HUMAN RIGHTS VIOLATIONS EXPERIENCED BY DISABLED PEOPLE WITHIN VICTORIAN LEGISLATION

I. INTRODUCTION 

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) requires State parties to ensure and promote the full realisation of human rights for disabled people[1].

In 2008, Australia ratified the CRPD which strengthened the country’s existing legal obligations under international law to protect the human rights of disabled people.[2]

 

In 2019, the Committee on the Rights of Persons with Disability (the Committee) delivered concluding observations on the implementation of the CRPD.[3] In these Concluding Observations the Committee provided Australia with recommendations to enhance the rights of disabled people.[4]

 

Many of the recommendations in the Committee’s 2019 (and previous) Concluding Observations have been adopted by Australia[5]. Australia implemented the National Disability Insurance Scheme Act in 2013, established the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities in 2019, and maintained its commitment to introduce a 7 per cent employment target for disabled people in the public sector.[6]

 

Yet, despite successes in promoting disability rights and Australia’s ratification of the CRPD, disabled people within the State of Victoria continue to experience multiple forms of human rights violations, which have transpired from the country’s failure to recognise the right to legal capacity for disabled people.[7] Specifically, Victorian legislation governing the mental health and guardianship systems deprive legal capacity on the basis of disability, which contravene the right to equality before the law and the right to non-discrimination.[8]

 

Victorian law also permits substituted decision-making regimes,[9] by allowing guardians and administrators to be appointed to make decisions for disabled people in certain situations, thereby violating the requirement to respect a disabled person’s decisions and their right to self-determination.[10]

Practices which amount to torture and ill-treatment are also permitted under laws governing the mental health system. These include forced medical treatment, and forced institutionalisation to non-consenting disabled patients, which contravene rights including liberty, integrity and security of person, and the right to privacy[11].

 

There are several factors impacting the human rights of disabled people living in Victoria. Many articles of the CRPD that protect the rights of disabled people are not effective within Victorian legislation, as Australia has made interpretative declarations to the CRPD which impede human rights law, and conflict with the object and purpose of the Convention.[12]

 

Another issue facing the Victorian legal system is that there is no effective legislative framework to protect disabled people from systematic and intersectional forms of discrimination,[13] as the Equal Opportunity Act, 2010[14] fails to address these issues, denies legal capacity on the basis of disability[15] and contains a narrow definition of disability.[16] Therefore, not all disabled people are adequately protected from disability discrimination within Victoria.

 

This research paper will focus on Victorian legislation including the Mental Health Act, 2014[17] (MHA); the Guardianship and Administration Act, 2019[18] (GAA); and the Equal Opportunity Act, 2010[19] (EOA). Part II will focus on Victoria’s refusal to recognise legal capacity and mental capacity as distinct concepts and the negative implications that this has for the human rights of disabled people. Part III will discuss the human rights violations that are permitted by the GAA and MHA, and Part IV will discuss the problems associated with Victoria’s anti-discrimination laws and why they should be changed.

 

II. THE DISTINCTION BETWEEN LEGAL AND MENTAL CAPACITY IN INTERNATIONAL HUMAN RIGHTS LAW 

Legal capacity and mental capacity are recognised by the Committee as two distinct concepts.[20] Legal capacity, is described as ‘the ability to hold rights and duties (legal standing) and the right to exercise those rights and duties (legal agency)’.[21] This means that legal capacity solidifies the right to be a holder of rights under the law and the right to be recognised as an actor under the law.[22]

 

The Committee has defined mental capacity as ‘the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors’.[23] Therefore, mental capacity refers to a person’s cognitive abilities.[24]

 

Article 12 of the CRPD emphasises that disabled people are equal before the law[25] and enjoy legal capacity on an equal basis with others.[26] This means that disabled people have legal personhood and agency, which cannot be removed or diminished because they have a disability.[27] The Committee has stated that ‘Under article 12 of [the CRPD], perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.’[28]

 

Therefore, separating legal capacity from mental capacity is crucial to human rights law as it recognises that an individual’s legal capacity cannot be ignored or refused based on their cognitive, intellectual or mental functioning.[29] A further reason for why these concepts require separation, is because by allowing for this, it highlights that a person’s will and preference will be protected when they exercise their legal capacity, as their mental capacity will not be considered to deny this right on the basis that the person’s cognitive functioning is impaired.[30]

 

However, in Victoria, legal capacity is denied to disabled people who have impaired cognitive, mental or intellectual functioning and who are considered incapable of making decisions for themselves.[31] The reason for this, is because Australia considers legal capacity to include a person’s ability to make rational decisions based on their mental functioning.[32] Although this concept of legal capacity conflicts with international human rights law,[33] Australia has justified implementing unjust legislation which denies legal capacity to disabled people by making erroneous interpretative declarations to the CRPD, relating to Article 12.[34]

 

Specifically, when ratifying the CRPD, Australia stated that:

 

‘Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguard’.[35]

 

Unfortunately, this interpretative declaration has not been rectified and has been used to justify substituted decision-making schemes for disabled people in Victoria, who are deemed to lack legal capacity due to having impaired mental, intellectual or cognitive functioning[36]. This is irrespective of the fact that Article 12 of the CRPD has established that legal capacity is universal, cannot be removed from a person, and requires States to eliminate substituted decision making schemes.[37]

LEGISLATED HUMAN RIGHTS VIOLATIONS WITHIN THE VICTORIAN GUARDIANSHIP AND MENTAL HEALTH SYSTEM

 

I. The Victorian Guardianship System

 

The GAA provides a legal framework for the appointment of guardians and administrators to be substituted decision makers for individuals who lack capacity to make reasonable judgements.[38]

As discussed previously, substituted decision making regimes violate international human right law as Article 12 of the CRPD emphasises that legal capacity cannot be denied based on a person’s mental or cognitive capacity.[39] This point was highlighted in 2014 by General Comment No.1 of the United Nations Committee on the Rights of Persons with Disabilities on Article 12 (General Comment No.1), which stated:

 

‘States’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention’[40]

Therefore, Article 12 of the CRPD and General Comment No.1, make it clear that a person’s decision-making rights cannot be removed and provided to another person (otherwise referred to as a substituted decision-maker).[41]

However, despite the implementation of Article 12, guardians can be appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make personal decisions on behalf of a person who is deemed to lack legal capacity (the represented person) in Victoria.[42] Guardians may also sign or carry out any act necessary to give effect to their powers and duties, which may include[43] engaging in legal proceedings on behalf of a represented person.[44]

 

Section 3 of the GAA defines the term personal decision as a wide concept, including:

 

· Any personal decision relating to the represented person’s personal or lifestyle affairs (including legal affairs);

· Decisions relating to whom and in what location the represented person is to reside;

· Decisions about the individuals with whom the represented person may associate with;

· Whether the represented person works, and if so, the kind and place of work, and employer that they are to work for;

· Whether the represented person engages in education or training;

· Daily living issues such as diet and dress; and

· Medical treatment decisions[45].

