Steele, Linda --- "Lawful institutional violence against disabled people" [2017] PrecedentAULA 67; (2017) 143 Precedent 4

---

LAWFUL INSTITUTIONAL VIOLENCE AGAINST DISABLED PEOPLE

By Dr Linda Steele

Recent government inquiries and media coverage have illuminated the extent of violence against people with cognitive and psychosocial disabilities in institutional settings. Incredibly, some of this institutional violence is committed with impunity. This is because Australian legal systems effectively facilitate the perpetration of this violence in the form of ‘restrictive practices’.

Restrictive practices are typically interpreted as therapy or behaviour management support rather than as violence. This article argues that restrictive practices are in fact forms of violence that are currently being facilitated by law. As such, it encourages lawyers to oppose restrictive practices, including through lobbying for systemic law reform to criminal and civil laws on liability for violence and to join the call led by disabled people’s organisations for a royal commission into violence against disabled people.

VIOLENCE AGAINST PEOPLE WITH COGNITIVE AND PSYCHOSOCIAL DISABILITIES

People with cognitive and psychosocial disabilities experience particularly high rates of violence when compared with both disabled people with other diagnoses and non-disabled people.^[1] This is so even taking into account issues with data collection which result in an under-quantification of violence against people with disability.^[2]

As has been documented in recent government inquiries^[3] and media coverage,^[4] much of the violence against people with cognitive and psychosocial disabilities occurs in institutional settings such as group homes, mental health facilities, aged care facilities, prisons, schools and public hospitals (‘institutional violence’). Some of this institutional violence constitutes ‘unlawful violence’ – violence that is prohibited by domestic criminal laws (for example, offences of assault or sexual assault) and/or constitutes a civil wrong pursuant to tort law (for example, battery or false imprisonment).

While disabled victims of unlawful institutional violence technically have available to them criminal and civil legal protection and remedies, enforcing these laws is problematic. For example, Frohmader and Sands from Disabled People’s Organisations Australia (DPO Australia) state that in institutional settings violence is typically ‘conceptualised, downplayed and “detoxified” as “abuse”’ or “neglect” or “service incidents”, “administrative infringements” or a “workplace issue to be addressed”'^[5] and institutions might actively prevent victims from reporting incidents to police or seeking other legal assistance.^[6] Victims might also be faced with inaccessible and unsupportive justice systems due to factors such as a lack of support enabling them to understand and participate in justice processes; prejudices against disability held by police, prosecutors, plaintiff lawyers and judges; and discriminatory evidence and procedure laws.^[7]

Yet, some victims of institutional violence encounter an even more fundamental barrier to enforcing institutional liability. The violence they have experienced is not even recognised as unlawful violence and hence it is legally impossible to establish institutional liability. This lawful institutional violence is commonly referred to as ‘restrictive practices’.

RESTRICTIVE PRACTICES

‘Restrictive practices’^[8] are ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm'^[9] and are directed towards ‘control[ling] or manag[ing] a person's behaviour’.^[10] Restrictive practices can take the form of restraint or seclusion. Restraint can be mechanical (‘use of a device to prevent or restrict a person's movement for the primary purpose of influencing a person's behaviour’); physical (‘prolonged use of physical force to subdue movement for the primary purpose of influencing a person's behaviour’); or chemical (‘use of medication for the primary purpose of influencing a person's behaviour or movement’).^[11] Seclusion involves ‘sole confinement of a person with disability’.^[12] Restrictive practices are routine and normalised interventions in disabled people’s lives across many institutional settings.^[13]

Restrictive practices are not consented to by the individuals subjected to them. While absence of an individual’s consent typically characterises unlawful violence against that individual, restrictive practices are lawful. To understand this contradiction, it is necessary to consider how criminal and civil law defines unlawful violence. Absence of consent is typically a defining element of unlawful violence (for example, criminal offences of assault, or torts of battery and false imprisonment). In very general terms, criminal law defines assault and civil law defines battery in terms of non-consensual interpersonal physical contact or the non-consensual threat of such contact^[14] (although consent does not always negate assault where the contact occasions actual bodily harm or worse^[15]). Pursuant to the tort of false imprisonment, restraint and seclusion is unlawful where it involves the non-consensual deprivation of liberty in a delimited space. Restrictive practices do not constitute unlawful violence or imprisonment because of certain defences to criminal responsibility and tortious liability that operate to exclude certain conduct from liability:

