Complying with OPCAT in social care settings

Complying with OPCAT in social care settings

Australia has still to fully implement the international undertaking given more than five years ago when it ratified the Optional Protocol to the Convention against Torture (OPCAT). Ratification obliges countries, among other things, to establish one or more ‘National Preventive Mechanisms’ to organise the monitoring of places of detention. What is a 'place of detention'? Does it extend to social care settings such as locked dementia wards, or places where people in disability settings are subject to restrictive practices that amount to deprivations of liberty?

Australia’s eastern states continue to debate, with varying degrees of enthusiasm, whether, and how, to implement the international treaty OPCAT, and in particular how state and territory ‘National Preventive Mechanisms’ will be established to monitor all the places of detention across Australia. The abandonment last year by the Subcommittee on the Prevention of Torture (SPT) of its planned inspections of Australian detention sites was a cause of international embarrassment. However, there is some cause for hope that Queensland, New South Wales and Victoria will ultimately embrace the opportunity that OPCAT provides for jurisdictions to ensure that ‘cruel, inhuman or degrading’ treatment does not occur in places where that most fundamental of human rights – freedom of movement – is restricted.

There is less cause for optimism that reforms will extend to the monitoring of detention in community settings, for instance in locked dementia wards, or where people in disability settings are subject to restrictive practices that amount to deprivations of liberty.

The aim of OPCAT is stated in Article 1 to be to ensure that there is ‘a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.’

The vital question then is: what are these ‘places where people are deprived of their liberty’?  OPCAT does not spell this out but it provides two approaches.  First they are places ‘where persons are or may be deprived of their liberty’ (Article 4(1)).  So they include places where people could be deprived of liberty even if that is not the main purpose of the facility. And then ‘deprivation of liberty’ is explained as including ‘the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’ (Article 4(2)).  Restrictive practice usage is currently subject to regulation in disability and aged care settings, bringing its use – when it amounts to detention – clearly within the purview of OPCAT.

To make sure that the aim of OPCAT is achieved, we should aspire for a broad reading of its scope. The importance of this issue is highlighted by the fact that the SPT is currently preparing guidance (a General Comment) on the meaning of Article 4, as a ‘crucial issue’ in the prevention of torture and abuse under OPCAT.

In the midst of occasional push backs along the lines that the UN is overstepping its role, or that ‘torture doesn’t happen here’, it is well to remember that OPCAT compliance does not require there to be no detention; just that such detention should be monitored.  

We argue that monitoring detention in social care settings is just as important as in obvious places of detention (such as prisons, immigration detention and authorised mental health services), precisely because so little is known publicly about the mechanisms by which this happens, and about the safeguards that are in place.

One challenge in extending OPCAT protections to social care settings – in addition to the cost of doing so – is in knowing exactly where these places are. Who holds this information? 


This is something the Victorian Ombudsman identified as problematic in a 2017 OPCAT implementation report, observing that the number of people in ‘de facto detention’ in social care settings is ‘unknown’ (see report at p. 25).

That raises a parallel reform imperative; the need to better regulate the use of restrictive practices, in part so we can identify places where people are being effectively detained (and, of course, to better monitor, and drive down, restrictive practice usage).

States and territories currently determine restrictive practice authorisation requirements in disability settings. A general reform trend here is the move to a Senior Practitioner authorisation model. Such a model exists in Victoria, whereby a senior official with clinical expertise oversees the authorisation of restrictive practices, which must be articulated in registered behaviour support plans (that can be audited).

This model differs from the consent (or really substitute consent) authorisation model, where a person, or their representative, consents to a restrictive practice.  The consent model is currently in place in disability services in Queensland, though that is under review. It also exists nationally in the regulation of aged care restrictive practices, which currently involves an extraordinarily complex authorisation regime that, among other things, seeks to recognise the authority of those people empowered by State and Territory laws to provide substitute consent for aged care restrictive practices. This almost unworkable regime is likely to be in place until the end of 2024.    

These two parallel reform imperatives – OPCAT compliance in social care settings, and improved restrictive practices authorisation requirements – could be met together.

The adoption of an empowered Senior Practitioner to authorise restrictive practices would constitute one significant reform, and would enable OPCAT’s specific reach into social care to be determined and managed.  

This could occur at national level in specific sectors – aged care and NDIS – where the Senior Practitioner (or Practitioners) would be responsible for overseeing the authorisation of restrictive practice usage (we currently have national Senior Practitioners in the aged care and NDIS fields, but neither has a formal authorisation role concerning restrictive practice usage). 

Another alternative would be to have broadly-empowered Senior Practitioners at State and Territory level, who could be responsible for overseeing restrictive practices authorisation in a range of settings (disability, aged care, and this could extend to other settings, including for instance out-of-home child protection).  

Importantly, the Senior Practitioners in either rendition could identify, by reviewing lodged behaviour support plans, those settings where permitted restrictive practices are likely to amount to deprivations of liberty. This would mean the Senior Practitioners could advise the relevant National Preventive Mechanism about where visits need to occur, and would be a source of expertise on how to monitor deprivations of liberty in these settings (the Senior Practitioners could even, if this were desired, form part of particular jurisdictions' National Preventive Mechanisms).  

The purpose of OPCAT is to prevent poor treatment of people in detention. Does anyone honestly think that people detained in disability and aged care settings are not in need of that protection?



John Chesterman is the Queensland Public Advocate

Bronwyn Naylor is a Professor of Law at the GSBL, RMIT University

11 May 2023


11 May 2023


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Acknowledgement of Country

RMIT University acknowledges the people of the Woi wurrung and Boon wurrung language groups of the eastern Kulin Nation on whose unceded lands we conduct the business of the University. RMIT University respectfully acknowledges their Ancestors and Elders, past and present. RMIT also acknowledges the Traditional Custodians and their Ancestors of the lands and waters across Australia where we conduct our business - Artwork 'Luwaytini' by Mark Cleaver, Palawa.