As the GAA removes decision making powers over a large range of personal and lifestyle affairs[46] from disabled people and provides them to guardians instead, the legislation is in conflict with international human rights law.[47]

 

For example, the GAA gives guardians the power to decide where and with whom the represented person can live.[48]This is in violation of Article 19 of the CRPD, which provides that States Parties must ensure that, ‘Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live’, and states that they should not be ‘obliged to live in a particular living arrangement’.[49]

 

This human rights issue was highlighted in the United States of America, in a case involving Ms Jenny Hatch, [50] where the American Guardianship system was being used to deny Ms Hatch the ability to choose where she lived and many other of her personal lifestyle choices.[51]

 

Ms Hatch was a young, 29-year-old woman with Down Syndrome.[52] She had graduated high school, was engaged in employment, and resided in her own apartment with a roommate[53]. After becoming involved in a car accident, which had no impact on her cognitive ability, her parents filed for guardianship.[54]

 

The legal issues in this case are similar to those which may arise in Victoria due to the legal powers provided to guardians under GAA. For example, Ms Hatch’s guardians also had the right to decide where Ms Hatch lived, who she saw, and the type of medical care she received.[55]

 

Ms Hatch was a victim of gross human rights violations as she was forced to reside in a group home and was prohibited from seeing her friends unless a permission slip was completed.[56] She was not permitted to return to her church and was forced to work in a job where she earned less than the minimum wage.[57] Her mobile phone and computer were removed from her and her Facebook login passwords were also changed to prevent her from communicating with the outside world.[58]

 

Fortunately for Ms Hatch, the decision to allow her parents to be her guardians was ultimately overturned by the court, and instead, she was permitted to live with friends as she requested.[59]

Ms Hatch’s case demonstrates how similar guardianship powers permitted by the GAA can be used to the detriment of disabled people, and breach human rights law.[60]

For example, situations where guardians make decisions forcing disabled people to live in institutions or homes against their will may violate the right to liberty and security of person[61] and the right to freedom of movement.[62]

Additionally, the GAA providing guardians with the power to decide who a disabled person may associate with[63], may impact negatively on other rights, including the right to respect for family and home (for example, where a child is separated from their parents because of their disability)[64] the right to marry a person of your choosing[65] (for example, this right may be impacted where disabled people are forced to live in situations where they have no option to communicate or meet partners), or the right to associate with others.

Guardians also have the power to apply to VCAT to obtain orders to force the represented person to comply with their guardianship order,[66] and to override the will and preference of the represented person if it is necessary to prevent serious harm.[67] However, this power is in conflict with the CRPD, which advises that State Parties must recognise ‘the importance for people with disabilities of their individual autonomy and independence, including the freedom to make their own choices’.[68]

Forcing disabled people to comply with orders which dictate how they must live also conflicts with the right to self-determination which is enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESCR).[69]

The GAA also provides guardians with the power to choose whether a represented person engages in education or employment.[70] This power is extremely problematic as it may violate international human rights law in situations where the disabled person is denied their right to education [71] or employment.[72]

 

Another substituted decision-making process allowed by the GAA is the appointment of an Administrator.[73] The GAA allows for the appointment of an Administrator to make financial decisions on behalf of a disabled person, where they are found to lack legal decision making capacity.[74] The powers provided to an Administrator include financial decisions specified in a VCAT order,[75] the execution of gifts, [76] engaging in investments[77], opening the will of the represented person;[78] or any other power specified in the administration order.[79]Administrators may also sign and do anything necessary to give effect to any of their powers or duties.[80]

Allowing a financial administrator to be appointed without the consent of a disabled person is in breach of international human rights law, as the CRPD requires State Parties to: 
 
‘Ensure the equal rights of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property’.[81]

 

Thus, additional human rights which may be violated with the appointment of an administrator as a substituted decision maker, include the right to respect for family and home,[82] the right to choose your own residence,[83] the right to privacy,[84] and the right not to be arbitrarily deprived of your own property.[85]

For example, in PJB v Melbourne Health & Anor (Patrick’s case)[86], the Appellant (Patrick) appealed a decision made by VCAT, which related to the sale of his home.[87] Patrick had several psychosocial disabilities and was an involuntary patient in hospital.[88] His wish was to live independently in the community and to reside in his own home.[89] However, the treating team at the hospital wanted to move him to supported accommodation in a hostel, a decision which Patrick fiercely opposed.[90] The hospital believed that if they applied to VCAT to appoint an administrator to sell Patrick’s home, he would be more likely to comply with his new living arrangements (as he would have nowhere else to live)[91]. However, Justice Bell advised the Court that the hospital had breached several of Patrick’s human rights in seeking to appoint an administrator to sell his home, including Patrick’s right to equality, and privacy in the forced sale of his home.[92]

 

Justice Bell also made it clear that the act of appointing an administrator to manage the estate of a disabled person was discrimination.[93] His honour explained that because Patrick had a protected attribute (mental illness), he was liable to have an administrator appointed in respect of his estate in situations where a person without his disability would not be required.[94] As such, this means that when an administrator is appointed, the right to equality and non-discrimination are also breached.[95]

 

For example, in deciding whether to appoint a guardian or administrator as a substitute decision maker, the Tribunal Member must be satisfied that the represented person does not have decision making capacity because of their disability.[96] Therefore, it may be argued that the GAA discriminates against disabled people by depriving legal capacity on the basis of disability.[97] This is in breach of the CRPD, which requires State Parties to prohibit legislation that discriminates against disabled people,[98] asserts that disabled people have a right to enjoy legal capacity on an equal basis with others,[99] and forbids the use of substituted decision making schemes.[100]

The Committee also raised concerns in its 2019 Concluding Observations about the ‘lack of progress [Australia has] made to abolish the guardianship system and substituted decision-making regime’[101] and called on Australia to ‘repeal any laws and policies and end practices and customs that had the purpose or effect of denying or diminishing the recognition of any person with disabilities as a person before the law’.[102] Specifically, the Committee recommended that Australia should ‘implement a nationally consistent supported decision-making framework’.[103]

Therefore, Victoria’s failure to abolish the guardianship system’s substituted decision making regime is discriminatory as it affords less favourable treatment based on disability, which may subject disabled people to many other forms of human rights abuse, due to denying their right to individual autonomy.[104]

For example, Human Rights Watch highlighted the issues with the 13-year abusive guardianship order in the United States of America relating to the pop star, Britney Spears.[105] The guardianship order concerning Ms Spears provided her father with legal authority to make decisions regarding her career, financial matters and medical decisions[106]. 

Human Rights Watch emphasised that Ms Spears’ situation is not an isolated incident and that that many disabled people around the world are deprived of legal capacity and put on guardianship orders, and: ‘just like Spears, this had led to a range of abuses, including forced medical treatment, forced contraception and coerced termination of pregnancies, involuntary confinement, forced living arrangements, and limited freedom of movement’.[108]

Ms Emina Cerimovic, Senior Researcher at Human Rights Watch also stated that:

‘While the exact figures are unknown, it is estimated that millions of people with intellectual and psychosocial disabilities are deprived of legal capacity and placed under some form of guardianship. Most of them have been deemed unable to make their own decisions just because they have a disability.

I’ve met many of them in my research and I have seen how harmful these practices can be, leading to a range of abuses, including forced treatment, involuntary confinement, forced termination of pregnancies, forced living arrangements, and limited freedom of movement. Many are deprived of the choice of where to live and whether and whom to marry, to sign an employment contract, or – like Britney – even decide on whom to visit and when.

I’ve heard this sentiment many times. One woman I met, Tatjana, is 46 but can’t travel to visit her daughter without permission from her legal guardian because she has a mental health condition. In fact, she can’t leave her town in Croatia without approval. It’s the same if she wants to move to another house, sign an employment contract, or even publish her poems.

As activists and fans intensify their efforts to free Britney from her father’s control, I hope they will also champion the abolishment of guardianship systems worldwide. We have a strong instrument to rely on [the CRPD], ratified by 182 countries around the world, which requires governments to break away from guardianship and instead provide a system of support for decision making that respects the autonomy, will and preferences of the person with the disability’.[109]

Furthermore, by allowing substituted decision regimes such as guardians and administrators, which are permitted by the GAA, Victoria is breaching its obligations under the CRPD to ensure and promote the full realisation of all human rights for disabled people, including the right to make one’s own decisions[110] which also includes a denial of the right to health,[111] in situations where medical decisions are made without the consent of the represented person.