• Third party consent: Pursuant to legal principles of consent to medical treatment, where an individual does not have capacity to consent, specific third parties (for example, parents in relation to a child, guardian in relation to an adult) can consent to restrictive practices on that person’s behalf.^[16]

• Necessity: Pursuant to the doctrine of necessity, restrictive practices can be lawful when considered ‘necessary’ in order to protect the individual’s life, health or wellbeing and the act is reasonable and proportionate to the ‘harm’ being addressed.^[17]

• Lawful authority: Restrictive practices are lawful when done pursuant to statutory or judicial authority,^[18] which includes the authority provided by civil and forensic mental health legislation authorising detention and treatment, as well as guardianship legislation authorising chemical and physical restraint.^[19]

Therefore, the operation of these legal exceptions to unlawful violence means that restrictive practices do not attract liability under civil or criminal law. For individuals subjected to restrictive practices, there is no access to remedies under tort law or victims compensation statutory schemes^[20] and no possibility of perpetrators being punished under criminal law. While there might be scope for imposing institutional liability where the restrictive practices are enacted negligently or contrary to law, this does not unsettle the fundamental legality of restrictive practices per se.

RESTRICTIVE PRACTICES AS DISABILITY-SPECIFIC LAWFUL VIOLENCE

Some might consider the legal boundaries of unlawful violence, discussed above, as determinative of whether restrictive practices constitute violence and, in turn, whether institutions should be liable for these acts. However, some legal scholars have proposed that violence can be done pursuant to (rather than contrary to) law. For example, American legal scholar, Robert Cover,^[21] writing in the mid-1980s, offered a broader understanding of violence which accounted for ‘legal violence’; that is, violence permitted by law such as by a judge’s decision. Drawing on Cover’s work, Austin Sarat and Thomas Kearns^[22] argue that law has a ‘monopoly’ on violence, because law determines what can be done to another’s body without any legal accountability. These scholars open up the possibility of violence being lawful; that is, violence being perpetrated even when it is not prohibited by law. Thus, the fact that restrictive practices are perpetrated pursuant to third party consent, the doctrine of necessity or legislative frameworks does not signal the non-existence of violence. Rather, it signals the lawful status of this violence.

Moreover, contrary to notions of equality before the law, lawful violence operates unevenly across the population and disproportionately impacts on marginalised groups because of the differential delineation of exceptions to unlawful violence.^[23] In the context of restrictive practices, this occurs through the combination of two factors: (a) denial of legal capacity associated with perceived mental incapacity which while typically thought of as a scientifically objective characteristic of individuals, is a problematic concept embodying norms of rationality, self-sufficiency and bodily impermeability that are premised on an able subject;^[24] and (b) unquestioned assumptions about the necessity for care, control, support and treatment of disabled people. Both of these factors are grounded in highly problematic medical approaches to disability as an individual, internal, pathological abnormality.^[25]

COMPELLING HUMAN RIGHTS GROUNDS

Recent international human rights developments provide a compelling basis for categorising restrictive practices as violence. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) came into force in 2008. ^[26] The UNCRPD’s approach to disability indicates a shift away from a medicalised approach to disability as an internal, individual pathology epitomised by diagnostic definitions of particular impairments. Instead, disability is viewed as a form of social and political difference, and there is an appreciation of the role of stigma and social barriers behind the inequality experienced by disabled people.

The UNCRPD explicitly imposes obligations on states parties to protect people with disability from violence (Art 16). It is arguable that this obligation extends to disability-specific lawful violence, by reason of the combined effect of a number of Articles. The UNCRPD emphasises non-discrimination and equality, both as rights in themselves (Art 5) and a general principle governing its operation as a whole. Moreover, the UNCRPD provides for the right to personal integrity (Art 17) and right to legal capacity (Art 12) such that state parties should abolish legal frameworks that enable restrictive practices to apply exclusively to people with cognitive and psychosocial disabilities following denial of their legal capacity. A number of United Nations human rights bodies have expressed concern about disability-specific legal regimes of restrictive practices.^[27] While Australia has lodged interpretative declarations on Articles 12 and 17 that might restrict its international legal obligations under UNCPRD,^[28] it is arguable that UNCRPD itself signals a shift towards viewing restrictive practices as violence which is contrary to international human rights norms.

