Involuntary drug and alcohol treatment
[60-000] Introduction
The Drug and Alcohol Treatment Act 2007 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: s 3(1).
The functions of magistrates under the Act are to:
Section 3(2) requires the functions conferred by the Act be approached on the basis:
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the involuntary detention and treatment of a person is a consideration of last resort
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the interests of the person are paramount in making a decision
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the person is to receive the best possible treatment in the least restrictive environment that will enable treatment to be effectively given, and
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interference with the rights, dignity and self-respect of the person is to be kept to the minimum necessary.
Involuntary Drug and Alcohol Treatment: Model of Care, NSW Health, 10 May 2023 provides further details regarding the regime.
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references to forms/applications in this chapter are to those available internally from NSW Health.
[60-020] Definitions
“Accredited medical practitioner” refers to a medical practitioner appointed by the Secretary of the Ministry of Health: ss 5(1), 7.
“Severe substance dependence” means the person:
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has a tolerance to a substance
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shows withdrawal symptoms when the person stops or reduces use of the substance, and
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has lost the capacity to make decisions about their substance use and personal welfare due primarily to dependence on the substance: s 5(1); see Sch 1 for a list of substances for the purposes of this definition.
Previous service agreements between the Local Court and NSW Health may provide guidance on the definitions of the following terms:
“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.
[60-040] Availability
The Involuntary Drug and Alcohol Treatment (IDAT) program that operates under the Act involves short-term care with medically supervised involuntary treatment for patients whose decision-making capacity is affected by their substance use. The involuntary inpatient period is followed by a voluntary rehabilitation and support component.
Treatment centres currently operate in two locations:
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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.
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Lachlan IDAT Unit at Bloomfield Hospital, Orange — which generally services all other regions.
[60-060] Dependency certificates
Intake into the IDAT program requires an accredited medical practitioner, at the request of a medical practitioner, to assess the person and determine that a dependency certificate, authorising their detention at a treatment centre for up to 28 days, should be issued: ss 9(1), (2), 14. A person must not be detained in a treatment centre unless such a certificate has been issued: s 6.
To issue a dependency certificate, the accredited medical practitioner must be satisfied:
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the person has a severe substance dependence
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care, treatment or control of the person is necessary to protect them from serious harm
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the person is likely to benefit from treatment for their substance dependence but has refused treatment, and
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no other appropriate and less restrictive treatment options are reasonably available: s 9(3).
The accredited medical practitioner may consider any risk of harm to children or dependants of the person: s 9(4).
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From a practical perspective, 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.
[60-080] Order for assessment when person inaccessible
Where an accredited medical practitioner cannot access the person to conduct the assessment requested under s 9, a magistrate or authorised officer (a registrar, deputy registrar or clerk grade 3/4 or above) may authorise them to visit and assess the person to ascertain whether a dependency certificate should be issued (an order for assessment): s 10(1), (2), (8). An application (Form 13) for this order 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].
The application may also request the accredited medical practitioner be accompanied by a police officer (where there are serious concerns as to the safety and welfare of the person or others: see s 23) or other person.
[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 the person:
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is likely to have a severe substance dependence, and
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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
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could not be assessed because of physical inaccessibility, unless an order is made, and
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is likely to benefit from the treatment: s 10(3).
If there is insufficient evidence in the application for those matters to be determined, the agreed practice is for the application to be adjourned for up to seven working days for further evidence to be collected.
Once an order for assessment is granted, the agreed timeframe for acting upon it is seven working days, with a new order to be sought if an assessment is not carried within that period.
The accredited medical practitioner is to inform the registry of the outcome of an order for assessment (Form 2).
[60-140] Review of dependency certificate
If an accredited medical practitioner issues a dependency certificate, the person:
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must not be detained for more than 28 days from the date of the certificate is issued, and
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must be brought before a magistrate as soon as practicable to review the certificate: s 14.
A review will generally be held within seven days of a dependency certificate being issued. 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
Review hearings are to be conducted quickly and 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 medical evidence concerning the person is before the magistrate: s 34(2). A summons may be issued, either at the person’s request on the magistrate’s own motion, requiring a person to attend as a witness in the proceedings and/or produce documents: s 39(1).
The rules of evidence do not apply. The magistrate may inform themselves of any matter in an appropriate way 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 the proceedings be conducted wholly or partially in private. The magistrate may also prohibit or restrict the publication of any report of the proceedings, or the evidence or names of persons involved in the proceedings be prohibited or restricted: s 37(3), (4). Such orders may be made on the magistrate’s own motion or upon application of the person or anyone else appearing in the proceedings.
The person must be legally represented (unless they choose not to be), and with leave, they may nominate someone to represent them: s 37(7). The Mental Health Advocacy Service (a statewide specialist service of Legal Aid NSW) provides legal representation. An interpreter may assist the person if they cannot communicate adequately in English: s 37(5).
With leave, the person’s primary carer may appear in the proceedings: s 37(9). Any person appearing in the proceedings may be legally represented if the magistrate grants leave: s 37(9).
The proceedings must be recorded: s 42(1). Generally, these applications are heard in court via audio-visual link.
[60-180] Practical arrangements
The treatment centre provides a room for conducting review hearings that has a suitable layout and is fitted out to ensure:
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there are at least two entry/exit points, one of which is an accessible emergency exit into a secure area
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a duress alarm or other security mechanism is fitted and in working order
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there is a reasonable distance between the magistrate and the person
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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
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no item of furniture or fitting can be thrown or used as a weapon
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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, and
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audio recording equipment can be placed in a position where the person cannot access it.
[60-200] Determination
The magistrate must determine whether or not, on the balance of probabilities, the person meets the criteria for detention under s 9: s 34(3). The magistrate must consider:
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the reports and recommendations of any accredited medical practitioner who has examined the person
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any proposed further treatment for the person and the likelihood of benefit to the person
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the person’s views (if any), and
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any relevant cultural factors relating to the person: s 34(4).
[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, they may make an order confirming the issuing of the dependency certificate, either:
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for the period originally specified in the certificate, or
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for a shorter period: s 34(5), (6).
If not so satisfied, the magistrate must order the person be discharged from the treatment centre and the dependency certificate is of no further effect: s 34(7).
The magistrate may, if it is in the best interests of the person, adjourn the proceedings for up to seven days: s 38(1). If adjourned, 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
An accredited medical practitioner may apply to extend a dependency certificate if they:
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are 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
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present, with the application, a proposed treatment plan for the extended period: s 35.
The application (Form 7) must set out the accredited medical practitioner’s reasons for being satisfied of the above matters and they must sign it. 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 three months from the date it was originally issued: s 36(2).
The application must be considered within seven days: s 36(1).
[60-260] Determination
The magistrate must determine whether or not the detention and treatment period should be extended and, if so, for how long, having regard to:
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the proposed treatment
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the length of the extension sought
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the likelihood additional treatment will benefit the person
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the person’s views (if any), and
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any relevant cultural factors relating to the person: s 36(2), (3).
The certificate has effect accordingly: s 36(4), (5).
[60-280] Procedure and practical arrangements
The same procedures and practical arrangements as for review hearings apply: see [60-160]; [60-180] respectively.
[60-300] Other resources
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Involuntary Drug and Alcohol Treatment: Model of Care, NSW Health, 10 May 2023.