Posts tagged Disability & Mental Health
The totality of a person’s mental health must now be considered in sentencing

Brown v The Queen [2020] VSCA 212

On 25 August 2020, the Victorian Court of Appeal held that a person diagnosed with a personality disorder should be treated the same as any other person who seeks to rely on an impairment of mental functioning as a mitigating factor in their sentencing.

Impairment of mental functioning can be considered as a mitigating factor in a person’s sentencing in accordance with the principles from R v Verdins (2007) 16 VR 269.

Before this case, however, the principles set out in R v Verdins were not applicable to people with personality disorders because of the case of DPP v O’Neill (2015) 47 VR 395, which had previously excluded personality disorders from consideration by the courts.

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AnnaFordycePrisoner Rights, Disability & Mental Health
Victorian Supreme Court holds electroconvulsive treatment ordered against patients’ wishes a breach of human rights

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)

The Victorian Supreme Court has confirmed that the capacity test under the Mental Health Act 2014 (Vic) (MHA) must be interpreted and applied in a way that is compatible with the human rights of persons receiving compulsory mental health treatment under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter). This decision has significant implications for the human rights of persons with mental illness, and particularly for patients who may be subject to compulsory mental health treatment under the MHA.

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Case Notes 04- DisabilityGuest UserDisability & Mental Health
Victorian Supreme Court finds owners corporations must modify apartments for owners with a disability

Owners Corporation OC1-POS539033E v Black [2018] VSC 337 (21 June 2018)

The Supreme Court of Victoria has handed down a decision that owners corporations must undertake modification works to apartment buildings for owners and occupiers with a disability. The decision has been hailed as a significant win for people with a disability.

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Case Notes, Case Notes 04- DisabilityGuest UserDisability & Mental Health
Victorian Supreme Court rules that courts have fair hearing and equality obligations to assist self-represented litigants

Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (28 February 2017)

The Supreme Court of Victoria has delivered an important decision on the obligations of courts to ensure fair hearing and equality rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in the context of unrepresented litigants, and in particular where a litigant has a cognitive disability.

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MichelleBennettHuman Rights Law & Institutions, Disability & Mental Health
US federal appeals court rules that a prohibition on gun ownership for people with prior mental health issues may be unconstitutional

Tyler v Hillsdale County Sheriff’s Department (6th Cir, No 13-1876, 15 September 2016)

A divided US Court of Appeals for the Sixth Circuit ruled that a longstanding federal law banning people involuntarily committed to mental health institutions from owning a gun could violate the Second Amendment of the US Constitution.

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HRLC AdminDisability & Mental Health
Blanket mental health exclusion clause in travel insurance policy amounted to unlawful discrimination

Ingram v QBE Insurance (Australia) Ltd [2015] VCAT No H107/2014 (18 December 2015)

The Victorian Civil and Administrative Tribunal (VCAT) found QBE Insurance (Australia) Limited (QBE) unlawfully discriminated against Will Ingram on the basis of his disability, namely a mental illness, contrary to the Equal Opportunity Act 2010 (EOA) when it included a blanket mental health exclusion in the travel insurance policy issued to Ingram and when it rejected his claim by relying on that clause.

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MichelleBennettDisability & Mental Health
The Rights of People with Disabilities

In the Matter of ER (Mental Health and Guardianship and Management of Property) [2015] ACAT 73

On 29 October a panel of three ACT Civil and Administrative Tribunal (ACAT) members confirmed that a finding that a person lacked capacity under guardianship law, did not automatically negate that person’s capacity for the purposes of mental health treatment. In light of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), questions of capacity are becoming increasingly central to the treatment of people with disabilities under Australian law.

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MichelleBennettDisability & Mental Health
Tribunal clarifies when police actions are 'services' for the purpose of discrimination law

Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015)

To be covered by the Equal Opportunity Act 2010 (Vic) (the Act), members of the public alleging discrimination by police need to prove that the discrimination occurred in the provision of ‘goods and services’. A recent Victorian Civil and Administrative Tribunal (VCAT) decision clarifies the definition of ‘services’ in the Act as it relates to policing.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health, Police
Distinguishing deprivation of liberty from empathetic care: will we 'know it when we see it'?

