictive practices honestly and diligently. Whether Commonwealth
or state based, restrictive practices legislation must stand against a return to the horrors of Challinor
and Wacol,33 but without the other two strategies legislation can become a rubber stamp that simply
authorizes the use of restrictive practices rather than helping to ensure that they are reduced,
preventing the worst abuses but legitimising a status quo focussed on organisational goals instead of
person-centred planning.
No better example of this tendency lies in the stated aims of the Stage One Review of the Queensland
legislation, the aim of which is ‘to consider whether the current legislative provisions:
research/draft-proposed-national-framework-for-reducing-the-use-of-restrictive-practices-in-the-disabilityservice-sector
32
Public Briefing at Parliamentary Annexe on the Disability Services (Restrictive Practices) and Other Legislation
Amendment Bill 2013 Disability Services (Restrictive Practices) and Other Legislation Amendment Bill 2013
Transcript, page 10.
33
Queensland institutions accommodating people with intellectual disabilities; exposed as places of
institutionalized abuse by reports such as: W J Carter QC for The Queensland Criminal Justice Commission,
MAY 2000. The Basil Stafford Centre Inquiry Report: Review Of The Implementation Of The recommendations
And Key Findings.
18

Provide sufficient clarity and certainty for service providers

Provide sufficient safeguards for clients

Impose an undue regulatory burden on service providers’
The review takes a pragmatic and mechanistic approach to regulation and a residual approach to the
quality of life of persons with disability. The review doesn’t ask whether the legislation promotes best
practice service delivery, or whether it achieves the legislative objects of the Disability Services Act
2006.
Rather than go into detail here about Queensland legislative reforms we offer you an edited version
of our comments on the Queensland amendments. (see attached document)
2. Individualized Strategies
Individualised strategies recognise that every person with disabilities is different; positive behaviour
support plans remind everyone that the goal is to improve people’s quality of life and the reduction in
the use of Restrictive Practices.
Subjective experience of restriction is number one:
Is the person subjectively experiencing restriction regardless of the legislative framework? If
they are, then we have an obligation to improve practice and better outcomes for that
individual.
Simon Wardale34
Writing Positive Behaviour Support PlansCollaboration- Plans must be developed collaboratively- all stakeholders with knowledge and
understanding of the person, and those who are charged with Plan implementation..
But what happens a lot, that we see, is plans are written by some psychologist who has
nothing to do with the team. The team gets this 40-page long report and go, "Oh, my God,
we will put that in the file." But they do nothing with it because they can't even understand
34
At ‘Human Rights vs Restrictive Practices’, QAI National Forum held August 2013
19
it. And I can't understand it and I am a psychologist. And I'm not going to read 40 pages.
And no casual worker is going to read 40 pages.
Lynne Webber
Setting Goals
"Goals", now, these are pretty simple but for some reason they are being left out. "What
do you want to see at the end of the behavioural support plan?" Surely you want a reduction
in the behaviour of concern and you want an increase in the replacement skill. That is all you
want. But it's not even being mentioned. Now if it's not mentioned in a behaviour support
plan, how will the people who are providing the support know what to do? They won't. They
won't know what we are heading towards in this behaviour support plan.
Lynne Webber
Williams and Grossett35 found that policies and measurable goals of restraint reduction were
important and if restraints were to be used, the BSP must be implemented and it must be a goal of
reducing the restraint.
Involvement of the person in the process is critical too. The family is involved and the person is
involved. Huckshorn from the United States of America has written about this .36 Goal setting and
timelining are sine qua non to PBSPs. They are included in the Australian Psychological Society’s
‘Minimum Standards for a Behaviour Support Plan’. 37
Goal Summary- The legislation should mandate an executive summary of these goals, and that
summary should include a description of how things are now, and how they should be at the end of
the timeline. Plans tend to be an accumulation of much data and are broadly written, making it
difficult to identify future actions i.e. the plan itself. They also tend to encroach on other decisions,
diet, other medical treatment and so on without family consultation.
35
Don Williams and Deborah Grossett. 2012. ‘Reduction of restraint of people with intellectual disabilities - An
organizational behaviour management (OBM) approach. Research in Developmental Disabilities 32 (2011)
2336–2339.
36
Huckshorn, K. (2004-2). Six core strategies to reduce the use of seclusion and restraint planning
tool (draft): Kevin Huckshorn.
Huckshorn, K. (2005). Reducing the use of seclusion and restraint: A national initiative toward
culture change and transformation. Alexandria: Kevin Huckshorn.
37
The minimum BSP requirements are set out in Appendix B of their publication Budisilek et al. 2011. Evidencebased guidelines to reduce the need for restrictive practices in the disability sector. APS.
20
We maximise the protection that we provide to people, by seeing (a) that their quality of life
improves; (b) that they are in a position where they are able to independently or with support meet
their needs in a better way and a more effective way; and reducing the future need for restrictive
interventions.
Plans should be less complex and should be discussed and developed by everyone involved in the
person’s care. Blackburn (2006)38 highlights the need for people with disabilities to have a
documented support plan formulated as part of an interdisciplinary collaboration. Those who provide
support need to have a well-developed understanding of the client’s behaviour. Consultation with
direct support workers to ensure consensus about the support strategies, triggers to avoid and
communication effectiveness will validate the implementation of the plan with all stakeholders
including support staff.
Plans should be audited for quality- Lynne Webber’s research in Victoria shows that ifsupport staff
are well-trained in positive behaviour support as we have done over the last seven years, you will see
changes. Behaviour support plans can be audited for quality.
Quality of plans has an impact on the use of restrictive practices. When PBSPs are audited and at
least rated at a 50% or higher level39 the use of restraint and seclusion is reduced. When the
quality of plans reaches a certain level the use of restraint and seclusion reduces too. In Victoria
they collect the data on positive behaviour support, and analyse it- they have been doing that for
over 20 years. Training in positive behaviour support increases a person's skills and leads to positive
client outcomes including improved quality of life - the quality of plans matters. 40
The work of Carr, and of McLean and Gray shows that a reduction in physical restraint will reduce
behaviours of concern. Reduction in restraint will reduce the risk of workplace injuries and it will
reduce the number of referrals from complex clients.
An organisational behaviour management approach that encourages the use of plans has worked to
decrease the use of mechanical restraints in the US. Williams and Grossett discovered an inverse
relationship between the adoption of behaviour management plans and the use of physical restraint.
41
Although their approach focusses on improving risk management (for staff and clients in
institutions) rather than rights and liberties for persons with disabilities, their findings are
encouraging. The use of mechanical restraint was reduced by almost 80% over a 17-month period.
38
Blackburn, R. (2006). Physical interventions and autism: A service users’ perspective. In S. Paley & J. Brooke
(Eds.), Good practice in physical interventions. Kidderminster: BILD.
39
According to Victoria’s auditing software tool.
40
Lynne Webber, Ben Richardson, Frank Lambrick andTarryn Fester. 2012/ The impact of the quality of
behaviour support plans on the use of restraint and seclusion in disability services’ in International Journal of
Positive Behavioural Support, 2,2, 3–11
41
Don Williams and Deborah Grossett. 2012. ‘Reduction of restraint of people with intellectual disabilities - An
organizational behaviour management (OBM) approach. Research in Developmental Disabilities 32 (2011)
2336–2339.
21
The number of behavior intervention programs increased systematically from 59 to 124 over the
same period. Injuries caused by aggression toward others and aggression toward self remained
approximately the same, demonstrating for this facility that restraint reductions did not result in a
corresponding increase in injuries.
Leadership in the Sector
On 30th August 2013 QAI hosted our second Restrictive Practices Forum where attendees heard the
story of on young man’s journey from neglected containee to small business operator. It was
demonstrated that no matter the quality of the legislation and how comprehensive the Positive
Behaviour Support Plans (PBSP) people can be and are still needlessly subjected to physical restraint
and containment. Forum participants were made aware that with leadership and organizational
culture support services can move to positively assist many more people who are perceived to
exhibit challenging behaviours to live free of restrictions.
The former service provider (for the young man in the presented case study)was a for-profit service
implementing a PBSP that authorized a variety of restrictions including containment and seclusion.
The young man was unhappy. His family were unhappy too and they protested loudly- but that
didn’t stop the plan writers, QCAT and the service provider from essentially colluding in his
involuntary detention.
We are not exaggerating when we say that this person was caged like a wild beast. Living conditions
like his clearly breached our obligations under the Convention on the Rights of Persons with
Disabilities and are a particular target of the UN Special Rapporteur’s disapprobation in his February
2013 report.42
[A]ny restraint on people with mental disabilities for even a short period of time may
constitute torture and ill-treatment. It is essential that an absolute ban on all coercive
and non-consensual measures, including restraint and solitary confinement of people
with psychological or intellectual disabilities, should apply in all places of deprivation of
liberty, including in psychiatric and social care institutions.
42
Juan E. Méndez. 2013. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Human Rights Council Twenty-second session Agenda item 3 Promotion and
protection of all human rights, civil, political, economic, social and cultural rights, including the right to
development, # 57-70.
22
A legislative regime that authorizes the seclusion and containment to which this young man was
subjected is not functioning well. Carter’s vision was a framework that would protect people with
disabilities from Basil Stafford-like excesses. What we got is a system that rubber stamps unnecessary
restraint.
His new service made a commitment to dispense with restrictive practices- to explore, with him, new
skills that would assist him to meet his needs without engaging in challenging behaviour. The
commitment came from the top down, and it was one consistent with that service’s established
organisational culture.43 As Lynne Webber 44 (one of the afternoon speakers) said:
Leaders can authorise change. No one else can. Your workers on the ground can't do that.
They will have their hands slapped or worse. So leaders must be part of the journey as well.
We acknowledge that this kind of leadership is rare, and that the commitment not to use restrictive
practices is a substantial one- risky, and difficult to implement. We acknowledge that it is simpler for
many services to maintain the status quo than it is to innovate and take risks. If the Tribunal has
okayed a restraint, why rock the boat and risk breaching your employer duty (of care)? The answer,
we think, is that the returns for the person with disability and for employees too are substantial. This
young man’s story is testament to that.
Some barriers to change are attitudinal, borne of an emphasis (in our view often excessive) on riskmanagement and workplace health and safety over positive behaviour support, but more than one
speaker at the Forum noted that that emphasis may be mistaken. Poorly judged restraint can
increase the chance of injury.
1. I went into the house and the staff told me they had to physically restrain him (a
young man with autism). He had run across the road, got to another house so they
sort tackled him and held him to the ground. [..] One of the staff got bitten in the
process[..].
I said to them, "I'm not sure I know why you did that. Why did you grab him?"
"He was going to go to the door of this other house."
"Okay, what was going to happen then?"
43
FSG acknowledges that some people it supports are still subject to restrictive practices.
Lynne Webber | Practice Leader, Research and Service Development | Office of Professional Practice |
Department of Human Services Victoria, Australia
44
23
They said, "Simon, someone could have got hurt."
Yes, someone did get hurt, didn't they?
Not too far from where that person lived, another person that I had a little bit to do
with [was also being supported by] people of the view that they had to physically restrain
this other person regularly. I had reviewed a critical incident report that discussed an
episode of physical restraint and I was concerned - very, very concerned - that that
person, a 16 year old guy, that this person would be seriously injured, if not killed, during
an application of physical restraint. And I made that concern known very, very loudly.
For whatever reason, the application of physical restraint was consideedr to be necessary
for this young man [..] despite the expression of my concerns. Just recently, I very, very
sadly heard that a staff member had died whilst physically restraining this man. The staff
member had a heart attack whilst physically restraining this young man, and he died.
Some restraint is simply vexatious, or more accurately, the product of a power relationship between
provider and client that places the person with disability in a subordinate position: as if the
institution/group home itself is the purpose, and the person with disability is merely a guest.
Simon Wardale: So I said to the staff, "Tell me what's going on when there's serious incidents in this
house?" They told me [..] and what emerged was a pattern of issues occurring at the kitchen. Now,
this is an open plan house/area, ... no doors or anything like that. There's a walkway from lounge
room to kitchen, like most of us have in our own homes.
I said, "What's the deal with the kitchen here?"
And they said to me, "Oh, he always wants to drink water."
“OK, so, tell me more about that”.
"Well he can't drink water all the time".
"Mmm, okay," I said, without wanting to sound like an idiot, "Why?"
"Breakfast is at 7.30, morning tea is at ...".
On it went, and the issue is rules in the house and this guy wanting water at times when the rules
suggest that water isn't appropriately given.
Anyway, I had two options at this point- go the human rights argument [but ..] I didn't think I would
be on a winner with the human rights argument. So I went logic.
“Well, I don't really see how that could be effective because if you don't let him drink from the
kitchen, he's just going to go to the bathroom and drink from the bathroom."
24
"No, no, no, we lock that up."
You can see why I wasn't on a winner with the human rights argument.
So I went logic. "Alright, if you lock the bathroom up, he's going to go to the laundry."
"No, there are very dangerous chemicals in the laundry and we have to lock it." So I had to concede
that point a little bit. I didn't like where it was going. I was a bit flabbergasted. I said, "You know he's
going to go out into the yard. He's going to drink out of the hose or tap or something."
"No, we’ve taken the handle off the tap and he can't."
I swear too much [..] but I won't because it's being typed.
The point is - and this is the point about restrictive practices generally - he was still thirsty, wasn't
he? So it doesn't matter what you did. Until something was done about assisting this guy to alleviate
his thirst, this issue was continuing.
Simon Wardale
Team Communication- How people communicate and when they will talk to each other and let
each other know what is going on vis-à-vis the person is critical to achieving reductions in restrictive
practices.
[Communication is] ] completely not there. So, again, you have got very fragmented
teams where one/two people might be putting in place something; the rest are doing their
own jolly thing. Again, you are not going to see any changes.
Lynne Webber
Living Arrangements- These are not always determined by the support providers, but they clearly
impact on the nature of support.
Case Study - Unintended consequences of sharing. Wendy lives in a block funded
residence with co-tenant who is subject to restrictive practices. No other restrictive practices
have been authorised. Wendy has a restrictive practice guardian. When restrictive practices
are used on the co-tenant, Wendy is also affected. For instance, the doors to the bedrooms,
to the entry of the house are locked. Wendy's there as well. She's subjected to the same use
of containment or seclusion as what the other person is. Often this means that she's
