Safeguarding Rights to Liberty and Security Where People with Disability Are Subject to Detention and Restraint: A Rights-Based Approach (Part One)

30 Pages Posted: 31 Aug 2018

See all articles by Kim Chandler

Kim Chandler

Queensland University of Technology, Faculty of Law, Australian Center for Health Law Research

Ben White

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Date Written: August 23, 2018

Abstract

This is the first article in a two-part series that establishes a framework for evaluating law as it affects the rights to liberty and security for people with intellectual and cognitive impairments. Such laws include those which permit the detention and use of restrictive practices for ‘challenging behaviours’ or ‘behaviours of concern’. This article begins by examining the nature of rights and in particular those of liberty and security. Both are recognised not only as human rights but also as common law rights. The article then develops a rights-based approach to law that protects these rights. Taking a ‘thin’ version of the rule of law as the starting point, the approach expands this by adding a requirement to respect not only common law rights but human rights. The rights-based approach then argues for the inclusion of the principle of justice requiring the prioritisation of rights over other policy imperatives and a commitment to equal concern and respect.

Suggested Citation

Chandler, Kim and White, Ben and Willmott, Lindy, Safeguarding Rights to Liberty and Security Where People with Disability Are Subject to Detention and Restraint: A Rights-Based Approach (Part One) (August 23, 2018). Available at SSRN: https://ssrn.com/abstract=3237200 or http://dx.doi.org/10.2139/ssrn.3237200

Kim Chandler

Queensland University of Technology, Faculty of Law, Australian Center for Health Law Research

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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