Bournemouth Borough Council v PS & Anor [2015] EWCOP 39

The UK Court of Protection was recently asked to rule whether the care regime of a 28-year-old man with severe autism ('Ben') amounted to a deprivation of liberty. Justice Mostyn ultimately concluded that the arrangements were in Ben's best interests, and did not amount to deprivation of liberty under Article 5 of the European Convention of Human Rights (ECHR). The Court declined to provide a test for 'deprivation of liberty' noting simply that the Court would 'know it when we see it'.

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MichelleBennettPrivacy, Disability & Mental Health
A gilded cage is still a cage: persons with a disability and the right to personal liberty

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)

The United Kingdom Supreme Court has provided criteria for judging whether the living arrangements made for a person with a disability amount to a deprivation of liberty. If so, the deprivation must be authorised by a court or by the deprivation of liberty safeguards (DOLS) procedure in the Mental Capacity Act 2005 (UK) (MCA) and subject to regular independent checks. In two cases heard together, the Court held that the appellants had each been deprived of their liberty.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
VCAT has jurisdiction to consider claims of Charter breaches

Goode v Common Equity Housing [2014] VSC 585 (21 November 2014)

The Supreme Court has confirmed that a person seeking redress for a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is able to obtain relief or remedy based on Charter unlawfulness, even where their non-Charter claim is unsuccessful or not determined.

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MichelleBennettDisability & Mental Health, Housing, Human Rights Law & Institutions
VCAT declares local council breached resident’s Charter rights

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013)

The Victorian Civil and Administrative Tribunal has declared that a local council breached a resident’s human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) when it banned him from accessing its buildings. The Tribunal’s declaration was part of its orders about the appropriate remedy in a claim of discrimination under the Equal Opportunity Act 2010 (Vic) (‘EOA’).

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Separation of father from wife and children violates right to family life

M.P.E.V v Switzerland (European Court of Human Rights, Second Section, Application No 3910/13, 8 July 2014)

The European Court of Human Rights found that Switzerland’s intended expulsion of an Ecuadorian man who had unsuccessfully claimed asylum would violate his, his second daughter’s and his wife’s right to a family under article 8 of the European Convention on Human Rights, despite the man’s previous criminal convictions and his separation from his wife.

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MichelleBennettChild Rights, Refugee & Asylum Seeker Rights, Disability & Mental Health
UK Supreme Court provides new test for deprivation of liberty in care arrangements

P v Cheshire West and Chester Council; P and Q (MIG and MEG) v Surrey County Council [2014] UKSC 19 (19 March 2014)

The UK Supreme Court handed down a judgment on the two linked appeals known collectively as the Cheshire West Case. The appeals deal with whether and in what circumstances the care and living arrangements made for a person with a mental impairment will amount to a deprivation of liberty. The Supreme Court found that all three of P, MIG and MEG, in these instances, were deprived of their liberty. The Court allowed appeals in both cases, unanimously in P's and by a majority of 4:3 for MIG and MEG.

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MichelleBennettDisability & Mental Health
VCAT finds breach of the Charter in recent discrimination case

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013)

The Victorian Civil and Administrative Tribunal (VCAT) found that a Council directly discriminated against a resident in the area of goods and services on the grounds of disability contrary to the Equal Opportunity Act 2010 (the EOA). In doing so the VCAT found that the exceptions under the EOA of statutory authority and health and safety were not made out. Further the VCAT found that the Council’s actions had breached the Charter of Human Rights and Responsibilities Act 2006 (the Charter). The Applicant was represented by Victoria Legal Aid’s Equality Law Program.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
The right to life and the requirement to properly investigate death

Antoniou, R (on the application of) v Central and North West London NHS Foundation Trust & Ors [2013] EWHC 3055 (Admin) (10 October 2013)

This decision of the England and Wales High Court (Administrative Court) considered the scope of a State's procedural obligation to investigate a detained patient’s death, derived from article 2 (right to life) of the European Convention for the Protection of Rights and Fundamental Freedoms.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
Amendments to the Canadian Mental Health Act found not to breach the right to liberty and security of the person

Thompson and Empowerment Council v Ontario, 2013 ONSC 5392 (12 September 2013)

The Ontario Superior Court of Justice has ruled that legislation introducing a community treatment order regime and expanding the circumstances in which a person with a mental illness can be involuntarily detained, submitted to a psychiatric assessment and admitted to a psychiatric facility, do not breach the Canadian Charter of Human Rights and Freedoms.

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MichelleBennettDisability & Mental Health
Smoking bans can breach human rights

CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013)

This case concerns the judicial review of a smoking ban imposed at the State Hospital of Scotland. Relying on articles 1, 8 and 14 of the European Convention on Human Rights, the Court concluded that it was unlawful to prevent a person detained at the Hospital (a psychiatric patient) from smoking outside in the grounds of the Hospital.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
ATMs and other banking services must be accessible to persons with disabilities

Nyusti and Takács v Hungary, Un Doc CRPD/C/9/D/1/2010 (23 April 2013)

The UN Committee on the Rights of Persons with Disabilities (Committee) held that member states must establish minimum standards to ensure accessibility to banking services for people with disabilities in order to comply with their obligation to avoid discrimination on the basis of disability.

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MichelleBennettDisability & Mental Health, Discrimination & Equality
Overrepresentation of ethnic minority children in remedial schools reveals racially discriminatory practices

Case of Horvath and Kiss v Hungary [2013], ECHR Application no. 11146/11

The European Court of Human Rights (ECHR) has found that Hungary’s procedures for placing children in schools for children with mental disabilities resulted in discrimination against the Roma, curtailing their enjoyment of the right to education. This is the most recent in a series of ECHR cases addressing the segregation of Roma children within European state education systems.

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MichelleBennettDisability & Mental Health, Discrimination & Equality, Child Rights
State responsibility for a suicide in custody

Coselav v Turkey [2012] ECHR 1789 (9 October 2012)

On 16 December 2005, 16 year old Bilal Çoşelav committed suicide whilst in the custody of Turkish authorities, by hanging himself using a bed sheet and the bars in his jail cell. In recent finding, handed down on 9 October 2012, the European Court of Human Rights unanimously decided that the Turkish government had breached article 2 of the European Convention on Human Rights, relevantly by failing to protect Bilal’s right to life and to carry out an effective investigation in relation to his death

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MichelleBennettPrisoner Rights, Disability & Mental Health
ACT Tribunal considers human rights interpretation

Allatt & ACT Government Health Directorate (Administrative Review) [2012] ACAT 67 (28 September 2012) 

In this case, the ACT Civil and Administrative Tribunal reviewed decisions made by the ACT Health Directorate refusing applications for access to documents under the Freedom of Information Act 1989 (ACT) and granted the applicant access to the relevant information on the basis that it was not “sensitive information” and not subject to FOI Act exemptions. The Tribunal provided a noteworthy detailed consideration of the methodology of interpretation under the Human Rights Act 2004 (ACT).

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MichelleBennettPrivacy, Disability & Mental Health
Support worker breached prohibition against cruel or degrading treatment by dragging man with disability across carpeted hallway

Davies v State of Victoria [2012] VSC 343 (15 August 2012)

In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.

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MichelleBennettDiscrimination & Equality, Health, Disability & Mental Health
Disability hate crimes and the State’s responsibility to protect the vulnerable

Ðordević v Croatia [2012] ECHR 1640 (24 July 2012) 

The European Court of Human Rights considered an application against the Republic of Croatia lodged by the first applicant, a physically and mentally disabled Croatian national, and the second applicant, his mother and full-time carer. The Court found that there had been a violation of articles 3, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of both the first and second applicants through the Croatian authorities’ failure to take all reasonable measures to prevent the ongoing abuse of the first applicant by a group of schoolchildren.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Liberty and security of mentally ill persons at trial

Centre for Addiction and Mental Health v Ontario, 2012 ONCA 342 (24 May 2012) 

The Court of Appeal for Ontario allowed an appeal by the Centre for Addiction and Mental Health and another setting aside an order of the trial judge requiring immediate treatment of a mentally ill prisoner to be conducted at the Centre. The Court held that while to delay such treatment on the basis that there was not sufficient space at the Centre for the prisoner would undoubtedly be a deprivation of life, liberty and security of his person per article 7 of the Canadian Charter of Rights and Freedoms, to do so nonetheless came within the fundamental justice exception to that article.

