CRPD/C/24/D/36/2016
by counsel and by his father. The Optional Protocol entered into force for the State party on
19 September 2009.
1.2
On 1 April 2016, the Special Rapporteur on new communications and interim
measures, acting on behalf of the Committee, issued a request for interim measures under
article 4 of the Optional Protocol, requesting the State party to take all necessary measures to
ensure the suspension of forced electroconvulsive therapy on the author, pending the
examination of the communication by the Committee.
1.3
On 9 December 2016, pursuant to rule 70 (8) of the Committee’s rules of procedure,
the Committee, acting through its Special Rapporteur on new communications and interim
measures, decided to grant the State party’s request for the admissibility of the
communication to be examined separately from the merits. On the same date, the Committee,
acting through its Special Rapporteur on new communications and interim measures, granted
the State party’s request to lift the request for interim measures.
A.
Summary of the information and arguments submitted by the parties
Facts as submitted by the author
2.1
The author notes that he has been diagnosed with psychosocial disabilities and was,
at the time of the submission of his complaint, undergoing psychiatric care at Eastern
Health’s Upton House mental health facility in the State of Victoria. He claimed that he was
being subjected to forced hospitalization and treatment at the facility, including by
electroconvulsive therapy. He challenged his hospitalization through a habeas corpus writ
before the Supreme Court of Victoria. The Court dismissed the author’s complaint on 22
March 2016. The author alleges that any further appeal to higher courts, including by
submitting an appeal to the High Court, would be extremely costly and not efficient, insofar
as it would focus only on the applicable legislation, without focusing on the individual
circumstances of his case.
2.2
On 3 March 2016, the author appealed against his enforced treatment, including the
electroconvulsive therapy, to the Mental Health Tribunal. He notes that he presented reports
by two independent psychiatrists before the Tribunal, according to which he had full
capability to exercise informed consent regarding his treatment, which included the right to
refuse to undergo treatment against his will. The Tribunal dismissed the appeal and upheld
the decision concerning the author’s treatment.
Complaint
3.
The author claims that the State party has violated his rights under articles 12, 14, 15,
16, 17 and 21 of the Convention in relation to his alleged compulsory hospitalization and
treatment, including the administration of electroconvulsive therapy, provided to him at
Eastern Health’s Upton House mental health facility in Victoria.
State party’s observations on admissibility
4.1
On 1 June 2016, the State party submitted its observations on the admissibility of the
communication. The State party submits that the communication should be found to be
inadmissible as: (a) the author has not exhausted domestic remedies, as required under article
2 (d) of the Optional Protocol; (b) the complaint is manifestly ill-founded under article 2 (e)
of the Optional Protocol; and (c) the communication has not been submitted validly on behalf
of the alleged victim, as required under article 1 (1) of the Optional Protocol.
4.2
The State party notes that it does not accept the material facts as asserted on behalf of
the author in relation to the admissibility of the communication. It argues that the author has
omitted a large quantity of pertinent factual information, including details of the legal
guardianship asserted by his father, the inpatient treatment order made by the Mental Health
Tribunal, the order authorizing electroconvulsive therapy made by the Mental Health
Tribunal, and the judgment of the Supreme Court of Victoria in the author’s unsuccessful
habeas corpus application, in which he contended that the Mental Health Tribunal was acting
outside of its power under the Mental Health Act 2014 of the State of Victoria. The State
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