Much of OPA's systemic advocacy relates in some way to provision of disability services and the operation of the Disability Act 2006 (Vic). In relation to the Disability Act, OPA has taken particular interest in the use and regulation of restrictive interventions and the operation of the Supervised Treatment Order civil detention regime. These policies and related practices have substantial human rights implications for the people affected and OPA is concerned that all efforts be made to ensure that the least restrictive options are employed, and that the use of these interventions is closely monitored.
Forced sterilisation of adults and minors with a disability is an ongoing area of interest for OPA due to the serious breach of human rights involved, and our involvement with sterilisation matters heard by VCAT.
OPA continue to recommend changes to policy, practice and legislation in relation to disability services and supports that aim to better protect the human rights of people with disabilities and enhance their capacity and lead meaningful lives.
Areas of action
Restrictive interventions are the use of physical or chemical restraints and secluding people to control their behaviour.
OPA has long-standing concerns about the use of restraints and other restrictive interventions on people with cognitive impairments and mental ill health.
These practices occur in aged-care accommodation, day programs and activities, employment and training services, hospital emergency departments and wards, institutions, schools, shared and supported accommodation services, and supported services. The most pressing concerns relate to the use of restrictive interventions in residential services.
The use of restrictive interventions is regulated and permitted in some circumstances under the Disability Act 2006 and the Mental Health Act 2014 but overall their regulation is inconsistent and inadequate. For example, the use of restrictive interventions is regulated in disability services but almost wholly unregulated in Victorian educational settings (which impacts children with disability), except when it involves ‘physical force’. For more information, see our position statement on this topic.
OPA has produced a report and discussion paper about the need for enhanced safeguards to protect the rights of people with disability or mental illness. See The effectiveness of the independent person as a procedural safeguard in the use of restrictive interventions and Restrictive Interventions in Victoria’s Disability Sector: Issues for Discussion and Reform.
Supervised Treatment Orders (STOs) are civil (not criminal) orders allowing a person with an intellectual disability who poses “a significant risk of serious harm” to others to be detained. They are detained without a criminal charge or finding of guilt in relation to their actions. The purpose of detention is to reduce the risk of harm that the person poses to others, and to enable the person to receive treatment and services.
OPA considers that STOs bring needed transparency and oversight of to the detention and compulsory treatment of people with intellectual disabilities in Victoria. They can give some people the treatment they need to live more fulfilling lives. Nonetheless, STOs must contain stronger safeguards to ensure that they are consistent with human rights laws and principles.
For more information see OPA’s position statement on the use of STOs and the need for safeguards, as well as a report on the impact of STOs on the human rights of a person with disability.
The involuntary or coerced sterilisation of people with disabilities, including children with disabilities, is a serious breach of human rights.
In Victoria, there are different legal requirements for the sterilisation of children (both with and without disability) and the sterilisation of adults who cannot make their own medical treatment decisions. Families seeking to sterilise a child for non-therapeutic reasons must gain approval from the family court. This can be an expensive and adversarial process, and not necessarily in the interests of the child.
The Victorian Civil and Administrative Tribunal (VCAT) acts as an accessible and inquisitorial forum which hears cases involving medical treatment (including sterilisation procedures) for adults who lack the capacity to give consent to the treatment because of disability. OPA strongly supports that VCAT’s authority be extended to include ‘special medical treatment decisions’ (which includes sterilisation) concerning children. This is particularly important in the absence of a uniform national legislative framework for the sterilisation of minors.
OPA supports Commonwealth legislation to establish a uniform national framework for the sterilisation of minors. This will fully safeguard human rights and ensure that Australia is fully compliant with its international law obligations. However, OPA does not consider that the Family Court is the ideal forum for these decisions.
For more information on enhancing the human rights protections around sterilisation see our position statement on the sterilisation of children and our submissions to the Senate Standing Committee on Community Affairs References Committee’s Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia.