In whose interests?

1
In whose interests?

• Restricting the freedom of movement of potential
  offenders with intellectual disabilites
• Jim Simpson jcsimpson_at_optusnet.com.au

2
Its always happened

• To protect the person from
• Trouble and gaol
• Injury
• And/or to protect others

3
The common law

• Wrongful imprisonment Deliberately confining a
  person against their will.
• Self- defence and necessity Reasonable force or
  confinement to meet an imminent attack on a
  person or an imminent and great danger to the
  person.

4
The criminal law

• Imprisonment the guards can make you stay.
• But principle against preventative detention!
• Community based orders
• Bail, bonds, parole
• May include conditions on where you live etc.
• But service providers cannot force you to comply.
• So, potential offenders should not have been
  detained?........ But some always have been.

5
It was all so simple then!

• Historically, people were restricted
• Using mental health laws, or
• Because it didnt occur to anyone that they
  shouldnt - the last of the outlaws

6
But then

• Intellectual disability was distinguished from
  mental illness
• A rights movement developed
• The DSAs positive lives in the community
• Guardianship legislation emerged
• Focus on the rights and interests of the person
• Used to restrict people in their own interests
• In Australia, used to restrict some potential
  offenders

7
Upside of guardianship

• Focus on the interests of the person, so
  restriction needs a nett benefit
• Looks at offending and restriction in the overall
  context of the persons needs
• Restriction may have mixed purposes
• Provides the guardian with a lever
• Flexible
• Works best if inquiring tribunal and advocating
  guardian

8
Mike

• Lived on the streets. In lots of trouble. Major
  violent crimes. Moderate intellectual
  disability. Many years in gaol. On release,
  guardianship used to stop him taking off from a
  supported house. Lots of assistance towards a
  stable and positive lifestyle. Restrictions
  gradually lifted.

9
Downside of guardianship

• Can blur into unacknowledged community protection
• Uncomfortable for guardians
• Not sufficient if you think community protection
  is a legitimate reason for restriction

10
An alternative community protection legislation

• Considered by NSW Law Reform Commission 1994
• A recent trend towards it in the criminal law
  breaches proportionality and so wrong in
  principle.
• Civil commitment? No case for singling out
  people with intellectual disabilities.
• (Discussion Paper 35, People with an
  Intellectual Disability and the Criminal Justice
  System Courts and Sentencing Issues 12.6
  12.28)

11
Recent developments - generic

• Legislation to allow a court to order continued
  detention of a dangerous prisoner at the end of a
  sentence
• Community Protection Act 1994 NSW - High Court
  said unconstitutional.
• Dangerous Prisoners (Sexual Offenders) Act 2003
  Qld Court can order continued detention or
  supervised release High Court said
  constitutional.
• Crimes (Sex Offenders) Act 2006 NSW Similar.
• No reciprocal obligation on the state to provide
  rehabilitation and support services.
• Focused on particularly serious offences.

12
Recent developments intellectual disability

• Focus on legislation in
• New Zealand and
• Victoria

13
The New Zealand Act 2003

• Intellectual Disability Compulsory Care and
  Rehabilitation Act
• First Bill was focused on both offenders and
  other dangerous people.
• Final Act only focused on
• People convicted, or
• unfit to stand trial but probably committed the
  offence.
• Offences with maximum sentence of at least 3
  months.
• Following assessment, a court can make orders for
  a person to be in a facility for up to 3 years.
  This can be extended later.
• Degree of community access varies with risk
  assessment.
• Each person has a care and rehabilitation plan.
• Safeguards through statements of rights, reviews
  etc.

14

• Concerns with the NZ law
• Gateway is by offending but could lead to
  detention for far longer than in gaol.
• Will challenging behaviour be criminalised to
  get into the Act?

15
Disability Act 2006 Victoria

• Offenders - Compulsory treatment in residential
  treatment facilities if
• Person with ID poses a serious risk of violence
• No less restrictive alternative.
• Facility can provide suitable treatment
• Sentence or parole order.
• Leave can be given if public safety will not be
  seriously endangered.

16

• Safeguards
• Must be an appropriate treatment plan
• External scrutiny Senior Practitioner, annual
  review by VCAT

17
Supervised treatment orders

• Allow detention in a disability service.
• Supervision by senior practitioner
• VCAT can make order for up to a year at a time
  if
• Person with an ID has a pattern of dangerous
  behaviour to others.
• No less restrictive way to meet the danger
• Treatment plan
• Will benefit the person and reduce the risk
• Has a process for transition to less supervision

18
Which approach is best?

• None is perfect
• It depends on more than the law
• The funding and culture of the services
• The funding and culture of the safeguards How
  will they in fact respond to a very dangerous
  person being locked up in a lousy environment?
• Is preventative detention right in principle? If
  so, should it single out people with ID? It
  happens for people with mental illnesses but
  should it?
• The difficulty of assessing dangerousness
• The risk of net widening the criminal law

19

• The risk of making it easier to resort to
  restrictive approaches
• Community reaction to services for dangerous
  people.
• The NZ and Victorian acts have more procedural
  safeguards than guardianship
• Guardianship focuses squarely on the whole person
  and his/her interests.
• Can we trust the legislative process?

20
My view

• The use of guardianship is the safest approach
  for the person with the disability, but should be
  well safeguarded
• Expert three member tribunal
• Parameters set by tribunal
• Public Guardian who advocates
• Representation of person
• Appeal rights