confined to a room alone. Wendy's behaviour is unsettled as a result. Now she is exhibiting
challenging behaviours.
David Manwaring QAI
25
Service providers learn to see clients as a cash cow- This is not meant flippantly; a person with
disability’s most basic human rights - to liberty, freedom of association, a flourishing life - are at
stake and are all too readily subordinated to organisational goals and managerial convenience. QAI
has worked with many Restrictive Practices clients and there is an observable pattern of service
provider behaviour we see again and again: the person with disability is treated like a dangerous
prisoner, the living space becomes ‘us and him’, families are marginalised by staff and the service
provider seeks a guardianship appointment, complaints are discouraged, and the inertia of the status
quo works against innovations in care that might allow a reduction in restrictions.
Case Study 4- Stuart commenced with a service provider who did not favour a least restrictive
approach to his care. QCAT permitted the service provider’s use of seclusion, containment and
restriction of access to objects following a short-term approval authorized by the office of the adult
guardian.
QCAT sanctioned seclusion for up to 12 hours in a 15-hour period in addition to seclusion overnight.
Stuart was contained 24/24 unless he was on community access. Community access usually meant
walks on the grounds around institutional facilities. It was not meaningful; it wasn't something that
Stuart wanted to do. The only time that Stuart had meaningful community access was with his family.
The service provider denied any wrongdoing. We asked the department to investigate, but they
favoured the service provider's explanation. Nevertheless, at least one staff member was dismissed
in relation to Stuart’s care. So the problems were recognised by the service provider but the
investigation found there was nothing untoward happening and that the restrictive practices were
being applied appropriately.
The service provider marginalised Stuart's family, particularly his father. The service provider
challenged their involvement at every turn. On two occasions the service provider sought the adult
guardian’s appointment. QCAT refused.
QCAT appointed Stuart's brother as guardian and administrator but the service provider failed to
appreciate his role/duties as a guardian or indeed their own obligations in regards to consent and
communication with the guardian.
Stuart wanted to live in his own house and closer to his family, but more than anything he wanted to
change service providers. He found a new provider willing to promise not to employ restrictive
practices at all, but the old provider made urgent applications to QCAT asking them to stop the
transition. The support package was in excess of $700 k per year. QCAT did not acknowledge the
conflict of interest, but supported the transfer anyway.
David Manwaring QAI
Steadfast Implementation of Plans- Proper implementation of a PBSP is paramount, yet many plans
sit in an office drawer and never see the light of day. Implementation is fragmented. Some people
26
implement plans, some people do not. From McLean and Gray's work we know that a PBSP is more
likely to be implemented by all team members if all team members believe it will work.
So where possible service providers must bring the whole team together and sit down and write the
plan together- and team includes all stakeholders - parents, and the person themselves as well as
direct support workers and their supervisors.
Leadership is critical. At the QAI's ‘Human Rights v Restrictive Practices’ Forum in August 2013 we
learned that FSG’s management team committed to supporting a young man without resort to
restrictive practices - despite the fact that he had for years been subject to continuous containment
and seclusion. FSG continues to provide support to this young man without the use of any kind of
physical, mechanical or chemical restraint, containment or seclusion. That could not have happened
without a workplace culture opposed to the use of restrictive practices, and that workplace culture
could not have been implemented without a top-down mandate.
Williams and Grossest showed that mechanical restraint can be reduced by as much as 80
per cent. Kim Sanders’ findings are similar.45 Mechanical restraint is the most difficult to
reduce because it is partially self-fulfilling. People get used to wearing splints in the same
way we get used to wearing shirts. If I said, "Come in without your shirt on today," would
you do that? No. We are used to wearing clothes and people get used to wearing splintsand everything else. So one person who used to be shackled to his waist, still walks as if
he is shackled.
Lynne Webber46
Mechanical restraint is probably the worst restraint possible. What we need do is find alternatives to
help people not to go to mechanical restraint. Sanders found leadership is primary. Your leader must
be the one who drives the change; must have a vision for "no mechanical restraint and where
mechanical restraint is used, it will be reduced over time”.
Workforce strategies:
We do workshops for leaders, and say, "This is what we are doing with your workers but you have to
have that vision, have to develop the goals for your workforce, otherwise there's no point us doing
this work. It's got to be systemic."
45
Kim Sanders. 2009. The Effects of an Action Plan, Staff Training, Management Support and Monitoring on
Restraint Use and Costs of Work-Related Injuries in Journal of Applied Research in Intellectual Disabilities.
Volume 22, Issue 2, pages 216–220.
46
Victorian government psychologist for restrictive practices
27
The key strategies: good, strong leadership that can communicate the vision, where we want to go,
what we are going to do, like the people did at FSG; they communicated it very clearly. That's got to
be in the minds of all of the support workers.
Workforce development. We can't expect disability support workers to be able to do the work that
they have not been trained for and they have not been trained to do this work. So we need to
provide them with those skills to do it.
Restraint and reduction tools. In Grafton what they did was they said to their staff, "Okay, we are
not going to use restraint and seclusion but, hey, you are going to decide if you need some tools,
what they are going to be." And then the staff came up with their own tools. That's a good way to go
because you have got the buy-in of the staff, rather than you saying, "Hey, do this or that."
Training of support staff- Williams and Grossett, Luiselli 47 and Allen et al 48 found that the training
and supervision of staff in positive behaviour support by qualified psychologists is crucial to restraint
reduction.
There is still much to be done. Support staff turnover quickly, and psychologists are continually
refining new approaches to positive behaviour support- so training must be continuous. The kind of
training necessary is not the sort of training that support staff are generally familiar with.
Replacement skills - for example, encouraging a person to engage in play instead of aggression and
violence - require commitment, creativity and energy from staff.
Physical restraint is not always called for and can lead to unexpected outcomes- with some types of
restrictive practices and prone physical restraint being one of the key ones, the likelihood of serious
negative physical outcome and death - in that case that I just spoke to you and others - is very, very
high. Professor Dave Allen from the United Kingdom says that "if you are going to consider the use of
prone physical restraint, the behaviour that you are currently witnessing must be at least as likely to
result in death as the physical restraint itself before you consider using it".
5. Commonwealth Anti-discrimination Reforms
Early in 2013 QAI lodged a submission in response to the former Attorney General’s plan to
consolidate the five Commonwealth anti-discrimination/human rights acts. We include that
submission as a whole in Appendix 1. Here we offer some principal points.
47
Luiselli, J. K. 2009. Physical restraint of people with intellectual disability: A review of implementation and
reduction procedures. Journal of Applied Research in Intellectual Disabilities, 22, 126–134.
48
Allen, D., McDonald, L., Dunn, C., & Doyle, T. (1997). ‘Changing care staff approaches to the prevention and
management of aggressive behavior in a residential treatment unit for persons with mental retardation and
challenging behavior’ in Research in Developmental Disabilities, 17, 101–112.
28
Anti-discrimination laws are our de facto national ‘Bill of Rights’. We encourage the Commonwealth
to consolidate, strengthen and broaden the scope of these laws without increasing the regulatory
burden on business.
Were the Commonwealth to do so we would recommend that they arrange extensive public
consultation and diverse and detailed research, such as the thorough, years-long process of inquiry
which preceded the enactment of the Equality Act (UK) or the engaging and educative consultation
here in Australia on human rights in 2009. The process itself would be an opportunity to raise
awareness of discrimination and build towards national consensus around equality of opportunity in
the workplace, in education, in immigration, in health, in social security and in our oldest cultural
institutions.
Objects of a Consolidated Act
We support the strong statement of equality principles and a clear statements of values, providing
guidance as to how specific legislative provisions should be interpreted, and ensuring greater clarity
in terms of the substantial values informing the application of such legislation by courts, tribunals and
other actors. In addition to statements that promote recognition and respect within the community
for the principle of equality a consolidated Act should set substantive equality targets, for example:
Equal life chances: Equality duties should aim to break the cycle of disadvantage associated
with discrimination, aiming at fair representation, such as in employment or in parliament,
and the pursuit of equality of outcomes for groups, such as parity in exam results.
Protected Attributes- A consolidated act may present protected attributes as a non-exhaustive
open list.
Protection against intersectional discrimination would be hampered by adopting a closed list of
protected attributes. Previously unprotected attributes may require protection because of
unforeseen or changing circumstances. The legislation needs to be flexible- capable of recognising
unique experiences of discrimination. In Corbiere v Canada [1999] 2 SCR 203 the discrimination was
grounded in ‘aboriginality-residence’. Aboriginality is a recognized protected characteristic under the
s 15 of the Canadian Charter but residence is not. The Supreme Court decided that the unique
combination of aboriginality and residence amounted to a protected characteristic because s 15
adopts an open list of protected grounds. Anti-discrimination in Canada and South Africa has
afforded protection against intersectional discrimination for many years, letting the courts in those
countries respond with appropriate sensitivity to multiple disadvantages, and without any explosion
of claims.
Legislation may allow plaintiffs to aggregate evidence of discrimination targeting attributes
referring to the intersection of at least two protected attributes.
29
This would relieve plaintiffs from the task of having to separate evidence according to the protected
attributes targeted by the defendant's alleged discriminatory conduct; and it would empower those
who experience discrimination at the intersection of at least two protected attributes to claim relief
even though they may be unable to prove discrimination targeting any one particular protected
attribute.
Burden of Proof
The proposed legislation’s shifting burden of proof serves both natural justice and procedural
fairness. Currently direct discrimination complainants must attempt to establish a respondent’s
motives. Evidence of discriminatory intent is difficult to get when you’ve been overlooked for a job
or denied service provision and have no access to records or to witnesses. Once established
evidentiary benchmarks are touched, both process and justice are better served by requiring
respondents to prove they did not act in an unlawfully discriminatory manner. A shifting burden of
proof has been tested and found workable. Few overseas jurisdictions follow the Australian approach
of imposing the full burden on the complainant.
•
•
In the United Kingdom, European Union and Canada, the burden of proof shifts to
the respondent once the complainant has established a prima facie case of
discrimination.
In the United States, case law has established a framework of shifting burdens of
proof.
Exceptions in relation to the Migration Act 1958 (Cth)
Potential migrants and refugees to Australia are currently subject to a health assessment as part of
the process to determine their eligibility. Migrants and refugees with disability are routinely refused
entry to Australia; many families supporting people with disability make a difficult decision to leave
behind a partner or other family member in order to build a life in Australia. Migrants with disability
granted visa status (except for those immigrating on humanitarian grounds) must also wait ten years
before being eligible for the Disability Support Pension (DSP). Eligibility for DSP in turn affects
eligibility for other programs, such as essential disability services and equipment. As a result,
migrants with disability are unable to access appropriate financial support, or a range of services and
support that are available to other Australians.
As it stands the legislation denies potential Australian citizens the anti-discrimination remedies
afforded to actual citizens. The Commonwealth can, and does deny entry for fear of the financial
burden the applicant might impose on the Australian community. It may deny entry if there is a
possibility that the applicant’s need for health-care or for community services might prejudice the
access of Australian citizens.
Yet this country has agreed, pursuant to Article 4(1)(b) of the Convention on the Rights of Persons
with Disabilities ‘[t]o take all appropriate measures, including legislation, to modify or abolish
30
existing laws, regulations, customs and practices that constitute discrimination against persons with
disabilities’. While reservations to the Convention are expressly permitted (article 46), those which
are contrary to the object and purpose of the Convention are precluded.
QAI acknowledges that some forms of discrimination in relation to the Migration Act 1958 may be
necessary in relation to the issue of specific visas. However, we submit that decisions made under
the Migration Act 1958 must not be made in a vacuum in relation to the protections such as
those provided under the Convention on the Rights of Persons with Disabilities.
Whether an applicant is a potential health burden is a question of medical opinion, but as we
understand it, assessments are made by a single medical assessor, with no requirement for
independent second medical opinion. We are not in a position to judge whether assessments (or the
likelihood of ‘significant costs’) are rationally connected with the policy objective, but it appears that
the focus on the cost burden of a person’s condition is not balanced by consideration of the positive
financial and other contributions which a person may make to Australia if admitted. The protection
of the health system alone is in our view not a sufficiently reasonable or objective policy interest to
justify differentiation on the basis of disability. Australia is committed to disability-inclusive
development aid. We set up a double standard and deny ourselves moral authority when we insist
that aid receivers must comply with human rights standards we are not concerned to meet ourselves.
Access, Standing and Costs49
Recommendation: Anti-discrimination legislation should include provision for
representative complaints so that public interest groups may strategically litigate on behalf
of complainants.
Recommendation: The AHRC or an alternative body should be given the power to conduct
strategic litigation on behalf of a complainant, to be funded through a strategic enforcement
or test cases fund.
Many people with disabilities are deterred from seeking legal remedies because they anticipate that
the personal costs, both emotional and financial, of seeking those remedies will outweigh the
benefits.
On two recent occasions QAI has attended Queenslanders with a Disability Network (‘QDN’) meetings
and asked members whether they had experienced what they believed to be unlawful disabilityrelated discrimination. While everyone present indicated ‘yes’, only one had initiated action under
either the State or Commonwealth disability discrimination legislation. That person said that build-up
to and proceedings in the Federal Court had dominated her life for a number of years.
49
We particularly thank QPILCH for much of the legal research informing this section. Queensland Public Interest Law Clearing House
Incorporated . 2005. Standing In Public Interest Cases http://www.qpilch.org.au/_dbase_upl/Standing.pdf
31
This reluctance is by no means unusual 50 and suggests a deficiency. Legislation is only as good as its
application, and the current complaint mechanisms are a deterrent to all but the most determined.
Deterrents include:

the onus on the lone and legally untrained complainant to initiate and carry a matter through;

the difficulty of finding legal representation;

the complexity and length of proceedings;

the possibility, such as that realized in the recent King v Jetstar Airways Pty Ltd (No 2) [2012]
FCA 8, of the impecunious complainant with a losing cause carrying crippling costs.

