1. The Office of the Senior Practitioner treatment plan certificate signed by Jeffrey Chan, the Senior Practitioner dated 15 July 2008.

2. At the hearing on 15 April 2008, the treatment plan dated 21 February 2008 was considered by the parties and the Tribunal. However, at the end of that hearing the applicant agreed to provide the Tribunal with a further treatment plan that included the Emergency Services Management Plan. As a result, the parties and the Tribunal considered the treatment plan dated 9 July 2008 at the hearing on 16 July 2008 and this is the treatment plan that is the subject of the application for the STO.

3. The treatment plan dated 9 July 2008 includes the following restrictive interventions:

1. Detention - Securing the front door of the house to prevent LM from leaving when displaying signs of increased anxiety, confusion or agitation. 2. Supervision - 1:1 supervision at home and when accessing the community.

Summary of evidence given at the hearing on 15 April 2008

1. During the hearing Margaret Card highlighted the following matters set out on page 4 of the treatment plan dated 21 February 2008:

1. In December 2004, LM was placed on a two year community based order following being convicted of false imprisonment, assault with a weapon and unlawful assault. The conviction stemmed from an incident where LM entered the toilets in a McDonalds restaurant in Mildura and used a knife to prevent a woman and her young niece from leaving the toilets. 2. Whilst LM was residing at Furlong House in Parkville between 4 December 2007 and 4 January 2008 LM had 4 non-epileptic seizures on roads, walked into the path of ongoing traffic on two occasions, was physically aggressive towards other people on two occasions, was physically aggressive towards property on one occasion, threatened self-harm and or suicide on nine occasions, assaulted staff on two occasions and damaged property on another occasion resulting in LM being charged by the police.

1. Whilst LM was residing at Charlton House in Bundoora between 11 January 2008 and 13 February 2008 LM had a dramatic reduction in the frequency and impact of her behaviours of concern although reported incidents included non-epileptic seizures on roads, physical aggression towards others and threats of self-harm.

1. On 11 February 2008 LM was convicted of being a pedestrian and moving into the path of a driver, being a pedestrian and obstructing the path of a driver, criminal damage (intent to damage/destroy), behaving in an offensive manner in a public place, unlawful assault, assault by kicking and possessing a controlled weapon without lawful excuse. LM was released on an undertaking to comply with all recommendations of her guardian and disability workers. LM must also be of good behaviour during the time the undertaking is in force, which is from 11 February 2008 to 20 February 2009.

1. LM had recently secreted a knife. 2. LM's workers believe that when LM is unable to control her behaviour, she may cause harm to other people.

1. LM's workers frequently find it necessary to lock the front door of the house and detain LM within the confines of the house and yard because they are unable to manage LM by less restrictive means.

3. Dean Seeary, the program manager at the residential service, gave evidence that between 13 February 2008 and 15 April 2008 LM had engaged in the following behaviour:

1. LM had gone to a supermarket where she threw tin cans and hit a person on the arm and hit three or four security guards. 2. On Easter Saturday LM had hidden a knife, which the house staff believed she intended to use to harm herself. Later that day she tried to run onto a road and had a non-epileptic seizure.

1. In mid to late February LM lunged onto a road. It required two workers to stop her.

1. In late February LM and another client were travelling home from a BBQ in a car. When the car stopped for a red light on a major Bendigo street, LM jumped out of the car and tried to run onto the road. She then had a non-epileptic seizure by the traffic lights. Later that night LM tried to cut herself with broken glass. 2. Several days before the hearing LM had lunch at a hotel as part of 40th birthday celebrations and took some photos. Later that day she waved a cutting knife that she had been using to scrapbook the photos at a worker and made a death threat to the worker. 3. LM had a non-epileptic seizure at a hospital when having her back x-rayed. 4. LM was shopping at a supermarket one evening and tried to run onto a road after having a non-epileptic seizure. LM was prevented from running onto the road by security guards and returned to the residential service in a police divisional van. Later that night it was necessary for a worker to use significant force by putting a knee in LM's back to prevent her from leaving the residential service. 5. LM has been placed in seclusion seven to eight times as a result of her behaviour. 6. Most of the incidents took place at night when LM tried to leave the residential service by climbing over the back fence. 7. A road runs along the back fence. There is a bend in the road.

4. Mitch Bayliss, an employee of Disability Client Services, also gave evidence that:

1. LM engages in self-harming behaviour when she is feeling low. 2. LM's behaviour is an "alarm response" which gains her attention.

1. LM's behaviour depends on how safe she feels. She usually feels safe at the residential service but not in the community.

5. LM told the Tribunal that she did not have feelings of wanting to harm other people, just herself. However, she stated that she often felt angry or aggressive towards workers. LM confirmed the accuracy of the incidents reported by Dean Seeary and stated that there were other incidents that took place when she was residing in Parkville.

Summary of evidence given at the hearing on 16 July 2008

Margaret Card told the Tribunal that less medication was now being used to manage LM's behavioural issues and Dean Seeary gave evidence that LM now asks for medication when she considers she needs it, which is a very positive step for her.

Ms Card also told the Tribunal that since the last hearing, LM had visited her family on several occasions and that these visits had gone very well. Mr Seeary gave evidence that the staff members were providing less supervision during LM's visits with her family and LM had been taken out by her family for the day in late April without any supervision at all. LM told the Tribunal that she would like the family visits to continue.

