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Comyn, Mallory --- "Locked Up And Drugged Up: Regulating The Use Of Chemical Restraint In Residential Settings" [2021] CanLawRw 20; (2021) 18(2) Canberra Law Review 202

Locked Up And Drugged Up: Regulating The Use Of Chemical Restraint In Residential Settings

Mallory Comyn*

This article considers law regarding the use of chemical restraint in Australian residential settings, building on the Royal Commission into Aged Care Quality & Safety disclosures regarding the alarming extent of neglect and abuse in Australia’s aged care facilities. It identifies international and domestic principles alongside benchmark overseas regimes

I Introduction

From its establishment in 2018 to its Final Report in May 2021, the Royal Commission into Aged Care Quality and Safety (‘ACRC’) revealed to the public the alarming extent of neglect and abuse in Australia’s residential aged care facilities. Of particular concern were findings that people are being medicated so that ‘everyone looks fine ... they’re all clean and tidy and they’re not crying out.’[1] Medication is often used as a form of behavioural control rather than treatment (known as ‘chemical restraint’), yet this was not the first-time concerns have been raised about this practice: coroner’s courts have established that Australians have died as a result of chemical restraint.[2]

Though this issue is further clouded by the lack of comprehensive national data on the use of these practices,[3] evidence at the ACRC hearings revealed that family consent was typically not being sought before increasing or introducing new medications to care recipients,[4] that medication was provided without an official diagnosis of a mental health condition,[5] and that the staff in these facilities were not being trained to administer pro re nata (unscheduled) medication.[6] The scientific literature is also dominated by concerns about the range of potential side effects.[7] On the more serious end, these medications have been shown to increase rates of falls,[8] cerebrovascular adverse effects,[9] and mortality.[10]

The nature of chemical restraint requires that research and doctrine is drawn from sources dealing with mental health disorders as well as other health-care settings such as hospitals. However, there is significant overlap between the circumstances and legal challenges faced by persons with mental health illness, cognitive disabilities and intellectual disabilities[11] such that these groups are comparable. Nevertheless, due to word length limitations, the policy suggestions here will be limited to residential aged care in Australia.

With several reports[12] being released in recent years on the conditions in residential aged care, particularly regarding the use of chemical restraint in these facilities, states are under increasing pressure to eliminate the use of chemical restraint against persons with disabilities as a violation of a person’s human rights.[13] However, the author of this article was unable to identify any published study indicating that complete elimination of chemical restraint is a viable alternative.[14] This suggests that there is a genuine need for original research exploring solutions for this problem, not only because, even where legislation exists to prevent abuse, it may not be compliant with to Australia’s obligations under the Convention of the Rights of Persons with Disabilities (‘CRPD’),[15] but also because the concerning levels of chemical restraint abuse necessitate a response.

This article takes an interdisciplinary approach to the research question, combining doctrinal research, legal and regulatory theory, as well as insights from empirical and scientific studies on chemical restraint. Working within a reformist paradigm of legal research, this article draws its primary sources from both Australian and Canadian case law and tribunal decisions to provide the doctrinal context required to answer the following questions. First, the judicial interpretation of the issues presented by chemical restraint is important because the law, as a form of communication, provides direct insights into the social response to pertinent issues,[16] in this case, how the norms embodied in the CRPD have been implemented in practice. Second, this can be subjected to the lens of regulatory theory to provide a critical perspective[17] and contextual frame[18] for the issue of chemical restraint and how it can be viably regulated.

To justify this comparative approach, there is a long tradition of comparing Australian and Canadian law as these jurisdictions provide a suitable balance of similarity and dissimilarity for comparative purposes.[19] The issue of chemical restraint is topical in both jurisdictions. Both jurisdictions are federations that have received English law, meaning that there are similar institutions, battles between federal and provincial governments, and extra layers of complexity to ratifying and implementing international agreements.[20]

However, measures that have been effective in one context cannot be simply transplanted to another. For example, a key difference is that Australia does not have a federal bill or charter of rights. In Canada, as will be discussed below, the Charter of Rights and Freedoms (‘the Charter’)[21] plays a significant part in determining how chemical restraint is practised and regarded. However, the reality of the Canadian restraint experience is unlikely to be so different that Australia could afford to ignore the lessons learned.

Though doctrine and theory are necessary to understand the substantive law on chemical restraint, alone such a methodology cannot deal with the broader context, both social and scientific, that this practice occurs in.[22] As empirical research is beyond the scope of this article, secondary resources are drawn from a wide variety of sources to form a part of the evidence base for its reform suggestions. Research into this area acknowledges that there are several terms that have the same meaning as ‘chemical restraint’, which include ‘forced medication’, ‘forced sedation’, ‘emergency sedation’ and ‘emergency tranquilisation’. When searching databases for both scientific and legal articles, a variety of terms were used to access a broader range of literature.


This article begins with a discussion of theories of disability in Part II. This part outlines the main conceptualisations of ‘disability’ from the past few centuries, before evaluating the ethical implications of chemical restraint, drawing on the work of Michel Foucault, Immanuel Kant and others. Part III addresses some of the key regulatory challenges for chemical restraint, focusing on how regulation must be built on a strong legal foundation to ensure coherence, particularly in light of the ethical dilemmas posed in Part II. Part IV presents a comparative doctrinal overview of case law and tribunal decisions from both Australia and Canada to examine how these countries are implementing the new norms introduced by the CRPD. This significance of these doctrinal trends for regulation of aged care is explored in Part V. This part evaluates a model for chemical restraint regulation within the norms imposed by the CRPD. It argues that while the CRPD is unable to truly address the root cause of legal disability, it remains relevant as an aspirational target. The part then concludes with a few key policy recommendations. Part VI concludes the article, drawing together the arguments from the previous part.


This part outlines the evolution of the concept of ‘disability’, and what this has meant for persons with disabilities who encounter the medical field. Part A begins by discussing the history of disability and forced treatment, with particular attention paid to the work of Michel Foucault. Part B concerns the different conceptualisations of ‘disability’ that have evolved over the past few decades. Part C argues that chemical restraint presents a Kantian ‘antinomy’ — a diabolical ethical dilemma such that the solution to prevent abuse is not as simple as banning the practice entirely.

A The Theories of Disability

The concept of what constitutes ‘disability’ has changed significantly over the last few centuries, beginning with a pre-Enlightenment ‘spiritual’ model, to a post-Enlightenment medical model, and finally, the modern social model.[23] Most Western conceptions of disability have centred around disability as a ‘deviance’ from social norms of behaviour. Responses to disability centre around ‘fixing’ this deviation, based on normative judgements of what it means to be ‘human.’ Under traditional moral philosophy the human capacity for free, rational and moral choice has been the centre of personhood.[24] For persons with intellectual and cognitive disabilities, rationality-based personhood has been, and continues to be, used to deny the full array of rights ascribed to others. This is often in an attempt to force treatment that may resolve the ‘deviance’ under the guise of such treatment being in a person’s ‘best interests’.

This presumption is a legacy of previous conceptualisations of disability. The spiritual model was underpinned by the idea of disability as both a misfortune that deserved a compassionate response, and a manifestation of evil.[25] The aim was to drive out that evil so as to cleanse a person of their disability.[26] This aim persisted under the medical model, except that the religious imperative was replaced by a scientific lens: disability could be explained by medical (ie biological) defects that could be cured.[27] Under this model, the locus of the disability is within the individual,[28] who can therefore be ‘fixed’. The medical model ultimately failed on two grounds: it led to a number of cruel, inefficient treatments being practised on persons with disabilities (discussed below), while at the same time, many medical practitioners ignored the consequences.

In contrast, the social model of disability has gained popularity in recent decades, with its biggest achievement being the coming into force of the CRPD,[29] which introduced the social model paradigm to international law.[30] The social model explains that disability is the gap between a person’s abilities and what society expects a person to do[31] wherein ‘disability’ should be contrasted with ‘impairment’ as two distinct concepts. The former is structural, as well as culturally and historically specific, and the latter is individual and private.[32] Therefore, ‘[t]he problem is not the person with disabilities; the problem is the way that normalcy is constructed to create the “problem” of the disabled person.’[33] This model argues that instead of trying to force a person to live in a world not built for them, it is the environment that should change.

While this model has been important in improving the political visibility of persons with disabilities, it is not without its flaws: the social model risks insinuating that impairment is irrelevant[34] and, in practice, removing all socially imposed barriers to full participation would be almost impossible.[35] The CRPD does not address these concerns either, as it does not provide an answer about what States should do when social intervention does not ‘make rights real’[36] for a person with disabilities.

Despite its impracticalities, the social model is useful to reveal the complexities of the impairment/disability dynamic. This dynamic has been the subject of study under critical disability theory, which has emerged as a mode of challenging traditional, ableist conceptions of disability. Critical Disability Theory explores how labels such as disabled/abled and impaired/non-impaired have ‘obscured connections between people with and without impairment’[37] by drawing on the work theorists such as Foucault to dissect disability in terms of its connection to knowledge and power.[38]

Foucault’s theories offer particular insight into the ways that being designated as ‘disabled’ has enabled the maltreatment of persons with disabilities for centuries: the sharpening distinction between normal and abnormal in medical knowledge caused the ‘systemic closure of opportunities for agency’ for persons with disabilities,[39] who were then transformed from ‘human beings into human subjects’.[40] The work of Foucault focuses on the creation of this human subject, by examining how knowledge and discourse ‘systematically form the objects of which they speak’[41] in addition to how power itself is both productive as well as dynamically linked to fields of knowledge.[42] For example, medical knowledge creates the categories of normal/abnormal, which in turn informs how certain people are to be treated by the law and medical professionals. Foucault also wrote of ‘subjugated knowledge’ such as that held by a psychiatric nurse which is excluded from the formal discourse, described as a ‘whole set of knowledges that have been disqualified as inadequate to their task or insufficiently elaborated: naïve knowledges, located low down on the hierarchy, beneath the required level of cognition of scientificity.’[43]

From a purely Foucauldian perspective, even though he never explicitly addresses disability/impairment,[44] both the social model and the medical model of disability are coercive: power and knowledge are used to demand the correct performance of a person’s social roles, while also controlling a person who does not have the desired physiological traits.[45] In the past, methods of doing so have included electroconvulsive shock therapy, deep sleep therapy and the introduction of psychotropic medication, all of which are ‘treatments’ that became popular at the height of the medical model.[46] The treatments were designed to ‘fix’ the impairment and to normalise the person, yet often had severe side effects in trying to do so.

The social model is also coercive in that it discursively equates disability with oppression: [47] oppression creates disability such that this model attaches persons with disabilities with an ‘oppressed’ identity.[48] It becomes impossible to find a person with a disability that is not oppressed to some degree.[49] That is not to say that the social model should be rejected: Foucault recognised that ‘[d]iscourse transmits power and produces power; it reinforces it, but it also undermines and exposes it, renders it fragile and makes it possible to thwart it.’[50] By limiting disability to being socially constructed, the social model asks society to question social conventions and environmental designs that it takes for granted, but it also denies that impairment is an observable attribute of an individual that forms an essential aspect of their existence.[51] This disregards the lived experience of people with disabilities. Such experience should itself be considered as a ‘subjugated knowledge’[52] that must be brought to the forefront of all discussions concerning disability policy.

B Disability and Control

Theorists stress the importance of respect for autonomy because patients and residents in residential and healthcare settings will inevitably ‘occupy a subordinate position to their healthcare provider.’[53] In the past, the subordinate position occupied by persons with disabilities and other minorities[54] has resulted in barbaric treatment, either under the guise of scientific advancement or because such treatments were seen to be in the person’s ‘best interests’. Tracing the history of treatments such as electroconvulsive shock therapy (‘ECT’), deep sleep therapy (‘DST’) and psychotropic medication, in light of their effects of disability rights, is useful to understand the rhetoric surrounding modern chemical restraint.

Introduced to Australia in 1941,[55] ECT has been the subject of increasingly tight regulation, following the lead of the United States.[56] ECT can be administered in a modified and unmodified form, with unmodified ECT labelled ‘particularly barbaric’[57] because it does not involve anaesthesia or muscle relaxants. ECT, like chemical restraint, is a subject of debate because of its lack of long-term research, risk of brain injury, and the idea that the benefits outweigh any risks attached.[58]

DST was used in conjunction with ECT. It was a practice where patients were sedated for a duration of between two weeks[59] and one month[60] using a cocktail of medications to keep a patient unconscious.[61] DST appeared on the public radar in Australia in 1967 when the Sydney Morning Herald revealed concerning reports of the level of medications given to a 23 year old woman who died at Chelmsford Private Hospital while receiving the treatment.[62] Similar to the history of uncovering the aged care quality issues, the Chelmsford Royal Commission brought public attention to the practice.[63] Justice Slattery, in the Royal Commission reports, was severely critical of the behaviour of medical professionals at Chelmsford: many doctors were aware of the dangers of DST at the time it was being practised, proving that safeguards have little benefit where medical professionals are not willing to report colleagues.[64]

The events at Chelmsford brought public attention to abusive practices against vulnerable people, but they were far from an isolated incident. Other Australian institutions for vulnerable people have also been characterised by disease, neglect, overcrowding and abuse.[65] A key part of the process to close such institutions, both in Australia and abroad, was the introduction of psychotropic medications.[66] Arguably, these medications had some positive effect on the daily lives of people with mental disabilities: because they were able to induce ‘socially acceptable behaviour’[67] such that institutionalisation rates decreased, psychotropic medication may have played a part in the emergence of new philosophies about what was possible for healthcare.[68] However, another way of looking at this is that psychotropic medication created the possibility of restraining a person’s behaviour without the need for physical restraints, thus resulting in the advent of chemical restraint and its abuse. From a Foucauldian lens, ‘power’ — in this case, that of the medical field and the professionals that work in this area — creates the field of possible action,[69] such that chemical restraint becomes a viable option.