For example, the GAA permits guardians to make decisions relating to the medical treatment of a represented person without consent[112], which is a violation of Article 12 (equal recognition before the law) and Article 14 (the right to integrity and security of person) of the CRPD.[113]  Special medical procedures are permitted by the GAA and may be carried out without the represented person’s consent, by a VCAT order if it is found that they do not have legal capacity.[114] Also, any person with a special interest in the affairs of the represented person or the person’s medical decision maker can consent to the treatment.[115] This includes any procedure that is intended, or likely, to have the effect of rendering the represented person infertile, termination of pregnancy, any removal of tissue for the purposes of transplantation to another, or any other medical treatment prescribed to be a special medical procedure under the Medical Treatment Planning and Decisions Act 2016.[116]

Australia has justified its use of unjust legislation relating to medical decisions of disabled people by entering interpretative declarations to the CRPD which affirms that ‘its understanding [is] that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards’.[117]

 

This is despite the fact that the Committee has raised concerns regarding the application of medical treatment without consent, including sterilisation,[118] and stated in its concluding observations to Australia that it is ‘seriously concerned about the ongoing use of sterilisation, forced abortion, and forced contraception among people with disabilities’ in Australia.[119]The Committee has also expressed dismay in Australia’s unregulated use of involuntary surgery on infants and children born with variations in sex characteristics and of other invasive and permanent medical interventions without the consent of patients.[120]  However, the GAA is not the only piece of Victorian legislation which violates the human rights of disabled people with regard to forced medical treatment. Legal capacity is also denied to disabled people with impaired cognitive, intellectual and mental functioning and who are deemed to be unable to make decisions for themselves in legislation governing Victoria’s mental health system.[121]

 

II. Human Rights Violations permitted by Victoria’s Mental Health Act

In Victoria, the MHA, is the key legislative scheme for the assessment of individuals who appear to have a mental illness, and for the treatment of patients with mental illness.[123] One of the primary goals of the MHA is to protect and support the rights of people living with mental illness.[124] 

However, despite this well-intentioned aim, the legislation violates human rights which relate to disabled people. Article 25 of the CRPD defines the right to health and requires that; ‘States parties recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability’.[125] Article 25(d) also ‘require[s] health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’.[126]

General Comment No 1 of the CRPD Committee on Article 12 explains the importance of obtaining informed consent with regards to Article 25 of the CRPD,[127] by articulating that:

‘The right to enjoyment of the highest attainable standard of health (art 25) includes the right to health care on the basis of free and informed consent. States parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment. In conjunction with the right to legal capacity on an equal basis with others, States parties have an obligation not to permit substitute decision-makers to provide consent on behalf of persons with disabilities. All health and medical personnel should ensure appropriate consultation that directly engages the person with disabilities. They should also ensure, to the best of their ability, that assistants or support persons do not substitute or have undue influence over the decisions of persons with disabilities’[128]

Therefore, any medical treatment provided to a patient requires their consent, regardless of whether they have a disability, or are believed to lack decision making capacity.[129] Additionally, consent to medical treatment obtained via substituted decision-making schemes is a violation of the CRPD.[130] The Committee has also made this clear in its concluding obligations to Australia, by recommending that all health-care services should be based on a ‘non-discriminatory, human rights model of disability and that any medical treatment is provided with the free and informed consent of the person concerned prior to any medical treatment’.[131]

However, in Victoria, notwithstanding the requirements implemented by international human rights law and recommendations by the Committee, the MHA continues to violate the rights of disabled patients by permitting compulsory medical treatment.[132]

An additional concern is that compulsory medical treatment ignores an individual’s right to autonomy, their will, and their preferences regarding medical decisions[133].

For example, The Mental Health Complaints Commission in Victoria (MHCC) recounted a case of a patient receiving compulsory mental health treatment, which included receiving medication by injection.[134] The patient experienced negative side effects from this treatment, such as nausea and regular migraines. Unfortunately, the patient’s will and preferences were ignored when he raised this issue with his treating team and expressed his desire to try a different medication option.[135] This issue prompted the MHCC to engage the patient’s treating team in a dispute resolution process,[136] which also prompted the patient to seek a medical review, which resulted in him being prescribed a different medication in tablet form rather than via injection[137]. The patient subsequently experienced fewer side effects.[138] His experience demonstrates that the MHA can be used as a tool to violate human rights law, as it permits compulsory treatment without informed consent[139]. This further highlights that the MHA should prohibit substituted decision making, and that patients should not have to rely on a complaints process to advocate for their preferred treatment choices.

 

The MHA permits compulsory treatment in the community or in a designated mental health service under a Temporary Treatment Order (TTO)[140] for a maximum period of 28 days.[141] If the TTO is not revoked and VCAT makes an order that the patient still requires treatment, an order can be made for them to receive compulsory treatment in the community for a duration of 12 months, or to remain as an inpatient and receive treatment in hospital for a period of 6 months.[142] Additionally, if patients refuse to provide informed consent to their proposed treatment and it is deemed that they do not have decision-making capacity,[143] or if they do have capacity and do not provide consent,[144](and the treatment does not constitute Electroconvulsive Therapy (ECT) or neurosurgery), their psychiatrist can authorise the treatment decision if it can be proven that there is no less restrictive way for the patient to be treated.[145]

Section 73 of the MHA provides another opportunity for the legislation to override a patient’s will and preference.[146] Under this section, an advance statement can be made by a patient, which sets out their treatment preference in situations where they become unwell and require compulsory treatment.[147] However, Section 73 (1) of the MHA explains that a patient’s preferences in their advance statement can be overridden if not clinically appropriate,[148] or if the requested treatment is not ordinarily performed by the mental health service.[149]

Compulsory treatment within hospitals under the MHA constitutes forced institutionalisation which also violates Article 14 of the CRPD, as it provides that State Parties must ensure that disabled people enjoy the right to liberty and security of persons on an equal basis with others,[150] and that ‘the existence of a disability shall in no case justify a deprivation of liberty.[151]

An example of a patient being deprived of their liberty was documented by the MHCC when an individual named Sam was admitted to an inpatient unit during the COVID-19 pandemic[152]. The MHCC stated that Sam ‘was feeling very stressed by the tense atmosphere in the unit as well as its restrictions, such as not being able to get food of his choice, or to go outside to smoke’.[153] This drove Sam to lodge a complaint with the MHCC, who then addressed the issues relating to his freedom by agreeing to increase the availability and choice of food for patients, and permit access to leave for smoking.[154] The issue relating to forced institutionalisation was also recognised by the Committee, who expressed that they were ‘seriously concerned’ about Australia’s ‘legislative frameworks, policies and practices that result[ed] in the arbitrary and indefinite detention and forced treatment of persons with disabilities’.[155] However, despite this concern, Victoria continues to ignore the directions of the Committee, who have urged Australia to ‘repeal any law or policy and cease any practice or custom that enables the deprivation of liberty on the basis of impairment and that enables forced medical interventions on persons with disabilities’.[156]

A. The Prohibition against Torture, Cruel, Inhuman or Degrading Treatment or Punishment

The legal prohibition against torture is contained in the Convention Against Torture, and Other Cruel, Inhuman an d Degrading Treatment (CAT)[157], the ICCPR[158], the Convention on the Rights of the Child[159] and is reaffirmed in the CRPD[160].

