This is the first article in a two-part series that establishes a framework for evaluating law as it affects the rights to liberty and security for people with intellectual and cognitive impairments. Such laws include those which permit the detention and use of restrictive practices for ‘challenging behaviours’ or ‘behaviours of concern’. This article begins by examining the nature of rights and in particular those of liberty and security. Both are recognised not only as human rights but also as common law rights. The article then develops a rights-based approach to law that protects these rights. Taking a ‘thin’ version of the rule of law as the starting point, the approach expands this by adding a requirement to respect not only common law rights but human rights. The rights-based approach then argues for the inclusion of the principle of justice requiring the prioritisation of rights over other policy imperatives and a commitment to equal concern and respect.
Kim Chandler, Ben White & Lindy Willmott
Psychiatry, Psychology and Law, Volume 25, 2018 – Issue 3