CALL FOR A ROYAL COMMISSION

In addition to the shifts in international human rights law, in 2015 the Senate Community Affairs References Committee acknowledged the possibility that restrictive practices could be regarded as violence in the report on its inquiry into violence, abuse and neglect against people with disability in institutional and residential settings.^[29] For present purposes, the Committee considered ‘disability-specific interventions’, including restrictive practices. It stated that it ‘considers that the right to liberty is a fundamental human right’ and is ‘concerned with the extent to which restrictive practice is used, and is deeply concerned with the system which allows service providers to arbitrarily deprive people of their liberty’.^[30] The Committee was particularly concerned with the lower safeguards available to disabled people in prisons and schools, as compared with disability service settings.^[31] It concluded that: ‘The committee is highly disturbed at the evidence presented of restrictive practice. Clearly, in many cases what is deemed to be a necessary therapeutic or personal safety intervention is in fact, assault and unlawful deprivation of liberty.’^[32] The Committee recommended that Commonwealth and state governments ‘implement a national zero-tolerance approach to eliminate restrictive practice in all service delivery contexts’, and recommended that ‘the use of restrictive practice against children must be eliminated as a national priority’.^[33] The Committee also made some headline recommendations, including that ‘a Royal Commission into violence, abuse and neglect of people with disability be called, with terms of reference to be determined in consultation with people with disability, their families and supporters, and disability organisations’.^[34] The Committee reiterated its approach to restrictive practices and institutional violence in its subsequent report on its inquiry into indefinite detention of people with cognitive and psychiatric impairment.^[35]

The Committee’s recommendations were met with support from DPO Australia which has since launched a campaign to lobby the government to call a Royal Commission into violence against disabled people.^[36] This call builds on its submission to the Committee’s inquiry for a ‘transitional justice’ approach which recognises that incidents of institutional violence against people with cognitive and psychosocial disabilities are not a series of isolated events, but rather are systematic and deeply embedded within law and broader culture and politics.^[37]

Unfortunately, the Commonwealth government has refused to call a Royal Commission. One reason it has advanced for its position is that the National Disability Insurance Scheme’s Quality and Safeguarding Framework^[38] will prevent institutional violence.^[39] This argument is highly problematic for a number of reasons. Not all individuals with cognitive and psychosocial disability, nor all institutional settings, are covered by the Framework. Moreover, the Framework does not explicitly prohibit restrictive practices – rather, it provides contradictory and vague messages about reducing and eliminating restrictive practices – and works within existing criminal and civil legal frameworks that allow restrictive practices to occur without liability arising.^[40]

WILL LAWYERS JOIN THE CALL TO END RESTRICTIVE PRACTICES?

As lawful violence, restrictive practices are deeply embedded in legislative and common law frameworks that define unlawful violence. Thus, establishing institutional liability for this kind of violence requires systemic reform of laws defining criminal and civil liability for violence (and, in turn, quite fundamental legal concepts of capacity and consent).The legal profession, as a privileged community with considerable influence on law reform, should not limit its ‘review’ and ‘reform’ efforts to attaining a best practice in judicial and administrative oversight of restrictive practices (that is, through enhanced legal representation, support services and procedural safeguards). Instead, it must direct attention to arguing that these practices should never be state-sanctioned on anyone (including people with disability) regardless of the legal procedure through which this sanctioning occurs. It is particularly important that the legal profession join the call to end restrictive practices because it is currently complicit in institutions, systems and laws that facilitate the perpetration of this institutional violence against people with cognitive and psychosocial disabilities. One way in which lawyers can advocate for the end of restrictive practices is to support the DPO’s campaign for a Royal Commission into violence against people with disability, a campaign which might be particularly significant at the next federal election because the Australian Labour Party has indicated it will support a Royal Commission if elected.

CONCLUSION

Institutions often currently enjoy impunity for violence against disabled people by reason of the legality of restrictive practices. The legality of this violence means that lawyers will be unable to support victims to obtain a remedy for this institutional violence and, indeed, legal institutions and professionals are complicit in this violence if they continue to fail to challenge the legislative and judicial structures through which this violence is enabled and enacted. Ultimately, the lower legal threshold of violence in relation to restrictive practices reflects a devaluing of disabled bodies and lives – lawyers have a key role in working to change this within society and within the legal and ethical frameworks that guide their work.

