Disability, guardianship and aged-care detention
Introduction
8.1
As outlined in earlier chapters, indefinite detention for the purpose of
involuntary treatment for people with a cognitive or psychiatric impairment can
occur not just under forensic and civil mental health frameworks, but also under
various state and territory disability and guardianship frameworks, particularly
for those with a cognitive impairment. It can also occur in aged-care settings.
8.2
Detention that occurs from provisions within mental health legislation,
as covered by Chapter 8, generally occurs within large therapeutic medical
facilities. This brings an inherent level of protection from the oversight
mechanisms that exist within such facilities. However, detention that occurs
from provisions within disability or guardianship legislation can occur in a
range of locations from large hospitals or disability-specific therapeutic
facilities, through to smaller disability accommodation units, aged care facilities
or even in private homes.[1]
8.3
The Office of the Public Advocate Victoria (Public Advocate Victoria) identified
a form of informal detention in disability and aged care settings as 'compliant
detention', which refers to 'those people with disability who are detained, by
their apparent compliance with the restrictive environment in which they live.'
The Public Advocate Victoria said the 'the definition of indefinite detention
could apply to people in an aged-care facility or a secure section of a group
home, that are locked or from which they are not free to leave.'[2]
8.4
Although not a key focus of this inquiry, the use of involuntary
treatments and restrictive practices, which can be viewed as indefinite
detention in the disability and aged care context, is also discussed in this chapter.
The disability or guardianship
pathway to indefinite detention
8.5
In addition to mental health-specific legislation which allows for the
detention of people for the purpose of providing mental health treatment,
various disability and guardianship acts also provide for indefinite detention
of people with a cognitive or psychiatric impairment, who pose a risk to
themselves or others. Similar to the complexity of mental health frameworks
outlined in Chapter 8, evidence presented to the committee was that both within
and across the jurisdictions, the detention of people within the disability and
guardianship context is a web of complex legislation and practise.
8.6
The Royal Australian New Zealand College of Psychiatrists (RANZCP)
outlined just how many pieces of legislation contain provisions for involuntary
detention:
For example, in Victoria, in addition to the Mental Health
Act 2014, involuntary treatment can also be mandated under the Disability Act
2006, the Guardianship and Administration Act 1986, the Powers of Attorney Act
2014, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the
Sex Offenders Registration Amendment Act 2014 and the Severe Substance
Dependence Treatment Act 2010. Similar legislative provisions exist in other
states and jurisdictions.[3]
8.7
The Office of the Public Advocate QLD (Public Advocate QLD) cited a
similar environment in QLD, stating 'In Queensland, the regime for the
indefinite detention of, involuntary treatment of, and use of restrictive practices
with people with impaired decision-making capacity is essentially fragmented
across multiple pieces of legislation, systems and service responses.'[4]
8.8
The complexity of the various legislative systems was cited as in and of
itself being a key contributor to conditions of detention. Victoria Legal Aid
put forward the view that 'the absence of a really consistent and clear
framework quite often in relation to people who are indefinitely detained can
create an environment for abuse.'[5]
8.9
As there are many different pieces of legislation or practises which
result in detention, this report has focused on presenting an overview of
concerns, as well as reforms being undertaken in certain jurisdictions which
could be replicated across Australia.
Disability detention
8.10
Across all jurisdictions in Australia, disability frameworks allow for
the detention of people with a cognitive impairment, through various formal and
informal means. The committee received detailed evidence on the frameworks in
Victoria, as many submitters and witnesses across Australia focused on
providing a critical evaluation of the Victorian framework, with a view to identifying
positive changes that could be replicated in other jurisdictions. The next
section will focus on key elements of the Victorian model, which were
highlighted by submitters as 'best-practice' examples, acknowledging that even
this framework still requires improvement.