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MichelleBennettDisability & Mental Health
UN Committee on the Rights of Persons with Disabilities requires individual circumstances be considered to prevent discrimination

HM v Sweden, UN Doc CRPD/C/7/D/3/2011 (21 May 2012) 

HM v Sweden is the first decision of the UN Committee on the Rights of Persons with Disabilities. The Committee found that a State party may violate the Convention on the Rights of Persons with Disabilities if it fails to consider an individual’s particular health circumstances in applying its national laws, resulting in discrimination on the grounds of that individual’s disability.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Disability discrimination in housing benefits determinations

Burnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629 (15 May 2012) 

Due to severe disabilities, the applicants required extra bedrooms to accommodate their special needs. However, their housing benefits were only calculated based on what would reasonably be required for able-bodied person. The applicants successfully argued before the England and Wales Court of Appeal that this breached their right to freedom from discrimination.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Delay in providing psychiatric care amounts to “inhuman treatment”

M.S. v United Kingdom [2012] ECHR 804 (3 May 2012)

The European Court of Human Rights has found that a delay in securing appropriate psychiatric treatment for a man who was detained by police constituted “degrading treatment” in breach of article 3 of the European Convention, notwithstanding that the police officers and medical staff involved did not intend to debase or humiliate the man.

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MichelleBennettPrisoner Rights, Disability & Mental Health
UK Metropolitan Police assault autistic boy and infringe his human rights

ZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (14 March 2012)

The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.

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MichelleBennettHealth, Disability & Mental Health, Police
Right to compensation and redress for breach of the right to life

Reynolds v United Kingdom [2012] ECHR 437 (13 March 2012)

This decision of the European Court of Human Rights considered the availability of compensation for loss of life. The application was brought under Article 34 of the European Convention of Human Rights by the mother of a person who died while at a mental health facility. The Applicant applied for damages in relation to the death of her son and argued that she did not have any civil proceedings available to her under domestic law for this action.

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MichelleBennettDisability & Mental Health
Incapacity, inhuman or degrading treatment, and the right of mentally ill persons to access the courts

Stanev v Bulgaria [2012] ECHR 46 (17 January 2012)

The Grand Chamber of the European Court of Human Rights held that a man who had been declared partially incapacitated and placed in a dilapidated psychiatric home had suffered a number of violations of his human rights. The Grand Chamber emphasised that detention other than in accordance with domestic law is a violation of the right to liberty. Moreover, an aggregate of factors such as inadequate living conditions and lengthy detention can amount to inhuman or degrading treatment. Finally, incapacitated persons must have access to the courts for judicial review of both their living conditions and their legal status.

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MichelleBennettPrisoner Rights, Disability & Mental Health, Human Rights Law & Institutions
Right to liberty in the context of mental illness

The Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December 2011)

In this case the UK Court of Appeal considered whether the power to detain a convicted mental health patient continued to apply when the patient was "conditionally discharged" from detainment in hospital to another institution. The Court concluded that it constituted an unlawful continued deprivation of his liberty because of the wording of the Mental Health Act 1983. The decision is important because it upholds the fundamental nature of right to liberty, emphasises the high threshold for its deprivation, and maintains compatibility between the MHA and the European Convention on Human Rights.

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MichelleBennettDisability & Mental Health, Prisoner Rights
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders

Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011)

The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.

 

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MichelleBennettPrisoner Rights, Disability & Mental Health
When will restrictions on autonomy amount to a deprivation of liberty?

Cheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011)

The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the meaning of article 5 of the ECHR. In so doing, it has usefully clarified the principles which should be taken into account when considering whether a person has been deprived of his or her liberty within the meaning of article 5.

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MichelleBennettDisability & Mental Health, Health
Detention of person with mental illness was arbitrary and unlawful

Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011) 

The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients under the Mental Health Act 1983 (MHA) may constitute a deprivation of liberty in contravention of article 5 the European Convention of Human Rights (ECHR).

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MichelleBennettDisability & Mental Health, Prisoner Rights
UK’s detention of individual suffering mental illness amounted to torture and ill-treatment

The Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011) 

The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S's detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual's right to liberty and security of the person, respectively.