Article 1 of the CAT defines torture as intentional conduct carried out by a public official (or an individual acting in an official capacity) which causes severe physical or mental pain or suffering.[161] International human rights law also prohibits conduct which falls short of the definition of torture, including acts that constitute cruel, inhuman or degrading treatment or punishment.[162]

 

The CRPD, states that, ‘no one shall be subjected to torture or cruel, inhumane or degrading treatment or punishment and, in particular, to scientific or medical experimentation’, and requires States to take ‘all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhumane or degrading treatment or punishment.[163]

Despite torture being prohibited by several international human rights conventions, Victoria’s MHA permits conduct which falls within the ambit of torture, cruel, inhumane, or degrading treatment or punishment. As discussed previously, the MHA allows forced medical treatment against the will of patients, in circumstances where it is deemed that they do not have capacity to provide consent, based on their cognitive or mental functioning[164]. This includes compulsory treatment (in the community and within hospitals),[165] seclusion, bodily restraint,[166] and ECT[167]. As these forced interventions cause severe pain and suffering, they violate the prohibition of torture and cruel, inhuman and degrading treatment.[168]

The United Nations Human Rights Council (the Council) has denounced forced medical treatment (including ECT), advised that States parties should remove legislation which permits forced consumption of medication, and has stated that countries, ‘should refrain and recognise these practices as constituting torture or other cruel, inhumane or degrading treatment or punishment’.[169] This view is also supported by Minkowitz who argues all that forced psychiatric interventions violate the universal prohibition of torture.[170] Furthermore, the first United Nations Special Rapporteur on Torture when listing methods of physical torture, advised the international community that the ‘administration of drugs in psychiatric institutions [including] neuroleptics, that cause trembling, shivering and construction, but mainly make the subject apathetic and dull his intelligence’ would constitute torture.[171] Dr Piers Gooding and Dr Dainus Puras have also argued that forcing people to take mind-and body-altering drugs is incompatible with the right to dignity and autonomy.[172]

Furthermore, the coercion of patients to consume medication and have compulsory medical treatment is in conflict of the object, purpose and principles of the CRPD, which includes promoting respect for the inherent dignity of disabled people,[174] and individual autonomy including the freedom to make one’s own choices.[175] This is also in conflict with Article 18 of Vienna Convention on the Law of Treaties which requires States to refrain from acts which would defeat the object and purpose of treaties which they have signed.[176]

An additional human rights concern relating to the MHA is that Victorian hospitals permit various types of restraint, including physical restraint (being forcibly held down by a person), mechanical restraint (when devices such as belts or straps are used to hold the patient to a bed or chair), and chemical restraint (the use of medication designed to calm to control the patient).[177]

For example, a patient reported to the MHCC that she had been mechanically restrained in an emergency department in a Victorian hospital.[178] This was because the patient had been assessed as being at risk of self-harm and absconding.[179] The patient was restrained by her wrists and ankles for hours and was not allowed to use the toilet and was forced to embarrassingly use a bedpan instead.[180] The patient was not reviewed by a medical practitioner for the entire time that she was restrained, and reported that the restraint had left her distressed and traumatised.[181]

Furthermore, it is no secret that the terror experienced by patients who are restrained in Victorian psychiatric facilities can cause longstanding trauma.[182] For example, evidence of the pain and suffering inflicted by ECT and a forcible restraint was evident in a statement by a Victorian woman who was ordered to undergo ECT treatment.[183] The woman explained that she was wheeled to the treatment room by security guards who then restrained her by holding her down to ensure that she did not flee.[184] She described the experience as equivalent to the fearful feeling of ‘being wheeled down to the gas chamber’.[185]

Another witness before the Royal Commission into Victoria’s mental health system stated:

‘The thing with compulsory treatment is that the measures that are taken are extreme. You wouldn’t treat anybody else that way, but because you are perceived to have a mental illness, you can be restrained to a bed for hours or thrown in a seclusion room or chucked in the back of a divvy van or jabbed in the butt, and then knocked unconscious for the day. It’s that kind of stuff that makes compulsory treatment terrible. Yes, your life was saved, but to what extent? I now have significant trauma from compulsory treatment’.[186]

 

Furthermore, the MHA allows disabled people to be detained against their will and enables forced medical treatment, despite United Nations treaty bodies having concluded that involuntary treatment and psychiatric interventions constitute torture and ill-treatment.[187]

This view was also made clear by several United Nations Special Rapporteurs, who have advised the international community of the following statements:

· ‘medical care that causes severe suffering for no justifiable reason can be considered cruel, inhumane, or degrading treatment or punishment and if there is State involvement and specific intent it is torture’;[188]

· ‘forced institutionalisation and any detention based on disability may amount to torture and ill treatment’;[189]

· ‘the imposition, of solitary confinement of any duration on persons with mental disabilities is cruel, inhumane or degrading treatment’.[190]

· ‘Any restraint on people with mental disabilities even for a short period of time may constitute torture and ill-treatment’[191]; and

· ‘forced psychiatric interventions, when committed against a person with psychosocial disabilities satisfies both intent and purpose required under article 1 of the CAT, notwithstanding claims of ‘good intentions’ by medical professionals’.[192]

The Committee on Economic, Social and Cultural Rights and the Committee on the Rights of Persons with Disabilities also stated in General Comments that: 

‘Forced treatment and other harmful practices, such as solitary confinement, forced sterilization, the use of restraints, forced medication and overmedication (including medication administered under false pretences and without disclosure of risks) not only violate the right to free and informed consent, but constitute ill-treatment and may amount to torture’.[193]

 

In the Committee’s 2019 concluding observations to Australia, it explained that it was ‘seriously concerned about, ‘legislation, policies and practices that permit the use of psychotropic medications, physical restraints and seclusion under the guise of ‘behaviour modification’ and restrictive practices against persons with disabilities’[194]

The Committee also urged Australia to establish a nationally consistent legislative framework to protect disabled people from the use of psychotropic medications, physical restraints and seclusion, and to eliminate restrictive practices[195]. However, human rights violations, including those which may amount to torture, cruel and inhumane and degrading treatment, continue to be permitted under the MHA.

IV. HUMAN RIGHTS ISSUES WITHIN VICTORIAN DISABILITY DISCRIMINATION LEGISLATION

I. An Incompatible Definition of Disability

The right to equality and non-discrimination is enshrined in Article 5 of the CRPD.[196] Specifically, the right requires State Parties to recognise that all people are equal before the law and to prohibit disability discrimination.[197] 

There are two systems where complainants may argue disability discrimination in Victoria. The first is the Commonwealth system, in which parties would need to utilise the Disability Discrimination Act, 1992, and the second is the Victorian state system, where complainants are required to apply the Equal Opportunity Act 2010 (EOA).[198] As discussed previously, for the purpose of this paper, we will focus solely on the EOA.

The definition of disability contained in the EOA covers individuals who have temporary or permanent disabilities, physical, intellectual, sensory, neurological, learning and psychosocial disabilities, diseases or illnesses, physical disfigurement, medical conditions and work-related injuries.[199]. The definition also extends to disabilities that people have had in the past and disabilities that people may develop in the future, as well as disabilities that people are presumed to have had.[200] The EOA also states that a disability also includes a symptom or manifestation of a disability.[201]

While the definition of disability, in the EOA appears to be broad, it is incompatible with the definition of disability contained in the CRPD, due to it being a narrower definition with limitations.[202]

For example, Article 1 of the CRPD explains that:

 ‘Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.[203]

As you can see, the definition of disability in the CRPD has been worded to ensure that it is sufficiently broad to encompass all forms of disability, which are impacted by societal barriers. Unfortunately, the definition of disability described in the EOA only includes a specific list of disabilities.[204] This is problematic as it means that the EOA can only be applied to certain classes of disabled people, which limits the ability of all disabled people to utilise the EOA as legal protection from disability discrimination. 