Victoria: a best practice framework
8.11
Victoria Legal Aid put forward in their submission that any framework that
authorises detention for people with cognitive or psychiatric impairment must
include the following elements:
-
There must be clear statutory authority for any detention;
-
The person detained has a right of legal representation, and
access to state-funded legal services;
-
Any decisions authorising detention beyond a short, emergency
period must be made by an independent court or specialist tribunal;
-
Orders authorising detention must be subject to a right to review
or appeal against the initial order;
-
Any decision to detain must be demonstrably justified on the
basis of cogent evidence;
-
Detention may only be authorised if there is no less restrictive
means of achieving the objective of the detention;
-
Orders authorising detention must be time-limited and subject to
periodic review by the independent court or specialist tribunal; and
-
The person detained must have a statutory right to apply for
revocation of the detention order at regular intervals.[6]
8.12
Victoria Legal Aid further submitted that, in their view, the Disability
Act 2006 (Vic) (Disability Act) contains the best practice example of
putting these principles into legislation and practice.[7]
8.13
The Disability Act sets out the framework for detention and involuntary
treatment for people with an intellectual disability who pose a risk of harm to
others. A supervised treatment order (STO) can be made by the Victorian Civil
and Administrative Tribunal (VCAT) only if satisfied the person has previously
displayed violent or dangerous behaviour, there is a significant risk of harm
that cannot be mitigated in a less restrictive environment, and that detention
is necessary to ensure compliance with the treatment plan. Some important safeguards
have been built into the framework:
The legislation requires that the person with an intellectual
disability derives a 'benefit' from being placed on a supervised treatment
order (STO), and that the levels of restrictions on the person’s life are reduced
over time. The person must be in receipt
of state funded ‘residential services’.
The STO regime was introduced in order to regulate what was
happening in residential facilities. The STO regime brought a greater fairness
and scrutiny to decisions affecting the personal liberty of people with
intellectual disabilities. The legislation
makes it clear that disability service providers must not detain a person with
an intellectual disability unless the person is under a STO.[8]
8.14
Mr Pappos,of disability service provider Australian Community Services
Organisation, outlined the difficulties in the regime which require the service
provider, in some cases, to be the applicant for an STO:
It is important to articulate that we do not practice
detention. We have participants who might be subject to high levels of
supervision in the community because of their assessed risk to others. What is
important there is that we balance our obligations to their human rights with
the risks that they are assessed as posing to either themselves or others in
the community. The tension for us, I suppose, is we are the applicant of these
orders in Victoria—because that is what it requires, that the authorised
program office under the Disability Act is required to apply for an order—but
we are also the service provider. For us, that is a constant tension.[9]
8.15
The Public Advocate Victoria submitted that VCAT plays an 'important
monitoring and safeguard role' in that duration of an STO can be no longer than
12 months, and at each renewal must be again tested against the legislative
requirements for detention. According to Public Advocate Victoria, since the
commencement of the Disability Act, there have been 65 persons detained on an
STO.[10]
8.16
The Public Advocate Victoria further submitted that the effectiveness of
the STO regime was not just in the legislative framework, but also due to:
-
The process that leads to the development of a treatment plan44 which includes the engagement of skilled
professionals, the scrutiny of the Senior Practitioner who must approve the
plan, and VCAT who must make the STO having regard to the plan.
-
The external bodies involved in regulating and scrutinising the
use of STOs (VCAT, the Senior Practitioner, and OPA) are obliged to ensure that
the rights, dignity and best interests of the person with the intellectual
disability are protected. The Public
Advocate also has the power to apply to VCAT for an order directing the
authorised program officer to make an application for a STO. This would occur
where the Public Advocate believes that a person is being detained to prevent a
significant risk of serious harm to others and an application for a STO has not
been made.