Dean Seeary also told the Tribunal that when LM is in the community, LM will acknowledge the need for her to return to the residential service to prevent an incident from taking place. Mr Seeary also agreed with Mr Walkinshaw's suggestion that this meant that LM now had better insight and self-management skills, which has slightly reduced the number of times it was necessary to lock the front door of the residential service. However, Mr Seeary pointed out that the door was generally locked to make LM feel safe, not to prevent her from absconding and estimated that the front door was locked about 70% of the time. Mr Seeary explained that when LM was feeling happy and comfortable, she did not need the door locked. However, when she felt unhappy and anxious, LM wanted the door locked. Mr Seeary told the Tribunal that an incident had recently occurred whilst LM was speaking to her psychologist. LM was discussing the incidents that had taken place whilst she was living in Mildura, which LM told the Tribunal had made her feel anxious. As a result, instead of returning to her room, LM ran away from the residential service, as the door was unlocked at the time. Mr Seeary told the Tribunal that LM was returned to the residential service by a worker without her having a seizure and that LM's degree of control at the time was very positive. He also stated that LM's supervision had been relaxed overall despite this incident.

Mitch Bayliss gave evidence that staff locked the front door of the residential service when they saw evidence of LM's warning signs, which are set out in LM's behavioural support plan. He also told the Tribunal that whilst LM was beginning to be able to hold back her impulses, she experienced low moods a significant proportion of the time, which make her feel unsafe. However, LM was spending more time with the front door open and only being supervised from a distance.

LM told the Tribunal that she was in the process of organising a day program, was finishing some hospitality studies and that one of her goals was to move into shared accommodation. She also stated that she is happy living at the residential service and knows that she made the right decision when she moved to Bendigo.

(a) The meaning of the expression "serious harm" in section 191 of the Act

1. Before I consider whether LM has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm, it is necessary to consider the meaning of the expression "serious harm" in section 191 of the Act.

2. The expression "serious harm" is not defined in section 3 of the Act.

3. Section 35 (a) of the Interpretation of Legislation Act 1984 states that in the interpretation of a provision of an Act or subordinate instrument-

a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object....

1. Section 35 (b) of the Interpretation of Legislation Act also provides that in the interpretation of a provision of an Act, consideration may be given to any matter or document that is relevant.

2. In addition, Section 32 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) states that "so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights".

The purpose, objectives and principles of the Disability Act

1. Section 1 of the Act states that the purpose of the Act is to "enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities...". Section 4 sets out the objectives of the Act, which include to "advance the inclusion and participation in the community of persons with a disability", "promote and protect the rights of persons accessing disability services" and "make disability service providers accountable to persons accessing those disability services".

2. Section 5 (1) of the Act provides that "persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities". Section 5 (2) of the Act provides that persons with a disability have the same right as other members of the community to "respect for their human worth and dignity as individuals" and to "exercise control over their own lives", amongst other things. If a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances: Section 5 (4).

3. Further, in her second reading speech to the Legislative Assembly, the Minister for Community Services stated that:

The bill provides for a new civil order - a supervised treatment order, which can be made where a person resides in a restrictive environment because they pose a significant risk of serious harm to others.

The bill outlines a range of provisions in relation to supervised treatment, which are aimed at protecting the rights of people subject to this treatment ...

These provisions provide clear regulation and transparency around situations which are currently occurring without adequate external scrutiny. The bill will ensure that the rights of people subject to this form of treatment are adequately protected. (Hansard, Legislative Assembly, 1 March 2006, p 419).

1. I have also considered the ordinary meaning of the words. The Shorter Oxford English Dictionary defines "serious" as, amongst other things, "of grave aspect", "weighty or important" and "giving cause for apprehension; critical" (3rd Edition, Claredon Press, Oxford, 1980). It also defines "harm" as, amongst other things, "injury, damage or hurt".

2. The Macquarie Dictionary defines "serious" as, amongst other things, "dealing with or regarding a matter on its grave side", "weighty, important, grave" and "attended with danger; giving cause for anxiety" (4th Edition, Macquarie University NSW, 2005). "Harm" is defined as, amongst other things "hurt, injury, damage" and "grief, pain, trouble".

3. The expression "serious harm" has also been defined in a number of other acts.

4. The Criminal Code Act (Cth) 1995 defines "serious harm" as "harm (including the cumulative effect of any harm):

(a) that endangers, or is likely to endanger, a person's life; or

(b) that is or is likely to be significant and longstanding."

1. The Code defines "harm" as "physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community."

2. The Code also defines "Harm to a person's mental health" as including "significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger".

3. The Criminal Code (ACT) 2002 also defines "serious harm". "Harm" is defined as "physical harm to a person, including unconsciousness, pain, disfigurement, infection with a disease and any physical contact with the person that a person might reasonably object to in the circumstances (whether or not the person was aware of it at the time)" and "harm to a person's mental health, including psychological harm, but not including mere ordinary emotional reactions (for example, distress, grief, fear or anger) whether temporary or permanent, but does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community."

