To: Alcohol Policy Unit, Drugs Policy and Services Branch, Department of Human Services

Transcription

1 Submission Administrative Law & Human Rights Section Review of the Alcoholics and Drug-dependent Persons Act 1968 (Vic) To: Alcohol Policy Unit, Drugs Policy and Services Branch, Department of Human Services A submission from the Administrative Law & Human Rights Section of the Law Institute of Victoria (Submission: AL&HR 7) Date 19 October 2005 (extension granted) Queries regarding this submission should be directed to: Contact: Jo Kummrow Phone: jkummrow@liv.asn.au (LIV). No part of this submission may be reproduced for any purpose without the prior permission of the LIV. The LIV makes most of its submissions available on its website at 1

2 CONTENTS 1. Introduction Overview of Act LIV recommendations Civil commitment The provision of drug and alcohol services by the Secretary The listing of drug and alcohol services Repeal and consequential amendments...8 2

3 1. Introduction The (LIV) through its Administrative Law and Human Rights Section, is pleased to make this submission to the Department of Human Services (DHS) on its review of the Alcoholics and Drug-dependent Persons Act 1968 (Vic) (Act). The DHS is conducting a review for the purpose of ascertaining the relevance of the Act in light of current approaches to drug treatment. DHS has released the Alcoholics and Drug-dependent Persons Act 1968 Discussion Paper (August 2005) (Discussion Paper) outlining the interaction of the Act with Victoria s drug treatment system and is seeking public submissions on the current relevance of the Act. This submission refers to the Discussion Paper and also to the report prepared by the Turning Point Alcohol and Drug Centre concerning the Act (Report), as referred to in the Discussion Paper. It is anticipated that following a report on the outcomes of the review a decision will be made to amend, replace or repeal the existing Act. The LIV would welcome the opportunity to make further oral or written submissions regarding the review and also provide comments on any proposed new legislation or amendments to the Act. The LIV agrees to this submission being made publicly available on the DHS website. 2. Overview of Act The provisions of the Act are summarised in the Discussion Paper. The Act purports to govern the public provision of drug treatment services in Victoria. Broadly, the Act provides for: civil commitment (detention) of alcoholics and drug-dependent persons for assessment and treatment; the legislative framework for the provision of drug and alcohol services by the Secretary to the DHS directly and under contract; and the listing of alcohol and drug treatment services. Many of these provisions have become redundant as a result of deinstitutionalisation and the outsourcing of service provision. Current thinking in relation to treatment strategies reflects the view that: alcohol and drug dependence are chronic and relapsing disorders 1 ; and successful treatment relies on individuals initiating changes in their behaviour. Long-term involuntary institutional treatment has no place in such a treatment system. A summary of equivalent legislation in other Australian jurisdictions and New Zealand in the Discussion Paper shows that: similar legislation in NSW, Tasmania and New Zealand is under review; the ACT, QLD, SA and WA have no equivalent legislation; and in NT, courts can order a prohibition order for persons who use liquor to excess and an assessment report for the purpose of specifying a treatment program. 2 3

4 3. LIV recommendations In general, the LIV supports the view put forward in the Discussion Paper that many of the provisions of the Act, especially those providing for long-term detention, have become redundant, but recommends that: a form of short-term detention for alcohol and drug-dependent persons, who pose an imminent risk of harm to themselves or others, be retained in an amended Act or provided for under new legislation; other non-related provisions in the Act should be repealed; legislation in Victoria providing for the detention of persons for drug and alcohol treatment should be consistent with the ICPCPR and other international law standards; and further information be obtained about alternative alcohol and drug treatment strategies and whether the use of involuntary detention has been found to be effective. The LIV suggests that a decision to retain a form of short-tem detention under statute would reflect and improve current practice under section 11 of the Act. However, the LIV notes that the authors of the Discussion Paper state that there is no evidence to support or reject compulsory treatment for non-offenders and that the provisions of sections 11 and 12 of the Act have never been evaluated. The LIV has some concerns about dismantling the current system without a more thorough investigation of the potential benefits and costs for the individual, and for the individual s family and the community. 3 The LIV recommends that further information is obtained about alternative alcohol and drug treatment strategies and whether the use of voluntary detention has been found to be effective. The submission also provides comment on consequential amendments to other Victorian legislation that should be considered in the event that the Act is repealed. 4. Civil commitment 4.1 Detention for treatment at common law and under statute Liberty of the individual is a fundamental value under Australian law, but it is not an absolute value. Historically, the common law provided that a person could be detained (including for the purpose of treatment) if it were necessary to do so to prevent that person from causing harm to themselves or others. 4 That general principle applied to the detention of persons suffering from alcohol-induced states. The headnote to Scott v Wakem states that a medical man called to attend a person suffering under delirium tremens might justify such measures as are reasonably necessary, either to cure him or to restrain him from doing mischief, so long as the fit lasts, or is likely to return. 5 The old English cases have been referred to as stating the law in Australia 6 and, more recently, in England. 7 Beginning in the nineteenth century, the common law concerning the detention of persons for treatment for mental illness and alcohol abuse was supplemented by statute. Those statutes included Inebriates Acts in various common law jurisdictions. The Discussion Paper and Report note that the Act is a descendent of the Inebriates Act 1872 (Vic) and set out briefly the history of the Victorian legislation providing for the civil commitment of inebriates (later known as alcoholics ) and drug-dependent persons. 8 4

