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

QUT – Law and Justice Research Paper No. 17-09

46 Pages Posted: 30 Jun 2016 Last revised: 4 Jan 2018

See all articles by Kim Chandler

Kim Chandler

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Date Written: 2016

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.

Keywords: Health Law, Medical Law, Mental Health Law, Intellectual Impairment, Detention, Doctrine of Necessity, Restrictive Practices

Suggested Citation

Chandler, Kim and White, Ben and Willmott, Lindy, The Doctrine of Necessity and the Detention and Restraint of People with Intellectual Impairment: Is There Any Justification? (2016). Psychiatry, Psychology and Law, 23(3), pp. 361-387; QUT – Law and Justice Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2802403

Kim Chandler

Queensland University of Technology - Faculty of Law

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

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