the power imbalance between applicant and respondent (e.g. in the matter referred to
above the respondent was a Commonwealth department) and the attendant emotional
stresses associated with pursuing a complaint. 51
There is a strong correlation between socioeconomic status and severe disability.52 People with
disability in particular are less likely to have the financial means to make costly complaints when
there is a risk such as that realised in King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8 (13 January
2012). Sheila King had $20 000 costs awarded against her. The Sydney Morning Herald reported that
Nicolas Patrick, the chairman of the Redfern Legal Centre, said the Jetstar case highlighted a
weakness in discrimination law. The Commonwealth acts do not allow an organisation to complain
on behalf of an individual or group of individuals. '’It's left to individuals to run these cases at huge
personal and financial risk'’. 53
Yet the alternative may be worse. A recent study by the Victorian Equal Opportunity and Human
Rights Commission found that discrimination can lead to increased levels of stress and the
internalisation of negative stereotypes and evaluations, which can in turn lead to poor self-esteem
and mental health. 54
50
See, for example, Equal Opportunity Review Final Report, An Equality Act for a fairer Victoria, (June 2008), 142, and comments by Adam
Fletcher in the Castan Centre for Human Rights Law blog: “The burden is not just evidentiary either: (Sheila King’s experience) in the
Federal Court emphasises the dedication and sacrifice required to win a contested discrimination case – particularly against a large
corporation. In consultations to date, practitioners and rights advocates have reported that this issue prevents many potentially meritorious
cases from proceeding, which is clearly a sign that this aspect of the system requires attention.”
http://castancentre.com/2011/12/05/rolling-the-federal-anti-discrimination-acts-into-one-great-big-new-law/ .
51
See for example Standing Committee on Legal and Constitutional Affairs, Report on the Effectiveness of the
Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender Equality, (December
2008), [11.50]
52See, for example, AIHW, 2009 ‘ The geography of disability and economic disadvantage in Australian capital cities’ Canberra: AGPS, and
the ABS report ’Family’s with a Young Child with a Disability’ http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4102.0Chapter4002008
53 Read more: http://www.smh.com.au/nsw/advocate-to-appeal-decision-on-wheelchair-20120117-1q4sk.html#ixzz1jmI6yoTA
54 VicHealth, More than tolerance: Embracing diversity for health: Discrimination affecting migrant and refugee
communities in Victoria, its health consequences, community attitudes and solutions – A summary report
Victorian Health Promotion Foundation, Melbourne, 2007, available at
http://www.vichealth.vic.gov.au/en/Publications/Freedom3from3discrimination/More3than3Tolerance.aspx, p 29.
32
Public Interest Standing; Representative complaints
There are ways to better distribute the financial and emotional burdens of making a complaint. As
the AHREOC Act stands, complainants can act individually or as a group, but complaints must be
lodged by or on behalf of aggrieved persons 55
QAI proposes that the consolidated legislation incorporates a form of public interest standing.
Interested organisations can assume emotional and financial risks on behalf of a class of persons
unable/unwilling to bring actions on their own.
•
To prevent profit-seeking standing would only be given to organisations with an established
interest in the protected attribute, and only in matters where no monetary compensation is
sought.
•
To deter vexatious litigation such organisations should be potentially liable for their own
costs, but to encourage systemic action such organizations should not be liable for
respondents’.
Currently the question of who is allowed to bring a discrimination complaint is governed by the AHRC
Act, which does in fact permit an organisation to make a complaint on behalf of another person. The
sticking point is that if the complaint is unresolved it is extremely difficult for the representative body
to proceed - unless the representative body is itself ‘aggrieved’ by the discrimination. A person has
standing only if they have ‘sufficient interest’ per the Federal Court of Australia Act 1976.
In Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council, for example, a disability rights
organisation lodged a representative complaint under section 46P(2)(c) of the Australian Human
Rights Commission Act 1986 (Cth) alleging, on behalf of its members, discrimination in relation to bus
stops that allegedly contravened the Disability Standards for Accessible Public Transport 2002. But
when the organisation attempted to commence proceedings in the Federal Court the Court held that
it lacked the required standing to pursue the complaint. The Court held that only an aggrieved person
could commence such proceedings, and that whilst the organisation's members may be aggrieved
persons, the organisation itself could not be so described.
Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council was dismissed by the Federal Court
on the basis that the complainant, Access for All Alliance (Hervey Bay) Inc, did not have standing to
commence discrimination proceedings in relation to a matter affecting its members. The complaint
55
With the exception that a Trade Union may complain46P Lodging a complaint
(1) A written complaint may be lodged with the Commission, alleging unlawful discrimination.
(2) The complaint may be lodged:
(a) by a person aggrieved by the alleged unlawful discrimination:
(i) on that person’s own behalf; or
(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or
(b) by 2 or more persons aggrieved by the alleged unlawful discrimination:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination; r
(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.
Australian Human Rights Commission Act 1986
33
was made, however, the proceedings in the Federal Court could not continue as representative
proceedings because the complainant was not a member of the affected class. This decision
effectively brought to an end the prospect of organisations bringing complaints on behalf of affected
members or affected people with whom the organisation works.
Standing at common Law
Under the common law, with its focus on private rights, it is difficult for groups to show special
damage resulting from an administrative decision. However, under liberalised approaches groups
have regularly been granted standing. In assessing standing, the courts have considered a range of
relevant factors when determining the status of groups. While there is no separate standing test for
public interest groups, the courts tend to take these additional considerations into account and
therefore, in practice, treat groups distinctively.
Factors considered by the courts when testing the standing of plaintiffs include: 56
(a) the representative nature of the group . An important consideration is that the group granted
standing is representative of a significant public concern; 57
(b) an established interest in the area;58
(c) the relationship with government;
59
Examples include:
•
the group sits on government boards or committees;
•
the group has made past submissions to government in related areas;
•
the group is recognised by legislation;
•
the government has sought advice from the group;
•
the group has received funding from the government.
56
Onus v Alcoa Of Australia Ltd (1981) 149 CLR27
• “A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond
that of any other member of the public” (Gibbs CJ at 36)
• “At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of a class - a benefit or
advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that
success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member
of a class - to an extent greater than the ordinary member of the community.” (Brennan J at 76
57 Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, 205-206; Right to Life
Association v Secretary, Department of Human Services and Health (1995) 56 FCR 50, 78-80 (Beaumont J)
58 Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, 205; North Coast
Environment Council lnc v Minster for Resources (No. 2) (1994) 55FCR 492, 512-513; Tasmanian
Conservation Trust Inc v Minster for Resources (1995) 55 FCR 516,552-553.
59 Right to Life (1994) 52 FCR 209
34
(d) prior participation in the relevant process. The applicant had some involvement in the relevant
process, usually the decision making process itself; 60
(e) whether there are other possible applicants. A number of judges have indicated that the absence
of other possible applicants will favour the grant of standing; 61
(f) the interest of members. In some cases, the interests of individual members have been taken
into account to determine the standing of the group.62
(g) the importance of the issues at stake. The perceived importance of the issues at stake is a
consideration sometimes expressly or implicitly relied on in establishing standing.63
With its long history of disability advocacy, Queensland Advocacy Incorporated is typical of the kind of
organisation that could qualify under ‘public interest’ standing.
Public Interest Standing: Case Studies
There is precedent for this kind of standing even under current Commonwealth anti-discrimination
law. In Executive Council of Australian Jewry v Scully (1998) 51 ALD 108, an unincorporated Jewish
association had standing to bring proceedings against a person who had allegedly distributed antiSemitic literature, under the Racial Discrimination Act 1975 (Cth) and the Racial Hatred Act 1995
(Cth), due to the member organisations being “persons aggrieved” by the alleged actions.
In Australian Conservation Foundation and Anor v Minister of Resources and Anor (1989) 19 ALD 70
(ACF No. 2) it was found that ACF had standing to challenge a ministerial grant of a licence for export
of woodchips from State forests. Davies J (at 73) said:
“While ACF does not have standing to challenge any decision which might affect the environment, the
evidence establishes that ACF has a special relation to South East forests and certainly in those areas
of the South East forests that are the National Estate. The ACF is not just a busybody in this area. It
was established and functions with governmental financial support to concern itself with such an
issue. It is pre-eminently the body concerned with that issue. If ACF does not have a special interest
in the South East forests, there is no reason for its existence.
In North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492, Sackville J (at
[82]), in construing a set of principles from ACF v Commonwealth relevant to the present matter, said
that an organisation does not demonstrate sufficient special interest in the environment by simply
formulating objects that demonstrate an interest in and commitment to the preservation of the
physical environment.
60
Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, 205; North Coast
Environment Council inc v Minster for Resources (No. 2) (1994) 55 FCR 492, 512-513; Tasmanian
Conservation Trust Inc v Minster for Resources (1995) 55 FCR 516, 552-553
61 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27,73; Ogle v Strickland (1987) 13 FCR 306, 319-32
62 North Coast Environment Council lnc v Minster for Resources (No. 2) (1994) 55 FCR 492, 512-513; Ex Parte
Helena Valley/Boya Association (inc); State Planning Commission and Beggs (1989) 2 WAR 422, 437
63
Australia Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, 206; King Cole Hobart Pty
Ltd (1992) 77 LGRA 92, 100; Central Queensland Speleological Society Inc (1989) 2 Qd R 512, 52
35
In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183
CLR 552, a union was held to have standing because of the special interest held by its individual
members.
• In North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728, the Court applied
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR
552 in finding that the NAALAS had standing to challenge the validity of the appointment of a
magistrate of the Northern Territory.
It had the same interest in the issue as would any of its clients appearing before the magistrate. This
was not to say that all practitioners representing a client before the magistrate would have standing:
“Such a practitioner cannot be equated with an incorporated body such as NAALAS, which has
particular responsibilities towards Aboriginal persons and the Aboriginal community generally.
NAALAS occupies a pivotal role in the administration of criminal justice in the Northern Territory.”
Open Standing
Arduous process and the threat of costs are powerful disincentives to vexatious action. The
traditional approach to standing is to determine whether the complainant has a “special interest” in
the subject matter of the dispute. This test has also been used to guide standing tests under various
statutes, in particular, standing for judicial review where the person must be a “person aggrieved” or
a “person affected” by the decision or action in question. However, there has been a broadening of
the approach the courts take when considering whether a party has standing to enforce a public right.
In Bateman’s Bay, Gaudron, Gummow and Kirby JJ suggested a test where “the proceedings should be
dismissed because the right or interest of the plaintiff was insufficient to support a justiciable
controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of process.”
Similarly, Chesterman J in the NQCC Case found a person would have standing under the Judicial
Review Act 1991 (Qld) if it could be seen that his or her connection with the subject matter was not
an abuse of process and that he or she was not motivated by malice, was not a busy body or crank
and the action would not put another person to great cost or inconvenience. Consistent with these
views, some environment, planning and consumer protection legislation includes open standing or
near open standing provisions, but without formal recognition through statute it is unlikely that a
liberal approach would be applied with any uniformity in the near future.
The Australian Law Reform Commission reviewed the law of standing in 1996 and recommended that
a broad single test for standing be introduced. The ALRC also recommended that the ‘special interest’
requirement be removed. It was of the opinion that the test is too narrow, uncertain, complicated,
inconsistent and involves making value judgments as to what interests will be recognised. The ALRC
has put forward a new general test for standing allowing any person to commence public law
proceedings unless:
(a) Relevant legislation provided a clear intention to the contrary; or
(b) It would not be in the public interest to proceed because to do so would unreasonably interfere
with the ability of the person having a private interest in the matter to negotiate.
36
In addition to relieving individuals, representative complaints also have the capacity to produce
positive outcomes that reach beyond the circumstances of one individual and lead to the
achievement of systemic change and substantive quality.
Costs
The Exposure Draft default position is that each party bears their own costs. The court still has the
power to make costs orders if it is just to do so, but it must consider the financial position of the
parties.
We broadly support the apparent intent of this provision but a decided position depends on how the
courts interpret and apply s 133 (2). The prospect of any risk of costs, especially where there is no
provision for representative complaints, is a robust deterrent to a person who sits on the bottom rung
of the socio-economic ladder and who has little or no prospect of ever moving up it.
The prospect of a costs burden in the event of a failure by a complainant to prove a claim may deter
potential complainants from seeking relief under the legislation, which may undermine the primary
object of the consolidated Act to prevent and prohibit discrimination. The Fair Work Act is a suitable
model for the consolidated Act.64 Under the FWA, a party may be ordered to pay costs in limited
circumstances, such as where proceedings were instituted vexatiously or without reasonable cause.
There is little point in liberalising the law on standing without procedural reforms that would relieve
public interest organisations of the potential burden of costs. An adverse finding would have the
potential to bankrupt a small public interest organisation running on a typical annual budget in the
very low six figures. In an address to a conference of the National Environmental Law Association in
1989 Toohey J - formerly a member of the High Court - said:
Relaxing the traditional requirements for standing may be of little significance unless other
procedural reforms are made. Particularly is this so in the area of funding of environmental litigation
and the awarding of costs. There is little point in opening the doors to the courts if litigants cannot
afford to come in. The general rule in litigation that 'costs follow the event' is in point. The fear, if
unsuccessful, of having to pay the costs of the other side (often a government instrumentality or
wealthy private corporation), with devastating consequences to the individual or environmental
group bringing the action, must inhibit the taking of cases to court. In any event, it will be a factor
that looms large in any consideration to initiate litigation.65
64
65
Fair Work Act 2009 (Cth) s57.
Cited in McClelland, 2005.
37
6. Effective State and Territory Enforcement of Human Rights
Conventions
Recommendation: That our National Human Rights Action Plan and National Disability
Strategy be amended to initiate an intergovernmental process implementing state and
territory parliamentary scrutiny, strengthening the links between Commonwealth human rights
commitments and State and Territory action.
QAI urges the ALRC to recommend that the Commonwealth legislates mechanisms to enforce our
national human rights obligations. The gulf between Commonwealth-UN agreements and state and
territory legislative practices undermines the integrity and efficacy of those human rights agreements.
Although we do have some human rights protections we are one of the few Western democracies
without a charter or bill of human rights. The ‘implied rights’ (to freedom of political expression and
freedom of association, for example) of our Commonwealth constitution are few in number and
narrowly construed, and remedies such as those provided by our Commonwealth, state and territory
anti-discrimination laws are limited in scope and reactive in nature.
The Commonwealth has ratified a number of UN human rights conventions but Australian states and
territories have not.-. Compliance is optional and rarely if ever considered when ministers propose
and parliaments debate and review new legislation. Whatever its other merits, our constitutionallymandated federal system is a key barrier to the practical enforcement of human rights. Ratification of
the Convention on the Rights of Persons with Disabilities (CRPD) by the Australian Government does
not mean that the CRPD and its Articles are binding law enforceable in Australia’s courts nor that State
and Territory executives or legislative bodies are obliged to see CRPD rights realized. The seven
human rights conventions will have more direct legal effect in Australia when our parliaments pass
statutes to enforce it.
The ratified conventions have effect:

