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