-
Victoria Legal Aid’s specialist advocacy for persons proposed for
or subject to detention.[11]
8.17
However, the Public Advocate Victoria pointed out in its submission that
the Disability Act may produce uneven benefits, as people who are not on STOs
are denied access to the same state-funded high quality treatments, services
and clinical oversight from the Senior Practitioner that people on STOs have. The
Public Advocate Victoria said that this effectively means 'a person’s access to
the benefits associated with supervised treatment is made conditional upon
detention.' Public Advocate Victoria also submitted that as STOs can be
renewed, this could lead to a form of de facto indefinite detention.[12]
8.18
Victoria Legal Aid summed up their views on the reforms undertaken in
Victoria to the committee:
If you think about what has happened in Victoria, I think it
is important to acknowledge, as it has been acknowledged, it is not perfect...The
updated Mental Health Act is an interesting example because it does talk quite
strongly about human rights, about recovery and about supported decision-making.
All of these sorts of things are not the answer absolutely but this idea about
changing culture, about moving away from punitive responses, lead the way.[13]
Committee view
8.19
The committee heard from a range of submitters and witnesses on the
positive aspects of the detention provisions of the Disability Act. In some
cases, this was from other jurisdictions, citing the reforms as the way forward
within their own states and territories. While there are still some concerns
with the framework in Victoria, the requirement that the detained person must
experience a therapeutic benefit from that detention is clearly a necessary
embedding of rights within the legislation. The committee is of the view that
this would be an important first step for other jurisdictions.
8.20
The committee received evidence that state-funded treatments are
triggered by an STO. The committee is concerned that this may create an
incentive for service delivery organisations to seek STOs for clients, in order
to receive funding for those services. The committee is further concerned that
this creates a link between treatment and indefinite detention.
Guardianship
8.21
Across all jurisdictions, people with a cognitive or psychiatric
impairment can be subject to guardianship orders to protect their health and
welfare. These orders are administered by tribunals and courts within each
jurisdiction, and the guardian can be an individual such as a family member,
and organisation such as a disability accommodation services, or can be a
public official such as a state or territory Public Advocate or Public
Guardian. Guardianship provisions generally allow for orders to include
involuntary health treatments as well as specifying where a person must reside.[14]
Some guardianship orders include functions permitting the
guardian to authorise a service provider to contain or seclude an adult. Others
have functions permitting retrieval of a person (usually by police) in order to
return them to their place of accommodation.[15]
8.22
Evidence presented to this inquiry showed that across Australia, indefinite
detention operates under guardianship frameworks in a much more informal way
that under forensic or civil mental health regimes. The Office of the Public
Advocate Queensland (Public Advocate QLD) submitted that while the Guardianship
and Administration Act 2000 (Qld) does not specifically provide for indefinite
detention, the health care and restrictive practices provisions of that
legislation, allows for substitute decision-making with regards treatment and
behaviour support matters.[16]
8.23
The Office of the Public Guardian Queensland (Public Guardian QLD)
submitted similar evidence on the use of the QLD guardianship framework to
underpin indefinite detention:
Another means of ‘indefinite detention’ under the civil
system, is through the use of restrictive practices which are unmonitored in
the community in private homes. In certain cases, if an adult displays
challenging behaviours that could cause harm to themselves, or others, a
guardian may be appointed by the Queensland Civil and Administrative Tribunal
(QCAT), with special responsibilities to help manage these behaviours. The
appointed guardian is required to consider the use of a Positive Behaviour Support
Plan which could include a range of ‘restrictive practices’ including:
containment and seclusion; chemical, physical or mechanical restraint; or
restrictive access.[17]
8.24
Victoria Legal Aid submitted that while the Guardianship and
Administration Act 1986 (VIC) does not specifically authorise detention, it
allows a guardian to issue an accommodation order that a person reside in a
locked facility and provides no process for oversight of a person’s detention.