if the High Court interprets an Australian statute and the terms of that statute are unclear, and
there is a relevant international convention on the topic, the court may look at the articles in
the international convention to help shed light on the Australian statute, and remove the
ambiguity;

when government administrators make (administrative) decisions there is a “legitimate
expectation” that they will, where relevant, take into account Australia’s obligations contained
in ratified conventions, covenants and treaties (Minister of State for Immigration and Ethnic
Affairs v Teoh - (1995) 183 CLR 273 - ‘Teoh’s Case’); or

in Commonwealth law through the Human Rights and Equal Opportunity Act 1986 (Cth). This
Act created the Human Rights and Equal Opportunity Commission (now the Australian Human
Rights Commission (‘AHRC’) - which can investigate claims of discrimination and harassment
(including on the basis of disability) and conciliate complaints under the above Commonwealth
laws. However, AHRC does not have powers to make any orders (like an award of
compensation or an injunction). If a matter does not conciliate, it must be pursued in the
Federal Court or Federal Magistrates’ Court.
38
The AHRC, under its Act, can also investigate alleged breaches of human rights under some of the
international conventions, covenants and treaties that Australia has ratified, but the AHRC can only
investigate and make recommendations about such alleged breaches. It cannot make a finding and
order compensation, like a Court or Tribunal. Without legislative mechanisms that embrace the
CRPD’s articles, objectives and purposes, the CRPD remains aspirational and symbolic at best.
Parliamentary Scrutiny
One of the five key principles set out in the National Human Rights Framework is #5 – ‘improving
human rights protections including greater parliamentary scrutiny’. Since this country’s ratification of
the Convention on the Rights of Persons with Disabilities on 17 July 2008, advocates for the rights of
persons with disabilities have looked to the Convention as the benchmark against which all Australian
policy and law making - Federal, State/Territory and Local - should be judged. As signatory it is
the Commonwealth’s responsibility under Art 33 of the CRPD (and some other instruments) to
establish a ‘coordination mechanism within government to facilitate related action in different sectors
and at different levels’.
A human rights coordination mechanism, particularly between Federal and state/territory levels, is
critical in a Federal system where the bulk of disabilities-specific legislation and policy is beyond the
direct reach of the Commonwealth. For example, the National Human Rights Action Plan Consultation
Draft in 1.3 ‘Australia’s Democratic Institutions- Parliamentary committees’ notes that:
Parliamentary committees have an important role in scrutinising government activity and
proposed laws. For example, the Senate Standing Committee for the Scrutiny of Bills is empowered to
scrutinise proposed laws for their effect on fundamental rights and liberties […].
We applaud the establishment in 2011 of a new Parliamentary Joint Committee on Human Rights with
the aim to provide greater scrutiny of legislation for compliance with our international human rights
obligations, and we approve the Commonwealth legislation that requires that each new piece of
legislation be accompanied by a statement of compatibility with the seven core UN human rights
treaties to which Australia is a party, including the Convention on the Rights of Persons with
Disabilities.
However, it is in the realm of scrutiny at state and territory levels that we see a majorshortfall - a
distinct ‘hole in the net’ of legislative protections, as the scrutiny above extends only to Federal bills,
which have little impact on the day to day concerns of people with disabilities. It is clear that most of
the legislation affecting people with disabilities is state-based.
State and Territory Level Scrutiny: Queensland
In QLD we have limited human rights protection. The Anti-Discrimination Act 1992 (Qld) provides
scope for the investigation and conciliation of claims of discrimination and harassment, including on the
basis of disability, but it does not include the broader power to investigate breaches of human rights.
From July 2011 a portfolio-based committee system has produced discussion papers, invited
submissions, conducted public hearings, and examined bills for their consistency with fundamental
legislative principles. While this is more open and democratic process than former examinationof
39
legislation committee, the committees do not examine bills for consistency with Commonwealth human
rights obligations.
Example: State legislation should be ground zero for human rights implementation but constitutional
authorities like former Chief Justice Gerard Brennan agree that without adequate analysis legislation
can prove to be a human rights liability: ‘absent the work of a Scrutiny Committee, a provision of a Bill
or a regulation may come into force and prove to be an intractable, but unnecessary, incursion on the
interests which the rule of law seeks to protect’ (Brennan, 2011: 15). Queensland’s own Disability
Services Act 2006 is a case in point: if our restrictive practices legislation had been properly scrutinised
it may never have passed through the House.
Queensland’s Disability Services Act 2006 (‘DSA’) regulates the subjection of people with ‘challenging
behaviours’ to physical and chemical restraint, containment and seclusion for long periods, sometimes
years. These practices are rarely consistent with the CRPD or with the human rights principles set out
in the legislation itself. The DSA only requires that parties ‘have regard to’ as opposed to ‘must act
consistently with’ those principles.
Our client HP endured years of containment behind a Perspex screen in a locked unit. Minor offending
behaviour years before had stigmatised him as dangerous and unpredictable. Determined advocacy
and family support eventually exposed the injustice of this young man’s incarceration and he now lives
in his own home and runs his own small business.
Effective parliamentary human rights scrutiny of the DSA such as that applied to Commonwealth
legislation may have identified the shortcomings of that legislation and prevented this man’s long
detention. QAI recommends that the Commonwealth initiates an intergovernmental process to
strengthen the links between Commonwealth human rights commitments and State and Territory
action. Without those links our international human rights commitments are largely symbolic.
7. Criminal Justice Reform
1. Introduction - Why ensure equal access to criminal justice for persons
with disability?

To ensure Australia meets its international obligations under the United Nations
Convention on the Rights of Persons with Disabilities. In particular Article 13 of the
UNCRPD states that people with disability should enjoy equal and effective access to
justice.
40

To uphold Commonwealth legislative requirements included in the Disability Discrimination
Act.

To ensure the most vulnerable people in our society do not become entrenched in the
criminal justice system. This is costly not only to the individual but also to society as the
cost of keeping a person in prison is substantially higher than providing support to an
offender with a disability.

To ensure that persons with disability are not denied other rights because of a penalties
access to justice. For example, a person with a disability who experiences discrimination in
the workplace may be denied protection of the right to work and the right to access justice
if the justice system lacks the mechanisms needed to enable a person with physical or
communication difficulties to seek a remedy.
2. Who is affected?
It is QAI’s experience, supported by research in many Australian jurisdictions, that the single most
pressing issue is the overrepresentation of persons with reduced capacity who have entered the justice
system as offenders- overwhelmingly for either multiple minor public nuisance-type offences, or for sex
offences.
The heart of the ‘Access to Justice’ issue is that in nearly every Australian jurisdiction the principal
overrepresentation groups are people from Aboriginal and Torres Strait Islander background, and
people with reduced capacity, with a huge overlap in these categories. We lock people up for being
indigenous, and we lock people up for having impaired capacity- intellectual and cognitive disabilities
and acquired brain injuries including the under-recognized Foetal Alcohol Syndrome, and mental
health issues.
In this submission we focus on the experience of people with impaired capacity charged with offences
as they proceed though the Queensland criminal justice system.
41
3. Significant Barriers to Justice
The Disability Services Act 2006 (‘DSA’) requires all Queensland state government departments to
develop and implement a Disability Service Plan every three years.
The Queensland Police Service
(‘QPS’) is committed to ‘incorporating and embedding’ the
objectives of the Disability Services Act 2006 and the Carers (Recognition) Act 2008

principles and tenets of the Convention on the Rights of Persons With Disabilities

priorities, strategies and actions included in the Absolutely Everybody66, whole-of
government action plan, and the Queensland Carers Action Plan.
While this is a positive policy step there is little evidence that these plans have changed the way things
are done on the street and in the watch-houses of this state. There is little point in planning to
safeguard the rights of persons with disabilities if, for example, the police are unable or unwilling to
identify persons with disabilities in the first place.
4. Police Identification of Mental Health Issues, Intellectual Disability and
other Capacity-related Conditions
Police are often called to assist when a person is disturbed in their behaviour. In emergency situations
police may have recourse to an Emergency Examination Order. Where they believe a person has a
mental illness as defined in the Mental Health Act 2000 and they believe that-

because of the person's illness there is an imminent risk of significant physical harm being
sustained by the person or someone else; and

proceeding under a Justice Examination Order (‘JEO’) 67 would cause dangerous delay and
significantly increase the risk of harm to the person or someone else,