C Antinomy of Restraint: Enhancement Technologies, Liberty and Autonomy

Enhancement technologies are ‘the application of biotechnological devices aimed at augmenting human physical and mental traits’[70] with the aim to ‘preserve and augment the vitality of the body and to enhance the happiness of the soul’.[71] These technologies are the subject of much debate: from a conservative bioethical position, enhancement technologies threaten the foundation of what it means to be human[72] but from a post humanist position, a ‘human’ is a constantly evolving subject, such that enhancement technologies are the next form of evolution.[73] Dignity is a central part of the discussion, often drawing from the Kantian concept of dignity grounded in reason and moral agency. From a conservative perspective, enhancements are a threat to human dignity: it is the acceptance of limitation that defines humanity such that ‘[w]ith biotechnical interventions ... we cannot really own the transformations nor experience them as genuinely ours.’[74] For the post-humanist, dignity is expressed through human action[75] such that enhancements might make people more efficient or ‘capable of independent initiative’.[76] Neither of these perspectives are necessarily wrong: they are an ‘antinomy in which the concepts of human nature, human goods and flourishing vie with progress and choice, with no way to compare the opposing metaphors.’[77]

Patrick Kermit employs the idea of ‘Kantian antinomies’ in his exploration of the use of Cochlear implants.[78] These antinomies are mutually exclusive concepts that can each be, simultaneously, true.[79] Antinomies contain a thesis and an antithesis that can argue their own consistency by demonstrating that the other is inconsistent[80] thus both statements are ‘true’. In relation to understanding ‘truth’, Foucault’s focus on discourse as ‘games of truth’[81] reveals how particular objects or concepts are ‘systematically form[ed]’[82] by the discourse around them. ‘Truth’ has an ethical dimension, such that where it can be proved that a ‘truth’ is only, for example, a social convention, then this creates a powerful argument for altering society because it implies the space for liberation.[83] Returning then to the social model’s impairment/disability divide, it is clear that ‘disability’ is a discursively created concept, as are the behaviours of concern that necessitate chemical restraint as a response. However, impairment is not: it is a natural state that results from biology.

ECT, DST and chemical restraint are all attempts at correcting biology. In the most basic sense, they should be considered enhancement technologies, however they are often also criticised for their impact, perceived or real, on a person’s autonomy.[84] Focusing on chemical restraint, as an enhancement technology that alters a person’s neurochemistry, the technique can be theorised in two opposing ways: either as a rights violation or as a mode of upholding a person’s rights. If one of these is ontologically ‘the truth’ then this would carry weight for future disability policy, the dispute being whether or not to chemically restrain a person exhibiting behaviours of concern. However, if both are ‘true’, then there is no simple solution to the use of chemical restraint.[85]

1 Chemical Restraint as a Rights Violation

Beginning with the proposition that chemical restraint is a rights violation, the obvious place to start is with the CRPD as a source of human rights. The CRPD reinforced that persons with disabilities bear the same rights as all other people;[86] forced treatment is therefore banned under the CRPD. The Committee in its General Comment on Article 12 explained that ‘forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16).’[87] By overriding the decisions and wishes of persons with disabilities, only where this would not be done for persons without a disability, this is discriminatory and a violation of their rights to ‘the full and equal enjoyment of all human rights and fundamental freedoms.’[88]

From a theoretical point of view, chemical restraint is also damaging because it contributes to forced normalisation of persons with disabilities: liberal societies valorise freedom of the individual, and society is structured around this ideal, with the individual striving for autonomy in all decisions.[89] It follows that the right to choose what happens with one’s own body is fundamental,[90] even more so when considering that that chemical restraint does not cure a person’s impairment, and that psychotropic medication can have serious side-effects[91] to the extent that chemical restraint can result in early death.[92] These points, taken together with the legal considerations under the CRPD, support the claim that chemical restraint is a rights violation.

2 Chemical Restraint as a Method of Upholding Rights

The antithesis of the above proposition is that chemical restraint instead upholds a person’s rights, in a way that can be described ‘empowerment by protection’. There are two arguments that lend support to this antithesis: the first is based on a social argument about a person’s ability to participate in society, and the second is based on a relational conception of autonomy, which is to be contrasted with the traditional individualist approach.[93] Beginning again with the obligations under the CRPD, the CRPD enforces an individualist approach to autonomy, in that autonomy is ‘the freedom to make one’s own choices.’[94] Further, while it is true that the CRPD reinforces the rights of persons with disability not to be subjected to forced interventions, the CRPD also requires States to take effective and appropriate measures to ‘enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.’[95]

Empowerment is a way that this full inclusion and participation can be achieved, in that the theory of empowerment works to reduce the effects of social or personal blocks that prevent a person from exercising power over their own lives.[96] Yet, full participation in society is premised on an ability to adhere to social norms, [97] and this dynamic is recognised by the Committee on the Rights of Persons with Disabilities.[98] While this normative standard is the exact critique that the social model makes, this assumes that Western liberal societies are much more heterogenous than they actually are.[99] The real concern is not difference itself, but where the line should be drawn in restricting difference.[100]

This ‘line’ is critical for persons with cognitive and intellectual impairments that cause behaviours of concern, because these behaviours will limit a person’s ability to fully participate in society: these can be ‘personal’ blocks (ie ‘impairment’-based) rather than social ones (ie ‘disability’-based). For example, if someone without the ‘excuse’ of an intellectual disability kicked or punched another person, this would be dealt with in the criminal justice system, which blocks a person from full participation in their community. It is easily accepted that such behaviours are ‘where the line is drawn’ when it comes to restricting difference. If there is no way of managing such behaviour,[101] then such behaviour will result in social isolation.

This is particularly important for persons with cognitive or intellectual disabilities, for whom denying dependence on social networks is to deny the reality of their daily existence. Yet, this is not what the CRPD intends: liberal autonomy, such as that which is upheld by the CRPD,[102] is challenged, for example, by the prevalence of delusions[103] and anosognosia (the clinical inability to be aware of one’s disease or impairment)[104] in some persons with cognitive impairments:[105] exercising an autonomous choice to refuse chemical restraint becomes literally impossible when a person is unable to understand the full facts of their own condition. Empowerment is therefore reliant on protecting a person, where autonomy is instead ‘created by, dependent on, and exercised through relationships with other people.’[106] The relationships that people form are an intrinsic part of perceiving events: no one is ever truly able to make a completely autonomous choice, separate from the broader web of influence the person lives in. One such choice that may need to be made is the choice to control a person’s behaviour via medication.

Therein lies the problem: as long as unconditional individualist autonomy and unconditional participation remain goals of a liberal society, disability will always have to be managed.[107] ‘Empowerment’ on these assumptions without management through protective policies and actions is not possible. That is not to say that there are no socially created barriers for persons with cognitive and intellectual disabilities that ought to be acknowledged.[108] If anything, this operates to strengthen the social model’s societal critiques, in that the very foundation of liberal societies is disabling to people with cognitive and intellectual impairments: freedom is both limited by, and given by, the same social structures.[109] Yet, the CRPD operates to reinforce the same structures, by presuming an aspiration for all persons with disabilities for full autonomy, while ignoring the objective impacts of impairment on a person’s ability to do so: this is the idea of leaving a person ‘rotting with their rights on’.[110] On this view, fully unconditional participation or autonomy is an impossible goal for certain people without the use of chemical restraint.

3 Chemical Restraint as an Ethical Antinomy

Both of these perspectives have merit and can demonstrate flaws in the other. The first is based on several Articles of the CRPD,[111] such that there is a valid claim that chemical restraint is rights violation. The second argues that full social participation, also guaranteed under the CRPD,[112] is dependent on the ability to participate in society that, for some, can only be achieved with pharmacological intervention. Thus, chemical restraint is best regarded as a theoretical antinomy, to which the practical policy answer is highly dependent on a realist interpretation of the situation at hand requiring the use of restraint. While this argument is likely to be contentious, and would be rejected on the basis of the social model, it is also pragmatic to understand that a significant cultural shift will be required to change prescribing and administration habits in health care,[113] but simultaneously, it would be discriminatory to deny people medication if that were to improve their health outcomes. Therefore, rather than arguing that the practice must be banned outright, it is more useful to discuss ways in which the practice can be regulated to reduce the potential that it will be abused, such that the benefits no longer outweigh the risks.


This part discusses the issue of regulating chemical restraint, primarily how agencies and institutions can be structured for the development of personal and interpersonal rights.[114] Part A examines the experiences of staff and patients, as Foucault’s source of ‘subjugated knowledge’[115] to determine what are the key challenges for regulating chemical restraint. It discusses barriers to eliminating restraint at the industry level down to the experiences of nurses and patients. Part B outlines the key challenges for regulation, with a focus on how regulation should be structured to create a coherent system.

Traditional regulatory theory focuses on the ability of agencies to efficiently allocate scarce resources to achieve goals and safeguard minimum standards, with dispute resolution on the basis of rights left to the judiciary.[116] Yet, this results in a fragmented approach because the case law will only address certain time periods, environments or persons.[117] By leaving rights ultimately to the judiciary, this misses valuable opportunities for regulation to be the preferred method of ‘organising social relations.’[118] Taken together, case law and regulation can serve ‘to constitute market relations, to provide the frameworks for rights and processes that allow markets to work, and to protect markets from fragmentation.’[119] For this article, the market is residential settings, and the framework is that which will decide if chemical restraint has a place in modern disability policy. Any such framework is dependent on whether the risks of chemical restraint can be adequately minimised compared to its benefits.

A The Experiences of Staff and Patients

There is increasing pressure to eliminate the use of all restrictive practices in Australia[120] based on a number of programs internationally that have been able to successfully reduce the rates of restraint use.[121] However, no published studies have managed to present a viable model eliminating all use of seclusion and restraint.[122] The disregarded ‘subjugated knowledges’[123] of those involved in chemical restraint incidents should therefore be examined to understand why these elimination attempts have failed.

Care workers recognise that there is a tension between human rights and duty of care[124] when restraint practices are used but a majority do not believe that it would be possible to maintain a safe environment if restraints were eliminated.[125] Restraint removal is also associated with heightened levels of work and stress.[126] For nurses, the risk of personal physical and psychological injury during care presents a significant challenge to reducing restraint: for example, in one study implementing an initiative to reduce restraint, it was found that though the number of restraint incidents went down, the level of staff injury remained relatively level, indicating that there is always a risk of significantly violent or agitated persons causing injury.[127] Beyond concerns for personal safety, some nurses still feel vulnerable to accusations of negligence should a patient, staff member or visitor be injured, if that injury could have been prevented through restraint.[128] One nurse framed this as balancing a ‘duty of care to 30 people or human rights for one.’[129]

The reactions of people who have been restrained are also complex, but overwhelmingly, the responses to restrictive practices are negative, namely that these events cause an immediate escalation of distress,[130] as well as embarrassment,[131] fear,[132] and anger.[133] However, there have been instances where people who have been forcibly medicated have reported positive effects[134] such as feeling calmer,[135] improved mental state,[136] and liking the sleep-inducing effect that medication has.[137] Some patients also prefer medication over seclusion[138] which, as an alternative to chemical restraint, can cause feelings of loneliness and distrust.[139] This supports the conclusion that there is a risk of poor outcomes and compliance with healthcare plans where people feel they are not involved in their own treatment.[140] Overall, many view chemical restraint in any instance as ‘a form of abuse’[141] and emphasise that medication should be used as a last resort. However, there is also evidence to suggest that time assuages anger about restraint incidents, when the person understands why restraint was clinically necessary[142] but this is dependent on the person’s trust in their care team.[143]

There are several studies[144] that show the importance of the therapeutic care relationship in helping a person understand a restraint incident. From a Foucauldian perspective, where the relationship between the patient and the care provider is itself a power dynamic, this relationship will influence whether a restraint incident is perceived as positive or negative: for example, where psychiatric patients are given the opportunity to ‘debrief’ with workers after a seclusion event, and are able to understand why a restrictive practice occurred, this has been shown to assist with the coping process.[145] Yet, residential aged care facilities are seen as the place where people go to die.[146] This view serves to uphold an organisational and societal culture that aged care is only about meeting minimum standards over a person’s last few years.[147] Inside these residential facilities, mistreatment is rampant and is often blamed on resource constraints[148] that flow on to affect staff levels, organisational culture and training.

Beginning at the top level, the aged care industry itself has a poor reputation and therefore struggles to attract the ‘right’ kind of employee.[149] Resource constraints have a direct impact: the sector is viewed as underfunded,[150] ‘less glamorous’ than other nursing sectors,[151] more stressful due to unsustainable high resident to staff ratios[152] and lacking in career development opportunities that marks aged care as a ‘dead end career’.[153] The introduction of ‘zero hour’ contracts to residential aged care as well as lower wages than the acute care sector makes the industry less attractive to qualified nurses.[154] This itself decreases the industry’s reputation because it is then seen as requiring less complex skills, with little incentive to continue training.[155]

The reputation feeds the organisational culture at individual institutions. Several studies promote the need for attitudinal changes in health care settings[156] but in practice this is difficult because the industry’s poor reputation means that ‘workers are often frustrated and demotivated doing roles that they deem “beneath them”’.[157] Residential settings must develop policies that cultivate an organisational culture of respect for the people in their care. Even something as simple as fostering positive relationships between care workers and the people in their care has been shown to increase autonomous participation for people in residential care.[158]

Organisational culture is dependent on its policies, and this can either solidify or break interpersonal care relationships. Nurses have complained that when a restraint practice is banned, it has not been replaced with any other form of intervention, which has led to ‘staff being knocked out [and] broken bones.’[159] Others have stated that removing other types of restraint simply leads to increased chemical restraint,[160] though there is a concerning lack of knowledge about restraint, its effects, and alternative practices available.[161] Nurses, generally, are likely to report feeling undertrained to sufficiently care for persons with intellectual disabilities.[162] The lack of training has been shown to contribute to a lack of empathy and understanding for the distress of people being restrained[163] but nurses still feel as if reducing restraint is impossible without increased staffing measures.[164] Fundamentally, if the people who are the ones using chemical restraint do not believe it can be eliminated, then efforts to do so will almost certainly fail.

