Magistrate Jeff Linden*
This article examines the MERIT program and its encouraging outcomes.
The Magistrates Early Referral Into Treatment Program (MERIT) is an exercise in therapeutic jurisprudence.1 Its aim is to treat adult offenders who have an admitted illicit drug use problem, with the view to reducing drug related crime. In that regard, its aims are similar to the Drug Court initiative but, unlike the Drug Court, MERIT is a voluntary pre-plea scheme.
Its multidisciplinary approach to treatment is administered by health professionals, following a request by an offender (self-referred) or a referral from police, the legal profession, another agency, or the court. Once accepted into the scheme, participation is monitored by the court, pursuant to a condition of bail. MERIT presently operates in the Local Courts, and not in any other jurisdiction.
MERIT offers offenders the chance to address their underlying drug problem, and free themselves from the drug-crime cycle.
A successful MERIT treatment plan will remove or substantially alleviate a participant’s dependency on illicit drugs and improve their health and social functioning.
It may also favourably impact on the outcome of their impending court case, as magistrates have the discretion to take into account adherence to a treatment plan on sentence. MERIT facilitates sentences that better reflect the rehabilitation prospects of successful MERIT participants. Many offenders who successfully complete MERIT are judicially guided to other available services (usually probation) with more confidence.
MERIT also offers the criminal justice system and society a potential reduction in drug related crime, with all the many benefits and savings that this entails.
As at 31 May 2003, the program is operating within 16 of the State’s 17 Area Health Services.2
It is expected that, by 10 June 2003, MERIT will be available in 50 Local Courts, with these courts accounting for 59% of all finalised cases heard in NSW in a year.3
Who is eligible for MERIT?
Not all offenders are eligible or suitable for MERIT. Eligibility relates to the aims of the program and the need to complement similar projects, such as the NSW Drug Court, which target a different group of offenders.
Eligibility is based on the offender’s characteristics and alleged offences. It is also subject to the availability of treatment places.
In order to be deemed eligible for MERIT, an offender must—
- be an adult;
- be eligible and suitable to be released on bail;
- have a demonstrable and treatable drug problem (excluding alcoholism, although this may be an associated or secondary problem);
- usually reside where they can participate in treatment programs;
- be charged with a drug-related offence4;
- not be charged (currently or outstanding) with strictly indictable (including drug) offences;
- not be charged (currently or outstanding) with offences involving allegations of sexual assault or serious violence; and
- provide written and informed consent.
The eligibility criteria are phrased in relatively broad terms. For instance, offenders are required to have a “drug problem,” rather than be “drug dependent.” Likewise, in order to accord with the aims of the initiative, the offences with which eligible offenders are charged should “relate to” drugs, rather than necessarily “involve” drugs.
The MERIT program is an open system, in that referrals can be made by a broad range of people. Referrals can be made either at the time of arrest (by the police) or at the commencement of proceedings by —
- legal representatives (including Legal Aid Commission solicitors and the Aboriginal Legal Service);
- Probation and Parole Service;
- defendants (self-referral); or
- the families of defendants.
As the emphasis is on intervention at the earliest possible opportunity, referral at the point of arrest or soon after is desirable.
Police Referrals on arrest
Police are well placed to encourage arrested persons5 with a drug problem to consider seeking treatment of their drug problem through MERIT.
Indeed, police can formally refer defendants for assessment as a condition of their police bail. This may enable defendants to commence treatment immediately.
Where a defendant has been accepted into MERIT as part of police bail, any breach of MERIT-related police bail conditions should be dealt with by the magistrate, not the police.
Court based referral
MERIT assessment teams, comprised of trained health professionals, are usually attached to participating courts. Defendants are referred to the MERIT team for assessment, to ensure that the defendant is suitable for entry into the program. If the assessment does not occur on, or before, the first listing, it will usually occur during a short adjournment period thereafter. If there is a delay before the assessment can be completed, bail may be granted with specific conditions, such as residential and reporting requirements. Alternatively, the defendant may be remanded in custody awaiting the outcome of the assessment report.
In accordance with the design and intent of the program —
- The defendant’s eligibility and suitability for bail should be considered before they are referred for assessment by the MERIT team.
- Criminal history (or lack thereof) is not a separate eligibility criterion.6
- Entry into the program is not dependant on the defendant’s actual guilt or innocence, or beliefs concerning the defendant’s guilt or innocence.
- If a defendant does not accept referral to MERIT as part of police bail, the refusal should not be used as a basis to deny police bail.
- Notwithstanding that MERIT is designed as a pre-plea scheme, a defendant who is accepted into the program can enter a plea any time, but the charges should not be further considered until treatment is concluded.
- If a defendant is considered unsuitable for MERIT, the magistrate will ask the defendant to enter a plea and the case will proceed as normal. There is no reason why the finding of unsuitability to enter the MERIT program should, of itself, influence the sentencing discretion in any way.
The assessment has three main aims —
- Establish whether the defendant has a treatable drug problem.
- Establish whether the defendant is motivated to undertake treatment.
- Develop an individualised treatment plan.
During the assessment, the following topics usually will be considered —
- use of illicit and licit drugs;
- drug related health problems;
- other problematic lifestyle issues;
- motivation for change;
- community protection issues; and
- treatment interventions.
The three main outcomes of assessment are —
- A recommendation as to whether a particular defendant should enter the MERIT program.
- An initial treatment plan.7
- A report to the magistrate.
Magistrate determines program entry
At the time that the defendant is scheduled to appear in court, the magistrate is provided with a written report recommending whether or not the defendant is suitable for drug treatment and detailing an initial treatment plan. After considering the report, the magistrate decides whether or not the defendant is accepted into the MERIT program.
