VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H799/2024	
CATCHWORDS	
Supervised treatment order – whether a person is ‘detained’ – whether they meet the criteria for making an order – assessed as low risk – less restrictive alternatives Disability Act 2006 (Vic) sections 5, 6, 150A, 183, 193.	

PERSON	VES	
aPPLICANT	Margaret Leach	
WHERE HELD	414 La Trobe Street, Melbourne 	
BEFORE	Senior Member A. Smith 	
HEARING TYPE	Videoconference and in-person	
DATE OF HEARING	22 August and 16 October 2024	
DATE OF ORDER	17 December 2024	
DATE OF WRITTEN REASONS	17 December 2024	
CITATION	VES (Human Rights) [2024] VCAT 1198	

Order
Under section 193(1)(c) of the Disability Act 2006 (Vic), the application is dismissed.

A. Smith
Senior Member			

APPEARANCES:		
For represented person	Ms E. Almond, solicitor
VES, in person	
For applicant	Ms S. Bodycoat, solicitor
M. Leach – Scope, applicant 	
For Office of the Senior Practitioner (DFFH)	J. Daniell
Y. Rordena, DFFH
Dr V. Delle-Vergini – Senior Clinician, DFFH	
For Office of the Public Advocate	S. Hill
O. Shahan	

Reasons
About VES and this application
1	VES is a 63-year-old man who lives in supported disability accommodation and receives independent living support from Scope (Aust) Ltd (‘Scope’). He is the sole occupant of a unit that he is very proud of. He likes gardening, spending time with his fiancé and outings with support persons. He went to a Special School because of his intellectual disability and has never held employment, but he attends day programs which he calls his ‘work’. Although he was nervous about this hearing, he participated very well in the hearing and was very keen to show me photographs of his home and garden and places he has visited. He is very invested in remaining in his home and witnesses agree that he has thrived in that environment, and all consider that any change will be detrimental to him.
2	Between the 1970s and 2017, VES was convicted of criminal offences, including sexual assault, fire lighting, causing physical injury, assault, theft and property damage. Because of this, VES is closely monitored and supported in his accommodation where he has lived since 2018, to the extent that the Senior Practitioner suggested that Scope’s authorised program officer should apply under section 191(1) of the Disability Act 2006 (Vic) (‘the Act’) for a supervised treatment order rather than relying on a behaviour support plan.
3	I heard the application on 22 August 2024 and 16 October 2024. VES attended and was legally represented at both hearings. The latter hearing was the substantive hearing and was attended by:
VES
Elise Almond – solicitor for VES
Margaret Leach – Scope, applicant 
Kathy Bodycoat – solicitor for Scope
Julie Daniell – Deputy Senior Practitioner
Yvonne Rordena – Department of Families Fairness and Housing
Dr Vanessa Delle-Vergini - Senior Clinician, Department of Families, Fairness and Housing
Sarah Hill, Ohma Shahan – Office of the Public Advocate
Mark Stainsby – house supervisor
Steve Peidra – psychologist, behaviour support practitioner
Each of the participants spoke at the hearing according to their expertise and experience with VES’s circumstances. It proceeded as a discussion between VES, the witnesses, legal representatives and myself and I was impressed that all persons present were committed to ensuring that the principles in the Act and the rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) were closely adhered to. At the conclusion of the hearing, I reserved my decision. This statement of reasons is my decision about the application.
4	Documents filed in support of the application include:
•	Applications dated 21 June 2024 and 24 July 2024, Margaret Leach
•	Treatment Plan 17 June 2024 to 16 June 2025, Liam Heyne
•	Senior Practitioner Disability Treatment Plan Certificate 20 June 2024, Mandy Conley
•	Assessment of Sexual Knowledge 22 April 2022, Jeffrey Lea
•	Occupational Therapy Functional Capacity Assessment 26 July 2023 to 2 November 2023, Wendy Reeves
•	Speech Pathology Assessment Report 29 January 2024, Grace Scheiner
•	Neuropsychological Report 21 December 2023, Dr Warwick Brewer
•	Risk Assessment 23 April 2024, Sarah Fritsche and Dr Vanessa Delle-Vergini
Supervised Treatment Orders – principles and legislation
5	A supervised treatment order made under the Act enables a registered NDIS provider to detain a person with an intellectual disability who poses a significant risk of serious harm to others. The Act defines ‘detain’:
"detain", in Part 8, means a form of restrictive practice used on a person for the purpose of reducing the risk of violence or the significant risk of serious harm the person presents to another person and includes—
(a)	physically locking a person in any premises, and
(b)	constantly supervising or escorting a person to prevent the person from exercising freedom of movement.
