Three types of disability – physical, psychiatric and intellectual – are explained, along with the voluntary and compulsory care and treatment of people with disabilities and complex needs.
Physical disability is a broad category of disability that may not always be visible and covers much more than the need to use a wheelchair. It usually involves significant problems with muscle control, skeletal development or joint function.
A range of standards, specialist programs and services arising from law or policy are provided to meet the varying needs of people with physical disabilities, including access to the built environment and public transport (e.g. the DD Act Access to Premises Standard, DD Act Transport Standard), rehabilitation from injury (Disability Services Act 1986 (Cth) (pt III) (“DSA (Cth)”)), and the provision of specialised aids and equipment (Victorian Aids and Equipment Program); see also “Assistive technology” on the NDIS website (www.ndis.gov.au). For more information, see Physical disability.
Psychiatric disability, commonly referred to as mental illness, also involves a wide range of conditions including, for example, depression, anxiety disorders and schizophrenia. According to the Mental Health Act 2014 (Vic) (“MH Act”), a person is mentally ill if they have a mental illness, being “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory” (s 4(1)).
There is no definition of “mental disorder” (commonly referred to as personality disorder) in the MH Act. (See Mental illness.)
Intellectual disability, as defined within the Disability Act (s 3), refers to a person over the age of five years who has both significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, both of which must manifest before the age of 18 years.
The Disability Act (ss 6, 55) gives the Victorian Government Department of Health and Human Services (DHHS) responsibility for providing specifically for people who have an intellectual disability. See also the NDIS website for information about the services available in the areas where the NDIS has been rolled-out.
In contrast to the involuntary care and treatment provisions of the MH Act (ss 8, 9, 12), individual consent to receive services is assumed and there is no legislative provision mandating services, with the exception of “security” and “forensic” residents (see 1 and 2 below for definitions of these terms).
However, some people who have an intellectual disability over the age of 16 may be subject to the provisions of the Human Services (Complex Needs) Act 2009 (Vic) (“HSCN Act”).
1 “Security residents” are prison inmates with an intellectual disability (who are eligible for services under the Disability Act) transferred from a prison or other correctional facility to a residential institution for custody under a security order by the Secretary of the Department of Justice (s 166 Disability Act).
2 “Forensic residents” are detainees with an intellectual disability (who are eligible for services under the Disability Act) detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“CMIUT Act”), transferred from a prison or other correctional facility to a residential institution for assessment and potential custody under a security order by the Secretary of the Department of Justice (s 180 Disability Act).
The Victoria Law Reform Commission report, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, released in November 2003, recommended the creation of statutory terms for the detention of people with an intellectual disability assessed to be at risk of harm to themselves or others. In response to this and other submissions considered during the review of disability legislation, the Disability Act repealed the Intellectually Disabled Persons’ Services Act 1986 (Vic) (“IDPS Act”) and the Disability Services Act 1991 (Vic) and provided:
• new definitions for disability and therefore service eligibility;
• compulsory treatment provisions for persons with an intellectual disability who cannot or will not consent to treatment or are considered “at risk” of harm to themselves or others;
• for the establishment of a Senior Practitioner (Disability) responsible for safeguarding the rights of those subject to compulsory treatment;
• transitionary arrangements for IDPS Act provisions. The IDPS Act assumed that all people with an intellectual disability consented to services/treatment, whereas the Disability Act creates two categories of clients with an intellectual disability:
– those able to consent to services/treatment;
– those considered candidates for compulsory treatment.
The HSCN Act provides a legislative framework for provision of voluntary treatment and care services to those people defined as having “multiple and complex needs”.
Eligibility under the HSCN Act for care plans providing support and stabilisation is currently limited to people who:
• are 16 years and over;
• have exhibited violent and aggressive behaviour that has caused or is likely to cause serious harm to themselves and/or others;
• are in need of intensive supervision and support;
• would derive benefit from receiving a care plan under the Act (s 15).
In addition, the person must appear to have two or more of the following:
• a mental disorder (within the meaning of the MH Act);
• an intellectual impairment (this is not defined, but differs from intellectual disability within the meaning of the Disability Act, which must be manifest by the age of 18);
• an acquired brain injury; and/or
• an alcohol or drug dependence (as defined by s 15 Severe Substance Dependence Treatment Act 2010 (Vic)).
The HSCN Act also establishes a service delivery model and a Multiple and Complex Needs Panel for assessment and review, and authorises the collection, use and disclosure of client information necessary for a comprehensive assessment of need.
Specific provisions regarding the consent of people eligible for services to a care plan require that, where the person is under 18 years of age but over 16 years of age, only their parent or guardian may consent to or refuse treatment under the care plan. Similarly, where a guardian has been appointed for any person eligible for services and subject to a care plan, only the guardian may consent to or refuse treatment.
Many people covered by the legislation may be subject to care plans without their consent due to the appointment of guardians, the nature of their prior contact with the criminal justice system, or being under 18 years of age but over 16 years of age.