How the law defines disability, impairment and mental illness and the key laws a state and federal levels that protect people’s rights against discrimination and for employment, accommodation, education and other services are described. The types of disability, disability services, disability discrimination, advocacy and recent developments under the National Disability Insurance Scheme are covered, along with sexual offence cases and duty of care and negligence.

Contributors

Michael Bevan

Lawyer, Mental Health and Disability Law, Victoria Legal Aid

Robbert Roos

Lawyer, Mental Health and Disability Law, Victoria Legal Aid

Types of disability

Last updated

1 July 2021

Physical disability

Physical disability is a broad category of disability. Physical disability may not always be visible and covers much more than the need to use a wheelchair. It usually involves significant problems with muscle control, skeletal development or joint function.

A range of standards, specialist programs and services arising from law or policy are provided to meet the varying needs of people with physical disabilities. These include:

  • access to the built environment and public transport (the DD Act Access to Premises Standard, and the DD Act Transport Standard);
  • rehabilitation from injury (Disability Services Act 1986 (Cth) (pt III) (‘DSA (Cth)’));
  • the provision of specialised aids and equipment (Victorian Aids and Equipment Program).

See also ‘Assistive technology explained’ on the NDIS website (www.ndis.gov.au/participants/home-equipment-and-supports/assistive-technology-explained).

Psychiatric disability

Psychiatric disability – commonly referred to as mental illness – involves a range of conditions (e.g. depression, anxiety disorders and schizophrenia). According to section 4(1) of the Mental Health Act 2014 (Vic) (‘MH Act’), a mental illness is:

a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

The definition of mental illness in the MH Act excludes intellectual disability, the consumption of drugs and/or alcohol, and any involvement in family conflict. For more information about mental illness, see Chapter 8.4: Mental illness.

Intellectual disability

Intellectual disability, as defined within the Disability Act (s 3), refers to a person over the age of five years who has both significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, both of which must manifest before the age of 18 years.

The Disability Act (ss 6, 55) gives the Victorian Government Department of Health (‘Department of Health (Vic)’) responsibility for providing specifically for people who have an intellectual disability. See also the NDIS website for information about the services available in the areas where the NDIS has been rolled-out.

In contrast to the involuntary care and treatment provisions of the MH Act (ss 8, 9, 12), individual consent to receive services is assumed and there is no legislative provision mandating services, with the exception of ‘security’ and ‘forensic’ residents (see 1 and 2 below for the definitions of these terms).

However, some people who have an intellectual disability, who are over the age of 16, may be subject to the provisions of the Human Services (Complex Needs) Act 2009 (Vic) (‘HSCN Act’):

  1. Security residents’ are prison inmates who have an intellectual disability (who are eligible for services under the Disability Act), who are transferred from a prison or other correctional facility to a residential institution for custody under a security order by the Secretary of the Victorian Government Department of Justice and Community Safety (s 166 Disability Act).
  2. Forensic residents’ are detainees who have an intellectual disability (who are eligible for services under the Disability Act), who are detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMI Act’), transferred from a prison or other correctional facility to a residential institution for assessment and potential custody under a security order by the Secretary of the Victorian Government Department of Justice and Community Safety (s 180 Disability Act).

Compulsory care and treatment: People with intellectual disabilities

The Victoria Law Reform Commission report, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (2003) recommended the creation of statutory terms for the detention of people with an intellectual disability who have been assessed as being at risk of harm to themselves or to others. In response to this – and to other submissions considered during the review of disability legislation – the Disability Act repealed the Intellectually Disabled Persons’ Services Act 1986 (Vic) (‘IDPS Act’) and the Disability Services Act 1991 (Vic) and provided:

  • new definitions for disability and, therefore, for service eligibility;
  • compulsory treatment provisions for persons with an intellectual disability who cannot or will not consent to treatment or are considered at risk of harming themselves or others;
  • for the establishment of a Senior Practitioner (Disability), who is responsible for safeguarding the rights of people subject to compulsory treatment;
  • transitionary arrangements for IDPS Act provisions. The IDPS Act assumed that all people with an intellectual disability consented to services/treatment, whereas the Disability Act creates two categories of clients with an intellectual disability:
    • those able to consent to services/treatment; 
    • those considered candidates for compulsory treatment.

Voluntary care and treatment: Multiple and complex needs

The HSCN Act provides a legislative framework for the provision of voluntary treatment and care services to people defined as having ‘multiple and complex needs’. 

Eligibility under the HSCN Act for care plans that provide support and stabilisation is currently limited to people who:

  • are 16 years and over;
  • have exhibited violent and aggressive behaviour that has caused or is likely to cause serious harm to themselves and/or to others;
  • are in need of intensive supervision and support; 
  • would benefit from receiving a care plan under the HSCN Act (s 15).

In addition, the person must appear to have two or more of the following:

  • a mental disorder (within the MH Act definition);
  • an intellectual impairment (this is not defined, but differs from intellectual disability within the meaning of the Disability Act, which must be manifest by the age of 18);
  • an acquired brain injury; and/or
  • an alcohol or drug dependence (as defined by s 15 Severe Substance Dependence Treatment Act 2010 (Vic)).

The HSCN Act also establishes a service delivery model and a Multiple and Complex Needs Panel for assessment and review, and authorises the collection, use and disclosure of client information necessary for a comprehensive assessment of need.

Regarding the consent of people eligible for services under a care plan, specific provisions require that, where the person is under 18 years of age but over 16 years of age, only their parent or guardian may consent to or refuse treatment under the care plan. Similarly, where a guardian has been appointed for any person eligible for services and subject to a care plan, only the guardian may consent to or refuse treatment.

Consent and care plans

Many people covered by the legislation may be subject to care plans without their consent due to the appointment of guardians, the nature of their prior contact with the criminal justice system, or being under 18 years of age but over 16 years of age.

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