Involuntary drug and alcohol treatment

[60-000] Introduction

The Drug and Alcohol Treatment Act 2007 (the Act) replaces the Inebriates Act 1912 and provides the legislative basis for an involuntary detention, treatment and stabilisation regime for persons with severe substance dependence, with the stated aim of protecting the health and safety of such persons.

The functions of magistrates under the Act are to:

determine applications for orders for assessment — [60-060]
review dependency certificates — [60-140]
determine applications to extend dependency certificates — [60-240].

Section 3(2) requires that the functions conferred by the Act be approached on the basis that:

the involuntary detention and treatment of a person is a consideration of last resort
the interests of the person are paramount in making a decision
the person is to receive the best possible treatment in the least restrictive environment that will enable treatment to be effectively given, and
interference with the rights, dignity and self-respect of the person is to be kept to the minimum necessary.

[60-020] Definitions

The following expressions are either defined in the Act (denoted below by bold italics) or the subject of guidance under service agreements in place between the Local Court and NSW Health (denoted below by italics).

Accredited medical practitioner refers to a medical practitioner appointed by the Director-General, NSW Health.
Benefit from treatment refers to the likelihood of treatment being completed and resulting in quality of life and health related improvements.
Loss of capacity to make decisions refers to the reduced capacity to make decisions about substance use or personal welfare due to intense compulsion to engage in substance abuse.
Risk of serious harm refers to risks relating to life threatening morbidity, self-neglect and self-harm.
Severe substance dependence refers to the situation where a person:

(a)

has a tolerance to a substance, and

(b)

shows withdrawal symptoms when the person stops using, or reduces the level of use of the substance, and

(c)

has lost the capacity to make decisions about his or her substance use and personal welfare due primarily to his or her dependence on the substance.

A list of substances for the purposes of the above definition is set out in Sch 1 of the Act.

[60-040] Availability

The Involuntary Drug and Alcohol Treatment (IDAT) program that operates under the Act involves short-term care with medically supervised involuntary withdrawal for patients whose decision making capacity is affected by their substance use. It also involves a voluntary rehabilitation and support component upon completion of the involuntary inpatient period.

Following a trial in the Nepean Health district in 2009-2010, the application of the Act was extended in September 2012 to enable the intake of patients to the IDAT program from across the state.

Treatment centres currently operate in two locations:

Herbert Street Clinic at Royal North Shore Hospital, St Leonards — which generally services metropolitan Sydney and surrounding regional areas including Wollongong, Newcastle, Central Coast and Lithgow.
Lachlan IDAT Unit at Bloomfield Hospital, Orange — which generally services all other regions.

[60-060] Order for assessment

Intake into the IDAT program requires a person to be assessed by an accredited medical practitioner, at the request of a medical practitioner, to determine whether a dependency certificate should be issued that authorises the person’s detention at a treatment centre for up to 28 days.

Under s 9, the accredited medical practitioner must be satisfied that certain criteria are met before issuing a certificate, namely that:

(a): the person has a severe substance dependence
(b): care, treatment or control of the person is necessary to protect the person from serious harm
(c): the person is likely to benefit from treatment for his or her substance dependence but has refused treatment, and
(d): no other appropriate and less restrictive means for dealing with the person are reasonably available.

If applicable, the accredited medical practitioner may consider the risk of harm to any children or other dependants of the person. There must also be a bed available at a treatment centre, as the effect of issuing a dependency certificate is that the person will be transported to and detained in the centre.

If the accredited medical practitioner is unable to access the person for the purpose of carrying out the assessment, a referring medical practitioner may seek an order for assessment from a magistrate or authorised officer (that is, a registrar, deputy registrar or clerk grade 3/4 and above): s 10.

[60-080] Application

An application (Form 13) for an order authorising an accredited medical practitioner to visit and assess a person to ascertain whether a dependency certificate should be issued is filed with the court registry. The application must be sworn and include evidence of the matters of which the magistrate must be satisfied before making an order: see [60-220].

It may seek that any order include an authorisation for the accredited medical practitioner to be accompanied by a police officer (where there are serious concerns as to the safety and welfare of the person or others if the person was to be taken to a treatment centre without police assistance: see s 23) or other person.

The registry will make enquiries as to the availability of a bed prior to the listing and determination of the application.

[60-100] Listing

Applications are listed and determined in court. However, s 41 prohibits the identification of a person to whom any proceedings under the Act relate, or of any person who is a witness or is mentioned or otherwise involved in the proceedings.

[60-120] Determination

An order for assessment may only be made if the magistrate is satisfied that the person:

(a): is likely to have a severe substance dependence, and
(b): is likely to be in need of protection from serious harm or others are likely to be in need of protection from serious physical harm, and
(c): could not be assessed because of physical inaccessibility, unless an order is made, and
(d): is likely to benefit from the treatment.

If it is considered there is insufficient evidence in the application to enable the determination of any of those matters, the agreed practice is for the application to be adjourned for up to 7 working days for further evidence to be collected.

The agreed timeframe for acting upon an order for assessment is 7 working days, with a new order to be sought if an assessment is not carried out under the original order within that period.

The accredited medical practitioner is to inform the registry of the outcome of an order for assessment (Form 2). If a dependency certificate has issued as a result of the assessment, a copy will be provided and a review hearing before a magistrate will be required.

