WRITTEN BY: MICHELLE O'FLYNN
Michelle O'Flynn is the Director at Queensland Advocacy Incorporated (QAI). She is a former president of Queensland Parents for People with a Disability, and a longstanding advocate for the rights of people with disability.
QAI is an independent, community-based systems and legal advocacy organisation for people with disability in Queensland, Australia. They provide individual legal advocacy in support of persons whose disability is at the centre of their legal issue.
Earlier this year, QAI worked with Allens lawyers to develop the 'Legal Capacity Handbook,' as reported on the JATL blog by Monica Taylor from the UQ Pro Bono Centre.
Australians in general, and our politicians in particular, believe we are a fair and just society, and yet are blinkered to the government-sanctioned acts of disempowerment, bondage, drugging and imprisonment of our elderly and people with disability. These acts are imposed upon vulnerable people with disability with the approval of the very bodies charged with their care and protection. Queensland legislation that was purportedly developed to ensure that these practices were not abused has been modified to the point where it has become a ‘how-to guide’ for service providers.
The use of Restrictive Practices on people with an intellectual or cognitive impairment is an important issue that touches on notions of human rights, equality, autonomy, choice, dignity and respect and pertains to a highly vulnerable, marginalised and disempowered group in our society. Despite the enshrined legislative principles of ‘least restrictive’ and ‘last resort’ many people with disability in Australia are routinely subjected to behaviour modification or restrictive practices including chemical, mechanical, or physical restraint, seclusion, containment, detention or time out. These practices are discriminatory and may constitute ill treatment and cause physical pain and discomfort, deprivation of liberty, and prevent freedom of movement
In 2014, Commonwealth, state and territory disability ministers endorsed the ‘National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector’.’ The focus is largely on when and how to use restrictive practices and NOT on seeking to prevent use. Furthermore, it only applies to disability services and fails to recognise that restrictive practices occur in other situations. Finally, it appears to have been developed without reference to Australia’s obligations under the United Nations Convention Against Torture (CAT) or indeed the Convention on the Rights of Persons with Disabilities (CRPD).
Restrictive Practices are imposed upon vulnerable people by those who abuse their power and exert domination over the person. These acts are perpetrated because of an inability to understand, interpret or respond appropriately to behaviours that challenge the support service. Yet it is the person who bears the brunt of this inability, with insufficient onus on the service provider to take the time to know the person well enough to support them without these acts.
Restrictive practices can constitute humiliation and punishment and may be imposed as a means of coercion, discipline, convenience and even retaliation by those who provide support.
QAI asserts that the use of Restrictive Practices is a violation of human rights on the grounds that such treatment, if applied as a societal norm to people without disability, would not be tolerated and would be viewed as criminal conduct.
The person viewed as exhibiting the behaviours of concern is restricted, thus exacerbating the problem. Therefore the perceived solution is to apply more or longer use of the particular restrictive practice or practices, entrenching and sanitising this approach as acceptable for the long term. The person gains an ill-deserved reputation that is difficult to shed and any reaction to the application of such practices is met with an increase in their use, and so the cycle is unending.
Further, the existence of permissive legislation that allows the imposition of Restrictive Practices also implicitly condones the use of violence and abuse as a means of relating to a person with a disability by a service provider as part of their day-to-day interaction. This has significant implications for the culture of institutional and residential settings. QAI maintains that the use of Restrictive Practices constitute cruel, inhumane and degrading treatment under the Convention Against Torture.
National Disability Insurance Scheme
A firm commitment to the values of autonomy and self-determination for vulnerable people with an intellectual or cognitive disability is necessary in the context of the National Disability Insurance Scheme. This requires that they are presented with real choices, enabled to express their views and preferences and have their autonomy and right to make decisions respected (irrespective of whether their choices may be objectively considered to be ‘good’ or ‘bad’).