B Challenges for Regulation

From a regulatory perspective, chemical restraint and residential settings present a number of risks to be managed: it is a ‘social practice’ that creates ‘social effects of concern’ that therefore must attract regulatory attention.[165] The CRPD further justifies regulating chemical restraint,[166] providing the new normative basis for regulation designed to achieve equality for persons with disability. Regulatory quality further depends on the policy objectives — in this case, preventing the abuse of chemical restraint — and balancing different benchmarks of success, which are likely to be contentious issues as different stakeholders will have different values and priorities.[167] Despite the controversial nature of allowing chemical restraint at all,[168] anticipatory risk regulation is likely to be the proper response to the dangers of chemical restraint abuse: an ideal regime should be structured to foster the relationship between residential facilities and residents in a manner that supports the foundational rights of persons with disabilities,[169] such as those presented by the CRPD.

Any such regime must be responsive to the changing political and social environment around residential facilities, particularly how actors will respond to attempts to regulate them.[170] Julia Black and Robert Baldwin offer five key factors influencing the success of responsive risk-regulation: ‘(1) the behavior, attitudes, and cultures of regulatory actors; (2) the institutional setting of the regulatory regime; (3) the different logics of regulatory tools and strategies (and how these interact); (4) the regime's own performance over time; and, finally, (5) changes in each of these elements.’[171] Risk regulation also poses a number of additional questions, including: 1) whether regulation should err on the side of caution and risk ‘over-regulating’ the issue;[172] 2) whether regulation should be ‘blame-oriented’ or with a greater focus on ‘collective or corporate design’;[173] and 3) how to reduce risks when risks have to be traded off against other goals.[174]

These sociological factors and theoretical questions determine the strategies used to ensure compliance. Braithwaite presents these strategies via a regulatory pyramid comprising strategies arrayed hierarchically with the least interventionist options forming the base.[175] These strategies should align with the normative characterisation of the problem to be regulated.[176] For example, risk-based approaches may attempt to modify behaviour via performance standards.[177]

All of these components of a regulatory system are difficult to effectively design in the context of chemical restraint, because the practice is influenced by a broad range of social, institutional and economic factors. The research outlined above indicates that some of the key challenges to effective regulation of restraint that emerge in this area are: 1) lack of resources, 2) lack of oversight, and 3) negative beliefs about vulnerable people. This indicates that there is a mismatch between the normative foundation of the existing regulation for chemical restraint, and the positive elements of the regulatory system.[178]

A useful comparative regime is OH&S, because the regime rests on an analogous logic to residential facilities: ‘Because employers control the conditions of employment, the onus of protecting workers from occupational disease and injury was to rest with them as well.’[179] OH&S is underpinned by a variety of laws that create the foundational rights for workers, such that a significant part of OH&S regulatory work is ‘to secure relational justice, [so] it naturally aspires to provide satisfactory responses to relational wrongs.’[180] Regulation, then, does not work alone: as the law is how regulation is upheld, and is what dictates the ‘fundamental rights’ that any proposed regime relies on, the law around chemical restraint, disability, and rights needs to be evaluated before a firm answer can be given about the place of chemical restraint in residential facilities.


This part outlines the judicial treatment of chemical restraint in both Australia and Canada, with Part A devoted to Australian case law and tribunal decisions and Part B concerning Canada. Part C compares the doctrine of both countries, to identify commonalities between the ways the two nations approach the issues raised by chemical restraint and the norms imposed by the CRPD. The purpose of this overview is to scrutinise the sources of power that contribute to the normalisation of chemical restraint, in violation of the obligations under the CRPD. In determining these patterns — being the way that the law creates the ‘conditions of legitimate interaction among individuals’[181] — it becomes possible to see how decisions and judgments should be considered as a reflection of modern social issues.

A Australia

To begin with, the 2009 Vic MHRB case of 09-085[182] is pertinent because it discusses the high threshold for justifying the forced administration of medication for a beneficial purpose despite serious side-effects. ‘P’ was under a community treatment order that allowed for involuntary administration of medication to reduce sexual disinhibition, along with treatment for schizophrenia. Injections of the hormone drug Depo Provera resulted in severe osteoporosis, but when the dosage was reduced on three separate occasions, P’s treating team noted a return of sexual disinhibition or inappropriate sexualised behaviour.[183] P appealed the extension of his community treatment order and argued that the involuntary administration of the drug constituted cruel, inhuman and degrading treatment under s 10(b) of the Charter[184] and s 19A of the Mental Health Act 1986 (Vic).[185]

The Board noted that the impacts of P’s medication were ‘far more intense than would be routinely provided to involuntary patients’[186] and commented that ‘[i]n the Board’s view, [P’s treating teams] had at all times attempted to act in P’s best interests.’[187] Nonetheless, the complexity of P’s case posed a challenge for the Board when considering adverse side effects when weighed against the therapeutic benefits.[188] In reaching its decision, the Board acknowledged the ‘inherent conflicts between a patient’s right to, and the state’s responsibility to provide, treatment for the mental illness and protection of the person’s individual human rights.’[189] Ultimately, it found that the high threshold – where the involuntary administration could ‘no longer be justified in a free and democratic society’[190] and where the treatment could constitute cruel, inhuman or degrading treatment[191] – had not been met. Despite the physical harm the medication was causing, the reality of dealing with severe behaviours of concern created a ‘delicate’[192] balance for the Board to consider.

The challenge of balancing rights and protection caused by severe behavioural issues were further considered in Re Sally.[193] This case concerned a child who ‘at the age of 11 years old has been unable to be successfully managed within the community even though management has included what is little short of a chemical straight jacket.’[194] Sally was moved repeatedly between juvenile justice detention and residential care, but when her mental health unit unexpectedly decided to discharge her, the Director General of the Department of Community Services made an urgent ex parte application for orders including the forced administration of sedative medication. Slattery J considered the rights under the Convention on the Rights of the Child (‘CROC’)[195] as a ‘relevant although not a conclusive consideration’,[196] in that though the CROC is not incorporated into domestic law, the ratification of the CROC gives rise to an expectation that decisions will be made with regards to those rights.[197] While acknowledging that restricting the liberty of a child should only be done with great caution[198] and though Article 37 of the CRC emphasises the child’s dignity and the need to use detention/restrictions of liberty as a last resort for a short period of time, Slattery J found that there was simply no reasonable alternative available and the orders were made.[199]

The notion that there is ‘no reasonable alternative’ to chemical restraint is a common theme in Australian case law. For example, in the case of Re EUY,[200] a case concerning an ex-nurse who now resided in an aged care facility and who’s family strongly opposed the use of sedative medications on her, the South Australian Civil and Administrative Tribunal noted that ‘[i]t is not obvious on the evidence before me, but it is possible that her level of anxiety and distress is compounded by some remaining understanding that she has a cognitive impairment and is residing in an aged care facility. This is very regrettable and no doubt distressing for EUY.’[201] Nonetheless, even orders that were ‘clearly intrusive and restrictive of EUY’s rights and personal autonomy’ were ‘clearly necessary’.[202]

Even where necessity is a defining factor in a case, Australian courts do consider the seriousness of interfering with a person’s liberty, but professional support is often a key element in findings for allowing restrictive practices. For example, in Re Thomas[203] the orders sought for indefinite detention of a 16-year-old with involuntary sedation, were ‘radical’ and Brereton J ‘approached the application with scepticism.’[204] Nevertheless, necessity won, because Brereton J saw ‘no practical alternative’ because other attempts had failed and had no realistic prospect of success, and because there was ‘strong professional support for such a regime.’[205] In M v Mental Health Review Tribunal,[206] which concerned forced medication by depot injection, Lindsay J encouraged the applicant to willingly accept the aid of the doctors and nurses, who ‘can see in him a goodness which all hope[d] to nurture.’[207]

There are two significant counter examples. The first is found in KMD v The Mental Health Review Tribunal & Anor,[208] in which Barr J overturned a Tribunal decision where the appellant had been the subject of an order for involuntary treatment involving the administration of antipsychotic medication to which she did not consent.[209] Barr J acknowledged that ‘[t]his decision may be seen as unsatisfactory by the dedicated psychiatrists and other mental health professionals who stand ready to assist the appellant and treat her serious delusional disorder’[210] but ‘irrespective of the views held by the medical professionals as to the appellant’s best interests’[211] there had been insufficient evidence before the Tribunal to make the original orders. As of writing, this decision has not been cited in any subsequent judgments.

The second is obiter in PBU v Mental Health Tribunal,[212] where in Bell J summarised the objectives and principles of the Mental Health Act as being ‘intended to alter the balance of power between medical authority and persons having mental illness in the direction of respecting their inherent dignity and human rights.’[213] In this decision, Bell J further criticised the Tribunal for employing a best-interests approach, finding that VCAT had been wrongfully influenced by best-interest considerations, which were not a part of the statutory criteria, instead of the correct ‘least-restrictive’ test.[214] More broadly, this decision adds to the evidence of a pattern of paternalism reflected in tribunal and judicial errors of law when it comes to orders involving involuntary medication and applying statutory criteria. If, as was the case in PBU, Tribunal members with legal training are misapplying tests for legal capacity, then the question arises as to whether medical professionals are doing the same.[215]

There are further challenges to consistent application because chemical restraint is practised across a number of industries. In HZC,[216] the NSW Civil and Administrative Tribunal considered that there are ‘sound reasons why it would be in the best interests of people with whom restrictive practices are being used in New South Wales, for there to be some consistency in the way the definitions[217] are applied throughout the quality and safeguards arena and within the Tribunal.’[218] Re KF; Re ZT; Re WD[219] further illustrates the complexity of the law around restraint practices. In this case, the South Australian Administrative Appeals Tribunal had to interpret a number of Acts[220] in order to determine the legality of consenting[221] to restraining the three applicants. In this decision and in HZC,[222] the Tribunal considered it to be appropriate that consistency was maintained with the definitions of restrictive practices in the NDIS Act and Rules.[223] In Re KF; Re ZT; Re WD, the Tribunal noted at several points the inconsistency across sectors,[224] even observing that the inconsistencies are something that ‘may merit the attention of Parliament’.[225] The Tribunal commented that the CRPD is a ‘a set of best practice principles that should guide policy development, funding decisions and the administration and provision of disability services in SA.’[226] In both cases, the Tribunals went beyond their dispute resolution function to comment on the scope of the problem of regulating restraint practices, particularly referencing the CRPD as a guide. Yet, as was discussed in Part II, the Committee’s interpretation on the CRPD requires that restrictive practices are not to be used, as it is a violation of several human rights.

Australian case and tribunal law that addresses the deeper issues raised by chemical restraint and human rights is scarce. These judgments and decisions represent an implicit acceptance of chemical restraint, and other forced interventions, as being in a person’s best interests, despite references to the need to uphold the values of the CRPD. On reading the case and tribunal law, it is evident that courts and tribunals place great value on protection of vulnerable populations, even to the detriment of equal recognition of that person’s rights. Though not all of these cases concern elderly people, the cases discussed above and below, taken together, present a larger doctrinal picture of implicit paternalism when it comes to people with disabilities.

B Canada

Canadian case law indicates that the protectionist and paternalistic paradigm is still widely adhered to, though steps are being taken to change this.[227] Several cases have challenged the authorities that allow people to be chemically restrained against their will. However, the ‘goals’[228] of the Canadian system result in attempts to balance protecting a person from the effects of their impairment, while also protecting the public from people who can be a danger to themselves or others.[229]

The guiding benchmark for Canadian courts is the Charter, which mirrors many international human rights obligations: s 7 of the Charter guarantees that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ Canadian courts have held that s 7 would be infringed by state action that has the likely effect of seriously impairing a person’s health.[230] Yet, when this was challenged in the case of Conway v Fleming,[231] a case which concerned a claim for battery where a patient was chemically restrained and involved a Charter challenge under s 7, the trial judge found that the involuntary chemical restraint of Mr Conway was lawful both at common law and under the Mental Health Act.[232] On appeal, Chadwick J acknowledged that every person has a right to liberty and security of person,[233] and that security of person is linked to some aspects of personal autonomy,[234] the use of the chemical restraint against Mr. Conway ‘would be in accordance with the principles of fundamental justice’[235] both under the common law and under the Charter.