[60-140] Review of dependency certificate

Under s 14, if an accredited medical practitioner issues a dependency certificate providing for the involuntary detention and treatment of a person, they:

(a): must not be detained for more than 28 days from the date of issue of the certificate, and
(b): are to be brought before a magistrate as soon as is practicable for the certificate to be reviewed.

A review will generally be held within 7 days of the issue of a dependency certificate. Hearings are held at the treatment centre, with the magistrate attending on a regular day of the week as required.

The review may be attended by the person, their primary carer, the accredited medical practitioner and/or IDAT program staff, and other medical witnesses.

[60-160] Procedure

Proceedings are to be conducted as quickly as possible, with as little formality and technicality as the proper consideration of the matter permits: s 37(1).

The accredited medical practitioner is responsible for making arrangements to ensure all appropriate medical witnesses and other relevant medical evidence concerning the person is before the magistrate: s 34(2). A summons may be issued, either at the request of a person involved in the proceedings or of the magistrate’s own motion, requiring a person to attend as a witness in the proceedings or produce documents relating to the proceedings (or both): s 39(1).

The rules of evidence do not apply to the conduct of a review hearing. The magistrate may inform himself or herself as is considered appropriate and as the proper consideration of the matter permits: s 37(2). An oath may be administered to any person giving evidence: s 37(6).

The proceedings are open to the public, but the magistrate may order that they be conducted in private or that the publication of any report of the proceedings, the evidence or names of persons involved in the proceedings be prohibited or restricted: s 37(3), (4). Such an order may be made if it is desirable to do so for the welfare of the person or for any other reason, either upon the application of the person or anyone else appearing in the proceedings, or of the magistrate’s own motion.

The dependent person is entitled to be legally represented but may choose not to be, or with the leave of the magistrate may nominate another person to represent them: s 37(7). The Mental Health Advocacy Service provides legal representation. An interpreter may assist the person if they are not able to communicate adequately in English: s 37(5).

The primary carer of the person may appear in the proceedings if the magistrate grants leave: s 37(9). They, or any other person appearing in the proceedings, may also be legally represented if the magistrate grants leave: s 37(9).

The proceedings must be recorded: s 42(1). The registry staff member accompanying the magistrate provides a hand-held recording device for that purpose.

[60-180] Practical arrangements

The treatment centre provides a room for the conduct of the review hearings that has a suitable layout and is fitted out to ensure:

there are at least two entry/exit points, one of which is an accessible emergency exit into a secure area
a duress alarm or other security mechanism is fitted and in working order
there is a reasonable distance between the magistrate and the person
the person is seated in such a position that they are not able to block the exits to the room or access to any duress alarm or emergency telephone
no item of furniture or fitting can be thrown or used as a weapon
all moveable items are removed or fastened so they cannot be thrown, except for drinking cups and water jugs, which are to be made of plastic, foam or other soft material
sound recording equipment can be placed in a position where the person cannot access it.

[60-200] Determination

The magistrate is required to determine whether or not, on the balance of probabilities, the person meets the criteria for detention under s 9: s 34(3). To this end, the magistrate must consider the following matters set out in s 34(4):

(a): the reports and recommendations of any accredited medical practitioner who has examined the person
(b): any proposed further treatment for the person and the likelihood the treatment will be of benefit to the person
(c): the views of the person (if any)
(d): any cultural factors relating to the person that may be relevant to the determination
(e): any other relevant information given to the magistrate.

[60-220] Order

If the magistrate is satisfied, having regard to the matters in s 34(4), that the person meets the criteria for detention under s 9, he or she may make an order that confirms the issuing of the dependency certificate, either:

for the period originally specified in the certificate, or
a shorter period (in which case the certificate only has effect for the shorter period).

If the magistrate is not so satisfied, he or she must order that the person be discharged from the treatment centre and the dependency certificate is of no further effect.

If the magistrate considers it is in the best interests of the person to do so, the proceedings may be adjourned for up to 7 days: s 38(1). The dependency certificate continues to have effect (subject to the existing expiry date specified in the certificate): s 38(2).

[60-240] Extension of dependency certificate

[60-260] Application

Under s 34, an application to extend a dependency certificate may be made by an accredited medical practitioner if he or she:

(a): is satisfied the person is suffering from drug or alcohol related brain injury, and additional time is needed to carry out treatment and plan the person’s discharge, and
(b): presents, with the application, a proposed treatment plan to be followed during the additional time granted.

The application (Form 7) must be signed by the accredited medical practitioner and set out his or her reasons for being satisfied of the above matters. A copy of the proposed treatment plan is to be attached. The application is to specify the period of the extension sought. A dependency certificate may only be extended so as to continue for a period of up to 3 months from the date it was originally issued: s 35(2).

The application must be considered within 7 days: s 35(1).

[60-280] Determination

The magistrate is to determine whether or not the detention and treatment period for the person should be extended, and if so for how long, having regard to (s 35(3)):

(a): the treatment proposed in the treatment plan
(b): the length of the extension sought
(c): whether or not it is likely the additional treatment will benefit the person
(d): the views of the person (if any)
(e): any relevant cultural factors relating to the person, and
(f): any other relevant information.

[60-300] Procedure and practical arrangements

The same procedures and practical arrangements as for review hearings apply.