Forensic Disability Act 2011

This Act may be cited as the Forensic Disability Act 2011.

This Act commences on a day to be fixed by proclamation.

The purpose of this Act is to provide for the involuntary detention, and the care and support and protection, of forensic disability clients, while at the same time—

safeguarding their rights and freedoms; and

balancing their rights and freedoms with the rights and freedoms of other people; and

promoting their individual development and enhancing their opportunities for quality of life; and

maximising their opportunities for reintegration into the community.

Note—

See section 10 for who is a forensic disability client.

The purpose of this Act is to be achieved mainly by—

stating the human rights and other principles applying to the administration of this Act in relation to forensic disability clients; and

providing for the detention, admission, assessment, care and support and protection of clients; and

providing for a multidisciplinary model of care and support for clients that is designed to promote their continual development, independence and quality of life; and

when making a decision under this Act about a client, taking into account each of the following—

the protection of the community;

the needs of a victim of the alleged offence to which the applicable forensic order relates;

the client’s individual development plan, including any community treatment.

This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and all the other States.

Nothing in this Act makes the State liable to be prosecuted for an offence.

This Act does not prevent a person who is receiving care and support in the forensic disability service under a forensic order (disability) continuing to receive care and support in the service after the order ends.

The following principles apply for the administration of this Act in relation to forensic disability clients—

Same human rights

• the right of all people to the same basic human rights must be recognised and taken into account

• a person’s right to respect for the person’s human worth and dignity as an individual, and as part of human diversity and humanity, must be recognised and taken into account

• a person’s right to live a life free from abuse, neglect or exploitation must be recognised and taken into account

• people with a disability should be empowered to exercise their rights

Promoting habilitation and rehabilitation

• to the greatest extent practicable, a person is to be supported to promote the person’s development potential and physical, mental, social and vocational ability, and to enhance the person’s quality of life

• support and services provided to a person under this Act must promote the person’s opportunities for participation and inclusion in the community

Meeting individual needs and goals

• services provided to a person under this Act should be responsive to the person’s needs and goals

• a person’s physical, age-related, gender-related, religious, cultural, language, communication and other needs must be taken into accountExample of other needs—

needs arising because of the person’s community of origin

Maintaining supportive relationships and community participation

• care and support provided to a person under this Act must take into account the importance of the person’s continued participation in community life and maintenance of supportive relationships

Matters to be considered in making decisions

• a person is to be encouraged and supported to take part in making decisions affecting the person’s life, especially decisions about the services to be provided to the person under this Act

• in making a decision about a person, the person’s views, the views of any guardian or informal decision-maker for the person, and the effect on the person’s family or carers must be taken into account

• a person is presumed to have capacity to make decisions about the person’s care and support and choice of an allied person

Providing support and information for exercising rights

• a person must be provided with necessary support, and necessary information in an appropriate accessible format, to enable the person to exercise rights under this ActExample of necessary support and information—

support and information facilitating access to necessary independent help to represent the person’s point of view

Confidentiality

• a person’s right to confidentiality of information about the person must be recognised and taken into account.

Note—

See chapter 9, part 4 for provisions about confidentiality.

A power or function under this Act relating to a forensic disability client must be exercised or performed so that—

the client’s liberty and rights are adversely affected only if it is the least restrictive way to protect the client’s health and safety or to protect others; and

any adverse effect on the client’s liberty and rights is the minimum necessary in the circumstances.

The dictionary in schedule 2 defines particular words used in this Act.

A forensic disability client is an adult who has an intellectual or cognitive disability for whom a forensic order (disability) is in force if, under the Mental Health Act, the forensic disability service is responsible for the adult.

Note—

See the Mental Health Act, section 147 in relation to who is responsible for an adult for whom a forensic order (disability) is in force.

To remove any doubt, it is declared that a person who is a forensic disability client remains a forensic disability client while undertaking any community treatment under this Act.

A cognitive disability is a condition that is—

attributable to a cognitive impairment; and

a disability within the meaning of the Disability Services Act.

An intellectual disability is a disability within the meaning of the Disability Services Act that—

is characterised by significant limitations in intellectual functioning and adaptive behaviour; and

originates in a person before the age of 18.

Schedule 1 provides for assessing a person’s intellectual functioning and adaptive behaviour for subsection (1)(a).