Model laws to regulate the use of restraint on persons with disabilities

The ‘Regulating the use of restraint’ project aims to address the current lack of a common legal framework for regulating the use of restraint on persons with disabilities in mental health, disability and aged care sectors. Its main objective is to benefit persons with disabilities by supporting government policies aimed at reducing, with a view to eliminating, the adverse consequences of coercive practices.

The use of restraint to control behaviour occurs in a wide range of institutional and other settings in Australia. These practices are controversial due to the adverse physical and psychological impacts that may result, particularly as some forms are inherently dangerous and involve serious deprivations of liberty, interference with personal integrity and loss of dignity. Physical injuries have also been reported during the use of physical and mechanical restraint, and experiences of physical and mechanical restraint have been reported as overwhelmingly negative. In Australia, deaths have resulted from:

  • asphyxia and cardiac arrest during the use of bodily force (generally referred to as physical restraint);
  • overdoses resulting from the use of medication to control behaviour (generally referred to as chemical restraint);
  • the use of a wheelchair restraint strap on an elderly person (the use of a device to control behaviour is generally referred to as mechanical restraint).

While there is some existing regulation of the use of restraint in these settings, legal frameworks within Australia differ significantly and there is inconsistency between different models in terms of the scope, method and content of regulating restraint. This state of patchwork regulation is unsustainable as it fails to protect the human rights of those subject to restraint.

There is growing impetus for national reform on this issue, in light of Australia’s ratification of the Convention on the Rights of Persons with Disabilities and the advent of the National Disability Insurance Scheme.

The purpose of this project is to develop model laws and guidelines in order to regulate and reduce, with a view to eliminating, the use of various forms of restraint on persons with disabilities, including individuals with severe mental and/or intellectual impairments.

The project focuses on the different models of regulating the use of restraint which exist in Australia, the United Kingdom and the Netherlands, as well as considering laws and guidelines from other jurisdictions such as the United States, in order to discover which model or models would be most appropriate for a national context. The project team includes two partner investigators who are experts in United Kingdom and European mental disability law, disability law and human rights law, Professor Lisa Waddington (Maastricht University, Netherlands) and Professor Peter Bartlett (University of Nottingham, United Kingdom).

Objectives:

Through developing model laws and guidelines, the project aims to:

This is an Australian Research Council Discovery project.

Researchers

Publications

McSherry B., "Regulating seclusion and restraint in health care settings: The promise of the Convention on the Rights of Persons with Disabilities" (2017) International Journal of Law and Psychiatry, Elsevier 
[In press] https://doi.org/10.1016/j.ijlp.2017.05.006

McSherry B., and Waddington L., "Treat with care: the right to informed consent for medical treatment of persons with mental impairments in Australia" (2017) 23:1 Australian Journal of Human Rights, 109-129
http://www.tandfonline.com/doi/full/10.1080/1323238X.2017.1314808

McSherry B., and Tellez J., “Current Challenges for the Regulation of Chemical Restraint in Healthcare Settings” (2016) 24 Journal of Law and Medicine 15-19

Media

McSherry B., In the dark: Our use of chemical restraints, Counterpoint: ABC Radio, 26 June 2017

McSherry B., Chemical restraint: behind locked doors, Pursuit, 6 June 2017

McSherry B., Four Corners: is using restraints akin to torture? The Conversation, 26 July 2016

For information about this project, please contact:

Yvette Maker
Senior Research Associate
Melbourne Social Equity Institute

Phone: +61 3 9035 7467

Email: maker.y@unimelb.edu.au