Furthermore:
People subject to guardianship orders have no legal avenue to
challenge a guardian’s decision on its merits and there is no regular review of
such a decision. Further, once an accommodation decision is made, a
guardianship order will often be revoked, meaning that the person will remain
detained in the accommodation.[18]
8.25
The New South Wales (NSW) Government presented evidence that in that
jurisdiction, the Guardianship Tribunal can issue a guardianship order with a
'restrictive practices' function, which can include the power to restrict a
person's movements or freedom.[19]
8.26
The issue of guardianship being used to authorise detention or
involuntary health treatment of people with a cognitive or psychiatric
impairment is not new to this committee. This issue was investigated in great
detail in the committee's 2015 inquiry report into violence, abuse and neglect
against people with disability (abuse inquiry). Beyond benign uses of
guardianship orders to undertake a protective function, the abuse inquiry heard
from submitters that disability service providers would sometimes apply for
guardianship orders in order to streamline or create efficiencies in service
delivery, sometimes resulting in involuntary and indefinite detention.[20]
8.27
The abuse inquiry report concluded:
It is clear that the guardianship arrangements in all
jurisdictions require some reform, including improved guidelines on appropriate
decision-making through to oversight of the guardians themselves.[21]
Legal capacity
8.28
Underpinning the various regimes of guardianship, is the notion that a
person with a cognitive or psychiatric impairment may have a legal incapacity
for decision-making. This issue was investigated in detail in the 2015 abuse
inquiry, which found:
In some circumstances, a person is deemed to have a legal
incapacity to make their own decisions. Disability-related legal incapacity
refers to:
[T]he level of cognitive ability
that is required before a person can lawfully do various things. Because lack
of capacity can prevent people from participating in many of the activities that
form part of daily life, alternative decision-making arrangements are
necessary.
Although legislation varies slightly in each state and
territory, the principles that underpin a determination of legal incapacity are
similar. Generally, there is a distinctly binary approach to the determination
of legal incapacity—that is, a person is deemed to be either capable or not.[22]
8.29
This view was also put forward by Dr Joanne Bradbury in her submission
to this inquiry:
It is important to note that decisional capacity is not an
all-or-none phenomena. People are competent to a greater or lesser degree
across a range of skills and tasks. In a legal and health care context,
competence is regarded as a threshold concept. If, at a certain point
along the degree of competence continuum, the capacity to make binding
decisions about one’s own health is reduced beyond a certain threshold point,
the power to make legally binding decisions can be legally be transferred from
the person to a surrogate. While the transfer of legal powers is
all-or-nothing, the decisional capacity itself is not categorical.[23]
8.30
Dr Bradbury recommended supported decision-making be used to 'help fill
the apparent gap in service provision for people with mental health challenges
between loss of capacity and risk of harm.'[24]
8.31
The Australian Cross Disability Alliance (Disability Alliance) submitted
that designating a person as lacking legal capacity can have far-reaching
consequences:
The deprivation of legal capacity for people with disability
is not only a breach of that particular right. It leads to further actual and
potential breaches of rights such as the right to live in the community, the
right to access justice, the right to be free from violence and abuse, torture,
inhuman and degrading treatment, the right to physical and mental integrity,
and the right to liberty.[25]
8.32
The Alliance recommended reforms to legal frameworks to change the onus
from limiting people with disability to exercise legal capacity, to supporting
people with disability to have control over decisions that affect their lives.[26]
Supported decision-making
8.33
Supported decision-making is a mechanism to assist people with a
cognitive or psychiatric impairment to effectively participate in decisions that
impact their lives:
[T]he human rights-based model of disability implies a shift
from the substitute decision-making paradigm to one that is based on supported
decision-making.[27]
8.34
