ESSAY TITLE
I INTRODUCTION
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Chemical restraint is a coercive restraint technique used in healthcare and residential settings where medication is used to control behaviour and restrict freedom of movement. This practice occurs despite mounting evidence that chemical restraint is dangerous, for both physical and psychological wellbeing. Management of behaviour is necessary in environments where people may present a risk to themselves or others, such as in nursing homes or juvenile justice detention. However, in the aged care sector, chemical restraint has reportedly been used without residents exhibiting a relevant behaviour of concern. The current situation is not satisfactory for the protection and promotion of human rights in Australia or abroad.
This essays therefore asks ‘How can the law regarding chemical restraint be reformed to protect and promote human rights in Australia?’ The essay is structured as follows. Part 1 …. Part 2 …. Part 3…. The essay concludes by arguing that …..
II Current Law And Practice Of Chemical Restraint In Australia
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There are a number of laws and regulations relevant to chemical restraint. The practice is legislated under mental health Acts, the Quality and Care Principles (which are due to be repealed on 1 July 2021) and a range of youth Acts. Legal personhood is in effect restrained by these instruments, whereby another entity (i.e., an administrative decision-maker, a medical professional, or a guardian) is entitled to make decisions for a person in their best interests. Many instruments guiding this practice, and more generally those concerning the lives of vulnerable people, are guided by this principle. What constitutes a person’s best interests is a topic of heated debate. In most common law jurisdictions, the law recognises the right of competent adults to refuse medical treatment. With regards to juveniles, the starting point in case law is Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (‘Gillick’), where a child was deemed to have legal capacity to consent to treatment because of sufficient maturity and an ability to understand the consequences of that decision. The law simultaneously also recognises that at no point does parental control get extinguished in cases where there is refusal of medical treatment. Nonetheless, case law recognises that there is a reduction in this parental control as the child matures but this is of limited scope: for example, children in New South Wales are not afforded the ability to refuse medical treatment. In general, in Australia, Gillick competency is distinguished by the concept of refusal of treatment decisions.
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III. The International Law Norms And Ethics Around Chemical Restraint
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The Ethics of Chemical Restraint
Many scholars tend to argue that chemical restraint should be unlawful as opposed to medical practitioners who tend to argue that it is a necessary evil. From this emerges the key theme around the debate on the weight given between competing values of autonomy and individual freedom, and what society “owes” to vulnerable people. Chemical restraint is a perfect example of a paternalist intervention that is often positively motivated but complicated by evidence that chemical restraint can also do more harm than good.
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Chemical Restraint in International Law
The Convention on the Rights of Persons with Disabilities (‘CRPD’) is a landmark convention because it requires that laws be drafted so that restrictions on liberty are ‘de-linked from disability and neutrally defined so as to apply to all persons on an equal basis.’
Minkowitz argues that forced psychiatric intervention, which includes chemical restraint, is a serious human rights violation that should be criminalised on the basis that they are now unlawful. Minkowitz argues that informed consent is required for interventions, as mandated by Article 25 of the CRPD. By design, the right to free and informed consent requires that accessible information is provided regarding a service or treatment. Anything less is coercion. Others point out that, while for those in aged care, chemical restraint is particularly dangerous and can cause death, for juvenile justice detainees, the use of chemical restraint and antipsychotic medication is indicative of the child’s success upon release into the community. Secondly, the seriousness of the perception-altering effects of certain impairments means that an individual’s ability to understand information and situations must be considered. In this way, it is argued, applied to the letter, the CRPD create an idealistic world that ignores the scope, seriousness and real life effects of disability.
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Evaluation of Australian Law and Practice
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IV. How Should the Law be Reformed?
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V. Conclusion
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