LM (Guardianship)  VCAT 2084 (9 October 2008)
LM is a 25 year old woman with a borderline to mild intellectual disability and a history of psychological and behavioural problems dating back to her childhood.
In 2004 LM was placed on a two year community based order following various convictions. In 2007 LM was charged with a number of offences and was released on bail to Furlong House in Parkville. While resident at Furlong House LM had a number of incidents which included non-epileptic seizures on roads, walking into oncoming traffic, physical aggression towards other people, threatening self-harm or suicide, and assaulting staff at Furlong House. In February 2008 LM was convicted of a number of offences relating to these incidents.
Since February 2008 LM has been living at a residential service operated by the Department of Human Services. While living at the residential service LM has continued to display the behaviour pattern outlined above. LM's workers at the residential service found it was frequently necessary to lock the door of the house in order to stop LM from leaving. They were unable to control her behaviour by less restrictive means.
LM's Authorised Program Officer applied to the Victorian Civil and Administrative Tribunal on 25 January 2008 for a supervised treatment order (‘STO’) for LM pursuant to s 191 of the Disability Act 2006 (Vic).
The Tribunal found that LM satisfied all of the requirements of s 191(6) of the Disability Act and that detention at the residential service was necessary in order that she be treated in accordance with the STO.
Consideration of the Victorian Charter
The Tribunal of its own accord raised the issue of whether LM's rights under the Charter were limited by the Disability Act.
The Tribunal found that the Charter rights potentially affected by the STO were: s 8 (the right to recognition and equality before the law); s 12 (the right to freedom of movement); s 21 (the right to liberty and security of person); and s 26 (the right not to be tried or punished more than once).
The question facing the Tribunal was whether these limitations could be justified under s 7 of the Charter. Section 7 of the Charter recognises that human rights may be subject to limitations that are demonstrably justifiable in a free and democratic society.
Section 8 – Right to recognition and equality before the law
The Tribunal noted that the STO appeared to limit LM's rights under s 8 in that it discriminated against a person with an intellectual disability. Section 191(1) of the Act gives the Tribunal the power to detain a person with an intellectual disability who poses a significant risk of serious harm to others. There is no other legislation in Victoria which gives the State the right to detain a person who does not have an intellectual disability in the same situation.
Given LM's history and the risks that she posed to members of the public and herself, the Tribunal found that it was demonstrably justifiable that LM be detained subject to an STO.
The Tribunal also found that another justification was the protection of LM from the legal consequences of her actions. Because LM's history demonstrated that she had already been convicted of a number of serious offences it was necessary to detain her in order to protect her from the consequences of re-offending.
Section 12 – Right to freedom of movement
The Tribunal found that the same considerations which applied to s 8 also applied to this section so that the STO was justified to limit LM's freedom to choose where to live.
Section 21(3) – Deprivation of liberty
This section prohibits deprivation of liberty except on grounds and in accordance with procedures established by law. Because LM's detention under the STO was in compliance with the provisions of the Act the Tribunal found that the Charter right was not limited.
Section 26 – Right not to be tried or punished more than once
The section of the Act allowing the STO appeared to be incompatible with the Charter right against 'double jeopardy' given that LM had already been convicted of a number of offences and had been released on a good behaviour bond. The Tribunal found that this was not the case because one of the purposes of the STO was, as noted above, the protection of members of the public, as well as the protection of LM herself. In addition to this, the Tribunal found that the STO is a treatment regime, not a punishment.
This case raises issues in relation to the scope of human rights and the contradictions which will necessarily exist between statutory provisions such as s 191 of the Disability Act and the Charter. It is ultimately the case that decisions made under many of these provisions will be considered under the test for demonstrably justified and reasonable limits provided in s 7 of the Charter.
David Drummond is an Articled Clerk at DLA Phillips Fox