The Australian Medical Association submitted evidence on the changeable nature
of legal capacity, and the role that supported decision-making can have to
address this in a health care context:
For many, a loss of decision-making capacity may not be
permanent – it may be temporary or may be progressive rather than immediate,
and the condition may fluctuate over time. In health care, patients with
limited or impaired capacity are encouraged to participate in decision-making
consistent with their level of capacity at the time a decision needs to be
made.[28]
8.35
The 2015 abuse inquiry considered the practise of supported decision-making,
and reviewed the findings of the Australian Law Reform Commission (Law Reform
Commission) 2014 discussion paper Equality, Capacity and Disability in
Commonwealth Laws. In this paper, the Law Reform Commission recommended
reform of Commonwealth, state and territory laws, to be consistent with the
following national decision-making principles to 'recognise people with
disabilities as persons before the law and their right to make choices for
themselves':
-
The equal right to make decisions—all adults have an equal right
to make decisions that affect their lives and to have those decisions
respected;
-
Support—persons who require support in decision-making must be
provided with access to the support necessary for them to make, communicate and
participate in decisions that affect their lives;
-
Will, preferences and rights—the will, preferences and rights of
persons who may require decision-making support must direct decisions that
affect their lives; and
-
Safeguards—laws and legal frameworks must contain appropriate and
effective safeguards in relation to interventions for persons who may require
decision-making support, including to prevent abuse and undue influence.[29]
8.36
The Australian Cross Disability Alliance made a series of strong
recommendations on employing supported decision-making to the 2015 abuse
inquiry,[30]
and repeated its key recommendation to this inquiry:
Australia should establish a nationally consistent supported
decision-making framework that strongly and positively promotes and supports
people to effectively assert and exercise their legal capacity and enshrines
the primacy of supported decision-making mechanisms.[31]
8.37
In the context of this inquiry into indefinite detention, Queensland
Advocacy Inc. noted that supported decision-making practices 'decreases the
incidence of communicative behaviours that may lead to the application of a
Restrictive Practice.'[32]
Committee view
8.38
In considering the issue of supported decision-making, the committee concurs
with the view expressed during the 2015 abuse inquiry:
The committee agrees with the Law Reform Commission report
and its recommendations about supported decision-making. It is the committee's
view that while legislative reform is clearly a necessary step to effect these
reforms, more work needs to be done to investigate supported decision-making
models in Australia and oversee jurisdictions to ensure that the most
sustainable form of supported decision-making is implemented in Australia.[33]
8.39
Indeed, more evidence has now been presented to the committee on the need
for such reforms, as a mechanism to address come of the causes of the
indefinite detention of people with cognitive and psychiatric impairment.
Restrictive practice
8.40
Restrictive practice refers to seclusion and restraint interventions in
mental health and other settings, to control or manage a person's behaviour.
Restraint can refer to physical, chemical (pharmacological), mechanical or
psychological forms of restraint.[34]
8.41
The Disability Alliance described restrictive practice in its
submission:
People with disability in Australia are routinely subjected
to unregulated and under-regulated behaviour management or treatment programs,
known as restrictive practices that include chemical, mechanical, social and
physical restraint, detention, seclusion and exclusionary time out.
These practices can cause physical pain and discomfort, deprivation of liberty,
prevent freedom of movement, and alter thought and thought processes.[35]
8.42
As outlined in Chapter 2, in 2015 the National Seclusion and Restraint
Project (restraint project) looked at the operation of restrictive practice and
made a number of recommendations to be implemented at a Council
of Australian Governments level. However, the restraint project is
limited to reviewing restrictive practice in the mental health sector. This
inquiry has received a range of evidence that clearly shows restrictive
practices are used across a variety of settings.