4. "Serious harm" is defined as "any harm (including the cumulative effect of more than 1 harm) that -

(a) endangers, or is likely to endanger, human life; or

(b) is, or is likely to be, significant and longstanding."

1. "Serious harm" is also defined in section 91R (2) of the Migration Act (Cth) 1958 as including:

1. A threat to the person's life or liberty. 2. Significant physical harassment of the person.

1. Significant physical ill-treatment of the person.

Significant economic hardship that threatens the person's capacity to subsist. 2. Denial of access to basic services, where the denial threatens the person's capacity to subsist. 3. Denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

Whilst these definitions are in the context of criminal offences and migration law, I consider that the definitions are useful in considering the meaning of "serious harm" for the purpose of the Disability Act as each of the acts deal with serious subject matters, being determining whether a criminal offence as been committed, determining whether a person ought to be granted a protection visa on the grounds that the person has a well-founded fear of being persecuted in another country and determining whether a person with a disability ought to be detained.

In contrast, whilst there are a number of High Court decisions regarding what acts constitute "serious harm" for the purposes of section 91R (2) of the Migration Act 1958[1], I do not consider these cases helpful in determining what constitutes "serious harm" for the purposes of the Disability Act 2006 as the issues in dispute in theses cases bear no similarity to the issues in dispute in the present case.

Further, as far as I am aware, there are no other decided cases in Australia that would assist me to define "serious harm" for the purposes of the Disability Act 2006.

In my view, the expression "serious harm" for the purposes of section 191 of the Disability Act 2006 encompasses physical or psychological injury, whether temporary or permanent, that endangers, or is likely to endanger human life, or is, or is likely to be, significant and longstanding.

Such a definition is consistent with the purposes of the Disability Act 2006 because it protects a person with a disability from being detained for engaging in behaviour that has caused, or is likely to cause only minor injuries to another person from which he or she will quickly recover. Instead, this definition ensures that a person under a disability will only be detained in the most serious of circumstances, that is, when that person's violent or dangerous behaviour has, or is likely to put a member of the public's life in danger or has, or is likely to cause significant and longstanding physical or psychological injury to another person. I consider that Parliament intended to include psychological injury in the definition because serious psychological injuries may have a devastating and longstanding effect on someone's life even where no physical injury is sustained.

This definition is also compatible with, and promotes the human rights of persons with a disability by ensuring that human rights such as the right to recognition and equality before the law (section 8 of the Charter), the right to freedom of movement (section 12 of the Charter), the right to liberty and security of person (section 21 of the Charter) and the right not to be tried or punished more than once (section 26 of the Charter) are limited only in the most serious of circumstances.

(b) Section 191(6)(a) - Has LM previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm?

1. In order to satisfy the requirements in section 191(6)(a), Margaret Card must establish that LM has previously:

1. exhibited a pattern of violent or dangerous behaviour and 2. the violent or dangerous behaviour has caused serious harm to another person, or

1. the violent or dangerous behaviour has exposed another person to a significant risk of serious harm.

Submissions in relation to (b) - Section 191(6)(a) - Has LM previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm?

Margaret Card submitted that LM had previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm, as she has a demonstrated history of making threats of self-harm and harming other people as set out in paragraphs 16 to 18 above. She reiterated that LM had been found guilty of assault and assault with a weapon and had recently secreted a knife, which exposed other people to a significant risk of serious harm.

More generally, Ms Card submitted that the purpose of section 191 of the Act is to protect the community and that a STO is required to protect members of the public and disability workers when LM is not able to control her behaviour.

Dean Seeary supported Ms Card's submission. Specifically, he submitted that LM had engaged in violent or dangerous behaviour when she pointed a knife at her disability worker and threatened to kill the disability worker, and that this behaviour exposed LM's disability worker to a significant risk of serious harm. He also submitted that LM's propensity to run onto roads or have non-epileptic seizures on roads was dangerous behaviour that exposed disability workers and members of the public to a significant risk of serious harm if they tried to restrain LM or assist her following a non-epileptic seizure.

Mr Seeary also told the Tribunal that LM continued to pose a risk to other people. He pointed out that if LM successfully climbed over the back fence and ran onto the road that runs along the fence, which she has tried to on a number of occasions, she would place drivers at risk of having an accident which would expose them to a significant risk of serious harm.

Mitch Bayliss also agreed that LM's behaviour has exposed pedestrians and disability workers to a significant risk of serious harm.

Whilst acknowledging that aspects of LM's behaviour have exposed other people to a risk of harm, Bryan Walkinshaw submitted to the Tribunal that LM had not exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm.

Mr Walkinshaw submitted that in determining whether LM had exhibited a pattern of violent or dangerous behaviour, it was necessary to consider "the degree of seriousness" of the incidents and the context in which the incidents took place. Mr Walkinshaw pointed out that the most serious incident was the "McDonalds'" incident in 2003 but that LM had not been charged with a "serious offence" as defined by section 3 of the Sentencing Act 1991. Mr Walkinshaw considered this significant and I understood him to be submitting that because there is no evidence to suggest that LM has previously committed a "serious offence" as defined by the Sentencing Act, she has not engaged in "violent or dangerous behaviour".