For example, it is unclear whether addiction is classified as a disability under the EOA.[205] This issue arose in the case of McDougall v Kimberly-Clark Australia Pty Ltd (McDougall’s case).[206] The complainant alleged that her employer had discriminated against her by failing to provide her with a wage during the time that she was negatively impacted by a gambling addiction.[207] The Complainant also alleged that her employer had forced her to work in circumstances which failed to accommodate her gambling addiction.[208] Unfortunately, VCAT was unable to decide whether a gambling addiction constituted an impairment, as the complainant was unable to satisfy the tribunal of the duration and time of her gambling addiction.[209] However, this case highlights the issue that the EOA may not apply to all types of disability. 

II. Limitations on the Grounds which Discrimination may be Argued

A further limitation within the EOA is that it fails to prohibit disability discrimination in all areas of life, unlike the CRPD. For example, the CRPD states that ‘parties shall prohibit discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds’.[210]

However, the EOA fails to adequately protect disabled people in all areas as it only offers protection from discrimination in specific circumstances, including in education,[211] employment[212], goods services and disposal of land, [213]access to premises, clubs,[214] accommodation,[215] sport,[216] and within local government.[217] The EOA also fails to protect disabled people from systemic and intersectional forms of discrimination,[218] which was a significant concern highlighted by the Committee, who recommended that Australia should strengthen its discrimination laws to:

‘address and prohibit systemic, intersectional and multiple forms of discrimination, recognising discrimination on a single or multiple and/or intersectional characteristics and allowing for systemic complaints, representative and group actions and sanctions for addressing lack of access and discriminatory behaviour’.[219]

Furthermore, failing to ensure that disabled people may raise complaints that relate to intersectional and systemic forms of discrimination is detrimental to disabled people within Victoria, who cannot be defined by one singular attribute, or for those who are impacted by discrimination within legislation or policies.

III. Problematic Exceptions within the Law

In addition to the EOA failing to protect disabled people from systemic and intersectional forms of discrimination,[220]the legislation also contains problematic exceptions to the law which permit disability discrimination. This is because the EOA does not protect complainants from discrimination when the discrimination is documented within legislation, or when it is permitted by a Court or Tribunal order.[221]

Additionally, the EOA permits discrimination on the basis of legal capacity,[222] contrary to the CRPD which strictly prohibits this form of discrimination, and requires States to recognise that persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life. [223]

For example, Section 85 (1) of the EOA states that; ‘nothing in this Act is intended to affect the law in relation to legal capacity or incapacity of any person’.[224] Section 85(2) goes on further to state that ‘a person may discriminate against another person if the person is subject to legal incapacity because of their disability and the incapacity is relevant to the transaction or activity which they are involved’.[225]

Therefore, the EOA fails to prohibit disability discrimination when the disabled person is denied legal capacity.[226] This is extremely problematic as the MHA and the GAA deny legal capacity on the basis of mental impairment, which constitutes disability discrimination.[227] Additionally the EOA is also unable to protect against this discriminatory issue, due to the legislative exception which permits disability discrimination when written into other forms of legislation.[228]

As discussed previously, disabled people have a right to recognition as persons before the law, which includes the right to make decisions regarding their healthcare and medical treatment.[229] However, this right is denied to disabled people on the basis of a protected attribute (their disability) when findings are made that they lack capacity due to their cognitive, mental or intellectual functioning under the GAA and the MHA.[230] This raises concerns when considering Article 12 of the CRPD and the General Comment No.1, which together make it clear that cognitive tests of legal capacity discriminate based on mental disability.[231]

Furthermore, restricting a person’s legal capacity based on their mental incapacity constitutes disability discrimination,[232] as mental capacity assessments incorrectly assume that disabled people can be protected by restricting their legal rights[233]. For example, many legal academics support the argument that functional assessments relating to an individual’s mental capacity constitute direct and indirect disability discrimination.[234]This conduct constitutes unlawful discrimination on the basis of disability, as it incorrectly assumes that disabled people require protection.[235] For example, there are many situations where society makes decisions not to protect non-disabled people who are considered to be at risk of serious harm, as the State respects that these individuals are persons before the law and holders of rights.[236]This is often the case with situations relating to family violence,[237] where courts are able to grant orders of restraints and other injunctions at the request of the victim[238]. Yet, they do not have the legislative power to remove the victim from the situation without their consent, or make orders which can deny their legal capacity, despite that they may be at risk of harm.[239]Furthermore, decisions that are made to deprive patients of their liberty under the MHA, also constitute disability discrimination.[240] This is because the MHA requires patients with psychosocial disabilities to endure additional grounds for detention that are only applied to them by reason of having a mental illness which impacts their functioning.[241]

Other forms of discriminatory treatment permitted under the MHA and the GAA include:

· Subjecting people with psychosocial disabilities to forced medical treatment.[242]

· Compelling disabled people to forms of decision making limitations based on their capacity.[243]

· Disallowing individuals with intellectual and other cognitive disabilities the opportunity to make decisions about their lives through guardianship orders, and other forms of denunciation which remove their ability to make their own choices;[244]

· Refusing to recognise a disabled person as a holder of rights and an actor before the law (refusing to recognise their legal capacity);[245] and

· When State parties intervene in the private lives of citizens because of factors relating to the person’s disability.[246]

As well as permitting disability discrimination relating to legal capacity and when discriminatory acts are written within legislation or made legal by a court or tribunal order, the EOA also permits disability discrimination in employment.[247]

For example, disability discrimination is permitted to occur, if an employer refuses to provide reasonable adjustments to a disabled employee if an argument can be made that the reasonable adjustment is unreasonable,[248] or if the disabled individual could not perform the inherent requirements of the job even if the adjustments were made[249]. This exception is contrary to the CRPD which requires State Parties to ensure that reasonable accommodations are provided to disabled people within the workforce, without any legal exceptions to this right.[250]

The EOA also provides exceptions to disability discrimination in education[251]. For example, an education provider is required to make reasonable adjustments for a student, unless the required change would be significantly costly, unfeasibly difficult to achieve, the student could not participate in education even if changes were made, or where they have been exempted from federal education standards[252]. Again, this exception is problematic as it conflicts with international human rights law which provides that disabled people have a right to education and in realising that right, State Parties must provide reasonable accommodations to students in the field of education without exceptions.[253]

Additional exceptions permitting disability discrimination in the EOA, which are not permitted under international human rights law, include:

· Permitting disability discrimination within the context of hiring an individual for personal or domestic services within a person’s home;[254]

· Permitting an insurer to make discriminatory decisions regarding the cost of insurance, or other risks when insuring a group of people;[255]

· Permitting disabled people with specific disabilities from participating in particular sports; and[256]

· Permitting discrimination by religious bodies,[257] charities[258] and when the discrimination relates to a person’s political belief or activities.[259]

As these exceptions permit disability discrimination, they are in violation of the CRPD which requires States ‘to take all appropriate measures, including legislation, to modify or abolish existing laws that constitute discrimination against persons with disabilities’.[260] .

Furthermore, the CRPD also requires States to refrain from engaging in any act or practice that is inconsistent with the Convention,[261] which the EOA continues to permit by allowing exceptions to disability discrimination.