8.43
The Law Reform Commission submitted:
The term ‘restrictive practices’ refers to the use of
interventions that have the effect of restricting the rights or freedom of
movement of a person in order to protect them. Serious concerns have been
expressed about inappropriate and under-regulated use of restrictive practices
in a range of settings in Australia. [36]
8.44
The Public Advocate Victoria submitted restrictive 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—and not just those being applied in prisons or to those who
are at risk of or who are indefinitely detained in various accommodations.[37]
8.45
The Public Guardian QLD also discussed the prevalence of restrictive
practice occurring outside formal disability accommodation service settings:
While most of the persons subject to the use of restrictive
practices live ‘in the community’, there is anecdotal evidence to suggest that
many experience containment and seclusion on an ongoing basis for long periods
of time, effectively detained in their own homes. While effectively ‘detained’
in their own homes, these persons may also be subject to the use of unmonitored
physical and/or mechanical restraint. While QCAT may make an appointment
regarding the use of restrictive practices, under the current regime, these
people may face effective detention for a period of up to 12 months without a
review.[38]
8.46
The committee's 2015 abuse inquiry considered the issue of restrictive
practice. In her submission to the abuse inquiry, Dr Linda Steele used the term
disability specific lawful violence' to describe interventions such as
restrictive practice.[39]
8.47
The abuse inquiry heard from the Disability Alliance that restrictive
practice, while considered by the health, legal and disability service sectors
to be lawful therapeutic practice, if used in any other context would likely be
a form of assault:
Many of the practices would be considered crimes if committed
against people without disability, or outside of institutional and residential
settings. However, when "perpetrated against persons with
disabilities", restrictive practices "remain invisible or are being
justified" as legitimate treatment, behaviour modification or management
instead of recognised as "torture or other cruel, inhuman or degrading
treatment or punishment".[40]
8.48
Queensland Advocacy Inc. put forward a similar view on restrictive
practice to this inquiry:
In plain language, they are tantamount to assault, drugging
and false imprisonment. They would not be tolerated and would be considered in
contravention of the criminal law if they were done on people who did not have
a disability. They are also never a solution. Even aside from all the human
rights violations, they never solve the problem. When a person is exhibiting
behaviours of concern, we know that the application of restrictive practices
usually escalates, rather than calms, their behaviour.[41]
Chemical restraint
8.49
The committee heard evidence on the use of chemical (pharmacological) restraint
during the Melbourne inquiry hearing:
A lot of people with intellectual disability are treated with
psychotropic medication, and they are not consenting to it. If they were
treated under the Mental Health Act, that would be reviewed by a panel of a
layperson, a psychiatrist and a lawyer. Under the Guardianship Act, they are not.
It is either a family member or someone appointed by VCAT.[42]
8.50
The Australian Community Services Organisation told the committee that
in Victoria, the Disability Act requires that any use of psychotropic
medication without a specific diagnosis, administered to a person with an
intellectual disability within a residential service, must be reported to the
Office of Professional Practice as to why that chemical restraint is being
used.[43]
8.51
However, Dr Chad Bennett of RANZCP responded that the Senior
Practitioner does not have jurisdiction over the prescriber, so any comments
are not enforceable. Dr Bennett went further to say:
I think the other interesting thing about the idea of
chemical restraint is that, for example, in mental health acts the idea of
chemical restraint does not exist. It is purely something that exists within a
disability kind of framework, although it is not usually a disability you are
treating.[44]
8.52
The issue of chemical restraint in aged care settings is discussed later
in this chapter.
Safeguards
8.53
As discussed above, the NMHC restraint project made a number of
recommendations on safeguards for restrictive practice to be discussed at a Council of Australian Governments level.
8.54
The Law Reform Commission noted that the establishment of a nationally
consistent approach to safeguards on restrictive practice was endorsed by the
Commonwealth:
Current regulation of restrictive practices occurs mainly at
a state and territory level. However, the Commonwealth, state and territory
disability ministers endorsed the National Framework for Reducing and
Eliminating the Use of Restrictive Practices in the Disability Service Sector (National
Framework) in March 2014 to forge a consistent national approach.[45]
8.55
Four jurisdictions, Victoria, Queensland, Tasmania and the Northern
Territory, have enacted legislation to regulate the use of restrictive
practice. However, as noted by the Public Advocate QLD, that regulation is
limited to state-funded disability services and 'restrictive interventions used
in privately funded services or in hospitals, aged care and other health
facilities remain unregulated.'[46]
8.56
The Public Advocate Victoria, while expressing some concerns about the
use of restrictive practice in general, noted the safeguards incorporated into
the regime in Victoria:
In Victoria, Part 7 of the Disability Act allows the use of
restrictive practices by disability service providers only in specific
circumstances, namely when there are no less restrictive options available and
only to prevent harm to the person and/or harm to others. Restrictive practices are most often applied to
address or manage ‘behaviours of concern’ of people with a disability or mental
ill health.