Another Charter challenge concerning chemical restraint was Mullins v Levy,[236] where a patient was medicated against his will for five days. The trial judge concluded that though Mr Mullin’s liberty had indeed been restricted, Mr Mullins still had to prove that the restriction was contrary to the principles of fundamental justice.[237] On appeal, Mr Mullins alleged that his rights against cruel and unusual punishment (s 12 of the Charter) and his right to security of person (s 7 of the Charter) had been violated. Mr Mullins alleged that he was tackled by security, taken to a ‘quiet room’ and injected with medication that rendered him ‘helpless’.[238] The trial judge found that this did not amount to punishment because the intention was to aid him, a conclusion with which Kirkpatrick JA agreed.[239] As with Mr Conway, Mr Mullins was unable to prove that the restraint did not ‘accord with the principles of fundamental justice.’[240]

These principles of fundamental justice were discussed in Howlett v Karunaratne,[241] a case concerning a 79-year old woman who, while suffering from a mental health condition, refused to be medicated against her will. McDermid DCJ held that, ‘assuming, for the purpose of this analysis, that [the plaintiff] will be deprived of the right to security of her person’ in determining whether the forced medication violated the principles of fundamental justice, this involved considering that fundamental justice incorporates both the procedural and substantive issues.[242] Similarly, McDermid D.C.J stated that ‘it is generally accepted as a fundamental principle of our society that the State has an obligation to care for disabled persons who are through no fault of their own, unable to care for themselves.’[243] Consequently, because the plaintiff’s procedural rights were ‘fully protected’[244] and the treatment would be given with the best interests of the plaintiff in mind,[245] there would be no ‘infringement of the right to security of the person contrary to the principles of fundamental justice.’[246]

When deciding whether or not the involuntary medication constituted cruel and unusual treatment or punishment, counsel for the appellant relied on the case of Rogers v Commissioner of the Department of Mental Health,[247] to submit that the administration of drugs would ‘inevitably flow’ from a finding of incompetency[248] because there was a State interest in permitting this to be done.[249] McDermid DCJ held that, though in this particular incident the facts of the case did not constitute cruel and unusual punishment because the treatment was not ‘grossly disproportionate ... in her circumstances or so excessive as to outrage standards of decency’, treatment without consent ‘may very well be ‘cruel and unusual’ especially if it is administered not for the benefit of the patient but for the ‘benefit of the government agency.’[250] Chemical restraint has been held to constitute treatment where it was employed for a ‘health related purpose’[251] meaning that this door may still be open for future cases.

In all the above cases, the claimants alleged they did not consent to being given medication, despite the facts indicating that there were severe behavioural issues at hand. Consent is a central theme in the debate about chemical restraint: an action is (typically) not an assault if consent has been given. However, in the circumstances of persons with cognitive and intellectual disabilities, consent can be difficult to gain, and competency can be difficult to establish.

This was a central issue in Fleming v Reid,[252] which concerned whether a mental health patient had the right to specify if they did or did not wish to receive psychotropic medication if they were to become incompetent. The Ontario Court of Appeal found that ‘[f]ew medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs’[253] and that to deprive people of the right to make decisions when they are competent would be a violation of their Charter rights to security of the person.[254] Importantly, the Court held that this was not a reasonable or justifiable restriction on a person’s liberty: ‘a competent patient’s right to be free from non-consensual invasions of his or her person is not diminished by subsequent incompetency or subordinated to his or her “best interests” where the prior competent wishes of the patient are known.’[255] Regulatory changes followed this decision[256] and, in the case of Conway v Jacques,[257] the Court held that where no competent wishes were expressed, the substitute decision-maker must take into account the person’s values and beliefs, as well as any wishes expressed while incompetent, before making a decision in the patient’s best interests.[258]

Despite these positive changes, the Canadian case law also shows that there is an overarching belief that involuntary medication and other non-consensual interventions are often in a person’s best interests, regardless of their wishes. Though Fleming elevated competent refusal of treatment to the status of a constitutional right,[259] paternalistic language persists in other judgments for those who do not meet the ‘competent’ standard. For example, the Tribunal in Re C (B.W.) stated that:

The evidence established that BWC's treatment providers are trained professionals who have used a number of strategies including seclusion and chemical restraints to manage his behaviour. These resources are not available to BWC if he is not in the custody of a psychiatric facility ... Outside of hospital BWC would not have the benefit of trained professionals to redirect him. Nor would he have the strategies such as seclusion and chemical restraints available to manage his behaviours.[260]

There was similar commentary in the case of A H v Fraser Health Authority[261] which concerned non-consensual interventions for a First Nations woman, though this was described as ‘intrusive support and assistance.’[262] The Court believed that Ms H was likely to have an ‘ongoing relationship’[263] with the respondents, regardless of her wishes. Additionally, the Court considered that even though records indicate that the plaintiff ‘was pressured or cajoled and she gave in’ to taking medication, the Court was not ‘persuaded that A.H. was forcibly administered treatment. It is at least as likely that she consented, after being urged to do so.’[264] Ms H was clearly overwhelmed by the authorities around her, such that it is questionable whether or not she truly consented.

Chemical restraint poses issues for effective regulation because it is often used in emergency situations, which may amplify the pressure put on vulnerable people in that situation. The nature of the emergency turns the act of chemically restraining a person from an assault into a legally-defensible action,[265] however Canadian courts have intervened to provide remedies where chemical restraint has been a ‘particularly shocking and egregious’[266] violation of procedural requirements. This is even so where a patient may have lost their right to refuse treatment under legislation due to a lack of mental competency or because they are ‘acting out’ in a dangerous manner.[267]

The structure of procedural safeguards is then important to understand. With the importance of consent in mind, each jurisdiction has its own way of establishing decision-making authority for those who are deemed unable to consent, and each jurisdiction contains a provision exempting emergency situations from the need to obtain consent before administering medication. For example, Ontario has created a legislative version[268] of a ‘Ulysses contract’, a means where a person with an illness can outline the nature of the treatment they would like to receive, should their illness worsen to the point that they cannot act for themselves.[269] Traditionally, these have been binding agreements between a patient and a psychiatrist, but the Ontario iteration involves invoking ‘powers of attorney for personal care’[270] which include the power to use reasonable force to take a person to a place of care, or restrain them during the care or treatment.[271] Presumably, this could be extended to a decision to chemically restrain a person: the person could express an opinion about what medication they would prefer or what they would prefer be done to them after the incident.

This is not a widespread practice yet, even though these contracts would be better aligned with the requirements under the CRPD. The substitute decision-making regime remains predominant in Canada, though some jurisdictions are moving towards modified versions. The CRPD requires states to move towards a supported model of decision-making,[272] but this is not without its difficulties: where communication with an affected person is not possible even with appropriate supports, ‘previously expressed wishes, abiding values, and experience in similar situations’ should be used to determine decisions.[273]

C Analysis

Doctrine should be regarded as a reflection of social issues, and though most case law in this area concerns people with mental illnesses, rather than disability per se, the themes that emerge from the cases above are still applicable to disability more broadly. Firstly, the delineation of these two categories is not entirely clear. For example, there is evidence that people with intellectual disabilities are at a significantly increased risk of developing mental illness.[274] Secondly, from a sociological perspective, both cohorts have been subjected to attempts to ‘normalise’ their behaviour,[275] such that the attitudes displayed in these cases are still reflective of broader attitudes towards those that do not fit society’s norms. These ‘normalising trends’ deserve particular attention in the light of the introduction of the social model of disability to the law.

Primarily, the language used in the judgments and legislation above reflects the larger cultural discourses happening with the uncomfortable transition to the social model. A paternalistic view is a clear commonality between both Canada and Australia: for example, the Australian case of Re EUY[276] and the Canadian case of Howlett v Karunaratne[277] both involve similar factual circumstances, of elderly women who do not wish to be medicated. Both authorities arrived at the same conclusion: that intervention was inevitable and necessary, because of the fundamental duty society owes to protect vulnerable people.

The cases and legislation reviewed also serve to reinforce notions that non-consensual interventions are therapeutic, even with the risks associated. For example, the Depo-Provera injections in the Victorian Mental Health Review Board case of 09-085[278] have been the subject of a class action in Canada[279] because of significant and potentially irreversible bone mineral density damage, and yet, the ‘reward’ outweighed the risk because, according to the Tribunal, behavioural modification was necessary to prevent P’s sexual disinhibition from becoming a further threat. In Canada, there is a similar trend to refer to the intention behind the treatment, such as in Howlett,[280] to rationalise the use of forced treatment.

That is not to say that no change in judicial sentiment towards people with disabilities can be seen in either country. This is a ‘punishment to protection’[281] paradigm, which is clearly much better for the welfare of persons with disability. Yet, overall, the judgments appear to quietly reject the social model and the norms presented by the CRPD: there is no large difference between the cases examined dating before and after the introduction of the CRPD in 2008, noting that the ratification was preceded by years of negotiations. For example, in Mullins v Levy, a Canadian 2009 case regarding forced medication was decided almost identically to Conway v Fleming in 1999, in that both instances of forced treatment were held to comply with the ‘fundamental principles of justice’.[282] In Australia, all of the case law and tribunal decisions above were decided after the introduction of the CRPD, yet, as already explained in Part A, there is a consistent pattern of paternalism that goes against the aims of the CRPD.

It appears that paternalism and the ‘othering’ of persons with disability is embedded so deeply within the legal system that the CRPD and the social model have not been able to take root, such that the aspirations of the CRPD are not being met. This is because the judicial interpretation of restricting liberty shows a disinclination to leave people ‘suffering’, where there appears to be a ready solution.[283] Such an approach would align with the ‘empowerment by protection’ paradigm introduced in Part II, but it is likely that regulation will also have to address persistent paternalism where this becomes overpowering.[284] Nonetheless, since regulation is dependent on its legal foundations, the fact that courts are not willing to meet the standards set by the CRPD poses a challenge for coherent regulation based on the CRPD.


Australia’s ratification of the CRPD creates obligations under the Convention that cannot be ignored, and the CRPD therefore must influence regulation of matters affecting persons with disabilities. This part deals with regulating the use of chemical restraint in light of the theory presented in section II and III, and the doctrine in section IV. Part A elucidates the CRPD’s difficulties in removing the cause of legal disability because it serves to reinforce individualistic ideals. Part B proposes a new minimum standard for chemical restraint, based on an empowerment by protection paradigm. Part C proposes a risk-based framework for chemical restraint before concluding with selected policy suggestions for residential aged care.

A The CRPD and Legal Disability

In section III, it was explained that regulation can be successful where, when aiming to structure interpersonal relations with a certain goal, there is a solid foundation of rights to build on. Though the CRPD is well-suited to influence states in making structural changes based on positive rights,[285] it does not form a sufficient basis for removing impediments to full social participation for people with disabilities because it still upholds the valorised atomistic individual as the pinnacle of what humans are to achieve. Further, rights should not be conceptualised in a manner that is divorced from the realities on the ground, because this risks regulatory failure where regulatory standards are impossible for staff to meet. As a result, the discussion around chemical restraint has reached a point where there is tension between a number of competing priorities: most notably, the protection of persons who are identified as ‘vulnerable’ as well as the persons who work and live with them, and their inherent rights equal to others.

However, this does not mean that all attempts at improvements in the lives of persons with disabilities must be abandoned: if anything, the CRPD’s idealism can be maintained as an aspiration. To this end, in section II, the idea of empowerment by protection was introduced, which for the purposes of regulation will involve a balancing of rights and values. The CRPD is particularly well-suited for an empowerment paradigm because it ‘relocates’ power from the medical field and other institutions to persons with disabilities as it reinforces that persons with disabilities are inherently equal to others. Recall that, as was discussed in section II from a Foucauldian lens, power is dynamically linked to knowledge,[286] yet a whole ‘set of knowledge [has been] disqualified’[287] purely because it belongs to the ‘wrong’ group. The CRPD forces states to question taken-for-granted power structures that can be a barrier to agency.[288] In this light, the next section examines how chemical restraint might be conceptualised as a ‘minimally sufficient action’ compatible with empowerment by protection, rather than a tool of convenience and, at worst, oppression.

B Chemical Restraint as a ‘Minimally Sufficient Action’ Instead of a ‘Last Resort’

It is a fundamental fact that people have different levels of capabilities, and this warrants different treatment in recognition of these differences: this is equitable, rather than equal, treatment. However, this can be misappropriated by paternalism and negative perceptions about people with disabilities, resulting in abuse. This is the case with chemical restraint where the ‘last resort’ requirement present in legislation appears to have been used inappropriately to the detriment of people with disabilities: it is possible that the ‘last resort’ is not a high enough standard to restrict the use of the forced medication to truly appropriate circumstances. Re-framing when it may be appropriate to chemically restrain a person would introduce a higher bar for health and care workers to meet before forcibly medicating a person.

Creating a new normative standard for when chemical restraint is appropriate requires utilising a mix of theoretical approaches. To reiterate, empowerment theory works to reduce the effects of social or personal blocks to exercising power in one’s own life.’[289] The Canadian approach claims to uphold the ideals of fundamental justice, such that at times, it is appropriate to chemically restrain a person against their will where it serves an appropriate purpose. These two concepts can form the normative basis for regulating chemical restraint, at a standard higher than as a ‘last resort’: where chemical restraint is the minimally sufficient method capable of reducing a person’s personal or social blocks to exercising power and where its use does not violate a fundamental principle of justice,[290] then the practice may be used.

Examples may be useful to illustrate this idea. Where chemical restraint allows a person to calm down enough to have a conversation with their treating practitioner, this is arguably the ideal outcome of medicating a person: it is a ‘rights violation’ for empowerment in that it may ignore their explicit requests not to be medicated, but it enables a person to better exercise their personal capabilities by stabilising their emotional state. On the other hand, where an adult in aged care is medicated so as to be ‘clean and tidy and ... not crying out’,[291] this does not serve the person in improving their capability to exercise their power to make autonomous choices: instead, this is representative of a falsely-benign social norm that requires people with disabilities to outwardly perform the expectations of society[292] with little respect for benign difference. On a similar issue, where wandering by a person with dementia could instead be solved with environmental factors that address unmet needs, this is the minimally sufficient action that recognises that behaviour should not be chemically restrained without first attempting to recognise in what exclusionary structures[293] the person is living.