The Act also defines a ‘restrictive practice’:
"restrictive practice" means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability or of an NDIS participant or a DSOA client;
6	Section 150A(1) of the Act states:
A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part.
7	The Act sets out extensive principles relating to persons with intellectual disabilities, the provision of disability services, and the use of restrictive practices. They are all important principles, but they are too extensive to repeat in full in this decision. Some of the most important that apply to VES’s circumstances are:
•	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.
•	Persons with a disability have the same right as other members of the community to:
•	be given respect for their human worth and dignity as individuals; and
•	exercise control over their own lives.
•	Disability services should:
•	maximise the choice and independence of persons with a disability;
•	be provided in a manner that respects the privacy and dignity of persons accessing the disability services;
•	be provided in a manner that promotes the upholding of the rights, dignity, wellbeing and safety of persons with a disability; and
•	be provided in a way which reasonably balances safety with the right of persons with a disability to choose to participate in activities involving a degree of risk.
•	Restrictive practices used on NDIS participants and the compulsory treatment of NDIS participants should be provided in a manner that promotes the upholding of the rights, dignity, wellbeing and safety of those persons.
•	If a restriction on the rights or opportunities of a person with a disability, an NDIS participant is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.
8	Under section 193(1A) of the Act, VCAT may only make a supervised treatment order if it is satisfied that all the following criteria are satisfied:
(a)	the person 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; and
(b)	there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means; and
(c)	the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person; and
(d)	the person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person; and
(e)	it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.
9	Because supervised treatment orders enable detention and restriction that would otherwise constitute assaults or false imprisonment, an application for an order enlivens numerous provisions in the Charter such as:
Section 7:
(2)	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–
(a)	the nature of the right; and
(b)	the importance of the purpose of the limitation; and
(c)	the nature and extent 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.
Section 8:
(1)	Every person has the right to recognition as a person before the law.
(2)	Every person has the right to enjoy their human rights without discrimination.
(3)	Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Section 12:
Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
Section 13:
A person has the right–
(a)	not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with
Section 21:
(1)	Every person has the right to liberty and security.
(2)	A person must not be subjected to arbitrary arrest or detention.
(3)	A person must not be deprived of that person's liberty except on grounds, and in accordance with procedures, established by law.
Section 22:
(1)	All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Questions to be decided
10	Under section 191(1)(a) to (c) of the Act, there was no dispute that VES has an intellectual disability, is receiving a residential service and the Senior Practitioner has approved a treatment plan prepared under section 189.
11	The discussion at the hearing moved through each criterion in section 193(1A) in turn. VES’s representative indicated that none of the criteria were conceded. The application has been made as a genuine enquiry about VES’s status, not from a strident position that an order is required. As the discussion progressed, it emerged that I need to determine the following questions consecutively:
a.	whether VES is ‘detained’? If not, the application should be dismissed, but if he is then:
b.	can I be satisfied of each of the criteria?
c.	is an order consistent with the Charter?
d.	if an order is to be made, to assess the treatment plan.
Is VES detained?
12	VES resides in a fully self-contained unit which is detached from the main house, where three other men reside.  He can communicate with staff in the main house via a two-way radio and is free to access the main house to socialise with others. A draft Compulsory Treatment Plan, authored by Mr Steve Piedra, dated 30 December 2023 includes provisions for restrictive practices including the use of electronic surveillance (overnight alarm), line-of-sight or one-to-one supervision for all activities, and limits on his access to alcohol. The supervision is described as both restrictive and enabling for VES and has been in place for 25 years. The draft plan is consistent with the restrictive practices VES has been subject to in recent years. According to the Risk Assessment Report, his unit is alarmed between 8:00pm to 7:00am, seven days per week. He is required to notify staff via a two-way radio when he wants to leave the premises to avoid the alarm being set off. He receives line-of-sight supervision when accessing the community, which commenced in the late 1990s.