The Disability Act provides a model for consideration by other
jurisdictions, where there is not otherwise a legislative framework for the
regulation and monitoring of the use of restrictive interventions.[47]
8.57
Victoria Legal Aid similarly recommended the Disability Act as a model
which could be replicated in other jurisdictions to improve the regulation of
restrictive practice:
Essential to the operation of the Disability Act are two
elements otherwise absent in Victorian legislation: the need for intervention
to benefit a person, and the requirement for planning with a view to reducing
restrictions over time. In combination they assist to ensure the potency of
interventions, increase the speed of a person’s trajectory through those
interventions and ensure regular scrutiny of the efficacy of supports.[48]
8.58
However, Victoria Legal Aid expressed similar concerns to the Public
Advocate Victoria, that the regulation of restrictive practice did not extend
to all sectors where such restrictions are being used:
Aged care facilities, disability residential services and
mental health services regularly restrict the freedom of movement of residents
without any clear legal authority to do so. For example, services may prevent
residents from leaving their rooms or the premises (whether or not the doors
are locked). People who are informally detained are not subject to any legal
oversight or, generally, any independent clinical oversight as to the necessity
and appropriateness of the restrictions on their freedom. Further, the informal
nature of the restrictions and lack of legal oversight, also mean there is no
mechanism to prompt the involvement of a lawyer to provide independent advice
and no real means to end detention.[49]
Committee view
8.59
The committee has heard additional evidence in a similar vein to the
extensive evidence presented to the 2015 abuse inquiry and concurs with the
views expressed by the committee in its report of that inquiry:
The committee considers that the right to liberty is a
fundamental human right. The committee is concerned with the extent to which
restrictive practice is used, and is deeply concerned with the system which
allows service providers to arbitrarily deprive people of their liberty.
The Committee acknowledges the development of the National
Framework for Reducing and Eliminating the use of Restrictive Practices in the
Disability Service Sector. However, the committee is concerned that this
implementation of this framework has stalled, and has not been consistently
implemented across Australian jurisdictions, with many states and territories
still relying on a voluntary code of conduct from disability service providers.
The committee notes that the implementation of the framework
has stalled, and in some jurisdictions has never really begun. The committee
sees a place for commonwealth legislation, should the framework not be
vigorously taken up across all jurisdictions as a priority.[50]
Aged care
8.60
The committee has received evidence that the indefinite detention of
people with a cognitive or psychiatric impairment is also an issue in the aged
care context.
8.61
More than 50 per cent of residents in Australian Government-subsidised
aged care facilities have dementia[51]
and almost half (44 per cent) of permanent residents with dementia also had a
diagnosis of a mental illness.[52]
These conditions are often managed with the use of detention:
The confusion which accompanies dementia determines the need
for a variety of safety features to be built into the environment. Among other
things, they often include the provision of a secure perimeter [3] and/or the
establishment of locked dementia specific units which effectively confine the
residents to one area.[53]
8.62
Alzheimer's Australia estimates the 'presence of physical restraint in
aged care facilities varies, and the evidence suggests prevalence rates from 12
per cent to 49 per cent' and submitted:
There is extensive evidence that both physical and chemical
restraint is often used to respond to the behavioural and psychological
symptoms of dementia, despite clinical evidence suggesting that psychosocial
responses should be the first line approach. Often behavioural and
psychological symptoms are an indication of unmet needs, such as untreated
pain, hunger or thirst, or boredom.[54]
8.63
Evidence has been presented which indicates that detention in aged care
settings often occurs 'informally' in that it is not specifically authorised
under any legislation and is therefore unlawful. In their submission, Global
Action for Personhood cites policy prepared by the Office of the Public
Advocate South Australia:
In the 'Guardian Consent for Restrictive Practices in
Residential Aged Care Settings' (2015) policy document1 from the Office of the Public Advocate (OPA, South Australia),
detention in the aged care setting is defined as:
.... a
situation where a person is unable to physically leave the place where he or
she receives aged care services. The means of detention may include locked
doors, windows or gates, and the constant supervision and escorting of a person
to prevent the person from exercising freedom of movement.