Mr Walkinshaw also pointed out that the harm LM had exposed or was likely to expose other people to, stemmed from self-harming behaviour, not a desire to harm others. Mr Walkinshaw submitted that this also means that LM's behaviour does not amount to "violent or dangerous behaviour".

Mr Walkinshaw also submitted that the incidents relied on by Margaret Card did not amount to a "pattern" of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm. Rather, LM's behaviour was a "series of incidents" which did not amount to a "pattern" of behaviour.

Finally, Mr Walkinshaw submitted that if LM had exhibited a pattern of violent or dangerous behaviour, that behaviour had not caused serious harm to another person or exposed another person to a significant risk of serious harm.

In response, Ms Card pointed out that the past actions of LM have resulted in criminal charges, which indicates that her behavioural problems are serious.

Findings in relation to (b) - Section 191(6)(a) - Has LM previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm?

Firstly, I find that LM has exhibited a pattern of violent or dangerous behaviour. The violent or dangerous behaviour includes assaulting disability workers and members of the public, threatening members of the public with a knife, threatening to kill workers with a knife, walking onto the path of ongoing traffic and throwing tin cans at members of the public. I also find that this behaviour is a "pattern" of behaviour because LM has repeatedly engaged in violent and dangerous behaviour over the years. The various reports considered by the Tribunal all state that LM's behavioural difficulties, which date back to her childhood, escalated in around 2003, when she began to engage in the violent and dangerous behaviour that I have just described. All of the reports also state that this behaviour has continued since 2003 and whilst I accept that there has been a decline in the number of incidents this year, LM has repeatedly engaged in violent and dangerous behaviour since moving to the residential service, particularly by frequently walking into the path of ongoing traffic or lying on roads.

Secondly, whilst there is insufficient evidence before me to establish that LM's violent or dangerous behaviour has caused serious harm to another person, I find that there is sufficient evidence to establish that LM's violent or dangerous behaviour has exposed disability workers and members of the public to a significant risk of serious harm. LM has threatened people with a knife on two occasions, which has exposed people to a significant risk of being stabbed, which was likely to have resulted in a physical injury that would have endangered their lives or that was significant and longstanding. The incident in the McDonalds also exposed two members of the public to a significant risk of suffering a significant and longstanding psychological injury. In addition, LM's propensity to walk onto or lie on roads has exposed disability workers and pedestrians to a significant risk of being hit by a car if they were to try to restrain LM or remove her from the road. This in turn exposes people to a significant risk of life threatening physical injuries or significant and longstanding physical or psychological injuries. LM's propensity to walk onto or lie on roads also exposes drivers to a significant risk of serious harm if they were involved in a car accident as a result of trying to avoid hitting LM.

In my view, the context in which the risk of serious harm arises is not relevant. Whilst I agree with Mr Walkinshaw that LM's violent or dangerous behaviour appears to stems from a desire to harm herself and not other people, this does not alter the fact that her behaviour has been violent and dangerous and has exposed disability workers and members of the public to a significant risk of serious harm.

I also find that LM has engaged in violent or dangerous behaviour despite the fact that it appears that she has not previously committed a serious offence as defined by section 3 of the Sentencing Act.

Section 3 of the Sentencing Act states as follows:

"serious offence, for the purposes of Subdivision (1A) of Division 2 of Part 3 (indefinite sentences) and Subdivision (3) of that Division (suspended sentences of imprisonment), means-

(c) an offence against any of the following sections of the

Crimes Act 1958-

(i) section 16 (causing serious injury intentionally);

(ii) section 20 (threats to kill);

(iii) section 38 (rape);

(iv) section 40 (assault with intent to rape);

(v) section 44(1), (2) or (4) (incest) in circumstances other than where both people are aged 18 or older and each consented (as defined in section 36 of the Crimes Act 1958) to engage in the sexual act;

(vi) section 45 (sexual penetration of child under the age of 16)."

1. Whilst it is likely that a person who has committed a "serious offence" has engaged in "violent or dangerous behaviour exposing another person to a significant risk of serious harm", I do not think it can be said that a person has not engaged in "violent or dangerous behaviour exposing another person to a significant risk of serious harm" just because that person has not committed a "serious offence".

2. This is because there are many offences in the Crimes Act (Vic) 1958 such as causing serious injury recklessly (section 17), conduct endangering life (section 22), conduct endangering persons (section 23), assault (section 31) and indecent assault (section 39) which are not defined as serious offences but which are likely to constitute "violent or dangerous behaviour exposing another person to a significant risk of serious harm".

(c) Section 191(6)(b) - Is there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means?

1. In order to satisfy the requirements in section 191(6)(b), Margaret Card must establish that:
   1. there is a significant risk of serious harm to another person, and
   2. that risk cannot be substantially reduced by using less restrictive means.

Submissions in relation to (c) - Section 191(6)(b) - Is there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means?

Ms Card submitted that the risk of LM causing another person serious harm was a significant, ongoing risk based on the number of incidents of violent or dangerous behaviour LM had engaged in since moving to Melbourne and then Bendigo. She also told the Tribunal that an employee of Spectrum, a Victorian service that supports the treatment of people who have severe or borderline personality disorder, had informed her that the duration of LM's illness was two to two and a half years and that it was not reasonable to expect a self-managed response from LM after only six months of treatment.

