Understanding disability and the law

Compulsory treatment under the Mental Health and Wellbeing Act The Mental Health and Wellbeing Act 2022 (Vic) (‘MHW Act’) defines as one of its purposes to “restate the law relating to the treatment of persons living with mental illness”. Mental illness is defined at s 4 as “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”. Compulsory treatment under the MHW Act is discussed in detail in Chapter 8.4: Mental illness. Supervised treatment under the Disability Act Supervised treatment orders can be made under the Disability Act where the person has an intellectual disability. Section 3 of the Disability Act provides the relevant definition:

A “cognitive impairment”, in relation to a person over the age of five years, means the concurrent existence of: a significant sub-average general intellectual

functioning; and b significant deficits in adaptive behaviour each of which became manifest before the age of 18 years.

A supervised treatment order (STO) is an order made by VCAT under section 191 of the Disability Act.

A STO may be made if:

• a person has a cogniitive impairment; and
• the person is living in a place classified as a ‘residential service’ under the Disability Act; and
• the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm; and
• there is a significant risk of serious harm to another person that cannot be substantially reduced by using less restrictive means; and
• the services to be provided to the person will be of benefit to the person and substantially reduce the significant risk of serious harm to another person; and
• the person is unable or unwilling to consent to voluntarily complying with the treatment; and
• it is necessary to detain the person to ensure compliance. These orders only apply to people with intellectual disability. A STO cannot be made for more than one year but there is no limit to how many STOs can be made. Restrictions under a STO can include requirements that the person be supervised at all times, take certain medications, and participate in offence-related treatment.

Many “restrictive practices” are actions that would be illegal in any other circumstance. They include seclusion and physical, chemical, mechanical and environmental restraints. Preventing a person from being with others, medicating them to control their behaviour, physically restraining them, or preventing them from accessing items or areas in their own home are controlling behaviours that are unlawful for other people.

These practices are allowed under various regulatory arrangements, including the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) and the Disability Act, but should be used as a last resort, and all such practices should be reported.

If a person is being subjected to restrictive practices, it is important that their rights are being upheld, and appropriate monitoring and reporting is occurring.

For more information contact the Victorian Senior Practitioner, NDIS Quality and Safeguards Commission, or Villamanta Disability Rights Legal Service Inc. (See ‘Contacts’ at the end of this chapter). NOTE

The Victorian Civil and Administration Tribunal (VCAT) can make a guardianship or administration order under the Guardianship and Administration Act 2109 (Vic) (‘G&A Act’) if a person does not have decision-making capacity in relation to certain matters because of their disability. Section 3 of the G&A Act defines disability as “neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia”.

Guardianship and administration are discussed in detail in Chapter 8.5: Guardianship and medical treatment.