Making risk and dangerousness intelligible in intellectual disability

Abstract

In the wake of deinstitutionalisation, a range of punitive, restrictive and coercive measures for controlling the lives of people with intellectual disabilities have emerged from criminal law. This article critically engages with one of these measures, the Australian state of Victoria's, supervised treatment order (STO) regime. Drawing on STO decisions, this article argues that, during STO tribunal hearings, the margins of criminal and civil law converge, and the margins of law and medicine further conflate such that the medical diagnosis of a person's intellectual disability becomes a legal ‘diagnosis’ of that person's innate and ongoing risk and danger to society. That is to say, during STO tribunal hearings, the characteristics and features which typically contribute to medical diagnoses of intellectual disability become the characteristics and features which are now used to ‘diagnose’ the presence of risk and dangerousness in legal subjects. The article explores the implications of these converging diagnoses for our understanding of people with intellectual disabilities' engagement with civil and criminal justice systems, the fluid nature of medico-legal boundaries, and the shifting nature of civil and criminal institutional controls over time.

Notes

¹ Australia: Holland and Persson (2011); US: Petersilia (2000); UK: Hayes et al (2007).

² Telpin (1984); Lamb and Weinberger (1998); Wallace et al (2004).

³ Dowse et al (2009); Baldry (2011); Baldry et al (2011).

⁴ Oliver (1983, 1990).

⁵ See Dear and Wolch (1987); Hudson (1991); Taylor et al (1991).

⁶ Goffman (1961); Harcourt (2008).

⁷ Disability Act 2006 (Vic) Pt 8, s191, 6a, 6b.

⁸ STOs do not apply to people living with mental illness, acquired brain injuries or any other cognitive impairment; they are a specific measure for people with intellectual disabilities. Under the STO framework, intellectual disability refers to the ‘concurrent existence of – (a) significant sub-average general intellectual functioning; and (b) significant deficits in adaptive behaviour – each of which became manifest before the age of 18 years’ (Disability Act 2006 (Vic), Pt 1, s 3.1). Residential services include living in supported accommodation, or residing at an institution, or at the facilities of Victoria's Disability Forensic Assessment and Treatment Service.

⁹ According to the Disability Act 2006 (Vic), all disability service providers must ensure that an Authorised Program Officer is appointed. Authorised Program Officers are typically individuals in a senior management position who have clinical training. The Authorised Program Officer is responsible for a number of arrangements and oversights in relation to services provided to people with disabilities.

¹⁰ The Senior Practitioner is appointed under the Public Administration Act 2004 (Vic), although the position was originally created under the Disability Act 2006 (Vic). In addition to being responsible for protecting the rights of people who are subject to restrictive interventions and compulsory treatment under the Disability Act 2006 (Vic), the Office of the Senior Practitioner has been provided with extensive powers to set standards and guidelines, and to monitor and direct disability service providers in relation to the use of restrictive interventions and compulsory treatment.

¹¹ Disability Act 2006 (Vic), Pt 8, s 191, 6a.

¹² Disability Act 2006 (Vic), Pt 8, s 191, 6b.

¹³ Disability Act 2006 (Vic), Pt 8, s 191, 6c.

¹⁴ Disability Act 2006 (Vic), Pt 8, s 191, 6d.

¹⁵ Disability Act 2006 (Vic), Pt 8, s 191, 6e.

¹⁶ Treatment often includes undertaking a prescribed course of anti-libidinal medication or other chemical restraints which act to modify behaviour, as opposed to treat illness. These forms of treatment are claimed to offer the person with the intellectual disability the ‘benefit’ of reducing their risk of harm so that they may be returned to the community sooner.

¹⁷ Office of the Senior Practitioner (2007, 2008, 2009, 2010, 2011).

¹⁸ Office of the Public Advocate (2010).

¹⁹ Office of the Public Advocate (2010).

²⁰ The Victorian Law Reform Commission (2003) indicated that a person with an intellectual disability should not be subjected to an STO for more than 5 years. The Disability Act 2006 (Vic) does not specific any limit on the number of consecutive STOs that can be made by VCAT.

²¹ Office of the Public Advocate (2010).

²² Office of the Public Advocate (2010).

²³ Victorian Law Reform Commission (2003), p 64.

²⁴ Beckett and Herbert (2009, 2010).

²⁵ See the edited collections of Simester and von Hirsch (2006); Duff et al (2010); Ashworth et al (2013).

²⁶ Ashworth and Zedner (2014).

²⁷ See, in particular, Bosworth (2012); Aas (2013).

²⁸ Spivakovsky (2015).

²⁹ Spivakovsky (2015).

³⁰ Campbell (2009), p 4.

³¹ Campbell (2009), p 4.

³² Campbell (2009), p 6.

³³ Campbell (2009) p 11.

³⁴ Campbell (2009), p 30.

³⁵ Drimmer (1993); Oliver (1996); Rovner (2008); Campbell (2001).

³⁶ Campbell (2005).

³⁷ Acknowledging the small sample size of this study, this article does not claim to make generalisable findings; rather, it only seeks to provide insight in relation to the specific case example of the STO regime.

³⁸ Also consistent with the broader trends of the STO regime previously noted, half of the decisions made public involve a person with an intellectual disability who has previously been convicted of child sexual abuse.

³⁹ The Office of the Public Advocate is an independent statutory body established by Victoria's government to protect and promote the interests, rights and dignity of people with disabilities. State Trustees Limited is a state-owned enterprise which provides clients with financial and legal assistance.

⁴⁰ MM (Guardianship) [2008] VCAT 1282 at 3.

⁴¹ PSN (Guardianship) [2011] VCAT 857 at 1.

⁴² AC (Guardianship) [2009] VCAT 1186 at 47.

⁴³ MM (Guardianship) [2008] VCAT 1282 at 3.

⁴⁴ LM (Guardianship) [2008] VCAT 2084 at 70.

⁴⁵ PSN (Guardianship) [2011] VCAT 857 at 123.

⁴⁶ AC (Guardianship) [2009] VCAT 753 at 13.

⁴⁷ LM (Guardianship) [2008] VCAT 2084 at 76.

⁴⁸ MR (Guardianship) [2012] VCAT 1427 at 14.

⁴⁹ AC (Guardianship) [2009] VCAT 753 at 17.

⁵⁰ PSN (Guardianship) [2011] VCAT 857 at 135.

⁵¹ Disability Act 2006 (Vic), Pt 8, s 191, 6d.

⁵² LM (No 2) (Guardianship) [2009] VCAT 2480 at 34.

⁵³ AC (Guardianship) [2009] VCAT 1186 at 63; MM (Guardianship) [2008] VCAT 1282 at 29; PSN (Guardianship) [2011] VCAT 857 at 120.

⁵⁴ LM (No 2) (Guardianship) [2009] VCAT 2480 at 40a.

⁵⁵ PSN (Guardianship) [2008] VCAT 2084 at 130.