Dr Linda Steele is senior lecturer in law at University of Technology Sydney and visiting senior fellow at University of Wollongong Faculty of Law, Humanities and the Arts. Linda’s research explores intersections of disability, law and injustice, particularly in the contexts of punishment, violence and institutionalisation. From 2006 to 2009 Linda worked as a solicitor at Intellectual Disability Rights Service. EMAIL [e-mail].

---

^[1] K Hughes, MA Bellis, L Jones, S Wood, G Bates, L Eckley, E McCoy, C Mikton, T Shakespeare and A Officer, ‘Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies’, Lancet, 379(9826), 2012, 1621-9.

^[2] See, eg, J Cadwallader, A Kavanagh and S Robinson, ‘We Count What Matters, and Violence Against People with Disability Matters’, The Conversation, 27 November 2015, <http://theconversation.com/we-count-what-matters-and-violence-against-people-with-disability-matters-51320> .

^[3] See, eg, Senate Community Affairs References Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016); Senate Community Affairs References Committee, Parliament of Australia, Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings, including the Gender and Age Related Dimensions, and the Particular Situation of Aboriginal and Torres Strait Islander People with Disability, and Culturally and Linguistically Diverse People with Disability (2015).

^[4] See, eg, these television broadcasts: Four Corners, ‘Fighting the system’, ABC TV, 27 March 2017, presented by Sarah Ferguson, reported by Linton Besser; The 7.30 Report, ‘More revelations about abuse and neglect in Adelaide nursing homes’, ABC TV, 1 May 2017, presented by Nicola Gage; Lateline, ‘Interview: Rosemary Kayess, human rights lawyer’, ABC TV, 17 May 2017, presented by Emma Alberici; Lateline, ‘Open letter calls for royal commission into treatment of people with disabilities’, ABC TV, 17 May 2017, presented by Emma Alberici, reported by Alison Branley; The 7.30 Report, ‘Hundreds of complaints of abuse of disabled children’, ABC TV, 8 October 2017, presented by Leigh Sales, reported by Brigid Glanville.

^[5] C Frohmader and T Sands, Australian Cross Disability Alliance (ACDA), Submission No. 147, Senate Community Affairs References Committee, Inquiry into Violence, Abuse and Neglect Against People with Disability in Institutional and Residential Settings, including the Gender and Age Related Dimensions, and the Particular Situation of Aboriginal and Torres Strait Islander People with Disability, and Culturally and Linguistically Diverse People with Disability, August 2015, <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Violence_abuse_neglect/Submissions> 19.

^[6] Senate Community Affairs References Committee, Parliament of Australia, Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings, including the Gender and Age Related Dimensions, and the Particular Situation of Aboriginal and Torres Strait Islander People with Disability, and Culturally and Linguistically Diverse People with Disability (2015), 117-48.

^[7] Ibid, 127-81.

^[8] Ibid, 91-115; Senate Community Affairs References Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016), 162-6.

^[9] National Framework for Reducing and Eliminating the Use of Restrictive Practices cited in Senate Community Affairs References Committee, above note 6, 91.

^[10] Senate Community Affairs References Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016).

^[11] Ibid, 91-2.

^[12] Ibid, 91.

^[13] Senate Community Affairs References Committee, above note 6, 91-2. For a critical discussion see: C Spivakovsky, ‘Governing Freedom Through Risk: Locating the Group Home in the Archipelago of Confinement and Control’, Punishment & Society, 19(3), 2017, 366-383; D Wadiwel, ‘Disability and Torture: Exception, Epistemology and “Black Sites”’, Continuum, 31(3), 2017, 388–99.

^[14] R v Brown [1993] UKHL 19; [1994] 1 AC 212 at 231 (Lord Templeman); see also 244–5 (Lord Jauncey of Tullichettle).

^[15] R v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534 at 539 (Cave J), 549 (Stephen J); R v Donovan [1934] 2 KB 498 at 507 (Swift J); Attorney-General’s Reference (No. 6 of 1980) [1981] EWCA Crim 1; [1981] QB 715 at 719 (Lord Lane CJ); R v Brown [1993] UKHL 19; [1994] 1 AC 212 at 231–4 (Lord Templeman).