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MichelleBennettForeign Policy, Disability & Mental Health, Refugee & Asylum Seeker Rights, Prisoner Rights
State breached positive obligations to safeguard and protect the right to respect for private life by failing to prevent dog attack

Georgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011)

In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of Human Rights held that Romania violated article 8 of the Convention through failing to take sufficient measures to protect the physical and psychological integrity of the applicant, Ms Georgeta Stoicescu. Romania was also found to have breached article 6 of the Convention for denying the applicant an effective right of access to a court.

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MichelleBennettForeign Policy, Human Rights Law & Institutions, Disability & Mental Health
Charter Promotes and Protects Rights of Person with Disability

P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011)

In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.

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MichelleBennettDisability & Mental Health, Health, Human Rights Law & Institutions
Detention for mental health purposes must be subject to strict safeguards and review

LM v Latvia [2011] ECHR (Application No 26000/02, 19 July 2011)

In LM v Latvia, the European Court of Human Rights affirmed the importance of ensuring that domestic law provides adequate legal protections to persons with mental illness who are involuntarily detained and treated.

The decision is an important guide as to what may constitute “fair and proper procedures” which ultimately safeguard individuals against the arbitrary deprivation of their liberty in psychiatric institutions.

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MichelleBennettDisability & Mental Health, Prisoner Rights
The right to family life and liberty of persons affected by disability

London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP) (09 June 2011)

In this case, a 21 year old man with autism and severe learning disabilities who was institutionalised, rather than being permitted to return to his home under the care of his father, has been held to have been deprived of the right to liberty and family life. The England and Wales High Court has ruled that that the public authority who kept the man in a care facility for nearly a year, did so unlawfully.

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MichelleBennettPrivacy, Disability & Mental Health
Council failed to Give “Due Regard” to Equality Duties in Defunding a Community Service

Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011) 

The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of community advice centres was defective, because the council failed to give due regard to its equality duties.v

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Care Arrangements and the Right to Liberty: When will Restrictions on a Person with Disability Amount to a Deprivation of the Right to Liberty?

P & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011)

This case in the England and Wales Court of Appeal considered what constitutes a deprivation of liberty and the limitations on the right to liberty. It involves consideration of whether the care arrangements for two persons with mental disability resulted in the deprivation of their liberty.

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MichelleBennettDemocratic Freedoms, Disability & Mental Health
VCAT Considers Disability Discrimination Under the Charter

Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011) 

The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the Director’s decision on the basis it was not satisfied that the applicant had met the application requirements under the relevant Act.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health, Human Rights Law & Institutions
Mental Health and the Right to Liberty – Unlawful Detention in Mental Health Facility and the Right to Compensation

TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011)

The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest relative”, his brother, objected to an application for detention and treatment being made under the Mental Health Act 1983 (UK) (‘MHA’).

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MichelleBennettDisability & Mental Health
Permissible Use of Force and the Investigation of Police-Related Deaths

Bennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)

An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force.  In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems.  Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed.  This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions, Police
Disability Discrimination in Access to Education

British Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010)

Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education.  He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely learning disabled (‘SLD’) students by failing to sufficiently accommodate their learning disabilities in the provision of educational services contrary to s 8(1) of the Human Rights Code, British Columbia's anti-discrimination act.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Protection of Elderly Persons and People with Disability

McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010)

The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use a commode during the night, and instead requiring that the individual use incontinence pads and special sheets (in circumstances where the individual was not incontinent), did not breach the right to privacy in art 8 of the European Convention on Human Rights.

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MichelleBennettDisability & Mental Health, Health, Discrimination & Equality
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment

Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010)

On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) for the imposition of a residence condition in a community treatment order (‘CTO’) is the only lawful means of controlling the residence of a person subject to a CTO.  If this power is not exercised, there is no lawful basis for restraining the person's liberty, which includes freedom of movement.  As the applicant's place of residence was being controlled without the existence of a residence condition in her CTO, Bell J ordered her immediate release.

