In whose interests?

1. In whose interests? Restricting the freedom of movement of potential offenders with intellectual disabilites Jim Simpson jcsimpson@optusnet.com.au

2. It’s 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 didn’t occur to anyone that they shouldn’t - “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 person’s 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