V. CONCLUSION

 

Although the ratification of the CRPD, has strengthened Australia’s existing legal obligations under international law to protect the human rights of disabled people, human rights violations of disabled people within the State of Victoria continue to occur.[262] This is because of the lack of progress made to amend Victorian legislation to ensure that it is compatible with the human rights provided for by the CRPD and under international human rights law.[263]

 

Disabled people within Victoria experience multiple forms of human rights violations, which are legally permitted by Victorian legislation.[264] The EOA, MHA and the GAA all deny the right to legal capacity on the basis of disability and contain discriminatory provisions which are detrimental to disabled people, due to being non-compliant with the safeguards provided for under Article 12 of the CRPD.[265]

 

All three pieces of legislation fail to recognise the right to legal capacity of disabled people, and the GAA and the MHA, do not comply with the requirement that all substituted decision making schemes are to be supplemented with supported decision making schemes.[266]

The recognition of legal capacity is a precondition for the exercise of all other human rights and fundamental freedoms.[267] Therefore, amendments need to be made within the GAA and the MHA to make it clear that disabled people’s right to legal capacity cannot be removed, and all forms of substituted decision making schemes should be repealed and replaced with supported decision making regimes, to ensure that Victoria immediately realises the human rights of disabled people in the CRPD.[268]

The MHA and the GAA also continue to permit forced sterilisation without consent, despite being in breach of Article 12, in addition to Article 6 (women and girls with disabilities), Article 14 (liberty and security of person) and Article 17 (protecting the integrity of the person).[269]

Practices which amount to torture and ill-treatment also continue to occur under laws governing the Victorian mental health system.[270] These include forced medical treatment, forced ECT, and forced institutionalisation to non-consenting disabled patients, which contravene rights including liberty, integrity and security of person, the right to privacy and the right to health.[271]

Another issue facing the Victorian legal system is that the EOA allows disability discrimination to occur if the complainant is subject to legal incapacity because of their disability.[272] The EOA also contains a narrow definition of disability, which is incompatible with the definition contained in the CRPD and as a result, cannot be utilised to protect all disabled people from discrimination.[273] The legislation also fails to protect against systemic and intersectional forms of discrimination and allows many legal exceptions which permit disability discrimination, despite being contrary to international human rights law.[274]

 

The EOA should be amended to ensure that the definition of disability aligns with the definition contained in the CRPD, and enables complaints to be made concerning systemic and intersectional forms of discrimination.[275] All legal exceptions which permit disability discrimination within the EOA should also be removed.

For Australia to be compliant with international human rights law, and to be able to protect the human rights of all disabled people, it is crucial that Victorian legislation is amended to ensure that it aligns with the human rights provided for in the CRPD[276].Furthermore, if Victorians wish to realise the rights of disabled people, steps should also be taken to adopt the recommendations provided for by the Committee in its 2019 Concluding observations, which included recommendations that Australia should review and withdraw the interpretative declarations on articles 12, and 17 of the CRPD,[277] which deny legal capacity on the basis of disability and allow for the continued and supposed lawfulness of substituted decision making schemes.[278]

[1] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (CRPD), Article 1.

[2] United Nations, ‘United Nations Treaty Collections’, (web page, undated)< https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en>.

[3] Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) (Concluding Observations).

[4] Ibid.

[5] Committee on the Rights of Persons with Disabilities, above n 3, p 1.

[6] Committee on the Rights of Persons with Disabilities, above n 3, p 1.

[7] Emma Blakey and Stephan Fodrocy, Does Australian and German Law Fulfil Article 12(4)’s Requirements of Ensuring the Rights, Will and Preferences of Persons with Disabilities?’ (The University of Melbourne, 2016) p 10.

[8] Ibid.

[9] Guardianship and Administration Act, 2019 (Vic) (GAA)

[10] CRPD, above n 1, art 12.

[11] Dainus Puras and Piers Gooding, ‘Mental Health and Human Rights (2019) 18(1) Official Journal of the World Psychiatric Association, 42.

[12] United Nations, ‘United Nations Treaty Series’ (web page, undated) < https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec>.

[13] Committee on the Rights of Persons with Disabilities, above n 3, art 9.

[14] (Vic)

[15] Equal Opportunity Act, 2010 (Vic) (EOA) s 85,

[16] Ibid, s 4.

[17] Mental Health Act, 2014 (Vic)

[18] (Vic)

[19] (Vic)

[20] Committee on the Rights of Persons with Disabilities, General Comment on Article 12, 11th Session, UN Doc: CRPD/C/11/4 (25 November 2013).

[21] Ibid

[22] Dr Arstein-Kerslake, ‘Legal Capacity and Supported Decision-Making: Respecting Rights and Empowering People’ University of Melbourne Law School Research Series (web page, 22 May 2019)< http://classic.austlii.edu.au/au/journals/UMelbLRS/2016/1.html>.

[23] United Nations Human Rights Committee on the Rights of Persons with Disabilities, General Comment No. 1, Article 12, UN DOC CRPD/C/GC/1 (19 May 2014).

[24] Gerald Quinn and Anna Arnstein-Kerslake, ‘Restoring the ‘Human’ in ‘Human Rights’ – Personhood and Doctrinal Innovation in the UN Disability Convention’ in Connor Gearty and Costas Douzinas (eds), The Cambridge Companion to Human Rights Law (Cambridge University Press, 2012) 36.

[25] CRPD, above n 1, art 12(1).

[26] CRPD, above n 1, art 12(2).

[27] Ron McCallum, The United Nations Convention on the Rights of Persons with Disabilities: An Assessment of Australia’s Level of Compliance,Royal Commission into Violence, Abuse and Neglect of People with Disabilities (report, October 2020)< https://disability.royalcommission.gov.au/system/files/2020-10/Research%20Report%20-%20The%20United%20Nations%20Convention%20on%20the%20Rights%20of%20Persons%20with%20Disabilities%20-%20An%20Assessment%20of%20Australia’s%20Level%20of%20Compliance_1.pdf>.

[28] Committee on the Rights of Persons with Disabilities, General Comment on Article 12, 11th Session, UN Doc: CRPD/C/11/4 (25 November 2013). 

[29] Emma Blakey and Stephen Fodrocy, above n 7, p 4.

[30] Gerald Quinn and Anna Arnstein-Kerslake, above n 24, 38.

[31] Mental Health Act, 2014 (Vic) (MHA), s 71, EOA, above n 4, s 85(1).

[32] Australian Law Reform Commission, ‘Capacity and Decision Making’ (web page, 2012)< https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-ip-44/equality-capacity-and-disability-in-commonwealth-laws/capacity-and-decision-making/>.

[33] CRPD above n 1, Art 12(2)

[34] United Nations, above n 2.

[35] Ibid.

[36] United Nations, above n 2.

[37] Eilionoir Flynn and Anna Arstein-Kerslake, ‘Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity’ (2014) Vol 10(1) International Journal of Law In Context 40.

[38] GAA, above n 9, s 7.

[39] Eilionoir Flynn and Anna Arstein-Kerslake, above n 33.

[40] Committee on the Rights of Persons with Disabilities, General Comment on Article 12, 11th Session, UN Doc: CRPD/C/11/4 (25 November 2013) art 24.

[41] Ibid, CRPD, above n 1, art 12.

[42] GAA, above n 9, s 38 (1)(a).

[43] GAA, above n 9, s38(1)(b).

[44] GAA, above n 9, S 38(2).

[45] GAA, above n 9, s 3.

[46] GAA, above n 8, s 3.

[47] CRPD, above n 1, art 12.

[48] GAA, above n 9, s 3.

[49] CRPD, above n 1, art 19(a).

[50] The Jenny Hatch Project, ‘The Justice for Jenny Trial’ (web page, 2013) < http://jennyhatchjusticeproject.org/trial>.

[51] Ibid.

[52] The Jenny Hatch Project, above n 50.

[53] Ibid.

[54] The Jenny Hatch Project, above n 50.

[55] Ibid.

[56] The Jenny Hatch Project, above n 50.

[57] Ibid.

[58] Mid Atlantic ADA Centre, Episode 3 Supported Decision Making (pod cast, 2021) < https://www.adainfo.org/podcast/episode-3-supported-decision-making>.

[59] The Jenny Hatch Project, above n 50.

[60] The Jenny Hatch Project, above n 50.

[61] CPPD, above n 1, art 14, Universal Declaration of Human Rights, GA Res 217 (III) UN GAOR, UN Doc: A/810 (10 December 1948 (UDHR)art 3; International Covenant on Civil and Political Rights (ICCPR), opened for signature 21 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9(1).