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MichelleBennettDisability & Mental Health
Statutory Interpretation and Limitations on Rights

In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010)

Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) so that he could be transferred from Port Phillip prison to a forensic psychiatric facility.  Mr Percy asked Coghlan J, in making his decision, to have regard to the Charter of Human Rights and interpret the Act in a way that is compatible with human rights.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions, Disability & Mental Health
Supreme Court Considers Relevance of Conditions of Detention to Bail

Dale v DPP [2009] VSCA 212 (21 September 2009)

In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted 'exceptional circumstances' as defined by the Bail Act 1977 (Vic).  Unless the appellant was granted bail, he would likely be remanded into custody for over two years.  While in remand, the appellant was kept in solitary confinement for six months 'for his own protection' not because he was a risk to others.  As a result, he suffered mental illness.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
The Disability Act and the Right to Housing

Conroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009)

The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the Disability Act 2008.  The first Notice alleged that the Applicant endangered the safety of other residents or staff; the second, that he caused serious disruption to the proper use and enjoyment of the premises by other residents.

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MichelleBennettHousing, Disability & Mental Health
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy

N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)

The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful.  Specifically the Court held that art 8 of the European Convention of Human Rights does not protect the right to smoke.

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MichelleBennettPrivacy, Disability & Mental Health
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter

AC (Guardianship) [2009] VCAT 1186 (8 July 2009)

This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000.  Due to a history of assaultive and sexualised behaviours, AC was placed on a Supervised Treatment Order (‘STO’) under the Disability Act 2006 (Vic).  The STO required him to be under constant supervision and allowed him to leave Sandhurst only in restricted circumstances and under the supervision of two staff members.  In 2009, AC applied to the Victorian Civil and Administrative Tribunal for review of the STO. AC wanted the STO to be revised so that he could come and go from Sandhurst as he wished during the daytime and have much more freedom in the community. AC stated that he was prepared to remain at Sandhurst and receive treatment voluntarily.  The Department of Human Services opposed AC’s application.

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MichelleBennettDisability & Mental Health, Health
Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits

Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)

This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits.  The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding.  In light of this security risk, the use of handcuffs did not constitute degrading treatment.  Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.

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MichelleBennettPrisoner Rights, Health, Disability & Mental Health
Mental Health: Kracke v Mental Health Review Board & Ors

VCAT Makes Declaration of Breach of Human Rights in Major Charter Test Case

On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a much anticipated decision which discussed in detail important aspects of the application and operation of the Charter.  The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic).

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MichelleBennettDisability & Mental Health
Supreme Court Considers Retrospective Operation of the Charter

State of Victoria v Turner [2009] VSC 66 (4 March 2009)

In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of law in a decision relating to a proceeding commenced prior to 1 January 2007.

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MichelleBennettDiscrimination & Equality, Disability & Mental Health, Human Rights Law & Institutions
Disability Convention, Legal Capacity and Domestic Law

Nichoson & Ors v Knaggs & Ors [2009] VSC 64 (27 February 2009)

The Victorian Supreme Court adopted a human rights approach to the issue of legal capacity for those who have disabilities.  In accordance with the UN Convention on the Rights of Persons with Disabilities (the 'CRPD'), Vickery J accepted the wide construction given to legal capacity and found that courts must ensure that the rights of people with disabilities are given support that is proportional to their needs and that conflicts of interest and undue influence do not occur.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
Mental Health and the Charter

09-085 [2009] VMHRB (23 February 2009)

In this case, which concerned the review of a community treatment order ('CTO') that prescribed a drug with serious side-effects, a number of significant issues arose in relation to the Charter:

  • Is the Board a 'public authority' and/or a 'court or tribunal' for the purposes of the Charter?
  • Are the authorised psychiatrist and the mental health services public authorities under the Charter?
  • What is the meaning and application of 'cruel, inhuman or degrading treatment' in s 10(b) of the Charter?
  • Does the limitations provision contained in s 7(2) of the Charter apply to s 10 rights?
  • What is the impact of s32 of the Charter on the Board's interpretation of the Mental Health Act 1986 (Vic)?
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MichelleBennettHealth, Disability & Mental Health, Human Rights Law & Institutions
Balancing Open Justice, the Right to Privacy and Freedom of Expression

XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009)

The Victorian Civil and Administrative Tribunal has confirmed that society's interests in an individual's rehabilitation can override the principle of 'Open Justice' and the right to freedom of expression.  Herald and Weekly Times Pty Ltd ('HWT') applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver's licence.  VCAT declined to revoke the order because publication of the man's identity could adversely affect his rehabilitation.