^[16] See, eg, Secretary, Department of Health and Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218.

^[17] See, eg, Re F (Mental Patient Sterilisation) [1991] UKHL 1; [1990] 2 AC 1.

^[18] See, eg, Coco v R [1994] HCA 15; (1994) 179 CLR 427; Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.

^[19] See, eg, Guardianship Act 1987 (NSW); Mental Health Act 2007 (NSW); Mental Health (Forensic Provisions) Act 1990 (NSW). For a discussion of law and restrictive practices in disability service contexts, see K Chandler, L Willmott and B White, ‘Rethinking Restrictive Practices: A Comparative Analysis’, QUT Law Review, 4(2), 2014, 90-122; and in school settings, see D Lyons, ‘Restraint and Seclusion of Students with Disabilities: A Child Rights Perspective from Victoria, Australia’, International Journal of Children’s Rights, 23, 2015, 189-239.

^[20] For example, under NSW victims compensation legislation, ‘act of violence’ is defined as requiring the act to have ‘occurred in the course of the commission of an offence’: Victims Rights and Support Act 2013 (NSW) s19.

^[21] R Cover, ‘Violence and the Word’, Yale Law Journal, 95, 1986, 1601-29.

^[22] A Sarat and T R Kearns, ‘Introduction’, in A Sarat and TR Kearns, eds, Law’s Violence, University of Michigan Press, 1992, Ann Arbor, 1, 4.

^[23] See, eg, L Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and Good Violence’, Griffith Law Review, 23(3), 2014, 467-97; L Steele and L Dowse, ‘Gender, Disability Rights and Violence Against Medical Bodies’, Australian Feminist Studies, 31(88), 2016, 117-124.

^[24] See, eg, L Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and Good Violence’, Griffith Law Review, 23(3), 2014, 467-97.

^[25] L Steele, Submission No. 94, Senate Community Affairs References Committee, Inquiry into Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings, including the Gender and Age Related Dimensions, and the Particular Situation of Aboriginal and Torres Strait Islander People with Disability, and Culturally and Linguistically Diverse People with Disability, 2015; see also Senate Community Affairs References Committee, above note 6, 77-79.

^[26] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

^[27] See, eg, Committee on the Rights of Persons with Disabilities, Guidelines on Art 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities, 14^th session, 17 August – 4 September 2015, [13] - [16]; Office of the United Nations High Commissioner for Human Rights, Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities, UN Doc A/HRC/10/48 (26 January 2009) [48]–[49]; see also Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Australia, 10^th session, UN Doc CRPD/C/AUS/CO/1, 21 October 2013, 4–5 [32].

^[28] F Beaupert and L Steele, ‘Questioning Law’s Capacity’, Alternative Law Journal, 40(3), 2015, 161-65

^[29] Senate Community Affairs References Committee, above note 6.

^[30] Ibid, 99.

^[31] Ibid, 100-14.

^[32] Ibid, 115.

^[33] Ibid, xxi.

^[34] Ibid, xv and 267-8.

^[35] Senate Community Affairs References Committee, above note 10.

^[36] People with Disability Australia, Working to end sexual Violence against People with a Disability <http://rcsupport.pwd.org.au/> .

^[37] See, eg, C Frohmader and T Sands, ACDA, Submission No. 147, above note 5.

^[38] Australian Government, Department of Social Services, NDIS Quality and Safeguarding Framework (2017) <https://www.dss.gov.au/disability-and-carers/programs-services/for-people-with-disability/ndis-quality-and-safeguarding-framework>.

^[39] Matthew Doran, ‘Royal commission into alleged abuse, neglect of people with disabilities off the table, Government says’, The Sydney Morning Herald (online), 3 March 2017, <http://www.abc.net.au/news/2017-03-03/royal-commission-into-abuse-of-disabled-people-ditched/8320364> .

^[40] For a discussion of some of these problems, see L Steele and C Spivakovsky, Submission on Violence Prevention and Restrictive Practices Responding to National Disability Insurance Scheme: Code of Conduct Discussion Paper, 20 June 2017, <https://engage.dss.gov.au/wp-content/uploads/2017/07/Spivakovsky-and-Steele-Submission-Responding-to-NDIS-Code-of-Conduct-Discussion-Paper-20062017.pdf>.