[62] CRPD, above n 1, art 18(1), ICCPR Art 12(1), above n 54, UDHR Art 13(1), above n 54.

[63] GAA, above n 9, s 3.

[64] CRPD, above n 1 art 23.

[65] CRPD, art 23 (1)(a).

[66] GAA, above n 9, s 178.

[67] GAA, above n 9, s 9(1)(e).

[68] CRPD, above n 1 preamble, art (n).

[69] ICCPR, above n 61, art 1(1) ICESCR, above n 61 art 1(1).

[70] GAA, above n 9, s 3.

[71] CRPD, above n 1, Art 24(1), UDHR, above n 61 Art 26(1)and ICESCR Art 13(1.)

[72] CRPD, above n 1 art 27(1), UNDHR above n 61, Art 23(1), above n 54, ICESCR Art 6(1)

[73] GAA, above n 9, s 46.

[74] GAA, above n 9, 31.

[75]GAA, above n 9, S 46 (1) (a).

[76] GAA, above n 9, S 46(1)(b).

[77] GAA, above n 9, S 46(1)(c).

[78] GAA, above n 9, S 46(1)(d).

[79] GAA, above n 9, S 46(1)(e).

[80] GAA, above n 0, s 46(1)(f).

[81] CRPD, above n 1, Art 12(5).

[82] CRPD, above n 1, Art 23; UDHR, above n 61, Art 12.

[83] ICCPR, above n 61 Art 12(1), CRPD, above n 1, Art 19(a).

[84] CPRD, above n 1,Art 22 (1); ICCPR, above n 61 Art 17.

[85] UDHR, above n 61, Art 17(2).

[86] [2011] VSC 327

[87] Ibid.

[88] PJB v Melbourne Health & Anor [2011] VSC 327.

[89] Ibid

[90] PJB v Melbourne Health & Anor, above n 86.

[91] PJB v Melbourne Health & Anor, above n 86.

[92] Ibid.

[93] PJB v Melbourne Health & Anor, above n 86.

[94] PJB v Melbourne Health & Anor, above n 86, [43]

[95] PJB v Melbourne Health & Anor above n 86, [43]; UDHR, above n 61 Art 6, Art 7, ICCPR, above n 61, art 26.

[96] GAA, above n 9, S 30(2)(a).

[97] Committee on the rights of persons with disabilities, general comment no 1 (2014), 11th session, UN Doc CRPD/C/GC/1 (11 April 2014) [7].

[98] CRPD, above n 1, art 5(2).

[99] CRPD, above n 1 Art 4(b).

[100] CRPD, above n 1, art 12.

[101] Committee on the Rights of Persons with Disabilities, above n 3, art 23.

[102] Committee on the Rights of Persons with Disabilities, above n 3, art 24(a)

[103] Ibid, art 24(b).

[104] Penny Weller, ‘Supported Decision-Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention, 26(2) Law Context A Socio Legal Journal J (2008) 101..

[105] Emina Cerimovic, ‘Britney Spear’s Conservatorship Mirrors Reality for Millions with Disabilities’, Human Rights Watch (web page, 26 June 2021) <Britney Spears’s Conservatorship Mirrors Reality for Millions with Disabilities | Human Rights Watch (hrw.org)>.

[106] Ibid.

[107] Emina Cerimovic, above n 105.

[108] Ibid.

[109]Emina Cerimovic, ‘#Free Britney Shines a Light on Problematic Guardianship Systems’ Human Rights Watch (web page, 17 February 2021)<https://www.hrw.org/news/2021/02/17/freebritney-shines-light-problematic-guardianship-systems>.

[110] CRPD, above n 1, Art 4 (1)(d).

[111] CRPD, above n 1, Art 25 (a).

[112] GAA, above n 9, s 3.

[113] CRPD, above n 1, art 12 and art 14.

[114] GAA, above n 9, s 141.

[115] GAA, above n 9, S 143(1).

[116] Ibid.

[117] United Nations, above n 11.

[118] Consideration of Reports, UN Doc CRPD/C/SR.107, 3 [9].

[119] Committee on the Rights of Persons with Disabilities , above n 3, art 33(a).

[120] Committee on the Rights of Persons with Disabilities , above n 3, art 33(b).

[121] MHA, above n 31. s 68.

[122] MHA, above n 31.

[123] MHA, above n 31, s 1.

[124] Victoria Legal Aid, ‘Introduction to the Mental Health Act 2014’ (web page, 22 April 2021)<Introduction to the Mental Health Act 2014 | Victoria Legal Aid>.

[125] CRPD, above n 1, art 25.

[126] CRPD, above n 1, art 25

[127] Bernadette McSherry and Lisa Waddington, ‘Treat with care: the right to informed consent for medical treatment of persons with mental impairments in Australia’ Australian Journal of Human Rights (2017) 23(1) 111.

[128] United Nations Human Rights Committee on the Rights of Persons with Disabilities , above n 19, paragraph 41.

[129] CRPD, above n 1, art 25(d).

[130] Bernadette McSherry and Lisa Waddington, above n 127, p 111.

[131] Committee on the Rights of Persons with Disabilities , above n 3, art 48)b)

[132] MHA, above n 31, Part 4.

[133] Emma Blackey and Stephen Fodrocy, above n 6.

[134] Mental Health Complaints Commission, ‘Damian – Medication and Public Mental Health Services’ (web page, 21 April 2021)<https://www.mhcc.vic.gov.au/damien-medication-public-mental-health-services>.

[135] Ibid.

[136] Mental Health Complaints Commission, above n 133.

[137] Ibid.

[138] Mental Health Complaints Commission, above n 133.

[139]MHA, above n 31, Part 4.

[140] MHA, above n 31, S 45(1).

[141] MHA, above n 31, s 51.

[142] MHA, above n 31, s 57(2).

[143] MHA, above n 31, s 71(1)(a)(i).

[144] MHA, above n 31 s 71(1)(a)(ii).

[145] MHA, above n 31, s 71(3).

[146] MHA, above n 31, s 73.

[147] Ibid.

[148] MHA, above n 31, s 71(3)(1)(a).

[149] MHA, above n 31, s 71(3)(1)(b).

[150] CRPD, above n 1, Art 14 (1)(a).

[151] CRPD, above n 1, Art 14(1)(b).

[152] Mental Health Complaints Commission, ‘Sam and Coronavirus Covid 19 – Public Mental Health Services’ (web page, 10 June 2021)< https://www.mhcc.vic.gov.au/sam-and-coronavirus-covid-19-public-mental-health-services>.

[153] Ibid.

[154] Mental Health Complaints Commission, above n 151.

[155] United Nations Human Rights Committee on the Rights of Persons with Disabilities, above n 3, art 27(a).

[156] United Nations Human Rights Committee on the Rights of Persons with Disabilities, above n 3, art 28(a).

[157] Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT).

[158] International Covenant on Civil and Political Rights, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 23 March 1975 (ICCPR), Art 7 .

[159] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 37 CRC.

[160] CRPD, above n 1, Art 15.

[161] CAT, above n 156, art 1.

[162] UN General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment : note / by the Secretary-General, A/63/175 (28 July 2008) [46].

[163] CRPD, above n 1, art 15.

[164] MHA, above n 31, part 4.

[165] MHA, above n 31, s 28 (b), s 48, s 57(2)(a).

[166] MHA, above n 21, s 113.

[167] MHA, above n 31, s 92.

[168] UN General Assembly, above n 152 [38], [40], [41].

[169] United Nations Human Rights Council, Report of the Human Rights Council on Mental Health and Human Rights, 39th sess, UN Doc: (A/HRC/39/2) 10-28 September 2018.