Police are authorized to seek the temporary detention and examination of a person who is
experiencing urgent mental health problems. Following examination, it may be decided that the person
The previous state government’s Disability Strategy.
‘Justices Examination Order’ a non-urgent order for medical examination issued by a Magistrate pursuant to Chapter 2,
Division 2 of the Mental Health Act 2000 (Qld).
66
67
42
should undergo Involuntary Assessment, which in turn can lead to the making of an Involuntary
Treatment Order (ITO).
In Queensland there is no systematic identification of persons with intellectual disability or other
capacity-related impairments. The police may administer a test when officers believe an accused may
have an intellectual disability, but the administration of that test appears to be selective.
Discussions about trialling the HASI Test developed by Susan Hayes
68
took place between the
Queensland Police Service and Disability Services Queensland in 2011, but plans for that trial appear
to have gone off the boil since the change in state government in 2012.
The same test was trialled for
use when processing Legal Aid applications by Legal Aid Queensland in 2007-2008, but was not
adopted. There is obviously a need for early identification of persons with impaired capacity, and a
protocol for how they will be dealt with. Experiences like the following are not uncommon.
Case Study- Intellectual Disability: The mother of a young man with an intellectual
disability was concerned about the possibility of her son getting into trouble with the police,
so she went to local police stations to inform them of his presence in the area, and to
explain his disability. She asked police to contact her if her son was ever picked up.
Shortly thereafter police from one of the stations detained the young man. They had been
called by a bus driver in response to a complaint by a female passenger that the young man
had made unwanted sexual advances. The police detained the young man but did not
contact the mother.
He was dropped off in the street, without charge, seven hours later.
He did not know where he was or how to get home- he had been trained to catch one bus
only. His mother reports that since that day he has been terrified by the sight of police.
Research by Lorana Bartels69 and by the NSW Intellectual Disability Rights Service70 has identified the
need to provide support to people with capacity issues in police interviewsto assist the person to
understand what is happening and being said by the police and to understand and exercise their rights.
NSW has a voluntary support service that connects volunteers with defendants with intellectual
disabilities but there is no similar program here in Queensland other than Queensland Advocacy
Incorporated’s own Justice Support Program, funded for a single position state-wide.
68
Now Professor Susan Hayes at Sydney University School of Medicine.
Lorana Bartels . 2011. Police interviews with vulnerable adult suspects
Report No. 21. Canberra: Australian Institute of Criminology. White + Carter v McGregor
70
Linda Steele, Intellectual Disability Rights Service (Ed) Enabling Justice- A Report on Problems and Solutions in relation to
Diversion of Alleged Offenders with Intellectual Disability from the New South Wales Local Courts System:With particular
reference to the practical operation of s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). Produced by the
Intellectual Disability Rights Service in conjunction with the Coalition on Intellectual Disability and Criminal Justice & NSW
Council for Intellectual Disability.
69
43
In 2007–2008 Queensland Legal Aid trialled a screening tool to identify clients with an intellectual
disability or cognitive impairment. They administered the Hayes Ability Screening Index (HASI) tool for
three months to assess its applicability across our organisation and, hopefully, the wider justice
system.
The plan was for the HASI tool to allow staff to:
•
communicate appropriately
•
obtain support and assistance from an in-house social worker
•
refer the client for a full-scale assessment if their disability will impact on their legal matter
•
refer the client to our Brief Services Unit so we can spend more time helping them
•
clarify the client's problem and provide advice and assistance
•
refer the client to other agencies for assistance or support,
and to provide more accurate figures on the proportion of Legal Aid clients with intellectual disabilities.
The tool was not adopted after the Trial.
We spoke to Jim Simpson from the NSW Council for Intellectual Disability about how a disability
screening tool could be best applied. He suggested that the only way to get police to consistently
identify people with intellectual disabilities is to require Divisional Commanders to set benchmarks
against which police performance will be measured. Police would be required, for example, to show
that they identified people with intellectual disabilities in proportion to their presence in the offending
population.
Other stages in the process for which clients with intellectual disabilities may need assistance include:
•
support engaging legal counsel
•
support for court proceedings, bail
•
support to arrange reports commenting on the relationship, if any, between their
offence/s and their disability
•
support liaising with service delivery organisations to ensure that the least restrictive,
preferable non-custodial sentencing options are available.
44
5. In Court- the 2 tiered approach to offenders who lack capacity in
Queensland
Every Australian jurisdiction is different in its approach to offenders with capacity issues.
In
Queensland we have a two-tiered system that deals with offenders in qualitatively different ways. That
difference depends on the seriousness of the offence. Charged with a simple or ‘summary’ offence, a
person with reduced capacity not currently subject to an Intensive Treatment Order (‘ITO’) or Forensic
Order (‘FO’) will appear in the Magistrates Court like any other offender. There is no special
procedure such as the s32 process in NSW that triggers an expert capacity assessment, or the
Victorian Disability Services report option. There is no special plea available even if the person has
minimal or no understanding of the nature of their (alleged) offence or of the legal process itself.
This is the ‘Avery’ situation- the widely publicised experience of Melissa Avery, a woman with
intellectual disability who repeatedly appeared in a Queensland Magistrates Court for minor shop
stealing offences.
Customary criminal court proceedings are arguably not appropriate for persons like Melissa given
Melissa’s lack of capacity to understand the nature of her offending or of court proceedings.71 Dan
Toombs, her counsel and at the time a solicitor with a Toowoomba Community Legal Service has
written extensively about Melissa’s experiences72.
Ideally the defence would appear equipped with the Queensland Police Form (QP9), the person’s
criminal history, the Police Court Brief, letters from treating doctors and private psychiatric reports. The
Magistrate would then be able to frame a sentence that takes into account the whole circumstances of
the person’s offending behaviour, assuming they had offended. Where the offence is trivial or there
are extenuating circumstance the magistrate would have the option of discharging a convicted person
pursuant to s 19 Penalties and Sentences Act 1992 (Qld) but anecdotal evidence suggests that this
option is rarely used by Magistrates. In fact people with intellectual disabilities and other capacityreducing conditions often appear without the benefit of a well-prepared defence, and the Magistrate
has very few sentencing options open to them, especially in rural and remote areas.
Charged with a more serious ‘indictable’ offences, that person may rely on a defence of unsoundness
of mind or unfitness for trial, and is likely to be referred to the Director of Mental Health, who will direct
a psychiatrist to carry out a capacity assessment. That assessment, pursuant to s 238 of the Mental
Health Act 2000 (Qld), is a medically focussed determination of the person’s capacity at the time of the
(alleged) offence/s and their capacity to stand trial. If a person charged with an offence is already
71
See, for example, ABC Radio national Background Briefing transcript and audio for 17 April 2011 @
http://www.abc.net.au/radionational/programs/backgroundbriefing/low-iq-and-in-jail/3004730
72
Dan Toombs. 2012. Disability & the Queensland Criminal Justice System. Sydney: Thompson Reuters.
45
under a Forensic Order or a (non-forensic) Intensive Treatment Order a s238 Mental Health Act 2000
(Qld) capacity assessment is automatically triggered.
6. Section 238 DelaysOne of the most egregious denials of natural justice for people so situated is that they may have to wait
a long time - in excess of 18 months is documented - for the psychiatrist to do the assessment. This
time may be spent in a remand centre, where there are no rehabilitation programs or treatment (if a
mental health issue) or worse, they may successfully plead not guilty in the courts and have no
recourse for time served.
The 2006 Butler Report 73 addressed and made recommendations about the s 238 process, and those
recommendations were implemented by the relevant departments and authorities- the Queensland
Police Service, the DPP, Queensland Health, Attorney-General’s Department and the Director of
Mental Health. But despite those changes the delays remain, perhaps because so many different
siloed departments are involved. The legislated timeframe for such a report is 21 days. In 2011-12,
for example, this timeframe was only adhered to in 12% of matters. About half (48%) were provided
between 43 and 180 days and an alarming 22% took more than 180 days.
Figure One: Chapter 7 Part 2 process with legislated and actual timeframes
73
Brendan Butler SC. 2006. Promoting balance in the forensic mental health system. Final report. Review of the Mental Health
Act 2000.
46
Section 238 Delay Case Study One
X was serving time in prison for convictions in armed robbery. While in prison he was placed on
an ITO. He was then released on parole. In or around 2009, X was charged with numerous
offences (outstanding charges) while on parole. He was brought back to prison for breach of
parole.
From November 2011 until August 2012 X was admitted to a mental health service as a
classified patient because of a serious deterioration in his mental health.
X was returned to prison on 10 August 2012 after displaying challenging, aggressive and
threatening behaviour towards another patient. On 9.07.2013, X was eligible for full time release,
but he continues to be detained in prison on remand for his outstanding charges. X was a Chapter
7 Part 2 patient for his outstanding criminal charges committed in 2009. The section 238 report
was completed after advocacy by QAI in May 2013.
We understand that the matter has gone to the DPP and at least some of the matters will be
continued according to law. We continue to investigate the status of the remaining charges. At
present, no application has been made by his criminal lawyers for bail.
Section 238 delay Case Study Two
Townsville has longest delays and perhaps not coincidentally. Townsville also has a higher than
average proportion of Aboriginal people. According to research by Baldry et al there is a
synergistic effect that pushes forensic overrepresentation of ATSI people with mental health or
cognitive disabilities into the stratosphere.74
In Townsville an indigenous woman on an ITO accumulated a number of charges; went to court
on those charges, and was refused bail because of the risk of re-offending. She waited 6 months
on remand for a s238 report and she was released on bail. Her matters eventually went to court
and she was convicted and released with time served. By then, however, she had accumulated
more charges, and again she was remanded into custody pending another s238 report so that
matters could proceed. The cycle continues.
About 50% of all reports are returned to the psychiatrist by the administrator. There are no
Aboriginal liaison people available to explain maters. Clients have no access to programs while on
remand, and they are usually placed in high security. Excessive remand is also an issue when
there’s no ITO.
74
Eileen Baldry, Leanne Dowse and Melissa Clarence. 2011. Background Paper for the National Legal Aid Conference Darwin
2011.People with mental and cognitive disabilities: pathways into prison. School of Social Sciences and International Studies
47
The quality of the (s238) reports is very poor. It is not uncommon for ATSI to say, for example, that
they often ‘hear the voices of their ancestors’. Yet this is sometimes construed by psychiatrists as
‘hearing voices’. A very high threshold is required for a person to be found ‘unfit to plea’. If
alcohol is present in the system then psychiatrists have been known to use that as the ‘reason’ (as
opposed to another cause of impairment unrelated to alcohol). Sometimes ITOs are revoked and
the report is no longer required, but in the meantime the person has been left waiting for their court
date.
There are many reasons for delays. The workload of psychiatrists at prison is excessive. Some
psychiatrists seem not to like/want to write the reports, and the fees are too low to be worth the while of
psychiatrists in private practice.
Most importantly there is no mechanism to enforce the making of the
report in the first place.
It is arguably unethical for a treating psychiatrist to make the report, because that is a conflict of
interest. However, available psychiatrists are few and insisting on a different psychiatrist would only
increase delays. A solution suggested by a legal advocate in Cairns is for the legislation to be
amended to allow a person to waive the need for the report in the first place. That person would enter
a plea (of guilty). Only about 1 in 30 is found unfit to plea anyway because the threshold is very high.
7. Other Problems with the Forensic System
If the s238 assessment determines that the person lacks capacity they are referred into the forensic
system.
At the Mental Health Court (‘MHC’) there is a presumption that the facts of the matter are
substantially correct. If the person wants to enter a plea of not guilty they must go through the usual
criminal justice process in a court of law. In the Mental Health Court there is no scrutiny of the facts,
and the focus instead is on a therapeutic jurisprudence. The person may be placed on a Forensic
Order (‘FO’) and detained 1. to receive treatment 2. to minimize risk to themselves and the community
or they may be placed on an order for Limited Community Treatment (‘LCT’). For the first 12 months a
person’s fitness for trial will be reviewed every 3 months.
Forensic Orders are reviewed hereafter
every 6 months in the Mental Health Review Tribunal.
People on Forensic Orders are being detained in forensic units and health care facilities when
community treatment is often a better option for both the person and for the community. While
detained a person’s living skills and their ability to function as law abiding citizens in the community
diminishes.
48
Case study One- Inappropriate detention
A forensic client was originally assessed as having an intellectual disability according to the
DSM4/ICD 10 and Disability Services Queensland ‘(SDQ’). He qualified for a support
package and community release. Recently he was reassessed at IQ 78 and was therefore no
longer eligible. DSQ withdrew the support funding that enabled him to live in the community.
His ‘risk’ (based on past offending behaviour) therefore required that he be confined in a
forensic unit.
Case Study Two- Situational offending- permanent branding
X has intellectual disability. At a church-related gathering he and an 8 year old girl were
invited to a secluded place by an older boy (without an intellectual disability). The older boy
directed him to expose himself, and the girl to touch the younger boy’s penis. The girl’s
parents complained to police.
This was the boy’s first and only offence. The risk to the
community from this young man with an intellectual disability is low, but he is now a registered
sex offender and detained in an institution.
What he needs is training in appropriate sexual behaviour. This is true for many offenders with
intellectual disabilities, who often come from dysfunctional backgrounds and who have learned
inappropriate behaviour from parents and peers. Detention in an institutional setting will cost
around $1500 per day and often rehabilitation is not provided. Community-based support may
be similar, depending on the arrangement, in the short term - around $600 k per year for full
support, much lower costs for less intensive support - but in the community setting he can
build capacity, and by building capacity will get to a point where he is no risk to the community
and no longer needs high level support.
8. Sentencing
There are insufficient sentencing alternatives and diversionary options for people that suffer from
impaired capacity, and this can result in people with disability being subject to unjust sentences and
being indefinitely incarcerated. This is costly both to the individual and the taxpayer.
Here in Brisbane Magistrate Christine Roney ran a trial of a ‘Special Circumstances Court’ from 20062012, an evaluation of which is available here: http://www.aija.org.au/online/Pub%20no90.pdf. 75
The
Special Circumstances Court was a local version of Victoria’s earlier (2002 onwards) Special
75
Dr Tamara Walsh. 2011. A Special Court for Special Cases. T CBierne School of Law, University of Queensland.
49
Circumstances Court established in 2002, and of other ‘problem-solving’ courts (e.g. ‘drug courts’,
‘neighbourhood justice courts’, ‘homelessness courts’) in the US.
The Special Circumstances Court was a special court list for defendants experiencing or at risk of
homelessness or who had impaired decision-making capacity. The list was administered within the
Brisbane Magistrates Court and was aimed at rehabilitating adult defendants who had committed low
level criminal offences. Each charge must have arisen in circumstances connected to the defendants
homelessness or impaired capacity. To be eligible defendants were required to plead guilty or to have
indicated a willingness to plead guilty to the offences as charged (Walsh p.2).
The Special Circumstances Court Diversion Program has been defunded, and no alternative is
available to Magistrates when sentencing a person they suspect may have impaired capacity through
mental illness, cognitive impairment or intellectual disability and this impairment is linked to their
committing the summary offence.
Case study:
Melissa Avery – QCA overturned decision to imprison her for minor offences because they
found that she did not have capacity to understand the charges, jail etc. Justice McMurdo in R
v AAM; ex parte A-G (Qld) [2010] QCA 305 in paragraph 9 noted ‘It seems unsatisfactory that
the laws of this State make no provision for the determination of the question of fitness to plead
to summary offences. It is well documented that mental illness is a common and growing
problem amongst those charged with criminal offences’
9. Problems Identified by Magistrates
1. There is no proper identification procedure in place to recognise people with intellectual
disability until they appear in court. The Duty Lawyer might pick that a person has an
intellectual disability, or they may not. Duty lawyers are constrained by operational limits. The
magistrate will try to do his or her own assessment of a person’s capacity but as one
Magistrate observed they generally do so with no special training or expertise. It is an off the
cuff assessment based on a single conversation at each appearance in court. Magistrates
may ask questions about the person’s living arrangements, financial support, and how he or
she manages his or her life. The magistrate may recognise intellectual disability or other
incapacity based on a person’s responses and demeanour, but no concrete screening exists.
50
Magistrates have the option to adjourn a matter for reassessment in 2-3 weeks times if the
duty lawyer has identified signs of intellectual disability or other incapacity. Some Magistrates,
however, will proceed even when the Duty Lawyer declines to take instructions because the
person is not able to meet the capacity standard set down in Presser. 76
One Magistrate said that he ‘practically adopted his own special circumstances court’ in cases where
penalty was not an option, and looked at offenders’ pressing basic needs for accommodation and
support. ‘Usually people commit property offences from need rather than greed ’. Anecdotal
evidence suggests that Magistrates will look at alternatives to the usual fine options, suspended
sentences, community service and jail, but there is very little available to them. One Magistrate said
that the options available varied enormously depending on geography. ‘In the city I have some - not
many - alternative sentencing options available to me. Out at Charleville? Nothing.’
Often it is clear to Magistrates that the prisoner lacks capacity and needs support rather than
incarceration, but sometimes a custodial sentence is the only option. They dare not disappoint social
expectations.