Of particular relevance is their comments on detention and
keypad operated doors, a common feature of ‘dementia specific’ or ‘memory’
units in residential aged care. The policy notes that:
If a person lives in a locked area, and is able to operate
the keypad that person is not detained. If a person lives in a locked area, and
cannot operate the keypad, or alternatively cannot ask to have the doors opened
on request, and have this request granted, then the person is detained (OPA,
2015: 4).
There is no doubt then, that people with dementia, who reside
in units where access is restricted in this way, are detained unlawfully.[55]
8.64
The Public Advocate Victoria submitted similar evidence, that in aged
care and disability settings 'restrictive interventions are applied without
external authorisation of a court or tribunal.'[56]
8.65
The President of the Guardianship and Administration Board of Tasmania
has observed:
Residential Aged Care Facilities continue to systematically
detain people with dementia without clear authority to do so and in
circumstances where the establishment of a requirement to do so under their
duty of care might be questionable, or in other words, in circumstances where
the defence of necessity to a charge or claim of unlawful detention might not
exist or, at best, be limited. It seems that most facilities are prepared to
'risk it' that no-one will bring criminal or civil proceedings in relation to unlawful detention.[57]
8.66
Alzheimer's Australia highlighted that of chemical (pharmacological)
restraint is also prevalent in aged care:
It is estimated that about half of people in aged care and
about 80% of those with dementia are receiving psychotropic medications,
although this varies between facilities. There is evidence to suggest that in
some cases these medications have been prescribed inappropriately. The evidence
supporting the use of antipsychotic medications is modest at best, with
international data suggesting that only 20% of people with dementia derive any
benefit from antipsychotic medications.[58]
8.67
Prof Flemming et al recommended:
The capacity of the aged care system to provide appropriate
care to people with dementia could be increased by the delivery of education to
managers and staff on human rights and the care of people with dementia and by
increasing the emphasis placed by the Department of Health on the provision of
suitably designed environments to accommodate those people with dementia who
have a real need for secure accommodation. Both of these activities could be
undertaken by the Department of Health funded Dementia Training Study Centres.[59]
8.68
Alzheimer's Australia made a range of recommendations for addressing
indefinite detention in the aged care sector which included, staff training,
improved information for consumers and carers, quality standards and assessment
process to include benchmarks on reducing physical and chemical restraint and
improved complaints mechanisms. Alzheimer's Australia stressed the importance
of addressing this issue:
Dementia is one of the major chronic diseases of this
century. With the continued ageing of the population and the growing numbers of
people with dementia, human rights issues in relation to people with dementia
who are imprisoned, and those who are restrained within the aged care system,
need to be considered and addressed.[60]
Committee view
8.69
It is clear from the evidence provided that indefinite detention of
people with cognitive or psychiatric impairment is a significant problem within
the aged care context, occurring both within external facilities and private
homes. It is also clear this detention is often informal, unregulated and
unlawful.
8.70
The evidence presented to this inquiry further supports the views formed
by the committee during its 2015 abuse inquiry that action needs to be taken in
the aged care setting to protect vulnerable people from abuse.
Concluding committee view
8.71
It is clear there is a prevalence of indefinite detention of Australians
with cognitive or psychiatric impairment within the mental health, disability,
guardianship and aged-care contexts. This detention takes place in a number of
location types and comes in many forms. It can stem from formal orders under
mental health, disability or guardianship legislation. It can stem from
restrictive practice or seclusion that creates a de facto form of indefinite
detention. It can also be informal and unregulated, as a result of practices
within the disability or aged-care, and in some cases in private homes.
8.72
It is also clear to the committee that evidence for this problem has
been well-known to states and territories, and the Commonwealth, for some time.
Although there have been some moves to address this form of indefinite
detention, they have been patchy at best, and significantly underfunded.
8.73
As with the forensic mental health regimes, changes to these sectors
will require effort from the states and territories, as well as coordination
and leadership from the Commonwealth.
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