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MichelleBennettDemocratic Freedoms, Privacy, Disability & Mental Health
Right to Life and Positive Obligation to Protect the Lives of Hospital Patients

Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (10 December 2008)

The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’.  This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital adequately safeguard life.

In addition to this ‘general obligation’, hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
VCAT Considers Interpretative Provision in Taxi Licensing Case

XFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)

In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.

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MichelleBennettRefugee & Asylum Seeker Rights, Business & Human Rights, Disability & Mental Health
Homelessness and Discrimination

RJM, R (On The Application of) v Secretary of State For Work and Pensions [2008] UKHL 63 (22 October 2008)

The Social Security Contributions and Benefits Act 1992 (UK) provides for a 'disability premium' for people receiving welfare payments, except where the person is 'without accommodation'.  In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights.

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MichelleBennettHousing, Discrimination & Equality, Disability & Mental Health
Supervised Treatment under the Charter

LM (Guardianship) [2008] 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.

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MichelleBennettHealth, Disability & Mental Health
Court-Ordered Involuntary Medical Examination Violates the Right to Privacy

MG v Germany, Communication No 1482/2006, CCPR/C/93/D/1482/2006 (2 September 2008)

The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR.  The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions and did not hear from the author personally before making the order.

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MichelleBennettPrivacy, Health, Disability & Mental Health
Right to Family and Private Life requires Maintenance of Family Bonds

X v Croatia [2008] ECHR 11223/04 (17 July 2008)

The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
Application of the Charter to Guardianship and Disability

MM (Guardianship) [2008] VCAT 1282 (26 June 2008)

VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others.  The Tribunal referred to, but undertook scant analysis of, the interpretative provisions of the Charter and the requirement that any limitation on a right be demonstrably justified in a free and democratic society.

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MichelleBennettDisability & Mental Health
Human Rights and Mental Illness

Savage v South Essex Partnership NHS Foundation Trust [2007] All ER (D) 316 (Dec); [2007] EWCA Civ 1375 (20 December 2007)

The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life.

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MichelleBennettDisability & Mental Health
Inadequate Access to Health Care for Prisoner with Mental Illness a Violation of the Prohibition against Torture and Ill-Treatment

Dybeku v Albania [2007] ECHR 41153/06 (18 December 2007)

The European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention.  The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, a person’s mental health, may amount to a violation of the prohibition on torture and ill-treatment.

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MichelleBennettDisability & Mental Health, Prisoner Rights
Grand Chamber of European Court Considers Nature and Scope of the Right to Non-Discrimination and Equal Enjoyment of Human Rights

DH and Others v the Czech Republic [2007] ECHR 57325/00 (Grand Chamber) (13 November 2007)

The Grand Chamber of the European Court of Human Rights has held that the education policy in the Czech Republic, which resulted in the majority of Roma children being placed in special schools designed for the mentally handicapped, violated art 14 of the European Convention on Human Rights.  Article 14 of the Convention enshrines the right to non-discrimination and the equal enjoyment of human rights.  The Court held that the education policy indirectly discriminated against the applicants on the basis of their race in relation to their right to education.

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MichelleBennettDisability & Mental Health
Inadequate Treatment and Restraint of Person with Schizophrenia a Violation of Prohibition on Torture

Kucheruk v Ukraine [2007] ECHR Application No 2570/04 (6 September 2007)

The applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism.  The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment.  He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility.  While detained, he was subjected to the practices of restraint and seclusion.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 2007, Case Notes European Court of Human Rights, Case Notes InternationalMichelleBennettDisability & Mental Health
Requirement that Patient comply with Mental Health Treatment does not Necessarily Interfere with Right to Privacy and Respect for Family Life

R (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)

The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant's position and subsequently ordered the claimant's discharge under s 73 of the Act on the condition that, amongst other things, the claimant 'shall comply' with medication prescribed by a specified doctor.  The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'.

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MichelleBennettDisability & Mental Health, Privacy, Democratic Freedoms