13	All parties agreed that what occurs in practice involves fewer restrictions on VES’s movement than described in the draft treatment plan and the plan needs to be updated, but he is still unable to access the community without supervision. There is factual uncertainty about the use of the alarm, regarding when it is on and for how long. VES’s representative was instructed by him that the alarm:
‘keeps me safe, keeps me safe from intruders’
She submitted that it operated like a domestic alarm and had no impact on VES’s thinking or behaviours. She said that VES has his own key to his home and locks and unlocks his door as he pleases. She further argues that when VES is escorted/supervised to access the community, it is necessary to discern whether that is supervision that limits his freedom of movement or whether it is disability support that enables his access to the community. VES’s view is that it is the latter. 
14	In R v. Bournewood Community and Mental Health NHS Trust, ex part L the UK Appeal Court stated that whether a person is detained does not depend on the presence or absence of consent or knowledge. It said: 
In our judgment a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving. (at p. 639).

15	In KOQ SM Steele said of the definition of detain in the Act:
The examples offered in paragraphs (a) and (b) of the definition are not presented as exclusive. In other words, the definition leaves open the possibility that a person is being subjected to a restrictive practice for the purpose of reducing risk even when they are neither physically locked into premises nor constantly supervised or escorted. The restrictive practice might simply be an instruction not to leave.
If a person was left constantly unsupervised and the premises were always unlocked, that situation would not amount to detention.
16	In MOT SM Steele said:
‘Constantly supervising ‘is one of the activities included in the definition of ‘detain’ set out above. If a person is constantly supervised, which is the case for MOT, and is escorted and monitored when in the community, and subject to spot-checks while he is performing step-ups to practise being independent in the community, all of which apply to MOT, then he is detained, according to the definition. To define detain as not including those things would not be consistent with MOT’s rights.’
17	I consider that VES is subject to constant supervision and that this imposes limits on his exercise of freedom of movement, therefore he is detained as defined in the Act. I acknowledge that he complies contentedly with this supervision and does not find it burdensome. However, given section 150A(1) of the Act, such detention should not be imposed without a supervised treatment order. The definition of ‘detention’ does not rest on how the detained person perceives it. 
18	People with intellectual disabilities in other settings may be subject to similar levels of practical supervision, as disability support or as part of the accommodation provider’s adherence to their duty of care to the resident. The evidence in VES’s case is to be that these measures were imposed from the 1990s because of his offending history, to protect and support him, but also to protect the community from his potential for offending behaviours. I find that although it has a dual purpose of support, it is supervision and if he were to leave the premises without warning or permission the accommodation provider would intervene to have him return or stay, in part, for the protection of the community. It is therefore detention, which triggers the operation of section 150A(1). 
Does the situation meet the criteria in section 193(1A)?
Has VES previously exhibited a pattern of violent or dangerous behaviour?
19	Details of VES’s offending are derived from the reports noted in paragraph 4 above. A copy of his record of criminal convictions has not been supplied, so the evidence of the pattern of behaviour is derived only from second hand sources. VES was represented and this was not the subject of any submissions at the hearing, but it seems unusual that VCAT does not have access to less interpretive data about the historical behaviours.
20	Regarding sexual offences, in 1978, VES was 17 years old and was charged with indecent assault of a minor – the outcome of the charge is unknown. He was later found guilty of five counts of indecent assault, and one count each of indecent assault with aggravated circumstances, and rape. An additional rape charge was struck out in 1993. Much of VES’s sexual offending has occurred in public places such as toilets, parks, and at community day programs. The victims of his sexual offending include males and females, children, adolescents, and adults with intellectual disabilities, who may be known or unknown to him.