Ms Card also submitted that the significant risk of serious harm to another person cannot be substantially reduced by using less restrictive means. Ms Card pointed to the fact that LM's behaviour was not successfully managed using less restrictive means whilst she was living in Parkville as LM assaulted a staff member and was charged with property damage during this period. Her report dated 15 April 2008 also pointed out that whilst LM was living in Mildura with her parents, a managed response plan involving the cooperation of psychiatric services, hospital and ambulance services, the police and the disability service outreach workers did not reduce the number of incidents of violent or dangerous behaviour. Whilst Ms Card acknowledged that for the first time, LM was on an "up" trajectory in relation to the frequency and severity of violent or dangerous incidents, she maintained that the power to detain LM is necessary for when LM cannot control her behaviour. Ms Card reiterated that LM was a risk to other people when she could not manage herself and that the Senior Practitioner had authorised the treatment plan.

Mitch Bayliss also submitted that there is currently a risk that LM will expose other people to a significant risk of serious harm. Mr Bayliss told the Tribunal that this is because whilst there had been a reduction in the frequency of incidents between 5 December 2007 and 30 June 2008 as set out on pages 11 to 13 of the treatment plan dated 9 July 2008, LM is heading into a period of an increased risk of incidents because LM has just begun to deal with the significant past events that have caused her trauma. Mr Bayliss told the Tribunal that LM becomes more anxious and more impulsive when she is overwhelmed with thoughts and feelings, which often happens after she sees her psychologist. Mr Bayliss also told the Tribunal that LM presents a significant risk of serious harm to another person because LM's pattern of behaviour is associated with her borderline personal disorder and she tends to project her past poor relationships onto current relationships.

Margaret Card agreed that there is a significant ongoing risk of serious harm being done to other people by LM due to her borderline personality disorder. Ms Card also told the Tribunal that LM's behavioural problems that are associated with her borderline personality disorder were complicated by her intellectual disability.

Mr Walkinshaw acknowledged that LM might pose some risk to other people but submitted that LM's behaviour does not expose other people to a "significant" risk of serious harm. This is because the significance of the risk that LM poses to other people needs to be contextualised. That is, the risk only arises in the context of LM's self-harming behaviour or, in other words, the risk to other people is incidental to LM's self-harming behaviour. Mr Walkinshaw also submitted that in light of the evidence referred to in paragraphs 21 to 24 above, the risk of LM exposing other people to serious harm was much less now than at the time of the hearing on 15 April 2008 and not a "significant" risk.

Mr Walkinshaw pointed out that the applicant's assessment of the risk LM posed to other people was simply based on the incident reports referred to in the treatment plan and the fact that LM had been charged with a number of offences. He also pointed out that there has been a significant reduction in LM's behaviours of concern since her move to Bendigo as a result of the increase in support services, and that at times, LM has been left without residential support. Mr Walkinshaw submitted that this would not be done if LM posed a significant risk of serious harm to another person. Mr Walkinshaw also pointed out that not much police support has been required to manage LM's behaviour in the last few months.

In response, Ms Card submitted that Mr Walkinshaw's use of the expression "incidental harm" belittles the harm previously done by LM to other people and the harm that LM might do to other people in the future if the power to detain LM was removed. Ms Card stressed that LM will harm other people if they "get in her way".

Dean Seeary also disagreed with Mr Walkinshaw's submission that there had been a significant reduction in behaviours of concern and referred to the incidents set out in paragraphs 16 to 18 and 23 above. Mr Seeary also told the Tribunal that LM had been distressed by the hearing on 15 April 2008 and that as a result, there had been a number of incidents following the hearing.

In addition, Mr Walkinshaw submitted that if the Tribunal finds that there is a significant risk of serious harm to another person, it can be substantially reduced by using less restrictive means. Mr Walkinshaw told that Tribunal that the restrictive interventions set out in Part 7 of the Act could be used in the behavioural support plan to substantially reduce any risk of serious harm to others. Specifically, Mr Walkinshaw submitted that locking the front door of the residential service could be defined as a restrictive intervention and could be authorised under section 140 of the Act. He referred to the Victorian Law Reform Commission report in relation to the use of restraints under the Disability Act 2006 as support for this proposition. He also gave evidence that the Senior Practitioner has previously authorised the locking of doors under section 150 of the Act. Mr Walkinshaw also argued that the requirement for constant supervision could be included in the behavioural support plan if it was necessary to protect LM from harming herself or any other person whilst she was in the community.

Ms Card disagreed with Mr Walkinshaw on this issue. Specifically she submitted that staff members would not be legally entitled to detain LM by locking the front door of the residential service unless a STO has been made. Ms Card submitted that the restrictive interventions contained in Part 7 only allow LM's disability workers to place her in seclusion as defined by section 3 of the Act in accordance with the provisions of section 140 of the Act. Ms Card told the Tribunal that a STO is required because it allows the employees of the residential service to detain LM, which is a broader power than the power to seclude, which is akin to a "time out". Ms Card submitted that the power to detain LM under a STO also allows the disability workers to detain LM in the community which the power to seclude does not. Ms Card also submitted that even if the front door could be locked under section 140 of the Act, the actions of the staff at the residential service would be subject to greater accountability under a STO than a behavioural support plan. Ms Card submitted in summary that LM is a threat to other people and staff members need to be able to detain her at the residential service against her will.

