Case 42: Safeguards and accountability around decision to admit a man with cognitive disabilities to a locked residential facility

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A 70 year-old man had Parkinson’s disease, a cognitive disability and mental illness. Because he lacked capacity, the Public Advocate was appointed as his guardian. The Public Advocate consented to his admission to live in a locked residential facility which he could not leave without supervision. The man resisted this, arguing that the Public Advocate did not have the power to detain him. The Public Advocate applied to the Victorian Civil and Administrative Tribunal for a ruling over its powers and its decision to admit the man to a locked facility. The Tribunal examined the situation in detail and whether it was reasonable to limit the man’s human rights in the circumstances. The Tribunal also considered whether the Public Advocate had properly considered his human rights when making her decision. The Tribunal ultimately decided that accommodating the man in a locked facility was within the Public Advocate’s power and did not breach the Charter. The case demonstrates how the Charter promotes the accountability of guardians and administrators. The Charter required the Tribunal to be satisfied that the Public Advocate had given proper consideration to the man’s human rights, including his right to liberty, and whether the limits on his rights were reasonable. The Tribunal advised the Public Advocate to continue to seek less restrictive accommodation options for the man in the future.

Source: Human Rights Law Centre and NLA (Guardianship) [2015] VCAT 1104