21	As for non-sexual offences, between 1982 and 1995, VES was charged with fire setting (light fire during danger period), acquisitive offending (theft, obtain property by deception), and intentionally or recklessly cause injury and he was found guilty. Additional charges of unlawful assault and assault with intent to commit an indictable offence were struck out and withdrawn in court. He was subject to various community-based orders and imprisoned on at least two occasions (1986 and 1995) during that period.
22	There is no evidence that VES engaged in sexual offending behaviours between 2001 and 2017.
23	VES was convicted of sexual assault which occurred in 2017 and was placed on a 24-month Community Correction Order. VES touched a co-resident on the breast while she was hanging washing on a clothesline. This is described as the index offence, which I take to mean it was the basis for the current range of restrictive interventions that have been imposed on VES.
24	The Risk Assessment Report noted:
Due to the serious nature of his offending, it is likely that his victims suffered serious physical and psychological harm. It is highlighted that, according to formal documentation, most of VES’s offending occurred between 1982 and 2002 and there has been a significant decrease in the frequency of his offending over the past two decades.
25	The Treatment Certificate notes:
Whilst VES has not received any additional charges since 2017, there are several notable incidents which demonstrate his ongoing behaviours of concern. These include inappropriate physical contact with female staff, such as brushing up next to them and provoking other residents in the property by making disparaging comments.
26	VES’s solicitor submitted that there was a ‘pattern’ of behaviour between 1980 and 2001. However, there have been no behaviours of concern between 2001 and 2017. She argued that the 2017 event could not be seen as part of a pattern because it was ‘one-off’ event. 
27	The Public Advocate also argued that the period of non-offending is significant and that the 2017 offence and the two other instances of inappropriate behaviours, when he was not charged, have a different character to the earlier offences in that the level of violence and danger associated with the acts has diminished. 
28	The Senior Practitioner referred me to MR22 v Victorian Civil and Administrative Tribunal [2022] VSC 426, where Richards J found:
I do not consider there was any error in the Tribunal’s conclusion that, for the purposes of s 191(6)(a), a pattern of violent or dangerous behaviour can be demonstrated by two instances of such behaviour. That is not to say that, in all cases, two instances of violent or dangerous behaviour necessarily constitute a pattern. Much will depend on the nature of the behaviour, its timing, the circumstances in which it occurred, and the circumstances in which it has (or has not) been repeated.
29	Richards J. also said:
The Senior Practitioner submitted that the question of whether there is a pattern of particular behaviour is context dependent, and that two instances of dangerous behaviour is more easily described as a pattern than two instances of innocuous behaviour. I agree. An analogy for this effect is that two charitable donations would not make me a philanthropist but two thefts from my employer would make me a thief.
The context here is that section 191(6)(a) of the Act speaks of the person who has previously exhibited a pattern of behaviour. It specifically does not require that the behaviour continue into the present. Given that context for “pattern”, I reject the Applicant’s submission that the fact MR22 has had no further convictions for such offences means the past behaviour, not repeated in 30 years, should be ignored as past events insignificant to his present profile.
Since one purpose of the provisions about STOs in the Act is the protection of others, “pattern” of behaviour in my view can only be read as including a pattern demonstrated by two instances of violent or dangerous behaviour.
30	I agree that there has been a reduction in the frequency and intensity of VES’s offending behaviours. Until the 2017 offence, the trajectory had been one of reform and rehabilitation. When he was a younger man, his offending behaviour was more serious and occurred more frequently. However, because the ‘index offence’ was sexual assault it calls up similarities with his sex-offending as a younger man. Sexual assaults and offences are inherently serious and harmful to the victims. The behaviour may be an aberration from his otherwise improving nature, but because of the seriousness of his original offending as a young man, it falls into a ‘pattern’ of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm. This criterion is satisfied.
Is there a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means?
31	Clinician, Sarah Fritsche, and Senior Clinician, Dr Vanessa Delle-Vergini, co-authored the Risk Assessment Report. Dr Delle-Vergini attended to give evidence at the hearing. Ms Fritsche conducted consultations with VES, key practitioners and support persons and reviewed numerous historical documents. She noted that when assessed by another practitioner in 2020 using the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations (‘ARMIDILO-S’), VES fell within the high-risk category. In 2023, that risk was assessed as moderate. Ms Fritsche also administered the ARMIDILIO-S as well as the Static-99R which is an actuarial assessment tool in 2024. 