C A Risk-Based Chemical Restraint Regulatory Framework

Recall that the central question of this article is whether chemical restraint has a place in modern disability policy and, specifically, aged care. Even if the CRPD is unable to fully remove impediments to full participation for persons with disabilities, this does not mean that the question of efficient regulation can be disregarded based on an inability to reach the ideals under the CRPD. Any affirmative answer to the question must be conditional on having an effective framework that protects people from abuse: given that legislation already requires that chemical restraint is used as a last resort, there is clearly a compliance issue such that the current framework is insufficient. The new benchmark outlined above for appropriate restraint use is useless without compliance, as well as an understanding of what barriers to compliance exist, namely: perceived safety and legal issues; resource constraints and organisational culture; lack of education about consequences of, and alternatives, to restraint; persistent paternalistic beliefs towards older people; inadequate review; and communication barriers.[294]

These criteria, taken as a whole, present a risk-based framework that can be used to control the risk that chemical restraint will be abused.[295] Each of those factors could together form ‘a portfolio of harm-mitigation projects, each one aimed at a carefully identified and delineated concentration’.[296] These regulatory focal points would still allow for flexibility in strategy that is responsive to the individual circumstances of the regulated institutions[297] but could also provide the basis for analysing individual risk scores for different residential facilities.[298]

This suggestion has a caveat: it should be noted that different residential facilities will have different risk profiles, and this should be given significant weight in developing a facility’s risk score. Simply labelling a particular facility as ‘high risk’ and targeting that facility for action can lead to the misapplication of scarce resources, because certain facilities will be more amenable to different types of intervention than others.[299] Therefore, a risk score based on the above list does not provide much information about the costs of securing compliance[300] and in enforcing the ultimate policy goal of reducing the risk of abuse. This will be heavily influenced by the individual residential facility.

That is not to place all the blame on the individual facility. Regulation exists in a broader societal context: it is well-established that residential facilities are viewed in a negative light,[301] but elderly people are also viewed as burdensome.[302] This is likely because of a greater social discomfort with more than just disability, but with ageing and mortality: ‘the last stage of life is ... where the darkest human fears reside, the dying are hard to associate with, and their care is separated both organisationally and professionally.’[303] To put it starkly, for a liberal society, the obsession with autonomy places dependency on the same trajectory as death.[304]

For these reasons it is difficult to displace the negative connotations associated with residential facilities, wherein they are viewed as a ‘last stop’ rather than a full, valuable stage of a person’s life. These perceptions are linked with the organisation’s culture as well as the attitudes of those working in these spaces: with society lowering the value of this life-stage, and the people in it, this allows for paternalism to override dignity, because there is a broader perception that there is no dignity in dependency. An empowerment by protection paradigm could challenge this notion: if all people are dependent on one another such that autonomy can be exercised through social relationships,[305] then dignity in dependence is inherent.

Considering that a central purpose of the CRPD is to change social structures to reflect such inherent dignity for persons with disabilities, and that chemical restraint practices have been abused by those who were supposed to protect vulnerable people, policy in this area must recognise that while persons with disabilities may have different needs, it should not be taken for granted that the benefits of chemical restraint automatically outweigh the significant risks. Yet, where people’s needs are not met, this significantly increases the risk that chemical restraint becomes inevitable: regulation should therefore be focused on reducing the risk that restraint is ever needed.

1 Policy Suggestions to Reduce Restraint Abuse

This final section offers suggestions to reduce the risk of chemical restraint abuse, based on the empowerment by protection paradigm. To reiterate, this suggests that changes should be made to remove both personal and societal blocks to full social participation: the following suggestions have been chosen as approaches that can address the key issues identified by the ACRC as barriers to eliminating restraint use.[306] Nonetheless, any changes will be only a stopgap solution to a system that is unable to adequately address the root of legal disability. Nonetheless, improvements can be made to residential facilities with the aim of reducing the likelihood that chemical restraint will be needed while also providing a strict safeguard framework for the practice.

First, one simple improvement would be to standardise chemical restraint definitions and practices across sectors. Along with the ACRC’s Final Report, other key reports[307] note that restrictive practices are used across a wide range of settings,[308] and argue that there should be consistency in the way the sectors covering vulnerable people are regulated.[309] The Australian Law Reform Commission has twice recommended a national policy framework designed to combat elder abuse,[310] and to standardise the use of restrictive practices across the country.[311] Further, stakeholders have identified that reducing restrictive practices is challenged by ‘the lack of uniform legislative controls and reporting requirements and the absence of equivalent key players across all jurisdictions’.[312] Therefore, the key benefits of standardising the sectors dealing with vulnerable people are to prevent chemical restraint from being a matter of discretion, while also reducing the complexity of the legal framework.[313]

Second, inconsistencies in definitions and practices contribute to the problem of defining the scope of abuse. There is a reluctance to define medication prescribed by practitioners as chemical restraint.[314] Yet evidence given at the ACRC alleged that that antipsychotics are given to residents without psychotic symptoms[315] and on average, the rates of medication in residential facilities are significantly higher than in the general population.[316] This prescription blind spot is reflected in the Aged Care Act, which specifically excludes medication prescribed by a doctor as chemical restraint.[317] Inappropriate pharmacy practices should be included within the ambit of the official definitions of chemical restraint, such that safeguards then apply.

Third, when it comes to the designs of residential aged care, it has been noted that the designs of these facilities are often not conducive to managing behaviours of concern. For example, there have been concerns about the lack of ‘circulation space for reducing the likelihood of aggressive incidents, [and] accessible outside areas for regular physical exercise [as well as] ... insufficient natural light for maintaining normal sleep/wake cycles’.[318] One study implemented a ‘multisensory environment as a nonpharmacological intervention for people with behavioural and psychological symptoms of dementia’[319] and saw significant improvements in communication between participants and their caregivers as well as significantly reduced behavioural concerns.[320] This supports the idea that residential facilities must be seen as more than a place to die, but instead, as a place wherein a fully valued life stage can take place.

Though person-centred institutional designs do improve behaviour in residential facilities, the research outlined in section III indicates that nurses feel that reducing restraint is impossible without increased staffing measures because of threats to safety.[321] Therefore, to address this, mandated minimum nurse to resident ratios could be legislated across the Commonwealth.[322] When nurses have more time for each resident, this enables them to form better therapeutic relationships with those in their care, which as was explained in section III, will have flow on effects for fostering autonomy for persons in residential settings.[323] However, when restraint may be inevitable, the Ulysses contract used in Canada would be a beneficial protection for people in residential or in-home care, in order to promote respect for a person’s wishes and preferences.

Above all, it is important to include persons with cognitive and intellectual disabilities, their family members and care workers in the rule-making process.[324] This involves asking what the persons who are being chemically restrained require from the residential settings they reside in, and how the law can be used to provide access to justice for a vulnerable section of society that is often ‘out of sight, out of mind’. By putting these experiences at the forefront of reform discussions, this also begins to visibly respect the lived experience of person with disabilities and their care workers, rather than attempting to solve the problem from an arm’s length, academic position.

Many of these changes will require significant political will to occur. Though it is generally accepted that society has a duty to its most vulnerable, this has not been followed by the requisite planning, funding[325] or oversight to make this obligation a reality. The revelations of the ACRC showed the extent to which Australia has failed its vulnerable population: chemical restraint is too often the outcome of a negligently underfunded and overworked system. By introducing new standards and empowerment-oriented policy, it is possible to begin to rectify this situation, even if change is not going to happen quickly. This is not an excuse to aim low, but instead, an opportunity to evaluate the ways in which policy can further the overarching goals of the CRPD.


The central question of this article was whether chemical restraint has a legitimate place in modern disability policy, specifically in aged care facilities. Chemical restraint is the continuation of a long history of controlling people who fall outside of the norm: ECT, DST and chemical restraint via psychotropic medications have all been used on persons with disability without their consent, often to horrific ends. From a Foucauldian perspective, these practices are a mode of controlling those who fall outside of the norm. For this reason, the power structures that enable these practices must be examined and questioned, rather than simply taken on face value as a necessity, particularly when the consequences are potentially so severe.

The use of chemical restraint poses a difficult regulatory question because it involves competing imperatives, presenting a ‘Kantian antinomy’ as discussed in section II. On one hand, the CRPD, as the main source of rights to answer this question, would appear to require states to ban the use of all restraint practices as forced interventions, while also requiring states to take positive steps to ensure that persons with disabilities are able to enjoy the full spectrum of human rights available to others.[326] Chemical restraint is also often practised without consent, potentially constituting a violation of that person’s rights as well as their autonomy.[327] On the other hand, attention must also be paid to protection values, not only of the person restrained, but of the other people around them.

This ethical dilemma means that regulation must balance a number of competing priorities. These were identified as challenges for regulation in section III. In particular, studies show that nonpharmacological interventions can fail to reduce aggressive or violent behaviours of concern,[328] and when other modes of restrictive practices are taken away, nurses are more likely to turn to chemical restraint anyway.[329] In any case, this author has found no studies that have presented a viable alternative model.[330]

Though the CRPD has been in force since 2008, the judiciary appears to concur with staff who practice chemical restraint. The doctrine outlined in section IV showed that there has been a quiet rejection of the new norms under the CRPD. Regulation is therefore difficult because there appears to be reluctance to leave people ‘rotting with their rights on’[331] such that regulation must strike a balance between protection and the aspirational goals of the CRPD.

Such a framework should be based on an ‘empowerment by protection’ paradigm, which does not deny that certain people require different treatment but emphasises this treatment should never be a form of oppression. Several policy suggestions were outlined in section IV, with the aim of preventing the need to use chemical restraint in the first place. Particular emphasis should be given to improving the capacity of nursing staff to provide genuine care to people in residential facilities, such that these places become more than a place to die. However, where chemical restraint must be used, it should be done so in a way that the risk does not outweigh the benefits: it may be that such a scenario is quite rare in practice.

Fundamentally, the way chemical restraint is practised against vulnerable people is always going to be reflective of societal values: for many, the ACRC revelations were the first major public acknowledgment of the neglect occurring in residential facilities, chemical restraint being just one problem of the dozens identified. This is not a new problem, but the solutions to chemical restraint abuse must be innovative if Australia is going to successfully reduce the use of the practice. Regulation of this area should be underpinned by high aspirations: the CRPD calls for states to recognise the inherent dignity in persons with disabilities, and it is time that Australia begins to properly do so.


*Mallory Comyn is an Hons graduate

1 Transcript of Proceedings, Royal Commission into Aged Care Quality and Safety (Sydney Hearing, 15 May 2019) T1708.6-10 <> (‘ACRC Transcript’).

[2] Office of the State Coroner (Western Australia), Annual Report (Report, 30 June 2012) 70-2; Coroner’s Court of Western Australia, Inquest into the death of Antoinette Williams (Inquest, 11 April 2014).

[3] Royal Commission into Aged Care Quality and Safety, Restrictive practices in residential aged care (Background Paper 4, 3 May 2019) 11 (‘Restrictive Practices’).

[4] Royal Commission into Aged Care Quality and Safety, Final Report Volume 4A (Final Report, 2021) 99.

[5] Ibid 115.

[6] Ibid 215, 218.

[7] See generally A R Atti et al., ‘A systematic review of metabolic side effects related to the use of antipsychotic drugs in dementia’ (2014) 26(1) International Psychogeriatrics 19; Anna Song Beeber et al., ‘Potential Side Effects and Adverse Events of Antipsychotic Use for Residents with Dementia in Assisted Living: Implications for Prescribers, Staff and Families’ (2021) Journal of Applied Gerontology 1-8; Silvio Caccia, ‘Safety and Phamacokinetics of Atypical Antipsychotics in Children and Adolescents’ (2013) 15 Paediatric Drugs 217; Shan Xing and Todd Lee, ‘Increased Risk of Diabetes Among 6-24-Year-Olds Using Second Generation Antipsychotics’ (2017) 27(9) Journal of Child and Adolescent Psychopharmacology 782; Liesbeth Aerts et al., ‘Why Deprescribing Antipsychotics in Older People with Dementia in Long-term Care is not Always Successful: Insights from the HALT Study’ (2019) 34(11) International Journal of Geriatric Psychiatry 1572.

[8] See generally Yu-Jung Wei et al., ‘Fall and Fracture Risk in Nursing Home Residents with Moderate-to-Severe Behavioral Symptoms of Alzheimer’s Disease and Related Dementias Initiating Antidepressants or Antipsychotics’ (2017) 72(5) Journals of Gerontology: Medical Sciences 695, 697-700.

[9] See generally Vikrant Mittal et al., ‘Risk of Cerebrovascular Adverse Events and Death in Elderly Patients with Dementia When Treated with Antipsychotic Medications: A Literature Review of Evidence’ (2011) 26(1) American Journal of Alzheimer’s Disease and Other Impairments 10, 11-7.

[10] See generally Philip S Wang et al., ‘Risk of Death in Elderly Users of Conventions vs. Atypical Antipsychotic Medications’ (2005) 353(22) The New England Journal of Medicine 2335, 2338-9.

[11] See, eg, Trine Lise Bakken and Heidi Sageng, ‘Mental Health Nursing of Adults with Intellectual Disabilities and Mental Illness: A Review of Empirical Studies 1994-2013’ (2016) 30(2) Archives of Psychiatric Nursing 286, 286-7.