Case scenario – an offender stole a frozen chicken from a local butcher shop. He
then went to a local pub and asked them to cook the chicken for him. Management
kicked him out of the pub. He went to the local school - the one he attended as a boy.
He was caught by the police while eating the now thawed chicken- in front of students.
Police later arrested him for an exposure offence at a different location. The
Magistrate said he believed this was a case of complete lack of capacity but the
system did not allow him to recognise it as such. The Magistrate did not feel in a
position to simply ignore the offences, but nor did he want to issue any kind of punitive
or custodial sentence.
2. Expanding the Queensland Mental Health Court jurisdiction procedures to include summary
offences is a good way to circumvent the current artificial distinction between offences for
which punishment may be similar. While longer custodial sentences are not uncommon in
District and Supreme Courts, a Magistrate may impose up to three year custodial sentences
for summary offences.
3. Magistrates suggest a police proactive and preventive approach in dealing with people having
intellectual disability. The horse has bolted by the time a person appears in court.
Accommodation and support are more helpful for this cohort than custodial sentences.
76
R v Presser [1958] VR 45.
51
10. The Chapter 7 Part 2 Forensic Process
Queensland’s Mental Health Act 2000 (Qld) (‘MHA’) provides a diversion to the Mental Health Court
when people currently on Forensic Orders (‘FO’) or Intensive Treatment Orders (‘ITO’) are charged
with criminal offences. QAI submits that Chapter 7 Part 2 of the Mental Health Act 2000 (Qld) (‘MHA’)
as presently drafted and implemented, provides limited benefit to a person with mental illness who
comes into contact with the criminal justice system.
Current position
It is a basic principle of criminal law that a person of unsound mind at the time an offence was
committed should not be found criminally responsible for that offence. Chapter 7 Part 2 seeks to avoid
improper conviction by taking people who are subject to an ITO or forensic order out of the criminal
justice process so that their mental condition can properly be examined. It also provides a pathway for
people charged with a summary offence only to have their proceedings discontinued by the DPP.
Problems with Chapter 7 Part 2:

Chapter 7 Part 2 is mandatory for people on ITOs or forensic orders and therefore (some
would argue positively) discriminates against people with mental illness and intellectual
disability.

Chapter 7 Part 2 presumes incapacity, in breach of Article 12 of the CRPD which provides that
“State Parties shall recognise that persons with disabilities enjoy legal capacity on an equal
basis with others in all aspects of life”

The law already provides a defence for people who are of unsound mind or unfit for trial.
Chapter 7 Part 2 seeks to add a layer of protection, on the assumption that a person on an ITO
or forensic order is more likely to be found of unsound mind or unfit for trial. It does not capture
the many other people not on involuntary mental health orders who equally should not be held
criminally accountable for their actions. In those cases, a person is reliant on their legal
representation, the Attorney-General, the prosecution, the Director of Mental Health or the
courts to ensure that the matter is appropriately dealt with.

Chapter 7 Part 2 delays the progress of criminal proceedings. This is mainly due to the report
that must be prepared by a psychiatrist commenting on the person’s mental condition, known
as a “section 238 report”. The legislated timeframe for such a report is 21 days. In 2011-12,
this timeframe was only adhered to in 12% of matters. The vast majority (48%) was provided
between 43 and 180 days and an alarming 22% took more than 180 days. 77 This is despite the
77
Director of Mental Health, Annual report 2011-12
52
implementation of recommendations made by the Butler Report in 2006 to address this
problem.

Delay can have a significant adverse impact on the person charged by: increasing the time
held on remand (if bail is not granted), delaying treatment, and causing prolonged stress, all
which hinder recovery. Delay also impacts on victims, who have to wait an extended period of
time to obtain relief.

For simple and non-violent offences in particular, this delay is unacceptable.
11. Rethinking Chapter 7 Part 2
While Chapter 7 Part 2 provides some measure of protection for people with mental illness, it is not
available to all people who have mental illness. Further, its costs, both to the system and to the
individual, may outweigh its benefits.
In 2011-12, 1106 referrals were made under Chapter 7 Part 2: 968 to the DPP and 138 to the Mental
Health Court78. No statistics are provided as to the outcome of these references. However, we can
discern that the large majority of matters (87.5%) relate to summary and non-serious offences, the
category of offences which should be dealt with the most expediently.
Any reconsideration of Chapter 7 Part 2 provisions must draw a distinction between serious indictable
offences, non-serious indictable matters, and summary offences.
Serious indictable offences
For serious indictable offences, the purpose of the Chapter 7 Part 2 process would appear to be to
speed referral to the Mental Health Court in appropriate cases, rather than rely on the patient’s lawyer
or others to make that referral. Given the delay in most s 238 reports, referral is hardly speedy.
Further, the Chapter 7 Part 2 process does not capture the majority of persons who should be referred
to the Mental Health Court. The Mental Health Court’s annual report for 2011-12 recorded 217
references: 92 from the DMH and 107 from the person’s legal representative.
There are added safeguards for persons charged with serious indictable offences:

A person charged with a serious offence is more likely to have legal representation, either
through Legal Aid or through their own private lawyer;

A person charged with a serious offence is subject to more careful scrutiny by the courts, the
prosecution and the treating team (if any) who can also make a reference to the Mental Health
Court, even if the person’s lawyer fails to do so.
78
Director of Mental Health, Annual report 2011-12 Cf. Mental Health Court Annual Report 2011-12 which records 92 references
lodged by DMH
53

There are processes under the Criminal Code (eg, s 613) available to persons subject to
indictable offences to argue unsoundness of mind or unfitness for trial, which are not available
to persons charged with summary offences.

The value of the Section 238 report is likely be superseded by subsequent reports organised
by the parties or ordered by the Mental Health Court necessary to make a full and proper
determination at the Mental Health Court.
It is therefore submitted that the Chapter 7 Part 2 process for serious indictable offences is
unnecessary and provides little benefit for the person charged. At the very least, Chapter 7 Part 2 for
serious indictable offences should be by election.
Non-serious indictable matters
Chapter 7 Part 2 provides an opportunity for the DMH to refer matters “not of a serious nature, having
regard to any damage, injury or loss caused” to the DPP for discontinuance (s 240(4)(a)). There is
nothing to prevent the DPP from discontinuing proceedings outside of the Chapter 7 Part 2, nor does it
prevent the person’s lawyer or other party from referring the matter to the Mental Health Court.
While there is clear benefit in the Chapter 7 Part 2 process for this category of matters, the benefit is
diminished due to the delay in preparing section 238 reports. It is also not available to people with
mental illness who are not under an involuntary order.
A distinction needs to be made between non-serious and non-violent offences. A person may be
subject of a serious matter, for example, fraud, but have not aspect of violence.
Options for reform9. Allow Chapter 7 Part 2 to be by election. To cater for people who do not have capacity to
make such a decision, there could be an opt out clause, a requirement that such a person
have legal representation and/or power of the Courts to refer a matter to Chapter 7 Part 2.
10. Allow Chapter 7 Part 2 to be available to all people who wish to rely upon a defence of
unsoundness of mind or unfitness for trial.
11. Given the lack of severity of the offence, allow section 238 reports to be prepared by someone
with sufficient experience and training, but not necessarily a consultant psychiatrist.
12. Better collection of data and data transparency in relation to the preparation of section 238
reports, leading to increased public scrutiny, improved analysis of reasons for delay and
improved strategies to address delay.
13. Amendments which will encourage a change in the culture of acceptance that section 238
reports will not be provided within the stipulated timeframe of 21 days. For example, penalties
or incentives.
54
14. Establish a diversion and support program which can help a person who is not guilty by reason
of impaired capacity to access treatment and avoid entrenchment in the criminal justice
system.
12. Summary matters
Under Chapter 7 Part 2, summary matters can only be referred to the DPP for continuance or
discontinuance according to law. The Chapter 7 Part 2 process exists to provide the DPP with sufficient
information to make its decision.
Without Chapter 7 Part 2, a person would need to rely on common law at the Magistrates Court to have
the matter discharged on the basis of unsound mind or unfitness for trial. 79 This gap in statutory law
was identified by the Court of Appeal in R v AAM; ex parte Attorney-General of Queensland [2010]
QCA 305.
A person not under an involuntary order is not availed the protection of Chapter 7 Part 2. It is also the
most important that this category of matters be dealt with the most quickly.
The reform options suggested for non-serious indictable matters are even more relevant to summary
offences. In addition, reform could include:
1. Amending the Justices Act 1886 (Qld) or some other Act to provide for the determination of
summary offences where a person is unfit for trial or was of unsound mind.
2. Dispensing with section 241 which allows the Director of Mental Health to defer reference for
up to 4 months if the DMH believes that the person is likely to be fit for trial after that period.
…………………..
79
See Legal Aid Queensland, Criminal Law Duty Lawyer Handbook, Chapter 14, p 209
55
Appendix-
QAI comments on proposed Queensland amendments the The Disability
Services (Restrictive Practices) and Other Legislation Amendment Bill 2013
1. Executive Summary of Recommendations
2. Caveat if amendments go through as proposed
3. About Queensland Advocacy Incorporated
4. About QAI’s Human Rights Legal Service
5. A Case Study
6. Detailed Submission
 Introduction – QAI’s Position
 Timing of statement about use of restrictive practices: (Clause 31)
 Duration of Short Term Approval Orders
 Principles - Clause 7
 Meaning of ‘Chemical Restraint’ - Clause 9
 Plans - Clause 13
 Immunity - Clauses 17, 22 & 24
 Decision maker
 Reporting, monitoring and data collection - Clause 36
 Length of guardian appointment by QCAT- Clause 43
 Transition to new service provider: no presumption - Clause 47
56
1. Executive Summary of Recommendations
1. Remove immunity provisions: QAI is opposed to the extended immunity
created by clauses 17, 22 &24. The common law doctrine of necessity and
workplace health and safety legislation provide sufficient protection to service
providers .
2. Timing of statement about use of restrictive practices: (Clause 31) The
statement is a crucial safeguard - in the case of the Clause 17, 22 & 24
applications for the use of restrictive practices as proposed the statement is likely
to be the only safeguard - and therefore must be provided to the interested
person and to the adult at the same time as lodgement of the application to use
the restrictive practices.
3. The definition of chemical restraint as proposed in Clause 9 is unclear. It
should be reassessed and made more specific. The phrase “using medication
[..to ] enable a single instance of health care” could be interpreted widely,
resulting in unnecessary and or illegal chemical restraint.
4. Reporting, monitoring and quality analysis of plans and practices is
essential to reducing Restrictive Practices. The Clause 36 provisions should be
specific in mandating that plans and practices are reported and assessed for
quality against best practice benchmarks. De-identified information should then
be made public. Data collection and reporting provides opportunities for the
Centre of Excellence for Behaviour Support to monitor plans and practice with a
mandate to provide ongoing training and assistance to service providers. Those
service providers who consistently fail to reduce the use of restrictive practices
must be required to undertake such training and provide evidence of improved
outcomes. Should the desired reduction in the use of restrictive practices not be
forthcoming this should prompt a review of the service provider.
5. Free legal representation. Every person subject to restrictive practices should
have access to free legal representation. Many uses of restrictive practices are
almost criminal or tortious wrongs such as assault or false imprisonment, and are
often experienced as such despite legislative authorisation. QAI proposes that
the amendments include a provision similar to ss 426 (3) & (4) of the Mental
Health Act 2000 (Qld) (‘MHA’) that mandate representation in Tribunal
proceedings, and that an adult’s lawyer may visit them at any time.80
MHA – s 426 (3) If the court makes a confidentiality order for a person, the court must—(a) disclose the
information or matters to the person’s lawyer or agent; and(b) give written reasons for the order to the lawyer or
agent. (4) If the person is not represented at the hearing of the proceeding by a lawyer or agent, the court must
ensure alawyer or agent is appointed for subsection (3).
S 347 (2) A legal or other adviser for an involuntary patient in an authorised mental health service may, at any
reasonable time of the day or night, visit the patient.
80
57
6. Effective plan implementation. We urge the Committee to include an additional
amendment that guarantees oversight that ensures plans are not just created but
actually put into effect. 81 Simplifying plans is a start; as is strengthening the
Community Visitor Program, in-service training82 of support staff and guardians,
and plan monitoring.
7. Decision Makers. Justice Carter recommended that all decision for the use of
restrictive practices be made the by Tribunal (referring to the Guardian and
Administration Tribunal – now Queensland Civil and Administrative Tribunal (QCAT).
QAI asks that the Committee agrees that the Decision Maker regarding the approval
of all use of Restrictive Practices be QCAT.
Given the concerns regarding the overburden of the Office of the Adult Guardian,
capacity of individual guardians to make wise and informed decisions, and the
propensity for the Chief Executive to be held to ransom by some service providers, we
believe that QCAT is the most appropriate, the most independent and most effective
venue for making such decisions about such a serious and important matter in the
most timely fashion. This recommendation goes in hand with our position that once
decisions are independent and timely there is no need to extend or approve proposed
immunity amendments.
8. Prior use of a restrictive practice does not justify continued use by a new
service provider. Clause 47 would allow a service provider not currently
providing disability services to a person to be approved to use seclusion and
containment. Any perceived instance of challenging behaviour is not innate to a
person or who they are; it is the manifestation of a communication by a person in
response to events, issues and or surroundings. Given the circumstantial nature
of challenging behaviour, no new service provider or decision maker should act
on a presumption that prior restrictive practices are appropriate in a new
environment with new support staff.
9. Duration of Short Term Approval Orders.
Short Term Approvals are for emergency and interim provisions for “exceptional
circumstances” described as when there is a new service provider or a person moves
location.
81
Endeavour Foundation clinician Mr Colin Naylor at the Public Hearing before the Health and Community
Services Committee repeatedly emphasized that “ It is not actually about the revision of the plan; it is about
making sure that the original plan that has been drafted—the strategies, recommendations and changes to the
environment et cetera—has been implemented so the behaviours that you are talking about start to decrease. It is
not really about the revision period. [..] it is about making sure that the strategies [..] are being implemented at the
coalface. (transcript p 4-5)
82 Singh, N., Lancioni, G., Winton, A., Singh, A., Adkins, A. and Singh, J. (2009) “Mindful Staff Can Reduce the
Use of Physical Restraint When Providing Care to Individuals with Intellectual Disabilities” Journal of Applied
Research in Intellectual Disabilities, 22: 194-202- These researchers explored how and why alternative
approaches to behaviour management could decrease the use of physical restraints. Their study indicates that
mindfulness training could decrease the use of restraints in service. This decrease may be related to the ways that
staff interact with people with an intellectual disability after training. Specifically, the study suggested that staff who
underwent mindfulness training were less likely to have interactions with consumers that prompted
aggressive outbursts, and as a result, the need to use restrictive interventions was decreased.
58
In 2010 amendments to the term of orders were made in order to allow time for
service providers “to conduct assessments for the adult, develop a positive behaviour
support plan and obtain consent/approval from the relevant decision-maker under the
full-scheme requirements”.( see the explanatory memorandum to the Criminal History
Screening Legislation Amendment Bill 2010 cl 214, which amended s 80ZH. ) “The
actual period for the short-term approval will be made by the relevant decision-maker
on a case by case basis. All other conditions for a short-term approval, which are
aimed at safeguarding the individual, will remain.”83
Given that the proposed amendments will herald developments of Positive Behaviour
Support Plans for all people with disability who exhibit challenging behaviours, and
our recommendation that QCAT be the timely and independent decision maker (as
per Justice Carter’s recommendation) which would negate the complaint about the
delay in decisions, there is no justification for the duration of Short Term Approvals to
remain at 6 months. We therefore propose that the Amendments include a
revocation of the amendment of 2010 and return the duration of these orders
back to their original 3 month term. To quote the explanatory memorandum which
is headed ‘Consistency with Fundamental Legislative Principles’) that the extension
“may be considered to have insufficient regard to the rights and liberties of individuals
[in accordance with the] Legislative Standards Act 1992, section 4(2)(a)84.” Again it
states that the actual period for short-term approval “will be made by the relevant
decision-maker (either the Adult Guardian or Chief Executive, Department of
Communities, depending on the restrictive practice), on a case by case basis, and
based on legislative criteria.”85 This guideline appears to not have become standard
practice in recent times.
Further to this proposal we emphatically counsel the Health and Community Services
Committee to include further Amendments to ensure that no consecutive short term
orders are made as this negates the intent of these orders for interim and emergency
circumstances only.
83
Criminal History Screening Legislation Amendment Bill 2010
Ibid
85
Ibid
84
59
2. About Queensland Advocacy Incorporated
Queensland Advocacy Incorporated (‘QAI') is an independent, community-based organization
providing systemic and individual legal advocacy to people with disabilities. Our mission is to
promote and protect the fundamental rights of people with disabilities, extending beyond the
defence of civil and political rights to the defence of rights without a legal foundation, including
rights to self-respect and dignity. Our organisation has specialist expertise in advocacy for
people who live under the application of restrictive practices.
We hold ourselves to account by including people with disability as paid staff, in our
membership, and in key board positions. Board members have experience in advocacy,
institutional living, community legal services, private legal practice, legal aid, accountancy and
community work. QAI is a member of the national Disability Advocacy Network of Australia
(DANA) and Combined Advocacy Groups Qld (CAGQ). We endorse and endeavour to
uphold the UN Convention on the Rights of Persons with Disabilities.
3. About QAI’s Human Rights Legal Service
QAI’s Human Rights Legal Service (HRLS) provides specialist legal advice, representation
and referral for vulnerable persons with disability in Queensland. The work of the HRLS is
guided by a human rights framework which aims to protect and promote the fundamental
human rights of HRLS clients. QAI is uniquely placed to comment on the Bill because we
represent people who are or who have been subject to restrictive practices. We have done
so since the Carter driven reforms to the Disability Services Act 2006 and the Guardianship
and Administration Act 2000 in 2008. QAI’s relationships with those people subject to the
use of restrictive practices has allowed us particular insight into the negative connotations of
their use - from honest missteps to serious abuses with tragic consequences. The following
vignette is a real life example of such consequences.
4. Case Study
60
The lived experience of a young man who has been a client of QAI serves as a litmus test for
the post-Carter reforms. This man endured prolonged and unnecessary periods of
containment, seclusion and the use of other restrictive practices. He would never have had
this experience, if a positive support framework had been used. However his attempts at
communication and the effects of his oppressive accommodation environment were
considered to be ‘challenging behaviours’ and he was eventually labelled as ‘dangerous’ and
treated as such by service providers, clinicians and funding bodies.
The service provider strongly advocated that restrictive practices were the only way to
‘manage this man’, to keep him and the community safe. The service provider and the
Department of Communities claimed this use was the last resort and least restrictive.
However limited concerted effort to determine the validity of the assertion of the need for the
use of these practices or to implement alternative or positive strategies was undertaken.
Of interest is that these ‘challenging behaviours’ most often occurred in his accommodation
environment or when he had to return to it after ‘leave’. Anecdotally from his supporters they
never experienced any such difficulties when he was with them.
Through determined family support and legal advocacy this young man was moved into his
own house, where he is now an active member of the community and has set up a small parttime business. However even this process was challenged by the previous service provider
and the Department of Communities, Child Safety and Disability Services (The Department),
as the new service provider did not propose to use restrictive practices. Concerns stated
were that he was a risk to the community and he could only be managed through restrictive
practices, in particular 24 hour containment and regular seclusion. Of note is that the new
service provider has not at any time seen the need for the use of any form of restrictive
practice.
This man’s story demonstrates that the current legal framework fails to adequately meet its
stated purpose to ‘protect the rights of adults with intellectual or cognitive disability’ or to
ensure ‘transparency and accountability in the use of restrictive practices’.
Our inclusion of this case study is to assist the Committee to understand QAI’s trepidations
that the proposed amendments for immunity will allow the service provider to assert the need
for the use of restrictive practices (as the last resort and the least restrictive) without any
onus of proof.
Further his story illustrates that once a reputation is established be it authentic or not, the
process set in place gains momentum and service providers, Positive Behaviour Support Plan
(PBSP) writers, QCAT and the Department reinforce erroneous misconceptions about people
indefinitely. Statutory bodies, government departments and service providers have a rightful
place in supporting vulnerable people with disability but their role is not to oppress or imprison
them because of their perceived challenges. This Bill presents opportunities to prevent other
people from having similar experiences. It should be noted that this client’s experience are
not unique.
Guaranteeing that support and every decision about that support is open to scrutiny, and that
third parties including family members, Community Visitors, advocates and legal services
have access to expeditious processes by which they can challenge those acts and decisions
will safeguard and protect people from serious abuse and or harm This aligns with the
protective measures as stated in the intent of the Bill.
61
5. Detailed Submissions
Introduction and QAI Position
The Disability Services (Restrictive Practices) and Other Legislation Amendment Bill 2013
arose from a joint review by the Department of Communities, Child Safety and Disability
Services and the Department of Justice and Attorney‐General into the regulation of restrictive
practices under the Disability Services Act 2006 (DSA) and the Guardianship and
Administration Act 2000 (GAA).
The use of restrictive practices is a serious encroachment on a person’s human rights, and
therefore they should only ever be used as an extreme last resort, be the least restrictive,
have suitable safeguards and be subject to stringent monitoring and oversight. Anything less
is inconsistent with the exemplar created by the Convention on the Rights of Person with
Disabilities (CRPD) that people with disability have the same rights as everyone else. These
rights should not be arbitrarily transgressed as the Bill proposes, rather member States have
positive obligations to promote, protect and ensure these rights.
Moreover, service providers should have a broad range of resources and strategies of
support that must be exhausted before considering such serious measures as applying to use
restrictive practices upon a person. Any easing of the current prescriptions demeans and
diminishes the serious nature of the use of such restrictions and compounds the risks to
vulnerable people with disability.
There is a very real risk that the Bill will lessen the safeguards found in the current legislative
framework of the Disability Services Act (DSA) and the Guardianship Administration Act
(GAA), resulting in the rights of those subject to restrictive practices being violated; in
particular the right to liberty and security and the right not to be subject to cruel, inhuman or
degrading treatment or punishment.
People with disability who live under the application of restrictive practices are powerless.
The proposed amendments in particular clauses 17, 22, and 24 would bestow yet more
power to those who wield power over vulnerable people despite their purported objective of
support.
The Proposed Amendments to the Bill
QAI commends some proposed measures in the draft bill such as the following:

Statement of rights – clause 31 (s123ZZCA) and clause 37 (s325) the requirement that
service providers provide a statement to the adult about the use of restrictive practices,
transitional provision retrospective aspect of giving statement.

Including principles for providing disability services –clause 7 (s123CA)

Data collection/reporting obligations- 36 (s123ZZJ)

Increased emphasis on training - clause32 (s123ZZDA

the broadening of the use of Positive Behaviour Support Plans (BSPs); and Introducing
Model Positive Behaviour Support Plans –clause 8

Improved definitions and examples (clauses 8, 9, 10 &11)
62

reduction of prescriptive requirements – clause 13 (s123L)
However, QAI strongly opposes measures that subordinate basic human rights to
administrative convenience, including,

immunity provisions that would authorize up to 30 days use of restrictive practices by the
lodging of a form; Clauses 17(s123OA), 22 (s123ZCA), 24(s123ZDA)

the extension of guardianship appointments for up to 2 years; clause 43

the validation of the continued use of seclusion or containment by a new service provider
clauses 47 & 48
Preamble:
Historical lessons ground the current restrictive practices legislative framework. The Stewart
Inquiry 86 and the Carter Report 87 were triggered by proven abuses at places like Basil
Stafford and the Challinor Centre. Without legislative protection people with intellectual or
cognitive disabilities are vulnerable to cost-cutting expediency, rogue support workers and
poor organisational policy and practices.
The people for whom this legislation was written may not be able to express their own wishes
or their displeasure, argue their own case or physically defend themselves from unwanted
physical advances or restraints. Their position vis-à-vis service providers are subordinate.
Amendments to this legislation should always default to the interests of the adults for whom it
was originally framed, or run the peril of more deaths and injuries to vulnerable people.
Communication:
Many adults with intellectual or cognitive disabilities communicate differently because they
are non-verbal or have limited verbal skills or difficulty in expressing or understanding their
emotions. So-called ‘challenging behaviour’ may be one of the only forms of self-expression
available to the person: their way of saying ‘This is what I want’, ‘I am in pain’ ‘I don’t like
what you are doing’, or are communicating their distress about previous incidents or issues.
Often this behaviour is interpreted out of context and is presumed to be unprovoked
aggression, demanding seclusion and or containment or restraint.
Contrary to conventional wisdom, however, the use of restrictive practices can compound
problems with both support and a person’s responses.. The research of Carr88 and of
McLean and Grey89 shows that reduction in the use of physical restraint will reduce
86
Criminal Justice Commission. 1995. Report of an Inquiry Conducted by the Honourable D G Stewart into
Allegations of Official Misconduct at the Basil Stafford Centre.
87 Hon W.J. Carter Q.C. 2006. Challenging Behaviour And Disability- A Targeted Response.
88 Carr, E. G., Horner, R. H., Turnbull, A. P., Marquis, J. G., Magito- McLauglin, D., McAtee, M. L., Braddock,
D. (Eds.). (1999). Positive behaviour support for people with developmental disabilities: A research synthesis.
Washington, DC: American Association on Mental Retardation.
89 Grey I. M., Hastings R. P. & McLean B. (2007) ‘Staff training &challenging behaviour’ in Journal of Applied
Research in Intellectual Disabilities. 20, 1. & Grey I. M. & McLean B. (2007) Service user outcomes of
staff training in positive behaviour support using person-focused training: a control group study in Journal of
Applied Research in Intellectual Disabilities, 20, 6–15.
63
behaviours of concern. As the use of restrictive practices are reduced and or eliminated there
is a parallel reduction in workplace injuries.
It is widely understood (QAI always starts with this presumption) that understanding a
person’s behaviour begins by knowing their experiences and how they are being treated. The
solution to the reduction of that behaviour also lies in enhancing life experiences and in how
they are supported. All citizens should expect that legislative amendments would always aim
first to safeguard the person’s basic rights, safeguard those around them, and only then
ensure operational efficiency.
Restrictive practices should be a last resort:
They should be applied only after every other reasonable resource or strategy available to
supporters has been tried, should be the least restrictive alternative, and only used to prevent
harm to the adult or others.
“Many deaths of both adults and children have occurred in relation to the use of restrictive
practices: Asphyxia and cardiac complications ensuing from the use of restraint are the most
frequently reported causes of death. Researchers have also recognised the negative effect of
restrictive practices on well-being and quality of life of people who have disabilities (Sigafoos,
Arthur, & O’Reilly, 2003; Singh, Lloyd, & Kendall, 1990) as restraint or seclusion often lead to
reduced opportunity to engage in daily activities, fewer social opportunities, and social
isolation. There is also evidence that restrictive practices can place those implementing them
at risk of both physical and psychological harm. Furthermore, restrictive practices can
adversely affect the therapeutic relationship between client and clinician. In many cases, the
decision to use restriction is made in the absence of adequate consideration of psychological
interventions that might mitigate their use.”90
Reduction or Elimination in the Use of Restrictive Practices:
The Council of Australian Governments is developing a National Framework for Reducing the
Use of Restrictive Practices. The framework will provide nationally consistent overarching
principles and strategies to guide future work in the reduction of the use of restrictive
practices. The extension of immunity as proposed appears to be in direct conflict with this
framework
In QAI’s view restrictive practices used as proposed by the Bill would arguably be
discriminatory as we are not aware of any other situation where an adult member of the
community is subjected to restraint, containment or other restrictive interventions without due
process.
90
Evidence-based guidelines to reduce the need for restrictive practices in the disability sector The Australian
Psychological Society Ltd. 2011
64
Principles: Clause 7
This clause provides the principles for service delivery. Missing from those principles is that
every adult has the capacity to change. We should not presume a single instance of
behaviour characterises the whole person. While we support the inclusion of these principles
we do not support the adverse descriptive statement:
‘This section applies … if the adult’s behaviour causes harm to the adult or others.’
We never know that a person’s behaviour causes harm to themselves or others; only whether
it has caused harm themselves or to others People’s perceptions of the adult are critical to
how that adult is treated, and critical to their chances of living free of restrictive practices.
The legislation should not perpetuate the misconception that every adult subject to restrictive
practices is ‘an adult whose behaviour causes harm to the adult or others’. Nor is such a
characterization factually correct. Many of these adults have only once caused harm, and
even then only in a way peculiar to a particular time and place.
We know in the vignette we provide in this submission, that it was the perception that our
client ‘causes harm to others’ that kept him locked up for years- and yet that same man has
now lived without containment for more than a year without any such harm befalling himself
or any other.
Meaning of ‘Chemical Restraint’: Clause 9
The meaning of the phrase ‘using medication [..to] enable a single instance of health care’
(emphasis ours) is open to broad interpretation. ‘Enable’ (-ing) in the dental example given
could include sedation considerably before and after treatment prescribed by a medical
practitioner but administered by the service provider. We propose that this wording is
reconsidered and that specific conditions are stipulated to prevent circumstances as
described.
Plans: Clause 13
We maximise the protection that we provide to people by seeing that (a) their quality of life is
enhanced; and (b) that they are in a position where they are able to independently or with
support have their needs met in an effective way. The plan must never lose site of the goal that is, a reduction in the future need for restrictive interventions.
QAI supports the proposed reduction in legislative requirements for PBSPs. In addition we
believe this section should include provision for:
1.
2.
3.
4.
5.
an executive summary,
reduction strategies,
early warning signs and triggers
safeguards that must be taken while the restrictive practice is in use; and
timeframes for review.
65
It is crucial that the Plan has stated goals with time frames, strategies for implementation and
desired outcomes. The purpose of the Plan is to guide support staff towards a reduction and
elimination of triggers and responses that become behaviours of concern. The strategies
employed assist the person towards an increase of replacement skills. Baseline
requirements for PBSPs are included in the Australian Psychological Society’s ‘Minimum
Standards for a Positive Behaviour Support Plan’. 91
Goal summary: The legislation should mandate an executive summary of goals. The
summary should include a description of how effective the support strategies are in the
present, and reflect an accurate description at the end of the timeline. Plans tend to be an
accumulation of much data and are broadly written, making it difficult to identify future actions,
namely the (action) Plan itself. .
Immunity provisions: Clauses 17, 22 & 24
When the restrictive practice framework was introduced in 2008 service providers were given
an extended immunity- a transitional arrangement that was phased out on 31 March 2011.
Restoring immunity for administrative convenience or to relieve resource burdens is an
offence to the rights of those subject to these practices. The focus of change should be on
administrative reform, not on punishing the adult, which is effectively what these clauses do.
The Bill as it is proposed defeats one of the objectives for its introduction- enhancing the
protections for the adult subject to restrictive practices.
The Explanatory Notes state these clauses are in part a response to service provider
concerns about delays in obtaining approval to use restrictive practices. According to Ms
Claire O’Connor, delays occur because:



the decision maker may need further information;
the decision-maker may need to seek further professional advice; or
there is a backlog of applications in, for example, in the Adult Guardian’s office.92
Service providers currently have immunity from civil or criminal liability if they use restrictive
practices in accordance with the approval or consent, a positive behaviour support plan,
providing they act honestly and without negligence. 93QAI acknowledges the concerns
expressed by service providers about the consequences of not receiving timely approvals.
QAI also recognises the status quo must change, but this change should not be to the
detriment of the rights of those subject to restrictive practices.
Therefore it is important that the current legislative impetus to reduce the use of restrictive
practices is not weakened, rather strengthened. The proposed immunity provisions are
permissive and therefore have a retroactive and weakening effect on the protection that the
current legislative framework affords to those who are subject to restrictive practices. Such
an approach is contrary to the recommendations of the Carter report and indeed the intent of
the legislation itself. They are permissive because there effect is to allow a service provider
91
The minimum BSP requirements are set out in Appendix B of Budisilek et al . 2011. Evidence based guidelines
to reduce the need for restrictive practices in the disability sector. APS.
92 Claire O’Connor in Hansard - Health And Community Services Committee Public Briefing—Disability Services
(Restrictive Practices) And Other Legislation Amendment Bill 2013, Transcript Of Proceedings. Thursday, 5
December 2013 Brisbane, page 8.
93
Disability Services Act 2006 (Qld) ss 123ZZB, 123ZZC
66
to use restrictive practices with immunity from civil or criminal liability for up to 30 days,
without consent, whilst waiting an approval from either the Adult Guardian or Chief
Executive of Disabilities. Ostensibly these amendments are for reasons of administrative
convenience and resource constraints and are responsive to the perceived needs of service
providers. As such they fail to either adequately protect the rights of or enhance safeguards to
those adults subject to restrictive practices.
Of particular concern is clause 17 because this clause allows a service provider to detain a
person without an order or independent scrutiny which conflicts with our system of law and
justice and is disproportionate with Queensland ‘s (and Australia more widely) human rights
obligations.
It is important to recognise that to date no service provider has been prosecuted even when
the use of restrictive practices has not been approved. Therefore the lobbying for this
extension of immunity provisions is overstated and is not necessary, and has serious
implications for the person at the heart of this legislation.
During the public hearing on 17 December 2014 Dr Douglas MP asked the QAI
representatives the following question: ‘If the immunity provisions are not reasonable, no-one
will look after these people. Are you aware of that?’94
We now respond with these points for your information and consideration:

These are not people who have committed a crime, yet we are considering measures
that deprive people of basic freedoms.
In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27-28,, Brennan,
Deane and Dawson JJ saidputting to one side the power of the legislature to punish for contempt and of
military tribunals to punish for breach of military discipline, and the exceptional
cases of mental illness or infectious disease which are non-punitive in character,
involuntary detention of a citizen in the custody of the State is penal or punitive
in character.
In Kable v DPP (NSW) (1996) 189 CLR 1, 55, Gummow J cited the remarks of
Gaudron J in Chu Kheng Lim:Detention in custody in circumstances not involving some breach of the criminal law
and not coming within well accepted categories of the kind (referred to above) is
offensive to ordinary notions of what is involved in a just society.
94

Adults with cognitive or intellectual disabilities are entitled to due process like any
other. The Mental Health Act 2000 and criminal procedure require process and
scrutiny before providing immunity to medical and law enforcement officers.

In answer to the question raised by Dr Douglas, should a service provider be unable
to deliver the support as required, and threaten relinquishment of the person, there
At the public hearing before the Health and Community Services Committee on 17 December 2013 .
67
should be a review of the appropriateness of their appointment and another service
provider sought rather than acquiescence to the request for the use of restrictive
practices.

No service provider has been prosecuted for the use of restrictive practices whether
they have been approved or not.
We ask committee members to consider how similar immunity provisions could apply to loved
ones, be they children or elderly parents. Would you agree for your loved ones to be
supported by people against whom they had no remedy if assaulted? In our view there must
some form of legal recourse for vulnerable people who are at the control and whim of others
purported to be charged with their support and care.
Summary of QAI’s Immunity Objections:






The proposed extended immunity is unnecessary, forgoing the liberty and the quality
of life of people with disability so that service providers can be secure against
litigation, and so that the relevant decision maker has more time to make a decision.
They are a retrograde step - a return to a more permissive approach to the use of
restrictive practices.
Rights to civil and criminal remedies for assault, false imprisonment and so on are
fundamental to citizenship; and it is discriminatory to deny people with disabilities
those rights.
The common law Doctrine of Necessity 95 and workplace health and safety legislation
already offer workers and service providers protections.
No other state or territory provides legislated immunity without scrutiny.
Immunity without conditions is not consistent with the proposed new purposes of Part
10A stated in Clause 5. These purposes include regulating the use of restrictive
practices in a way that(a) ‘has regard to the human rights of those adults; and
(b) ‘ ensures transparency and accountability in the use of restrictive
practices’
95
The common law Doctrine of Necessity is set out in Re A (Children) (conjoined twins: surgical separation) [2000]
4 All ER 961 at 1052. It has three conditions:
1 the act in question is needed to avoid inevitable and irreparable evil;
2 no more should be done than is reasonably necessary for the purpose to be achieved;
3 the evil inflicted must not be disproportionate to the evil avoid.
Emergency care workers can provide care to a patient where it is necessary to:
(a) save the patient’s life, or
(b) prevent serious damage to the patient’s health, or
(c) prevent the patient from suffering or continuing to suffer significant pain or distress.
The Doctrine applies outside of emergency or life-saving treatment where a patient requires care but is unable to
give consent: for instance, where there is a necessity to act when it is not possible to communicate with the
patient, and where the action taken is reasonable in all the circumstances and is undertaken in the best interests o
the patient irrespective of the cause of their inability to give or refuse consent for treatment. If these conditions are
met then no legal action should arise as a result of treatment and/or transport being undertaken without the
patient’s permission.
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



Pursuant to Clause 17, a service provider may apply to use any form of containment
or seclusion specified on a plan which they may themselves have devised, and
knowing that they may apply that practice without further justification for 30 days.
It appears that a service provider may make consecutive 30 day applications.
Allow a service provider to use restrictive practices simply by lodging an application
with the Adult Guardian or Chief Executive
Suspend fundamental legal protections available to all other citizens.
QAI recommends that rather than extend existing immunity, the decision maker should be
mandated under legislation to make a decision with 48 hours of receiving an application on
whether or not to approve an interim use of restrictive practices. The length of this ‘interim
order’ should be no longer than 30 days and be conditional that any further information
required should be provided within a specified period (7 days). Prior to the end of the 30
days, or on receiving this additional information the decision maker either revokes the interim
order or makes a short term order. The duration of any interim order should be considered as
part of the duration of any subsequent short term order.
Such an approach ensures consideration by the decision maker as to the appropriateness of
the restrictive practices allows the service provider to use the restrictive practice without fear
of civil/criminal liability and provides for collection of additional information.
Decision maker:
The administrative reasoning behind the need for immunity is based on purported delays in
decision making, the quality of decisions and conflicts raised about the relationships between
the Department and service providers.
Concerns have been raised regarding overburdening on the Office of the Adult Guardian and
the capacity of individual guardians to make wise and informed decisions. Anecdotal
evidence to hand has highlighted a propensity for some service providers to hold the Chief
Executive to ransom.
Justice Carter recommended that all decisions for the use of restrictive practices be made the
by Tribunal (referring to the Guardian and Administration Tribunal – now Queensland Civil
and Administrative Tribunal (QCAT). We support Carter J’s recommendation that
emergency, interim and longer term approval for both plans and restrictive practices should
go to the Tribunal. Carter J suggested that a plan requires the approval of GAAT, and the
application for approval by the service provider will require the submission of material in
support of the use of the restrictive practices sought as part of the plan; the jurisdiction of
GAAT can be accessed in an emergency and should include the power to make an interim
order.96
Therefore a competent and neutral third party would be the most appropriate, and effective
instrument for making decisions about such a serious and important matter delivered in the
timeliest fashion. We believe that QCAT fulfils this obligation.
96
Hon W.J. Carter Q.C. 2006. Challenging Behaviour And Disability- A Targeted Response. p 153.
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This recommendation goes in hand with our position that once decisions are independent and
timely there is no need to extend or approve proposed immunity amendments.
Monitoring and Data Collection - Clause 36
We support this amendment with the following riders.

There must be more transparency. De-identified data should be placed in an
accessible register to facilitate a better understanding of strategies.
 Information should not lie with the Department of Communities but with an
independent body such as the Centre of Excellence.
 The language of the bill at 123ZZK should be mandatory, that is ‘must’ (not give).
De-identified information should be publically available so that anyone can make informed
judgements about what works and what does not. Plans should be audited for quality so that
we can identify which strategies work and which do not. Victorian research mandated by
their legislation includes the collection and analysis of data on positive behaviour support.
That research shows that there is a clear relationship between the quality of plans and the
reduction of restraint and seclusion.97
Increasing the length of guardian appointment - Clause 43
This clause refers to the length of time QCAT can appoint a restrictive practices guardian.
This amendment is proposed in response to service provides concerns about the resource
intensive nature of the process for appointing and reviewing the appointment of a restrictive
practice guardian. Service providers state this diverts resources from care of clients.
From QAI’s experience we fail to see how the review of a restrictive practice guardian is in
any way resource intensive for the service provider. The only time it may be is when service
providers challenge the appointment of a particular guardian, usually family members. Often
these reviews are held on the papers, which are preceded by a written request from QCAT to
comment on the appropriateness of the guardian.
QAI is opposed to this amendment on the following grounds:

Implied presumption that restrictive practices are required for two (2) years,

Increasing the length of appointment from one to two years provides no direct or
positive benefit to the adult.

There is a real possibility due to the effect of Clauses 13 & 29 that the restrictive
practices guardian access to information may be diminished.

The amendment is for administrative and resources convenience.
According to Dr Lynne Webber, speaking at ‘Human Rights v Restrictive Practices’ (seminar convened by QAI
28 August 2013. Webber and colleagues (2011) demonstrated how the quality of behaviour support planning and
staff understanding of its functions can affect the use of restrictive interventions in disability services. Webber, L.,
McVilly, K., Fester, T., and Chan, J. (2011) ‘Factors Influencing Quality of Behaviour Support Plans and the Impact
of Plan Quality on Restrictive Intervention Use’, International Journal of Positive Behavioural Support, 1(1): 24-31.
97
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Should our opposition to this amendment be ignored we strongly recommend the adult is
legally represented when the appointment of the restrictive practices guardian is reviewed.
Transition to new service provider: Clauses 47 & 48
This amendment is sought to allow a service provider who will be providing services to an
adult, where the use of seclusion and containment is needed to keep the adult or other safe
from harm, to apply for approval so that it is in place when the adult starts receiving service
from the new service providers. This would be in situations when the adult is moving from one
service provider to another.
QAI is alarmed with this amendment as it has the potential to label a person as requiring
restrictive practices in all environments and circumstances. That is the person’s alleged
reputation may unfairly precede them. This amendment effectively removes the requirement
for a service provider to undertake their own assessment as to whether restrictive practices
are warranted. This is of considerable concern because the original approval has been given
for a particular set of circumstances and could not and should not be reconciled to apply in a
new environment (refer to case example above).
QAI recognises not all service providers would use this provision; however its inclusion
diminishes the safeguards currently afforded to those who are or could be subject to
restrictive practices. Again this amendment appears driven by service providers desire for
expediency with little regard to the rights of the person affected.
QAI recommends this clause be removed from the Bill.
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