[170] Tina Minkowitz, ‘The United Nations Convention on The Rights of Persons with Disabilities and the Right to be Free from Non Consensual Psychiatric Interventions’ (2007) Vol 43, Syracuse Journal of International Law and Commerce, 405.

[171] UN Commission on Human Rights, Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, UN Doc: E/CN.4/RES/1986/50, (13 March 1986).

[172] Dainus Puras and Piers Gooding, ‘Mental Health and Human Rights’ (2019) 18(1) Official Journal of the World Psychiatric Association, 42.

[173] CRPD, above n 1, art 17.

[174] CRPD, above n 1, Art 1.

[175]CRPD, above n 1, Art 3(a).

[176] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), art 18.

[177] Citizens Commission on Human Rights, Submission to the Royal Commission into Victoria’s Mental Health System from the Victorian Office of the International Organisation, the Citizens Commission on Human Rights, (1 July 2019) 11 . Citizens Commission on Mental Health Victoria, above n 176, p 11.

[178] Mental Health Complaints Commission, ‘Michelle – Restrictive Interventions – Public Health Services’ (web page, 21 April 2021)< https://www.mhcc.vic.gov.au/michelle-restrictive-interventions-public-mental-health-services>.

[179] Ibid.

[180] Mental Health Complaints Commission, above n 177.

[181] Ibid.

[182] Citizens Commission on Human Rights, above n 176, p 9.

[183] Ibid.

[184] [184] Citizens Commission on Human Rights, above n 176, p 9.

[185] Ibid.

[186] Royal Commission into Victoria’s Mental Health System, ‘Final Report Summary and Recommendations (Report, February 2021) 5.

[187] UN General Assembly, above n 152 [44], [47], [61], [63].

[188]United Nations General Assembly, ‘Human Rights Council Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez’ 22nd Sess, UN Doc: A/63/175 (1 February 2013) art 39

[189] Human Rights Council, Mental health and human rights - Report of the United Nations High Commissioner for Human Rights, UN Doc: A/HRC/39/36 (September 2018) 6 [14].

[190] United Nations General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Un Doc: A/66/268, [67]-[68], [78] (5 August 2011).

[191] United Nations General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Un Doc: A/66/268, [67]-[68], [78] (5 August 2011).

[192] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 1 February 2013, A/HRC/22/53 (1 February 2013), p 21[85].

[193] See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 50, Committee on the Rights of Persons with Disabilities, general comment No. 1, paras. 37 and 41.

[194] Committee on the Rights of Persons with Disabilities, above n 3, art 29(a).

[195] Committee on the Rights of Persons with Disabilities, above n 3, art 30(a).

[196] CRPD above n 1, Art 3(b), Art 4(b), Art 5 and 12

[197] Ibid.

[198] Disability Discrimination Act, 1992 (Cth) and Equal Opportunity Act, 2010 (Vic), above n 18.

[199] EOA, above n 15, s 4.

[200] Ibid.

[201] EOA, above n 15.

[202] EOA, above n 15, s 4.

[203] CRPD, above n 1, Article 1.

[204] EOA, above n 15, s 3.

[205] Maddocks, ‘Addiction, is it a disability’ (web page, 17 February 2016)<https://www.maddocks.com.au/insights/addiction-disability>.

[206] (Anti-Discrimination) [2006] VCAT 2211.

[207] Ibid.

[208] McDougall v Kimberly-Clark Australia Pty Ltd, above n 197.

[209] Ibid.

[210]CRPD, above n 1, Art 5(2)

[211] EOA, above n 15 s 38

[212] EOA, above n 15, s 16.

[213] EOA, above n 15, s 44.

[214] EOA, above n 15 64.

[215] EOA, above n 15, s 52.

[216] EOA, above n 15, s70.

[217] EOA, above n 15, s 73.

[218] Committee on the Rights of Persons with Disabilities, above n 3, art 9.

[219] Ibid.

[220] Committee on the Rights of Persons with Disabilities, above n 3, art 9.

[221] EOA, above n 15, S 75 and s 76

[222] EOA, above n 15, S 85(1).

[223] CRPD, above n 1, Art 12 (2)

[224] EOA, above n 15, s 85(1).

[225] EOA, above n 15, s 85(2).

[226] Ibid.

[227] Penny Weller, above n 106.

[228] EOA, above n 15, s 75.

[229] CRPD, above n 1, art 12(1), art 25(d).

[230] Penny Weller, above n 106.

[231] Tina Minkowitz, above n 169, p 406.

[232] Jillian Craigie and Michael Bath, et al, ‘Legal Capacity, Mental Capacity and Supported Decision Making (2019) Vol 62, International Journal of Law and Psychiatry pg 160.

[233] Ibid,

[234] Elionoir Flunn and Anna Arstein-Kerslate, ‘State Intervention in the Lives of People with Disabilities: the Case for a Disability Neutral Framework’ (2017) 13(1), Cambridge University Press, p 8.

[235] Ibid.

[236] Elionoir Flunn and Anna Arstein-Kerslate, above n 234, p 8.

[237] Ibid.

[238] Elionoir Flunn and Anna Arstein-Kerslate, above n 234, p 8.

[239] Ibid.

[240] Tina Minkowitz, above n 169, p 406.

[241] Ibid.

[242] Eilionoir Flynn and Anna Arstein-Kerslake, ‘The right to legal agency: domination, disability and the protection of Article 12 of the Convention on the Rights of Persons with Disabilities’ (2017) 13(1) Cambridge University Press, p 2.

[243] Eilionoir Flynn and Anna Arstein-Kerslake, above n 240 and Tina Minkowitz above n 169.

[244] Eilionoir Flynn and Anna Arstein-Kerslake, above n 240

[245] Eilionoir Flynna and Anna Arstein-Kerslake, ‘State Intervention in the Lives of People with Disabilities: the Case for a Disability Neutral Framework’ (2017) 13 (1) Cambridge University Press, pg 2

[246]Eilionoir Flynna and Anna Arstein-Kerslake, above n 243, p 7;

[247] EOA, above n 15, s 34.

[248] Ibid.

[249] EOA, above n 15, s 34.

[250] CRPD above n 1, art 27 1(i)

[251] EOA, above n 15, s 38

[252] EOA, above n 18, s 41,

[253] CRPD, above n 1, art 24(1)(C).

[254] EOA, above n 18, s 24.

[255] EOA, above n 18, s 47.

[256] EOA, above n 18, s 71.

[257] EOA, above n 18, s 80

[258] EOA, above n 18, s 80.

[259] EOA, above n 18, s 74.

[260] CRPD, above n 1, Art 4 (1)(b).

[261] CRPD, above n 1, Art 4 (1)(d).

[262] Emma Blakley and Steohen Fodrocy, above n 7, p 16.

[263] Ibid.

[264] Emma Blakley and Steohen Fodrocy, above n 7, p 16.

[265] Emma Blakley and Stephen Fodrocy, above n 7, p 16.

[266] Ibid

[267] Royal Commission into violence, abuse and neglect of people with disabilities, research report, the united nations convention on the rights of persons with disabilities: an assessment of Australia’s level of compliance, Ron McCallum, October 2020, pg 6

[268]Emma Blakley and Steohen Fodrocy, above n 7, p 16.

[269] Ibid

[270] Tina Minkawortz, above n 169.

[271] Ibid.

[272] EOA, above n 18, s 85(2).

[273] EOA, above n 18, s 4.

[274] EOA, above n 18.

[275]Ron McCallum, UN Convention on the Rights of Persons with Disabilities: How well does Australia follow the rules of the UN Convention? (report, Octo

[276] Emma Blakley and Stephen Fodrocy, above n 7, p 16.

[277] Committee on the Rights of Persons with Disabilities, above n 3 art 5(b)

[278] Emma Blakley and Stephen Fodrocy, above n 7, p 16.