[12] See eg, ICAC South Australia, Oakden: A Shameful Chapter in South Australian History (Final Report, 28 February 2018) (‘The Oakden Report’); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Report, 2014) (‘Equality, Capacity and Disability’); Kate Carnell and Ron Paterson, Review of National Aged Care Quality Regulatory Processes (Report, October 2017); Australian Law Reform Commission, Elder Abuse – A National Legal Response (Final Report, 14 June 2017) (‘Elder Abuse’).

[13] See, eg, Committee on the Rights of Persons with Disabilities, Report on the Committee on the Rights of Persons with Disabilities, UN GAOR, 72nd sess, Supp No 55, UN Doc A/72/55 (25 March 2015 – 2 September 2017) annex I, [10]-[11]; Committee on the Rights of Persons with Disabilities (n 12) [42]; Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions’ (2007) 34(2) Syracruse Journal of International Law and Commerce 405; Laura Davidson, ‘A Key, Not a Straitjacket: The Case for Interim Mental Health Legislation Pending Complete Prohibition of Psychiatric Coercion in Accordance with the Convention on the Rights of Persons with Disabilities’ (2020) 22(1) Health and Human Rights Journal 163; Centre for the Human Rights of Users and Survivors of Psychiatry, Why Mental Health Laws Contravene the CRPD – An Application of Article 14 with Implications for the Obligations of States Parties (Report, 16 September 2011).

[14] Tahani Hawsawi et al., ‘Nurses’ and Consumers’ Shared Experiences of Seclusion and Restraint: A Qualitative Literature Review’ (2020) 29 International Journal of Mental Health Nursing 831, 832.

[15] Yvette Maker and Bernadette McSherry, ‘Regulating restraint use in mental health and aged care settings: Lessons from the Oakden scandal’ (2019) 44(1) Alternative Law Journal 29, 31-2; Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’).

[16] Mary Donnelly, ‘Changing Values and Growing Expectations: The Evolution of Capacity Law’ (2017) 70(1) Current Legal Problems 305, 308.

[17] Terry Hutchinson, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’ (2015) 8(3) Erasmus Law Review 130, 132.

[18] Ibid 138.

[19] Mathias Siems, Comparative Law (Cambridge University Press, 2nd ed, 2018) 18.

[20] Steven Hoffman, Lathika Sritharan and Ali Tejpar, ‘Is the UN Convention on the Rights of Persons with Disabilities Impacting Mental Health Laws and Policies in High-Income Countries? A Case Study of Implementation in Canada’ (2016) 16(28) BMC International Health and Human Rights 1, 2.

[21] Canada Act 1982 (UK) c 11, sch B pt I s 1 (‘Canadian Charter of Rights and Freedoms’).

[22] Hutchinson (n 17) 138.

[23] Henri-Jacques Stiker, A History of Disability (University of Michigan Press, 1997) 117-22, cited in Daniel G Atkins and Robert L Hayman Jr, ‘Disability and the Law: An Essay on Inclusion, from Theory to Practice’ (2017) 23(2) Widener Law Review 167, 168-70.

[24] Michael Robertson, Kirsty Morris and Gary Walter, ‘Overview of Psychiatric Ethics V: Utilitarianism and the Ethics of Duty’ (2007) 15(5) Australasian Psychiatry 402, 406.

[25] Atkins and Hayman Jr (n 23) 168.

[26] Ibid.

[27] Stiker (n 23) 18, cited in Atkins and Hayman Jr (n 23) 168.

[28] Atkins and Hayman Jr (n 24) 170.

[29] CRPD (n 15).

[30] Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75(5) Modern Law Review 752, 758-759.

[31] Atkins and Hayman Jr (n 23) 171.

[32] Tom Shakespeare, ‘The Social Model of Disability’ in Lennard J. Davis (ed), The Disability Studies Reader (Routledge, 5th ed, 2017) 195, 197.

[33] Jay Dolmage, ‘Disabled Upon Arrival: The Rhetorical Construction of Disability and Race at Ellis Island’ in Lennard J Davis (ed), The Disability Studies Reader (Routledge, 5th ed, 2017) 43, 65.

[34] Shakespeare (n 32) 199.

[35] Ibid 554.

[36] Bartlett (n 30) 759.

[37] Nick Watson, ‘Theorising the Lives of Disabled Children: How Can Disability Theory Help?’ (2012) 26 Children and Society 192, 197.

[38] Ibid.

[39] Bill Hughes, ‘What Can a Foucauldian Analysis Contribute to Disability Theory?’ in Shelley Lynn Tremain (ed), Foucault and the Government of Disability (University of Michigan Press, 2015) 83.

[40] Michel Foucault, ‘The Subject and Power’ in Hubert Dreyfus and Paul Rabinow (eds) Michel Foucault: Beyond Structuralism and Hermeneutics (University of Chicago Press, 1983) 208 (‘The Subject and Power’).

[41] Michel Foucault, The Archaeology of Knowledge (Routledge, 1972) 49 (‘The Archaeology of Knowledge’).

[42] Scott Yates, ‘Truth, Power, and Ethics in Care Services for People with Learning Disabilities’ in Shelley Lynn Tremain (ed), Foucault and the Government of Disability (University of Michigan Press, 2015) 65, 67.

[43] Michel Foucault, ‘Two Lectures’ in Colin Gordon (ed) Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (Pantheon, 1980) 81; Barry Allan, ‘Foucault’s Nominalism’ in Shelley Lynn Tremain (ed), Foucault and the Government of Disability (University of Michigan Press, 2015) 101 (‘Two Lectures’).

[44] Hughes (n 39) 81.

[45] Krzysztof Pezdek and Lotar Rasiński, ‘Between Exclusion and Emancipation: Foucault’s Ethics and Disability’ (2017) 18 Nursing Philosophy 1, 3.

[46] Stiker (n 24) 121-2, cited in Atkins and Hayman Jr (n 24) 169.

[47] Shakespeare (n 32) 199.

[48] Yates (n 42) 68.

[49] Shakespeare (n 32) 199.

[50] Michel Foucault, The History of Sexuality: Volume one: An Introduction, tr Robert Hurley (Random House, 1978) 100-1.

[51] Michael Palmer and David Harley, ‘Models and Measurement in Disability: An International Review’ (2012) 27 Health and Policy Planning 357, 358.

[52] Foucault, ‘Two Lectures’ (n 43) 81, cited in Allan (n 43) 101.

[53] M Carmela Epright, ‘Coercing Future Freedom: Consent and Capacities for Autonomous Choice' (2010) 38(4) Journal of Law, Medicine and Ethics 799, 802.

[54] See, generally Fabrizio Turoldo, ‘Relational Autonomy and Multiculturalism’ (2010) 19(4) Cambridge Quarterly of Healthcare Ethics 542.

[55] Patrick Clarke, ‘Hip Hip Hooray, ECT turns 80!’ (2019) 27(1) Australasian Psychiatry 53, 53.

[56] Ibid 55.

[57]Symposium, ‘International Human Rights Law and the Institutional Treatment of Persons with Mental Disabilities: The Case of Hungary’ (2002) 21(3) New York Law School Journal of International and Comparative Law 339, 354.

[58] John Read et al., ‘Should We Stop Using Electroconvulsive Therapy?’ (2019) 364 British Medical Journal 1, 1-3.

[59] Merrilyn Walton, ‘Deep sleep therapy and Chelmsford Private Hospital: Have We Learnt Anything?’ (2013) 21(3) Australiasian Psychiatry 206, 206.

[60] Robert Kaplan, ‘Deep Sleep Therapy in Australia’ (2013) 21(5) Australasian Psychiatry 505, 505.

[61] Walton (n 59) 206.

[62] Ibid

[63] Medical Board of Australia v Woollard [2017] WASCA 64, [140].

[64] Walton (n 59) 211.

[65] David Richmond, Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (Final Report, 1983); Criminal Justice Commission, Report of an Inquiry Conducted by the Honourable D G Stewart into Allegations of Official Misconduct at the Basil Stafford Centre (Final Report, 11 April 1995);

[66] Meghan Gallahger, ‘No Means No, or Does It? – A Comparative Study of the Right to Refuse Treatment in a Psychiatric Institution’ (2016) 44(2) International Journal of Legal Information 137, 154-155.

[67] William Gronfein, ‘Psychotropic Drugs and the Origins of Institutionalisation’ (1985) 32(5) Social Problems 437, 443.

[68] Ibid 450.

[69] Foucault, ‘The Subject and Power’ (n 40) 220.

[70] Kurt Zemlicka, ‘The Rhetoric of Enhancing the Human: Examining the Tropes of ‘The Human’ and ‘Dignity’ in Contemporary Bioethical Debates over Enhancement Technologies’ (2013) 46(3) Philosophy & Rhetoric 257, 256.

[71] Leon Kass, ‘Beyond Therapy: Bioetechnology and the Pursuit of Happiness’ (Discussion Paper, President’s Council on Bioethics, 2003) <>.

[72] Zemlicka (n 70) 266.

[73] Ibid; John Harris, Enhancing Evolution: The Ethical Case for Making Better People (Princeton University Press, 2007) II.

[74] Kass (n 71). ‘We must move from the hubristic attitude of the powerful designer to look the proposed improvements as they impinge upon the nature of the one being improved.’

[75] Zemlicka (n 70) 276.

[76] Nick Bostrom, ‘Dignity and Enhancement’ in President’s Council on Bioethics (ed), Human Dignity and Bioethics: Essays Commissioned by the President’s Council on Bioethics (President’s Council on Bioethics, 2008) ch 8 <>.

[77] Zemlicka (n 70) 269.

[78] See Patrick Kermit, ‘Deaf or deaf? Questioning Alleged Antinomies in the Bioethical Discourses on Cochlear Implantation and Suggesting an Alternative Approach to d/Deafness’ (2009) 11(2) Scandinavian Journal of Disability Research 159 (‘Deaf or deaf?’).

[79] Harry James Moore, ‘Antinomism in Twentieth-Century Russian Philosophy: The Case of Pavel Florensky’ (2021) 73(1) Studies in East European Thought 53, 55-7.

[80] Kermit, ‘Deaf or deaf?’ (n 78) 167.

[81] Michel Foucault, ‘The Ethics of the Concern of the Self as a Practice of Freedom’ in Paul Rabinow (ed), tr Robert Hurley, Ethics: Subjectivity and Truth (The New Press, 1997) 281, 282.

[82] Foucault, The Archaeology of Knowledge (n 42) 49.

[83] Kermit, ‘Deaf or deaf?’ (n 78) 167-8

[84] See above n 13.

[85] Karen Nakamura, Deaf in Japan: Signing and the Politics of Identity (Cornell University Press, 2006) 144; Patrick Kermit, ‘Enhancement Technology and Outcomes: What Professionals and Researchers Can Learn from Those Skeptical About Cochlear Implants’ (2012) 20 Health Care Analysis 367, 370. To briefly give an analogy, Cochlear implants are at the centre of an ethical debate for Deaf people: when these devices were approved for implantation in children, Cochlear implants are able to treat a condition that was once untreatable, but they also cause damage to a minority culture ‘which rejects the notion that treatment is desirable’: If there were no difference between being deaf and Deaf, then there would be no debate over the ethics of Cochlear implants. The same can be said for chemical restraint because there is an ethical debate about ‘forced normalisation’ of persons seen as ‘deviant’: at 370.

[86] CRPD (n 15) art 1.

[87] Committee on the Rights of Persons with Disabilities (n 12) [42].

[88] CRPD (n 15) art 1.

[89] Fiona Kumari Campbell, ‘Legislating Disability: Negative Ontologies and the Government of Legal Identities’ in Shelley Lynn Tremain (ed), Foucault and the Government of Disability (University of Michigan Press, 2015) 108, 110.

[90] See, for example, Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375.

[91] See above n 7.

[92] See above n 10.

[93] Rosie Harding, ‘Legal Constructions of Dementia: Discourses of Autonomy at the Margins of Capacity’ (2012) 34(4) Journal of Social Welfare and Family Law 425, 427.

[94] CRPD (n 15) art 3(a).

[95] Ibid arts 26–29.

[96] Malcolm Payne, Modern Social Work Theory (Palgrave Macmillan, 3rd ed, 2005) 295.

[97] Simon Foley, ‘Normalisation and Its Discontents: Continuing Conceptual Confusion over Theory/Praxis Issues Regarding the Empowerment of People with Intellectual Disability’ (2016) 41(2) Journal of Intellectual and Developmental Disability 177, 182.

[98] Committee on the Rights of Persons with Disabilities, General Comment No 6: On Equality and Non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) 2, [9].

[99] Foley (n 97) 182.

[100] Ibid.

[101] See, eg, Joyce B Wale, Gary S Belkin and Robert Moon, ‘Reducing the Use of Seclusion and Restraint in Psychiatric Emergency and Adult Inpatient Services—Improving Patient-Centred Care’ (2011) 15(2) The Permanente Journal 57, 60. Studies have shown that there is always a risk of significantly aggressive or violent persons, even when nonpharmacological interventions have been attempted: at 60.

[102] Harding (n 93) 428.

[103] See generally Madia Lozupone et al., ‘Delusions in Dementias’ in Colin R Martin and Victor R Preedy (eds), Genetics, Neurology, Behaviour, and Diet in Dementia (Academic Press, 2020) ch 41, 647.

[104] E Mak et al., ‘Clinical Associations of Anosognosia in Mild Cognitive Impairment and Alzheimer’s Disease’ (2015) 30(12) International Journal of Geriatric Psychiatry 1207, 1207.