5 4.2 International standards governing detention for treatment During the twentieth century, the common law and statute law have been supplemented by international human rights law. The LIV has previously called for the protection of the human rights as set out in the International Covenant for the Protection of Civil and Political Rights (ICPCPR). The LIV submits that legislation in Victoria providing for the detention of persons for drug and alcohol treatment should be consistent with the ICPCPR. In particular, Article 9.1 of the ICPCPR states that: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Article 9.4 also provides that: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. The LIV submits that any legislation providing for short-term detention should be consistent with other relevant international standards, such as those contained in the: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and Body of Principles for the Protections of All Persons under Any Form of Detention or Imprisonment. The Law Institute notes that the European Convention for the Protection of Human Rights and Fundamental Freedoms expressly permits the lawful detention of persons of unsound mind, alcoholics or drug addicts Provisions concerning civil commitment in the Act The Act provides for the detention of persons who: 1. initially admitted themselves as voluntary patients for assessment, for at least two days (section 9); 2. initially admitted themselves as voluntary patients for treatment, for up to three months (section 10); 3. are ordered to attend an assessment centre by a court to be assessed, for seven days, which may be extended to 14 days by a medical practitioner (section 11); 4. have been assessed in an assessment centre and found suitable for treatment, for an indefinite period (section 12); 1 The European Court of Human Rights considered this provision in Witold Litwa v Poland (Application no /95, 4 April 2000). 5

6 5. have been convicted summarily or on indictment in certain circumstances in which drunkenness or drug-addiction were relevant to the offences, for between six months and three years (section 14). The provisions of the Act providing for the gazetting of places of detention, appointment of special magistrates, an inspector of treatment centres and official visitors all follow from the detention of persons for treatment. 4.4 Current practice involving civil commitment under the Act The Discussion Paper observes that detention of persons under section 11 of the Act (number 3 above) is the only form of detention under the Act currently used in practice. Furthermore, in recent years, the number of orders made under section 11 of the Act has fallen to less than ten per year. Section 11 of the Act currently provides for a magistrate or judge to make an order for a person to attend a treatment facility following a complaint from a family member, business partner, police or welfare officer. A complaint must be accompanied by two signed statements by medical practitioners. This process is different to a person who has committed a criminal offence and is required to attend a treatment facility as part of sentencing or pre-hearing. A person may be committed for seven days which may be extended for a further seven days upon the determination of the medical officer in charge of the treatment facility. The Report indicates that current practice is generally to use section 11 to require persons to attend in-patient withdrawal facilities for seven days. The case studies described in the Discussion Paper illustrate a number of successful outcomes resulting from detention under section 11 of the Act. The Discussion Paper shows that magistrates refused to make orders in some circumstances, suggesting that this mechanism has provided a safe-guard against the making of orders inconsistent with the terms of the Act. 4.5 Short-term detention to be retained in limited circumstances It is the view of the LIV that a form of short-term detention could be retained in limited circumstances for the present, for the purpose of treatment for alcohol and drug-dependent persons who pose an imminent risk of harm to themselves or others. This form of detention should, however, be reviewed and monitored over a period and if possible, compared against other less restrictive forms of harm minimisation and management to see whether the detention model is effective and helpful to the person concerned, their family and the community. While other provisions of the Act have fallen into disuse, the continued use of the power under section 11 suggests that it has a useful part to play in providing drug and alcohol treatment, especially services relating to withdrawal. Short-term detention of persons at risk of causing harm to themselves or others for the purpose of treatment is consistent with the common law and can be implemented in a way that is consistent with international standards of human rights. The LIV makes further general comments below. 6