Further, Ms Card pointed out that in order for a guardian to instruct the police to apprehend LM when she is in the community without approval, the Tribunal would have to give the guardian a power to enforce the guardianship order under section 26 of the Guardianship and Administration Act 1986, which she submitted is impractical given the amount of time it takes to obtain the order and "overkill". She also gave evidence that the police are presently aware of the STO and have placed a flag on the LEAP database regarding this. Ms Card told the Tribunal that the police have told her that they wanted the STO to remain in place so that they could apprehend LM when she is in the community and return her to the residential service at the request of LM's workers. She submitted that the STO would give the police "comfort" when deciding whether or not to apprehend LM and would create a "no blame treatment environment". Ms Card also submitted that a STO was required to ensure that the police would forcibly return LM to the residential service instead of merely attempting to persuade her to go home. Ms Card pointed out that this arrangement is contained in the Emergency Services Plan, which is now attached to the treatment plan dated 9 July 2008.

Lastly, Ms Card submitted that an STO was required so that the detention of LM by locking the front door and supervising her within the community was done within a "legal environment".

Dean Seeary also submitted that if it were necessary for the police to apprehend LM in the community, there may not be time to arrange for a guardian to make the request.

Mr Walkinshaw agreed that it would be difficult to detain LM without a STO if an incident occurred whilst she was in the community and suggested that it was unclear what was the basis in law that allowed detention in these circumstances. Mr Walkinshaw suggested that section 10 of the Mental Health Act 1986 might be of assistance, in addition to section 26 of the Guardianship and Administration Act 1986. However, Mr Walkinshaw agreed that the police would probably welcome a clear basis of authority to enable them to return LM to the residence at the request of the staff in the event that an incident took place in the community.

Findings in relation to (c) - Section 191(6)(b) - Is there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means?

Firstly, I find that there is an ongoing significant risk of serious harm to another person. That is, I find that there is an ongoing significant risk that LM will cause serious harm to a disability worker or a member of the public by running onto a road or physically assaulting a worker. This is because of the high number of incidents reported since early 2007 and because LM's violent or dangerous behaviour has continued since she began residing at the residential service. This is despite the fact that all the parties present at the hearing agreed that LM is making considerable progress in learning to recognise when she is feeling "out of control" and therefore likely to engaged in violent or dangerous behaviour. Further, the fact that LM has been charged and convicted of numerous criminal offences on two occasions does not seem to have resulted in significant modification of LM's behaviour.

I also agree with Ms Card that there is a significant risk that LM will seriously harm a disability worker in the future, if LM considers that disability worker is preventing her from getting her own way, particularly taking into account LM's evidence was that she often felt angry or aggressive towards disability workers. In addition, LM recently threatened a disability worker with a knife and she has assaulted disability workers on a number of occasions since leaving Mildura in late 2007.

In addition, I agree with Margaret Card's and Mitch Bayliss' view that during the next few months there is an increased risk that LM will engage in violent or dangerous behaviour that will expose other people to a significant risk of serious harm whilst she deals with her past in her therapy sessions with her psychologist. Whilst the Tribunal would have been assisted by expert medical evidence regarding this issue, it is ultimately a question of probability, and I am satisfied that it is probable that the risk of LM engaging in violent or dangerous behaviour will increase during the next few months.

Further, I again find that the context in which the risk of serious harm arises is not relevant. If a significant risk exists that LM will cause serious harm to another person, the fact that the serious harm may be caused by LM's self harming behaviour rather than a desire to harm other people is not relevant.

Secondly, for the following reasons I find that this risk cannot be substantially reduced by using less restrictive means.

As stated in paragraph 12 above, all of the parties present at the hearing agreed that the services to be provided to LM in accordance with the treatment plan dated 9 July 2008 will be of benefit to LM and will substantially reduce the significant risk of serious harm to another person (although Mr Walkinshaw maintained that LM did not present a significant risk of serious harm to another person). Further, there was no evidence given by any party to suggest that there may be an alternative way to reduce the risk of serious harm to another person other than by LM being treated in accordance with the treatment plan.

I also accept Ms Card's evidence that LM's treatment is expected to take two to two and half years to complete, as this appears to be a realistic assessment given LM's progress to date.

The only way to ensure that LM will benefit from the services set out in the treatment plan, which will substantially reduce the significant risk that LM may seriously harm another person, is to ensure that LM resides at the residential service whilst she is being treated.

In addition, the only way to ensure that LM resides at the residential service is for a STO to be made. This is because the STO must require the person to whom the STO applies to reside in premises approved by the Authorised Program Officer, (see section 193 (3) (b) of the Act). Whilst the treatment plan does not specifically state that Ms Card requires LM to reside at the residential service, it is implicit from the application, the contents of the treatment plan and the evidence given at the hearing that Ms Card intends for LM to reside at the residential service whilst being treated.