People who live under the imposition of Restrictive Practices are excluded from being able to employ their own staff and self-direct or self-manage their supports and/or funding. While we recognise that this is currently the national position for the NDIA, QAI maintains that this discrimination is unfair and imposes severe limitations on the choice and control available to the most vulnerable people who are eligible for NDIS support yet could potentially have the most to gain from the opportunities that the NDIS may present.
Support for Decision-Making
A support for decision-making approach should be adopted for all matters concerning people with disability. Support for decision-making is about encouraging people with disability and their informal supporters so that guardianship and administration orders are, in some cases, no longer necessary. Informal supporters conduct their support with morality that respects the dignity of risk, and allows people with disability to make mistakes, to learn, build capacity and to truly make their own decisions.
Queensland Guardianship legislation has the most progressive guiding principles to enable a person subjected to Guardianship orders to be involved in decisions being made about their lives. While the stated purpose of the Guardianship and Administration Act 2000 (Qld) is to be fulfilled by a number of actions and guiding principles and by actions such as ‘encouraging an adult’s support network to be involved in decision-making for the adult’ there is no mechanism to ensure that this is respected and indeed enforced. New processes that incorporate monitoring of diligence and fidelity to these principles and actions to ensure that the process is inclusive, valid rather than superficial, and by the imposition of penalties for failing to do so would enable this critical element of self-determination and citizenship rights.
A key principle of the Convention on the Rights of Persons with Disabilities is that people with disabilities have a right to recognition everywhere as persons before the law, a right to enjoy legal capacity on an equal basis with others, and that States parties must take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
QAI holds the position that a national approach to support for decision making is not only the best approach but also one of necessity under the NDIS. It is important that the Federal Attorney General, together with state AG’s and Public Advocates, engage with the peak representative organisations of banks, building societies, commerce and Centrelink rather than trying to negotiate state-by-state reform. The authority of government and Centrelink and the Australian Tax Office (which is already aware of plan nominees executing NDIS funded supports) will go a long way towards alleviating the issues that individuals have encountered with individual banks etc.
The introduction of the National Disability Insurance Scheme has been optimistically received as potentially bolstering autonomous choice for persons with an intellectual or cognitive impairment in all areas of life. When coupled with the guiding principles articled by the CRPD, the intent and purpose of the NDIS is to proactively elevate a person with disability to full citizenship in all respects. Accordingly, while the NDIS facilitates a comprehensive program for the management of services available to people with a disability, it is intended as more than a mere funding stream to enable disabled people as consumers in a marketplace. As Duffy and Williams assert, the NDIS must develop and maintain the following two things:
- A clear public account of what it means to be a citizen. It is only if we know what we mean by, and expect from, citizens that we can have any sensible conversation or research process to determine whether the NDIS is successful in its first goal: ensuring people get what they need to advance their life chances in support of citizenhood.
- Work hand in hand with people living with disability and their families to make sure the process feels respectful, effective and enabling at every stage. The NDIS process must be co-designed with people living with disability; but even more importantly for the future it must be accountable to them.
Support for decision making as a means of exercising legal capacity will also deliver many people from the cycle of recidivism within our criminal justice system and indefinite detention within forensic facilities. To date in Queensland people with disability who are held in secure forensic facilities have not been convicted of any offences but are subject to terms of incarceration with no end in sight. All forensic matters must have a predetermined time-frame which will provide impetus to ensure that the programs of habilitation, education and reintegration to community will be of high quality, genuinely tailored to each individual’s needs, and delivered with consistently appropriate support. The Forensic Disability Service in Queensland purports to deliver such programs but without any time frame to each person’s forensic order, there is little to ensure that people are not incarcerated beyond what one could expect from a general prison sentence. Indeed, without this measure one could question whether the detainees are a means towards the self-fulfilling prophesy.
When an approach of respect, autonomy and enablement is integrated with the practical safeguards required by people with a disability, in terms of their supports and assistance from the right relationships, we return control and respect to marginalised people.
 The Road to NDIS: Lessons from England about Assessment and Planning (JFA Purple Orange, 2012).