7 4.6 Other forms of detention not supported The LIV does not support: the detention of persons who voluntarily seek treatment, by reason only of having sought that treatment; reviving indefinite detention of alcoholics or drug-dependent persons for the purpose of treatment; detention for treatment as an alternative to punishment. On the final point above, the LIV notes that the Sentencing Act 1991 (Vic) provides for a range of options to require offenders to seek treatment in appropriate circumstances. 4.7 Definitions The LIV suggests that the definitions for alcoholic and drug-dependent person be reviewed and amended upon receiving clinical input. Those definitions should be restrictive to prevent any re-enacted or amended version of section 11 from becoming a general entry point to treatment. 4.8 Criteria for detention The LIV suggests that the criteria for detention of a person for treatment should be set out in legislation. If the Government proposes to legislate to retain short-term detention for drug and alcohol treatment, the LIV recommends that further consultation should be undertaken on proposed criteria for detention. It is suggested that detention should only be used in limited circumstances: there should be a serious and imminent risk of harm which treatment can reasonably be expected to reduce; and detention should be a last resort when a person refuses treatment and there is no less restrictive alternative. As a general starting point, the LIV suggests that the criteria in the Mental Health Act 1986 (Vic) provides a useful guide to relevant criteria. 4.9 Mechanism for ordering detention The Act currently provides that an assessment order under section 11 must be made by a court. The LIV supports the continued external review of a person s suitability for detention. An order requiring detention should only be made where there is medical evidence of facts required by the criteria for detention. In some cases, it may be appropriate to make an order for guardianship limited to decision making about health care and accommodation (rather than an order for detention for treatment). Accordingly, the LIV suggests that it would be appropriate for applications for detention orders to be heard by the Victorian Civil and Administrative Tribunal (VCAT). The provisions for appeal from a decision of VCAT should apply to orders made for detention. 7

8 In addition, the LIV suggests that the purposes of detention should include the assessment of the person and the development and implementation of treatment plans Facilities for detention The Discussion Paper notes that concerns have been raised about the capacity of agencies to detain individuals under the Act. The LIV submits that the absence of locked wards should not deter the Parliament from retaining a power to detain persons for treatment. The LIV notes that most people who are subject to involuntary treatment orders under the Mental Health Act are not physically restrained from leaving treatment facilities. Similarly, the LIV suggests that there is no greater reason to physically restrain a person who is required to receive drug and alcohol treatment. A restriction on liberty for the purposes of treatment removes freedom of decision making and does not require incarceration Oversight of persons subject to detention The LIV suggests that if persons are to be detained subject to treatment orders, that a system of administrative oversight (including gazetting of relevant services and appointment of an Inspector or equivalent and visitors) should be implemented. 5. The provision of drug and alcohol services by the Secretary The LIV submits that the power of the Secretary to provide drug and alcohol services should not be specified separately from the Secretary s other powers to provide services. If necessary, an amendment should be made to the Health Services Act 1988 (Vic) to avoid any doubt about the Secretary s power to fund or provide those services. 6. The listing of drug and alcohol services The Act provides for the listing of drug and alcohol services, but gives the Secretary no power to intervene in such services. The provision appears to have fallen into disuse. The LIV submits that the provision for listing drug and alcohol services should be repealed. 7. Repeal and consequential amendments If the Parliament repeals the Act, the LIV suggests that consequential amendments will be necessary in other pieces of legislation which refer to the Act. There are references to alcoholics and drug-dependent persons (as those terms are defined in the Act) in: the Human Services (Complex Needs) Act 2003 (Vic); and professional registration legislation. For example, the Medical Practice Act 1994 (Vic) provides that a finding that a person is an alcoholic or drug-dependent person (in the terms of the Act) can be grounds for: refusing to grant registration to an applicant; and 8

9 imposing conditions, limitations or restrictions on the registration of a practitioner, or suspending registration. There are similar provisions in the Nurses Act 1993 (Vic), the Psychologists Registration Act 2000 (Vic) and other practitioner registration legislation. The impairment of health practitioners is a matter of ongoing concern. Even if Parliament decides that the other provisions of the Act should be repealed, provision should be made for amending practitioner registration legislation to preserve the intent of these provisions. The LIV is aware the Omnibus Legislation regarding health practitioner boards is to be introduced into Parliament in the not too distant future. 9

10 Endnotes Discussion Paper, 5. Ibid, 6. Ibid, 10. Anderdon v Burrows (1830) 4 Car & P 210; 172 ER 674 and Scott v Wakem (1862) 3 F & F 328; 176 ER 147. See also the cases cited in endnote 6 below. Scott v Wakem (1862) 3 F & F 328; 176 ER 147. Watson v Marshall (1971) 124 CLR 621 per Walsh J also citing In re Hawke (1923) 40 WN (NSW) 58. In re L [1999] AC 458 (HL) per Lord Goff citing Scott v Wakem, R v Coate (1772) Lofft 73; 98 ER 539 and Symm v Fraser (1863) 3 F and F 859; 176 ER 391. See also the discussion by Milton Lewis, A Rum State: Alcohol and State Policy in Australia, (1992), chapters 5 and 6. 10