Further, whilst LM gave evidence that she is happy living at the residential service and happy that she has decided to live in Bendigo, Ms Card gave evidence that LM often wants to leave the residential service and the incidents referred to in the treatment plan confirm this. I also accept that LM is more likely to attempt to leave the residential service and walk onto or lie on roads whilst LM is having therapy to assist her to deal with difficult issues from her past. If a STO is not made, there is no legal basis for requiring LM to live in the residential service whilst she is being treated and she could leave the residential service at any time. In addition, whilst a guardian could make a decision that LM live at the residential service, a guardian could not decide to detain her there for treatment.

In these circumstances, there is simply no less restrictive means to substantially reduce the significant risk LM poses to another person. If a STO is not made, there is no legal basis for requiring LM to live at the residential service whilst she is being treated in accordance with the treatment plan dated 9 July 2008.

Further, whilst it is arguable that the restrictive interventions referred to in Part 7 of the Act could be used to authorise the locking of the front door at the residential service and the constant supervision of LM, and section 26 of the Guardianship and Administration Act or section 10 of the Mental Health Act could be used to compel LM to return to the residential service whilst she is in the community, none of these less restrictive means provide a legal basis for requiring LM to reside there and undergo compulsory treatment.

(d) Section 191 (6)(e) - Is it necessary to detain LM to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person?

Submissions in relation to (d) - Section 191 (6)(e)

1. Margaret Card submitted that it is necessary to detain LM to ensure compliance with the treatment plan and to prevent a significant risk of serious harm to another person. She pointed out that at times, LM cannot control her behaviour and that the front door to the residential service is locked in order to detain her there. Ms Card submitted that the power to detain LM is required to authorise disability workers to lock the front door at the residential service when LM's behaviour becomes unmanageable by less restrictive means and to supervise LM within the community where she is most at risk of causing another person serious harm. Ms Card made the point that even with supervision, LM is presently unable to access the community without the possibility that incidents will occur, which have the potential to escalate and expose people to a significant risk of serious harm.

2. She also submitted that the STO is required to implement the treatment plan because it enables LM to be apprehended by the police if she is absent from the residential service without approval pursuant to section 201 of the Act.

3. Mr Walkinshaw relied on his submissions referred to in paragraph 77 above in support of his argument that it is not necessary to detain LM to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person. Mr Walkinshaw pointed out that "best practice" will ensure that the restrictive interventions are implemented in an accountable manner. He also argued that the provisions of section 201 would not be required because a guardian can request the police to apprehend LM if necessary. He also repeated his submission that the risk of serious harm to members of the community needs to be "contextualised" because it only arises as a result of LM's desire to harm herself.

4. Mitch Bayliss submitted that the power to detain LM under an STO was required because it is "global" and encompasses detention and supervision within the community. He submitted that the risk of harm to other people could not be substantially reduced by using the less restrictive power to seclude LM because the power to seclude is restricted to secluding LM in the house at the residential service. Mr Bayliss submitted that a STO is required because it can be used to supervise or detain LM when she is in out in the community, which is when LM is most likely to feel unsafe and engage in violent or dangerous behaviour, which puts other people at a significant risk of serious harm.

1. Before making findings in relation to whether it is necessary to detain LM to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person, it is necessary to consider what is meant by detain.

2. Section 3 (1) of the Act states that detain, in Part 8, includes:

(a) physically locking a person in any premises; and

(b) constantly supervising or escorting a person to prevent the person

1. According to the treatment plan dated 9 July 2008, LM is presently being detained at the residential service by the front door of the house being locked when LM is displaying signs of increased anxiety, confusion or agitation and by LM being under 24 hour supervision. This is consistent with the definition of detain set out in section 3 (1) of the Act.

2. However, the Tribunal held in MM (Guardianship) [2008] VCAT 1282 at paragraphs 48 and 49 that a person is also being detained if he or she is not free to leave the premises in which that person is.

3. As stated in paragraph 91 above, if a STO is made, the person to whom the STO applies is required to live in premises approved by the Authorised Program Officer. And if a person is "required" to live in premises, that person is not free to leave the premises and that person is therefore being detained.

4. Accordingly, the question to be determined is whether it is necessary to detain LM by compelling her to reside at the residential service, locking the front door and requiring her to be constantly supervised, to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.

Findings in relation to (d) - Section 191 (6)(e) - Is it necessary to detain LM to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person?

1. For the reasons stated in paragraphs 88 to 94 above, I find that it is necessary to detain LM by compelling her to reside at the residential service to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.

2. I also I find that it is necessary to detain LM by locking the front door to the residential service and requiring her to be constantly supervised to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person. This is because the locking of the front door of the residential service when LM is displaying signs of increased anxiety, confusion or agitation and her 24 hour supervision prevents LM from leaving the residential service, and for the reasons stated above, LM must reside at the residential service in order to be treated in accordance with the treatment plan. The locking of the front door and the 24 hour supervision also prevents LM from seriously harming another person by assaulting a disability worker or running onto or lying on a road.

3. Lastly, given that I have found that it is necessary to detain LM by compelling her to reside at the residential service to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person, it is not necessary to make a finding as to whether the front door to the residential service could be locked and LM constantly supervised by way of restrictive interventions contained in a behavioural support plan, which would be less restrictive than a STO.

(e) Have LM's rights under the Charter of Human Rights and Responsibilities Act 2006 been limited by the Disability Act 2006?

1. At the hearing on 16 July 2008, I asked the parties whether they wanted to make any submissions in relation to the Charter of Human Rights and Responsibilities Act 2006.