32	The Static-99R assessment resulted in a total score of 8 which places VES in the Well Above Average risk category. Ms Fritsche noted that 36.3% of persons with VES’s score reoffend over five years and the percentage increases with increased time. However, she also notes that a person’s likelihood of recidivism for sexual offences halves for every five years in the community without a sexual offence. VES has been in the community for seven years since the ‘index offence’ and his risk of recidivism is likely to have reduced significantly. 
33	The results from the ARMIDILO-S assessment were that VES’s overall risk rating was low, and his overall protective rating is high. Critical protective factors included ‘supervision and treatment compliance’ and ‘consistency of supervision.’ When adjusted to account for protective factors his risk rating is low. Together with the Static-99R score, Ms Fritsche concluded that VES presents with a low-moderate risk for future sexual offending and noted that the ARMIDILO-S rating most accurately reflects VES’s current presentation and environment. She concluded that the current supports and restrictions on VES have effectively mitigated any risk of serious harm that VES might present. Because of the restrictive interventions, there have been limited opportunities to assess whether less restrictive means could mitigate his risk of offending. She noted that a sudden withdrawal of supports/restrictions would cause him anxiety which would increase the risk of him offending.
34	In evidence, Dr Delle-Vergini agreed that the current restrictive practices under the behaviour management plan are effectively managing any risk presented by VES. She explained that the Static99-R is actuarial and measures static and unchanging factors such as the person’s offending history. The ARMIDILO-S can reflect progress, treatment and environmental factors and is therefore more accurate. She agrees that if there is no change to VES’s environment, then he is low risk. When asked whether she considered that VES meets the threshold for significant risk she answered ‘No, not at present, taking into account his current level of support. We could assess him as low risk.’ She recommended a gradual exposure to independent activities such as going to a café, a park and other community-based settings and observing how he copes with increased autonomy. 
35	VES’s solicitor submitted that VES does not meet the test for significant risk of serious harm to another person. She noted that an Occupational Therapy report indicated that VES requires one-to-one support; his NDIS funding for one-to-one support stems from his disability support needs, not the prior offending behaviours. Therefore, she argued, the less restrictive alternative is the NDIS disability support VES receives which he will always have.
36	The Public Advocate’s representative noted that this criterion is problematic and complex regarding VES. She was concerned with the level of restriction placed on VES and his limited opportunities to demonstrate how he might cope with reduced restrictions and greater independence. She stressed the importance of promoting VES’s human rights and concern about the possibility of unlawful detention without the expected safeguards that flow from an order.
37	Ms Bodycoat for the applicant noted that step-downs (reductions in restrictions) suggested in earlier ARMIDILO-S reports had been implemented but restrictions had to be restored and fluctuated over time. She noted that VES can do the things he wants to do but he must follow processes to be able to do so. She said the restrictions have been a part of his life since he was young and reflect his support needs also. She inferred that the low/low-moderate risk rating did not sufficiently take into account the highly restrictive/supportive environment that VES has lived under for most of his life which exists because of his offending.  
38	Mr Peidra and house staff stated that previously VES was monitored with a 24-hour alarm, now the alarm is on overnight only. The alarm system is always reviewed and has increased and decreased over time according to VES’s responses. 
39	Regarding this criterion, VES’s solicitor referred me to the decisions in AC, MR, MOT (2023) and MOT (2022). In AC, Member Phillips decided that:
In the context of risk, I think a broad interpretation is required. “Substantial risk” requires more than a mere chance or possibility. The risk must be more than remote.
40	In MR Member Phillips noted that the risk for MR was mitigated, as it is in this case, by the supports that MR had available to the extent that the supervised treatment order was revoked. The remaining decisions cited to me serve as examples of situations where VCAT has decided the level of risk, taking into account current supports.
41	SM Steele in MOT (2022) said:
… an expert opinion about risk will not be conclusive as to whether there is an unacceptable, or as in this case a significant, risk of serious harm. That is the Tribunal’s task. The task of the expert, as I understand it, is to assess and describe the level of risk.