[105] See generally ibid.

[106] Harding (n 93) 430.

[107] Kumari Campbell (n 89) 111.

[108] Jonas-Sebastien Beaudry, ‘Welcoming Monsters: Disability as a Liminal Legal Concept’ (2017) 29(2) d291, 316.

[109] Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press, 1995) 7.

[110] Paul Appelbaum and Thomas Gutheil, ‘“Rotting with Their Rights On”: Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients’ (1979) 7(3) Journal of the American Academy of Psychiatry and Law 306.

[111] See above n 87.

[112] See above n 95.

[113] Rory Sheehan et al., ‘Psychotropic Prescribing in People with Intellectual Disability and Challenging Behaviour’ (2017) 358 British Medical Journal 1, 2.

[114] Hanoch Dagan and Roy Kreitner, 'The Other Half of Regulatory Theory' (2020) 52(2) Connecticut Law Review 605, 605.

[115] Foucault, The Subject and Power (n 40) 208.

[116] Dagan and Kreitner (n 114) 609.

[117] Ani B Satz, 'Overcoming Fragmentation in Disability and Health Law' (2010) 60(2) Emory Law Journal 277, 278.

[118] Robert Baldwin, Martin Cave and Martin Lodge, ‘Why Regulate?’ in Robert Baldwin, Martin Cave and Martin Lodge (eds), Understanding Regulation (Oxford Scholarship Online, 2015) 15, 22.

[119] Ibid.

[120] Australian Health Ministers’ Advisory Council, National Principles to Support the Goal of Eliminating Mechanical and Physical Restraint in Mental Health Services (15 December 2016) <>

[121] See, for example: Len Bowers et al., ‘Reducing Conflict and Containment Rates on Acute Psychiatric Wards: The Safewards Cluster Randomised Control Trial’ (2015) 52 International Journal of Nursing Studies 1412; Sandra A Barton, Rebecca Johnson and Lydia V Price, ‘Achieving Restraint-Free on an Inpatient Behavioral Health Unit’ (2009) 47(1) Journal of Psychosocial Nursing 34.

[122] Hawsawi et al., (n 14) 832.

[123] Foucault, The Subject and Power (n 40) 208.

[124] Susan Koch, Rhonda Nay and Jacinda Wilson, ‘Restraint removal: Tension Between Protective Custody and Human Rights’ (2006) 1(3) International Journal of Older People Nursing 151, 157.

[125] Eimear Muir-Cochrane, Deb O’Kane and Candice Oster, ‘Fear and Blame in Mental Health Nurses’ Accounts of Restrictive Practices: Implications for the Elimination of Seclusion and Restraint’ (2018) 27 International Journal of Mental Health Nursing 1511, 1513.

[126] J Murray and C Cott, ‘Nursing Staff Perceptions of the Use and Reduction in the Use of Physical Restraints’ (1998) 22(1) Perspectives 2, cited in Koch, Nay and Wilson (n 124) 155.

[127] Wale, Belkin and Moon (n 101) 60.

[128] Koch, Nay and Wilson (n 124) 155.

[129] Muir-Cochrane, O’Kane and Oster (n 125) 1514.

[130] B Christopher Frueh et al., ‘Special Section on Seclusion and Restraint: Patients’ Reports of Traumatic or Harmful Experiences Within the Psychiatric Setting’ (2005) 56(9) Psychiatric Services 1123, 1130.

[131] William M Greenberg, Lanna Moore-Duncan and Rachel Herron, ‘Patients’ Attitudes Toward Having Been Forcibly Medicated’ (1996) 24(4) Bulletin of the American Academy of Psychiatry and the Law 513, 517.

[132] Ibid.

[133] Ibid.

[134] Ibid.

[135] Eline Veltkamp et al., ‘Patients’ Preferences for Seclusion or Forced Medication in Acute Psychiatric Emergency in the Netherlands’ (2008) 59(2) Psychiatric Services 209, 210.

[136] Camilla Haw et al., ‘Coercive treatments in forensic psychiatry: a study of patients’ experiences and preferences’ (2011) 22(4) Journal of Forensic Psychiatry & Psychology 564, 572.

[137] Ibid 574.

[138] Ibid 578.

[139] T Hoekstra, HHGM Lendemeijer and MGMJ Jansen, ‘Seclusion: The Inside Story’ (2004) 11 Journal of Psychiatric and Mental Health Nursing 276, 281-2.

[140] Shaghayegh Vahdat et al., ‘Patient Involvement in Health Care Decision Making: A Review’ (2014) 16(1) Iranian Red Crescent Medical Journal 1, 5.

[141] Haw et al., (n 136) 580.

[142] Hoekstra, Lendemeijer and Jansen (n 139) 281; Veltkamp et al., (n 135) 210.

[143] Ibid.

[144] See generally Celene YL Yap et al., ‘Don’t Label Me: A Qualitative Study of Patients’ Perceptions and Experiences of Sedation During Behavioural Emergencies in the Emergency Department’ (2017) 24(8) Academic Emergency Medicine 957; Hoekstra, Lendemeijer and Jansen (n 139).

[145] Hoekstra, Lendemeijer and Jansen (n 139) 281. See generally Fiona Whitecross, Amy Seeary and Stuart Lee, ‘Measuring the Impacts of Seclusion on Psychiatry Inpatients and the Effectiveness of a Pilot Single-Session Post-Seclusion Counselling Intervention’ (2013) 22 International Journal of Mental Health Nursing 512.

[146] Benyamin Schwarz et al., ‘The Last Habitat: Living and Dying in Residential Care Facilities’ (2018) 32(3-4) Journal of Housing for the Elderly 337, 340.

[147] Joseph E Ibrahim et al., ‘Meeting the Needs of Older People Living in Australian Residential Aged Care: A New Conceptual Model’ (2020) 39 Australasian Journal on Aging 148, 148.

[148] See, eg, Uniting Care, Submission No AWF.650.00093.0001 to Royal Commission on Aged Care Quality and Safety (December 2019).

[149] Commonwealth, Parliamentary Debates, Committee on Community Affairs, 28 September 2016 (Graeme Prior) 25.

[150] Senate Community Affairs References Committee, Future of Australia’s Aged Care Sector Workforce (20 June 2017) [3.62]-[3.66].

[151] Commonwealth, Parliamentary Debates, Committee on Community Affairs, 23 February 2017, 46 (Melanie Birks).

[152] Senate Community Affairs References Committee (n 150) [3.17]-[3.31].

[153] Jewish Care Victoria, Submission No 109 to the Senate Community Affairs References Committee, Parliament of Australia, Future of Australia’s Aged Care Sector Workforce (1 March 2016) 4.

[154] Senate Community Affairs References Committee (n 150) [3.43]-[3.61].

[155] Ibid [3.34]-[3.36], [3.48].

[156] See, for example, Pat Mayers et al., ‘Mental Health Service Users’ Perceptions and Experiences of Sedation, Seclusion and Restraint’ (2010) 56(1) International Journal of Social Psychiatry 60, 70; Wale, Belkin and Moon (n 101) 60-61.

[157] Jewish Care Victoria (n 153) 4.

[158] Hedman et al., ‘Caring nursing homes to promote autonomy and participation’ (2019) 26(1) Nursing Ethics 280, 287-9.

[159] Muir-Cochrane, O’Kane and Oster (n 125) 1517.

[160] Ibid.

[161] Rhonda Nay and Susan Koch, ‘Overcoming Restraint Use: Examining Barriers in Australian Aged Care Facilities’ (2006) 32(1) Journal of Gerontological Nursing 33, 36.

[162] Sharna Lewis and Biza Stenfert-Kroese, ‘An Investigation of Nursing Staff Attitudes and Emotional Reactions Towards Patients with Intellectual Disability in a General Hospital Setting’ (2010) 23 Journal of Applied Research in Intellectual Disabilities 355, 360.

[163] Muir-Cochrane, O’Kane and Oster (n 125) 1516.

[164] See generally Nay and Koch (n 161) 37.

[165] Benedict Sheehy and Donald Feaver, ‘Designing Effective Regulation: A Normative Theory’ [2015] UNSWLawJl 14; (2015) 38(1) UNSW Law Journal 392, 395.

[166] Ibid 396.

[167]Robert Baldwin, Martin Cave and Martin Lodge, ‘What is Good Regulation?’ in Robert Baldwin, Martin Cave and Martin Lodge (eds), Understanding Regulation (Oxford Scholarship Online, 2015) 25, 35.

[168] See above n 19.

[169] Dagan and Kreitner (n 114) 632.

[170] John Braithwaite, ‘Limits on Violence; Limits on Responsive Regulatory Theory’ (2014) 36(4) Law and Policy 432, 432.

[171] Julia Black and Robert Baldwin, ‘Really Responsive Risk-Based Regulation’ (2010) 32(2) Law & Policy 181, 186.

[172] Robert Baldwin, Martin Cave and Martin Lodge, ‘Regulating Risks’ in Robert Baldwin, Martin Cave and Martin Lodge (eds), Understanding Regulation (Oxford Scholarship Online, 2015) 83, 95.

[173] Ibid 97.

[174] Ibid 97-8.

[175] Braithwaite (n 170) 432.

[176] Benedict Sheehy and Donald Feaver, ‘Designing Effective Regulation: A Positive Theory’ [2015] UNSWLawJl 34; (2015) 38(3) UNSW Law Journal 961, 989.

[177] Ibid 977.

[178] Ibid 962.

[179] Nicholas A Ashford and Charles C Caldart, Technology, Law and the Working Environment (Island Press, rev ed, 1996) 184.

[180] Dagan and Kreitner (n 114) 643.

[181] Ibid 619.

[182] 09-085 [2009] VMHRB 1 (‘09-085’).

[183] Ibid [134].

[184] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[185] 09-085 (n 192). P argued that the State was required to show that, even where a treatment was a medical necessity, a treatment’s characterisation as ‘therapeutic’ did not automatically prevent the conduct from being cruel, inhuman or degrading: at [121], [143].

[186] Ibid [143]. Part of the argument was that humiliation was an element of cruel, inhuman or degrading treatment. The Board disregarded P’s evidence that he felt humiliated as a result of the treatment, as the Board was unable to accept that this ‘subjective sense was any greater than it would expect for any involuntary patient ... and especially when the treatment involves the [unwanted] prescription of medications’: at [132].

[187] 09-085 (n 182) 137].

[188] Ibid [139], [143]. The Board noted that considerable care would have to be taken by the treating teams to prevent the clinical balance shifting to the side effects outweighing the therapeutic benefits, even though ‘[t]his responsibility is onerous, and will potentially become increasingly onerous’: at [139], [142].

[189] Ibid [181].

[190] Ibid [187].

[191] Ibid [168].

[192] Ibid [139].

[193] [2009] NSWSC 1141 (‘Re Sally’).

[194] Ibid [18].

[195] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[196] Re Sally (n 193) [58].

[197] Ibid, referring to Director General, Department of Community Services v Thomas [2009] NSWSC 217, [37] (Bereton J). In this judgment, Bereton J explained that there are several reasons why children’s rights under the CRC are ‘relevant, but not conclusive’ including that ratification ‘creates a legitimate expectation that decisions will be made having regard to the principles espoused in CROC’ and the existence of a treaty obligation alone (that is, without legislation implementing it locally) allows a court to take such a treaty into account in the development of the common law’.

[198] Re Sally (n 193) [57].

[199] Ibid [18]-[66].

[200] [2019] SACAT 51.

[201] Ibid [132].

[202] Ibid [136].

[203] [2009] NSWSC 217; 41 Fam LR 220.

[204] Ibid [39].

[205] Ibid [40].

[206] [2015] NSWSC 1876.

[207] Ibid [72].

[208] [2020] NTSC 13; 351 FLR 324.

[209] Ibid [1].

[210] Ibid [60].

[211] Ibid [60].

[212] [2018] VSC 564 (‘PBU’).

[213] Ibid [67].

[214] PBU (n 212) [101], [241].

[215] Christopher James Ryan, ‘Is Legislative Reform Translating into Recovery-Oriented Practice and Better Protection of Rights?’ (2019) 53(5) Australian & New Zealand Journal of Psychiatry 382, 382.

[216] [2019] NSWCATGD 8 (‘HZC’).

[217] JXC v Mental Health Tribunal [2018] NTSC 62, [37]-[38]; WRM [2011] QCAT 109, [21]-[22]; 09-085 (n 182) [126]. Difficulties in accurately applying the law are compounded by practical difficulty in separating symptom from behaviour, and ambivalence about questioning medical decisions about prescriptions. In JXC v Mental Health Tribunal, it was unclear whether JXC’s behaviour was linked to mental illness, or just erratic behaviour. The Tribunal set aside the Community Management Order, ‘however tempting or convenient, to continue involuntary treatment’: at [47]. In a different approach, the Queensland Tribunal in WRM acknowledged that medication (Xanax, prescribed PRN) was for both controlling behaviour and for treatment: at [21]-[22]. The Board in 09-085 noted ‘the fact that, with psychiatric illnesses, it can be very difficult to be certain about the relationship between observed signs and symptoms and any underlying illness pathology’: at [126].

[218] HZC (n 216) [45].

[219] [2019] SACAT 37 (‘Re KF; Re ZT; Re WD’).

[220] Guardianship and Administration Act 1993 (SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA); Consent to Medical Treatment and Palliative Care Regulations 2014 (SA); Advance Care Directives Act 2013 (SA); Advance Care Directives Regulations 2014 (SA); Mental Health Act 2019 (SA).

