Safeguarding Rights to Liberty and Security where People with Disability are Subject to Detention and Restraint: A Practical Approach to the Adjudication, Interpretation and Making of Law (Part Two)

Abstract

This is the second 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. This article uses the rights-based approach developed in the first article to establish a methodology to evaluate the range of ways in which law can be made or interpreted in this area. The methodology considers the adjudication of common law rights by courts, judicial interpretation of statute and the making of laws. Key areas of law considered are those that permit the detention and use of restrictive practices for 'challenging behaviours' or 'behaviours of concern'. The article concludes by arguing that a rights-based approach and a method to assess how law applies it is essential to ensure that a 'thick' rule of law can protect and promote the rights and interests of people with intellectual and cognitive impairments.

Deprivation of Liberty in the Shadows of the Institution

“…In several other Western jurisdictions, social care detention is not currently recognized by governments or within domestic law, but there are growing calls from activists, advocates and others concerned with the rights of older and disabled people for states to do so. For example, in Australia (Williams et al, 2014;Chandler et al, 2016Chandler et al, , 2018aChandler et al, , 2018bGrenfell, 2019), Canada (Law Commission of Ontario, 2017; Canadian Centre for Elder INTRODUCTION Cheshire West extends the machinery of deprivation of liberty safeguards into 'private' spheres of care, including -potentially -into family life itself. They questioned whether people once 'liberated' from institutions by landmark deprivation of liberty rulings were now likely to be considered 'deprived of their liberty' back in their homes in the community.…”