42	The experts have in this case assessed the level of risk to be low while VES has the current level of supports and supervision/detention in place. There is support for gradually lowering the level of supervision/detention, but if those were reduced suddenly it would cause VES anxiety, which would increase his risk of offending.
43	In this case, because he is compliant and happy with arrangements and is so well supported, VES presents a low risk. Without the protective factors in his environment, he might pose a moderate risk. But the risk he might present of serious harm has not been described in any reports as ‘significant’.
44	VES has lived under supervision/in detention for several years without a supervised treatment order. The risk of harm is low partly because of the ‘supervision and treatment compliance’ and ‘consistency of supervision’ regimes in which he lives. Under section 150A(1), that detention is not authorised outside of a supervised treatment order. The concern is that removal of the supervision/detention will (a) cause him anxiety which may increase the risk of harm, and (b) may impact his access to the accommodation and support that is creating such benefit for him currently. An order would provide a framework for the orderly and lawful reduction of restrictions over time. It was suggested that making a supervised treatment order would enable VES to remain in the current optimum environment indefinitely and could be imposed for a limited period to monitor step-downs. 
45	The second limb of this criterion considers whether the risk (which is currently ‘low’ in the context of current supports) could be substantially reduced by using less restrictive means than a supervised treatment order. Importantly in these circumstances, the criterion is not ‘whether that risk might be substantially increased by using fewer restrictive interventions.’ Accordingly, this limb of the criterion requires me to assess whether having an order will be more restrictive than not having an order. 
46	In some cases, this dilemma has been resolved by invoking section 150A to enable oversight of the use of restrictive practices to protect the rights of the residents. In MOT (2022), where she found a high risk of reoffending, SM Steele said:
More significantly for the current application, because his treatment plan prescribes high levels of supervision (amounting to detention) in the community and at home and includes services which are provided in the context of that supervision, I was not satisfied these services could be legitimately provided (given section 150A of the Act) in the absence of a STO.
47	In MOT (2023) where DP Nihill accepted that while MOT was responding well under the supervised treatment order, he still presented a serious risk of harm, she found:
I do not accept that at this time a behaviour support plan, with no supervised treatment order in place, would be an appropriate or lawful mechanism. This is because MOT is still subject to supervision. He is being detained, within the meaning of that word as defined by section 3 of the Act. The step-ups, while they are offering continued opportunities for expanded independence and are not punitive in nature, are monitored and supervised. There are spot checks. There are still limits on MOT’s activities and movements. Section 150A of the Act says that a disability service provider must not detain a person with an intellectual disability otherwise than in accordance with Part 8 of the Act, within the framework of protections that apply to compulsory treatment. As Justice Richards said in MR22 at paragraph 64, Part 8 of the Act sets up a scheme for the making of supervised treatment orders, and ‘provides a number of safeguards to ensure that limits on the rights of persons with intellectual disability are both authorised and subject to supervision and review’.
48	The level of restriction imposed on VES through his current behaviour support plan is very similar to that described above for MOT under the supervised treatment order. But VES does not pose a significant risk of serious harm and is not currently under a supervised treatment order though he relies on the day-to-day practice of supervision to maintain his low-risk status.
49	Noting the principles in the legislation and VES’s human rights arising under the Charter, even if I were of the view that the safeguards that ensue from a supervised treatment order were less restrictive than potentially unlawful detention/supervision, the evidence is that VES does not pose a significant risk of serious harm, so he does not satisfy this criterion. I have taken the approach that my task is to decide whether the criteria are met, not to create pathways to make the current practices lawful or to find less restrictive means even though the current practices raise significant issues about adherence to VES’s human rights as described in section 21 of the Charter. 
Will the services to be provided in accordance with the treatment plan be of benefit to the person and substantially reduce the significant risk of serious harm to another person?
50	The Senior Practitioner submitted that the draft treatment plan format and detailed step-downs could be adapted to a Behaviour Support Plan format and would still provide a benefit. The Senior Practitioner was keen to see reductions in the restrictions, however achieved. Her view was accepted by the author of the treatment plan and the applicant. She preferred a short targeted supervised treatment order because it would give a legal framework for the restrictions and supervision plus the step-downs.