2. Margaret Card submitted that the STO would enhance LM's human rights because it would significantly reduce the risk of LM being charged with another offence and possibly facing a prison sentence if someone was serious injured as a result of her behaviour. She also submitted that if LM was going to be detained, which limits her human rights, it ought to be done in a clear, transparent and accountable manner, which a STO provides.

3. Mr Walkinshaw did not make any submissions to the Tribunal regarding the Charter of Human Rights and Responsibilities Act 2006 but stated that he would be very pleased if the Tribunal considered the Charter in the Tribunal's reasons for decision.

4. It appears that the following rights may be engaged by this application:

1. Section 8 - The right to recognition and equality before the law. 2. Section 12 - The right to freedom of movement.

1. Section 21 - The right to liberty and security of person.

1. Section 26 - The right not to be tried or punished more than once.

5. Section 7 of the Charter sets out when these rights may be limited. Specifically, section 7 (2) states that:

"A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

(b) the importance of the purpose of the limitation, and

(d) the relationship between the limitation and its purpose, and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve."

1. Further, section 32 (1) of the Charter states that "so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights". However, section 32 (3) goes on to state that "this section does not affect the validity of-

(a) an Act or provision of an Act that is incompatible with a human right, or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made."

Section 8 - The right to recognition and equality before the law

1. At first instance, it appears that section 191 (1) of the Act may be incompatible with LM's right to "equal and effective protection against discrimination". This is because section 191 (1) gives the Tribunal the power to make a STO, which enables the detention of a person with an intellectual disability who poses a significant risk of serious harm to others. This may appear discriminatory because as far as I am aware, there is no legislation in Victoria that gives the State the right to detain a person who does not have an intellectual disability in the same circumstances.

2. However, I find that the limitation on LM's right to "equal and effective protection against discrimination" is justified after taking into account the considerations set out in section 7 (2) of the Act. Firstly, it is clear from the wording of section 191 (6) that one of the purposes of detaining a person with an intellectual disability pursuant to a STO is to protect members of the public from the possibility that the person with the intellectual disability may cause them serious harm. It also seems to me that another justification for the detention of people with an intellectual disability in these circumstances is to protect them from the serious legal implications that would follow if they seriously harmed another person. In LM's case, she has already been convicted of a number of serious offences and whilst she was released on an undertaking to be of good behaviour for a period of 12 months, it presently appears necessary to detain LM whilst she is receiving treatment to reduce the risk that she may re-offend. Further, the STO can only be made if there is no "less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve" (see section 191 (6) (e) of the Act) and I have found this to be the case.

Section 12 - The right to freedom of movement

1. In my view, the same considerations justify the limitation on LM's "freedom to chose where to live".

Section 21 - Right to Liberty and Security of person

1. Section 21 (3) of the Charter states that a "person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law". As LM's detention is in accordance with the provisions of the Act, I find that this right has not been engaged or limited.

Section 26 - The right not to be tried or punished more than once

1. It also appears that section 191 (1) of the Act may be incompatible with LM's right not to be punished more than one. At first impression, it may be considered that LM is being punished more than once for an offence in respect of which she has already been finally convicted or acquitted in accordance with law. Specifically, she is being punished by being detained as a result of behaviour for which she has already been convicted and released on a good behaviour bond. However, as set out in paragraph 115 above, one of the purposes of the detention is the protection of members of the public and LM herself. The purpose of the detention is not to punish LM. I therefore find that this right has not been engaged or limited.

1. Ms Card and Mr Walkinshaw agreed that if a STO were made, there was no need for a guardian and the guardianship order ought to be revoked. In addition, Section 200 of the Act states that a supervised treatment order prevails over a guardianship order to the extent of any inconsistency.

1. LM's mother, Mrs M, informed the Tribunal in a letter dated 31 March 2008 that she was happy to continue to act as LM's administrator. Ms Card and Mr Walkinshaw were also happy for Mrs M to continue as LM's administrator and no issues were raised regarding the administration of LM's financial affairs by any other person at the hearing. Accordingly, on 16 July I reappointed Mrs M LM's administrator for three years.

1. For these reasons, I decide that I should make a supervised treatment order to be reviewed by 9 July 2009 and that the guardianship order should be revoked. Mr Walkinshaw urged the Tribunal to make a short order so that the order was reviewed as soon as possible. Ms Card and Mr Bayliss urged the Tribunal to make a 12 month order on the basis that the treatment plan has been approved by the Senior Practitioner for 12 months and LM is distressed by the hearings. I consider it appropriate to order that the STO be reviewed by 9 July 2009, being the review date for the treatment plan, as the treatment plan dated 9 July 2008 is a detailed, well articulated document that has been approved by the Senior Practitioner for 12 months and I cannot find any justification for a shorter order in the circumstances. I also note that the Authorised Program Officer undertook to seek a review, variation or revocation of the STO under section 196 of the Act if any of the matters specified in sections 191 (1) and 191 (6) may have ceased to apply or if she believes there should be a reduction in the restrictive interventions contained in the treatment plan.

[1] VBAO v Minister for Immigration and Multicultural and Indigenous Affairs, [2006] HCA 60; NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95; VGAC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 495.