The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

Chandler, Kim, White, Ben, & Wilmott, Lindy (2016) The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification? Psychiatry, Psychology and Law, 23(3), pp. 361-387.

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Abstract

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

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ID Code: 87661
Item Type: Journal Article
Refereed: Yes
Additional URLs:
Keywords: Health law, Medical law, Mental health law, Intellectual impairment, Detention, Doctrine of necessity, Restrictive practices
DOI: 10.1080/13218719.2015.1055853
ISSN: 1934-1687
Subjects: Australian and New Zealand Standard Research Classification > MEDICAL AND HEALTH SCIENCES (110000) > PUBLIC HEALTH AND HEALTH SERVICES (111700) > Mental Health (111714)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Criminal Law and Procedure (180110)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law and Society (180119)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Copyright Owner: Copyright 2015 Taylor & Francis
Copyright Statement: This is an Accepted Manuscript of an article published by Taylor & Francis in Psychiatry, Psychology and Law on 17 Sep 2015, available online: http://wwww.tandfonline.com/10.1080/13218719.2015.1055853
Deposited On: 22 Sep 2015 23:59
Last Modified: 05 Jul 2016 20:15

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