51	The behaviour support practitioner suggested that VES has made significant progress without a supervised treatment order and that there was no actual benefit that would flow to VES with the making of an order. 
52	The Public Advocate noted that a Behaviour Support Plan cannot authorise detention. VES’s solicitor concurred.
53	VES’s solicitor submitted that VES receives benefit from his interaction with support workers. There is nothing in the draft treatment plan that is not already being provided in his NDIS plan. So, while he is benefiting from the activities as set out in the plan, those activities can be provided through NDIS and do not require a supervised treatment order. 
54	My conclusion in relation to this criterion is that the practices currently in place, which are recorded in the draft treatment plan, are working to substantially reduce the significant risk of serious harm and they are benefiting VES, even though aspects of the practices may not have a lawful basis because they involve detention.
Is VES unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person?
55	The Risk Assessment Report states:
VES is familiar with the restrictive practices which are currently in place, however, and perceives that these effectively maintain his and others’ safety. He is also familiar with and perceives a benefit to engaging in offence specific intervention. VES therefore appears to comprehend the current restrictive practices and interventions and is motivated to continue complying with the treatment plan on a voluntary basis.
56	Dr Brewer’s opinion is that VES is unable to consent:
Regarding the issue of decision-making generally, it is my opinion based on the above findings that by virtue of is moderate Intellectual Disability, VES remains compromised with respect to his capacity to make informed decision, especially those concerning legal, financial and/or serious medical issues. This incapacity would very likely decompensate further into confusion should he experience anxious arousal, especially in response to suggestions of pending change.
With respect to making informed decisions with respect to the legal basis for his current supervision arrangement, including alarmed/locked doors, it is therefore my opinion that VES does not hold sufficient capacity to engage in the further decision-making process regarding his options.
57	Dr Delle-Vergini noted from Ms Fristche’s assessment that VES understands the use of the alarm, that he is very familiar with the restrictive practices and considers that they keep him and others safe. As a result of offence specific intervention provided to him, he has an adequate understanding of the restrictions in terms of risk and safety and is willing to comply with them. VES’s solicitor submitted along similar lines. 
58	Discussion at the hearing noted that the Act is intellectual disability-specific legislation, so when it contains the term ‘consent’ it is contextual and must allow for the fact that it will always be applied to persons with intellectual disability. Therefore, Dr Brewer’s report should be read in that context. VES’s solicitor, as noted above, submitted that VES perceives the use of the alarm as protective and submits to the supervision processes willingly. On a day-to-day practical basis, VES consents to or complies with all of the restrictions imposed and sees positive aspects to them.
59	Had this been the only criterion on which I could not be satisfied, I might give this issue closer consideration. However, given there are already criterion not met it is sufficient to say in this case that VES is certainly not ‘unwilling’ to consent. On that basis, this criterion is not met.
Is it necessary to detain VES to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person?
60	The Risk Assessment Report stated:
VES is motivated and willing to comply with the draft treatment plan, including current restrictive practices, on a voluntary basis. As such, it is not necessary to detain him to ensure his compliance. 
61	The Public Advocate’s response to this criterion explored the fact that ‘necessary’ often refers to the apprehensive powers in a supervised treatment order, to return a person if they might abscond or show signs of non-compliance. She spoke of VES’s rights without an order and whether, if he sought to leave his residence, the support providers would exercise a duty of care to return him. She also noted that no-one could prevent his leaving or restrict his right to freedom of movement. 
62	The evidence, including the fact that he has complied for a very long time without an order, supports a finding that VES is compliant without a supervised treatment order. This criterion is not met. 
Conclusion
63	Under section 193(1A) of the Act, I am only satisfied of criteria (a) and (to some extent) (c) and none of the other criteria, so I am unable to make a supervised treatment order. Having determined that, it is not necessary to determine whether making an order would be consistent with the Charter as set out in paragraph 11(c) above or to consider the contents of the treatment plan. Accordingly, under section 193(1)(c) of the Act, the application is dismissed.

A. Smith
Senior Member