[221] In the case of Ms ZT and Mr WD, an order was necessary to authorise the use of restrictive practices, particularly because the practices were not being supervised by a health practitioner. All three were adults living in fully supported disability facilities in South Australia, and all were diagnosed with ‘significant intellectual disability’ meaning that they could not ‘make decisions about their own safety and welfare or manage their own affairs’ (at [10]). In order for a person’s representative to consent to medical treatment on a person’s behalf, the Tribunal had to determine whether the restrictive practices to manage behaviour of the three adults could be authorised by 1) the informal carers; 2) with the consent of a ‘person responsible’ under the Consent Act; or 3) with the consent of a guardian appointed by the Tribunal.

[222] HZC (n 216).

[223] Re KF; Re ZT; Re WD (n 219) [70]-[71]; Ibid [45].

[224] At [36], the Member observed ‘there is a lack of consistency in SA between the various legislative definitions of ‘mental incapacity’ or impaired decision making [sic] capacity, which may merit the attention of Parliament.’ At [40], the Tribunal noted ‘that the regulation of restrictive practices in South Australia up to now has been reasonably informal in some sectors and has perhaps led to an inconsistency in approach to the use of, and authorisation for, those practices.’ The Tribunal went on to explain that the authorisation of restrictive practices across mental health, aged care and disability are overseen by different regulatory bodies and ruled by different legislative models (at [41]), and that there is ‘s an inconsistency between definitions in South Australian legislation and in policy documents in use in South Australia, and a further inconsistency between the various definitions of restrictive practices in use in South Australia and the definition of restrictive practices under the NDIS Act and Rules’ (at [42]).

[225] Re KF; Re ZT; Re WD (n 219) [36].

[226] Ibid [24].

[227] See The Right Honourable Beverly McLachlan, P.C., ‘Medicine and the Law: the Challenges of Mental Illness’ (Speech, University of Alberta and University of Calgary, February 17 and 18, 2005). For example, in 2005, the Chief Justice of the Canadian Supreme Court Beverley McLachlin, delivered a speech in which she laid out the challenge of balancing the rights of persons with mental illness, wherein she said: ‘Failure to treat may well result in permanent impairment of their right to be free from physical detention and their right to have a mind free from debilitating delusions, terrifying hallucinations and irrational thoughts. Although respecting a mentally ill person's decision to refuse treatment formally accords them equally treatment with non-mentally ill patients, abandoning such people to the torments of their illness, mental and physical deterioration, substance abuse and perhaps suicide surely does not respect their inherent dignity as human beings’.

[228] R v Conway [2010] SCC 22, [88].

[229] Winko v Forensic Psychiatric Institute [1999] 2 SCR 625, [20].

[230] Chaoulli v Quebec (Attorney General) [2005] 1 SCR 791, [123].

[231] [1996] 62 ACWS (3d) 585 (‘Conway’).

[232] Ibid [280]-[281]. This was framed as both ‘a right and a duty to restrain Conway’ (at [280]) in those circumstances, and Mr Conway’s argument that the chemical restraint violated ss 1, 12 and 15(1) of the Charter was unsuccessful (at [284]).

[233] Canada Act 1982 (UK) c 11, sch B pt I s 7 (‘Canadian Charter of Rights and Freedoms’)

[234] Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519, 391.

[235] Conway (n 231) [10].

[236] [2009] 304 DLR (4th) 64 (‘Mullins’).

[237]In the judgment, his Honour noted that ‘[u]ltimately, the trial judge concluded that, although Mr. Mullins' liberty was clearly curtailed, it was incumbent on Mr. Mullins to establish that the deprivation was contrary to the principles of fundamental justice’: at [68] citing R v Beare [1988] 2 SCR 287, [401].

[238] Mullins (n 236) [20]-[21].

[239] Ibid [76].

[240] Ibid [79].

[241] [1988] 9 ACWS (3d) 218 (‘Howlett’).

[242] Ibid [30].

[243] Ibid [32].

[244] Ibid [34].

[245] Ibid [33].

[246] Ibid [37].

[247] (1983) 458 NE (2d) 308. Counsel relied on the following statement: ‘We conclude that only if a patient poses an imminent threat of harm to himself or others, and only if there is no less intrusive alternative to anti-psychotic drugs, may the Commonwealth invoke its police powers without prior court approval to treat the patient by forcible injection of anti-psychotic drugs over the patient's objection. No other State interest is sufficiently compelling to warrant the extremely intrusive measures necessary for forcible medication with anti-psychotic drugs. Any other result also would negate the Legislature's decision to regulate strictly the use of mind-altering drugs as restraints’: at 321.

[248] Howlett (n 250) [42].

[249] Ibid.

[250] Ibid [44].

[251] T (S M) v Abouelnasr [2008] 171 CRR (2d) 344, [54].

[252] [1991] 82 DLR (4th) 298.

[253] Ibid [42].

[254] Ibid [61].

[255] Ibid [50].

[256]Simon Verdun-Jones and Michelle Lawrence, ‘The Charter Right to Refuse Psychiatric Treatment: A Comparative Analysis of the Laws of Ontario and British Columbia Concerning the Right of Mental-Health Patients to Refuse Psychiatric Treatment’ (2013) 46 University of British Columbia Law Review 489. After the decision in Fleming, Ontario enacted the Health Care Consent Act which expressly required that the wishes regarding treatment, admission to a care facility or personal assistance services of people (above 16 years of age) made while competent had to be adhered to. It also created the Consent and Capacity Board, which reviews decisions regarding capacity, and cannot make decisions based on what it perceives to be the person’s best interests: at 505-6.

[257] [2005] 250 DLR (4th) 178.

[258] Health Care Consent Act (1996) s 21(2); Ibid [30].

[259] Katherine Brown and Erin Murphy, ‘Falling Through the Cracks: The Quebec Mental Health System’ (2000) 45 McGill Law Journal 1037, 1065.

[260] Re C (B W) (2015) CarswellOnt 20117, [35] (‘Re C’).

[261] (2019) BCSC 227 (‘AH’).

[262] Ibid [73].

[263] Ibid.

[264] Ibid [170].

[265] Conway (n 231) [80].

[266] R v Webers [1994] 95 CCC (3d) 334, [43].

[267] Ibid [39].

[268] Substitute Decisions Act, SO 1992, c 30, s 46 (‘Substitute Decisions Act’).

[269] Tom Walker, ‘Ulysses Contracts in Medicine’ (2012) 31 Law and Philosophy 77, 77.

[270] Substitute Decisions Act (n 287) s 46.

[271] Ibid s 50(2)(2).

[272] CRPD (n 15) art 12.

[273] Nicholas Caivano, ‘Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN/Disability Rights Convention’ (2014) 4(1) Western Journal of Legal Studies 1, 5.

[274] See generally Jason Buckles, Ruth Luckasson, and Elizabeth Keefe, ‘A Systematic Review of the Prevalence of Psychiatric Disorders in Adults with Intellectual Disability, 2003-2010’ (2013) 6(3) Journal of Mental Health Research in Intellectual Disabilities 181.

[275] See the discussion in section II.

[276] Re EUY (n 200).

[277] Howlett (n 250).

[278] 09-085 (n 182).

[279] ‘Action Collective Canadienne Concernant Depo-Provera’, Depo-Provera Canada (Web Page) <>. Note that Depo-Provera is also used as a form of contraception.

[280] [1988] 64 OR (2d) 418.

[281] See Claire Spivakovsky, ‘From Punishment to Protection: Containing and Controlling the Lives of People with Disabilities in Human Rights’ (2014) 16(5) Punishment & Society 560.

[282] Mullins (n 236) [90]; Fleming (n 261) [10].

[283] See, eg, Re C (n 260); Howlett (n 241).

[284] See, eg, AH (n 261)

[285] Andrew Molas, ‘Defending the CRPD: Dignity, Flourishing, and the Universal Right to Mental Health’ (2016) 20(8) International Journal of Human Rights 1264, 1267.

[286] Yates (n 42) 67.

[287] Foucault, ‘Two Lectures’ (n 43) 81, cited in Allan (n 43) 101.

[288] Hughes (n 39) 83.

[289] Malcolm Payne, Modern Social Work Theory (Palgrave MacMillan Press, 3rd ed, 2005) 295. See also Martha Nussbaum, ‘Human Rights and Human Capabilities’ (2007) 20 Harvard Human Rights Journal 21. A similar approach is the ‘capabilities approach’ theorised by Martha Nussbaum, which Capability theory urges action with the goal of making people ‘able to function in a variety of areas of central importance’: at 21.

[290] See Howlett (n 241). In determining whether forced medication violated the principles of fundamental justice, this involved considering that fundamental justice incorporates both procedural and substantive issues, including a generally accepted obligation to protect people who are unable to protect themselves: at [30]. [32].

[291] ACRC Transcript (n 1).

[292] Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ (2005) 21(2) South African Journal on Human Rights 163, 165-6.

[293] Beaudry (n 108) 316.

[294] Royal Commission into Aged Care Quality and Safety, Restrictive Practices (n 3) 10.

[295] Robert Baldwin, Martin Cave and Martin Lodge, ‘Risk Based Regulation’ in Robert Baldwin, Martin Cave and Martin Lodge (eds), Understanding Regulation (Oxford Scholarship Online, 2015) 281, 281.

[296] Malcolm K Sparrow, The Character of Harms: Operational Challenges in Control (Cambridge University Press, 2008) 154.

[297] Black and Baldwin (n 171) 182.

[298] Ibid 188.

[299] Ibid 190-1.

[300] Ibid 193.

[301] Schwarz et al., (n 146) 340.

[302] Liz Lloyd, Health and Care in Ageing Societies: A New International Approach (Policy Press, 2012) 116.

[303] Ibid.

[304] Ibid 115.

[305] Harding (n 93) 430.

[306] Royal Commission into Aged Care Quality and Safety, Restrictive Practices (n 3) 10.

[307]See above n 12. The Oakden Report was an investigation launched after concerns were raised about treatment of elderly people at the Oakden Older Persons Mental Health Service. The 2017 Review of National Aged Care Quality Regulatory Processes, building on the work of the Oakden Report, examined why Commonwealth processes failed to detect the abuses at Oakden. Also in 2017, the Australian Law Reform Commission released the Elder Abuse – A National Legal Response report, which examined safeguards designed to protect the elderly. The ALRC also wrote the Equality, Capacity and Disability Report, which discussed the use of restrictive practices across Australia.

[308] Australian Law Reform Commission, Equality, Capacity and Disability (n 12) ch 8, 257 [8.68].

[309] Australian Law Reform Commission, Elder Abuse (n 12) 147.

[310] Ibid 144.

[311] See generally Australian Law Reform Commission, Elder Abuse (n 12) ch 8.

[312] Offices of the Public Advocate (SA and Vic), Submission 95 to Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (June 2014) 35 [8.3].

[313] For example, Victoria, Queensland and Tasmania have controlled restrictive practices through disability legislation (see: Disability Act 2006 (Vic); Disability Services (Restrictive Practices) and Other Legislation Amendment Act 2014 (Qld); Disability Services Act 2011 (Tas)) but in New South Wales, restricted practices may be authorised under the Guardianship Act 1987 (NSW) with guidelines available for Behavioural Support Planning (see eg, NSW Government, Behaviour Support in Out-of-Home Care, Policy Guidelines, 10 October 2020). Mental Health and Aged Care have their own guidelines for restrictive practices. Chemical restraint is no longer specifically mentioned in the Aged Care Act 1997 (Cth).

[314] Royal Commission into Aged Care Quality and Safety, Restrictive Practices (n 3) 5.

[315] Royal Commission into Aged Care Quality and Safety, Final Report: Vol 2 (Final Report, 26 February 2021) 106.

[316] See generally R E Brimelow et al., ‘Prescribing of Psychotropic Drugs and Indicators for Use in Residential Aged Care and Residents with Dementia’ (2019) 31(6) International Psychogeriatrics 837, 837-8.

[317] The Quality of Care Principles 2014 (Cth) set out the standards required for aged care facilities. Section 15E(2) defines chemical restraint as a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for the treatment of, or to enable treatment of, the care recipient for a diagnosed mental disorder or a physical illness or condition, or as end of life care.

[318] Gerard J Byrne, ‘Prescribing Psychotropic Medications in Residential Aged Care Facilities’ (2020) 212(7) Medical Journal of Australia 1, 1.

[319] Cheryl K Riley-Doucet and Karen S Dunn, ‘Using Multisensory Technology to Create a Therapeutic Environment for People with Dementia in an Adult Day Centre’ (2013) 6(4) Research in Gerontological Nursing 225, 225.

[320] Ibid 231.

[321] Koch, Nay and Wilson (n 124) 157.

[322] Australian Nursing & Midwifery Federation, ‘A Plan for ‘Care, Dignity and Respect’ for Older Australians’ (Media Release, 1 March 2021) <>.

[323] Hedman et al. (n 158) 287-9.

[324] Dagan and Kreitner (n 114) 649.

[325] Carsten Colombier, ‘Drivers of Health-Care Expenditure: What Role Does Baumol’s Cost Disease Play?’ (2017) 98(5) Social Science Quarterly 1603, 1604. Baumol’s cost disease, an economic model design explains why aged care funding is particularly difficult: residential services heavily rely on labour-intensive services which limits opportunities for increased efficiency from technological advancement.

[326] CRPD (n 15) art 1.

[327] See above n 12.

[328] Wale, Belkin and Moon (n 101) 60.

[329] Muir-Cochrane, O’Kane and Oster (n 125) 1517.

[330] Hawsawi et al. (n 14) 832.

[331] Appelbaum and Gutheil (n 110).

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