If accepted into the program, the treatment plan formally commences at the time of acceptance.8
Granting of bail
At the time that a defendant is admitted to the MERIT program, bail should be granted in accordance with the Bail Act 1978. Bail conditions should be congruent with the aims and features of the treatment plan. For instance, compliance with all the directions of the MERIT team should be required and reasonable access to treatment facilities should be facilitated. The treatment plan can form part of the bail conditions.9
Once on the program, the defendant is effectively subject to the guidance of the MERIT team. It is the MERIT team that has the expertise in what is fundamentally a therapeutic, rather than legal, exercise. However, as a core element of MERIT, magistrates have an important role to play in the process and are encouraged to provide a comprehensive level of supervision.
The court effectively case manages the process by way of adjournments and regular MERIT update reports. This requires additional input and flexibility from magistrates.10
The defendant is required to return to court to establish the nature of any progress with the treatment plan, where the magistrate can, if necessary, offer encouragement and/or guidance. Unlike the traditional Drug Court model, the magistrate does not directly involve him or herself in treatment issues, acknowledging the expertise of the health professionals.
The magistrate, usually on the recommendation of the MERIT team, determines how often the defendant attends court. At each attendance, a (usually written) update report is provided by the MERIT team to the magistrate.
If the defendant is not complying with the treatment plan, judicial supervision can emphasise the consequences of non-compliance.
Where possible, the same magistrate should deal with the defendant throughout the bail period, as this has the potential to improve the chances for successful treatment.
Breach of bail
Defendants will be subject to breach of bail action if there is continued non-compliance with any of the bail conditions (including MERIT directions), or if they commit a further offence.11
The MERIT team must notify the court of significant breaches as soon as possible. Where the breach may involve a threat to public safety or the safety of the defendant, the MERIT team must notify the police and courts as a matter of urgency.
Consequences of non-compliance
Specific consequences of serious non-compliance may entail the magistrate —
- ending the defendant’s participation in MERIT;
- withdrawing bail altogether; or
- issuing a warrant.12
In such an instance, the matter is relisted as soon as possible.
No action is necessarily required for minor breaches, although they should be detailed in the interim and final MERIT reports.
In the interests of promoting clarity and consistency, a detailed breach policy should be established at each participating Local Court.13
The standard treatment plan
The standard MERIT treatment plan is an intensive intervention that operates over a minimum of 12 weeks (see Table 1). It may, in special circumstances, be extended, with the consent of the magistrate, the MERIT case worker and the defendant.
Table 1: Standard MERIT Treatment Plan
A full range of health and welfare services is available, in keeping with MERIT’s multidisciplinary approach. It is imperative for the success of the health component of MERIT that these services be available.
The aim of MERIT is to closely align the treatments offered to a defendant with that defendant’s immediate and underlying problems. Defendants, in addition to their legal matters, will often face complex health, social, personal, familial, financial and vocational issues.
The following treatments are available as part of MERIT —
- pharmacotherapies (for example, methadone, naltrexone, buprenorphine);
- residential rehabilitation;
- community outpatient services; and
- case management.
Detoxification is the management of physical withdrawal, where the patient moves from a drugged state to a non-drugged state. It is provided both as an in-patient and out-patient service.
Methadone, buprenorphine and naltrexone are substitution pharmacotherapies.14 They are designed to stabilise a patient over the long term and eliminate the harmful consequences of illicit drug use. Participants may continue pharmacotherapy, as voluntary clients, beyond the expiry of their MERIT treatment plan.
Participants can be directed by the MERIT team to undertake urine testing at any time during the program. Participants should be informed of, and formally consent to, this requirement at the commencement of their treatment.
Random urinalysis, supervised to a legal standard but used primarily for therapeutic purposes, is taken to demonstrate reduction or abstinence from further drug taking and general progress. It should not, however, be used as the sole basis for a clinical judgment, or as the definitive measure of a participant’s progress.
Residential rehabilitation is suitable for patients with complex medical or psychological problems that cannot be treated effectively on an outpatient basis. It provides skills training, support and care to severely drug dependent defendants.
Community outpatient services
Outpatient services are suitable to less complex cases or to defendants who have completed detoxification and rehabilitation. It generally includes counselling and skills training, as well as other specialist interventions.
MERIT is based on a strong case management model, where clear identification, planning and reviewing of a participant’s progress is made. It provides many services directly to participants, but also refers them to specialist services (for example, psychiatry) as required.
At the conclusion of the treatment program, the MERIT team provides the magistrate with a final report. It details the participant’s progress (or lack thereof); in particular, whether the participant undertook treatment and whether the treatment was effective. It may also contain recommendations for future treatment. This, in turn, assists the court in imposing further ongoing treatment and/or guidance, usually through probation.
At this time, the defendant will be asked to enter a plea (if they have not already done so) and the case will then proceed as normal.
The relevance of the final MERIT report to the case against the defendant falls entirely within the magistrate’s sentencing discretion. It seems reasonable that successful completion of the MERIT treatment plan would, in all likelihood, be a factor in favour of the defendant, as it evinces both a willingness and capacity for rehabilitation.15
Indeed, by analogy, in R v Eastway16 the Court of Criminal Appeal considered what sentence should be imposed on an offender who had successfully completed treatment for heroin addiction, and determined that, in the particular circumstances of that case, the defendant’s rehabilitation should not be jeopardised by a custodial sentence. Hunt CJ at CL said —
“I have read many reports of successful cures, but I confess to having read none of the calibre of those presented in this case. A long sentence of imprisonment, at this important stage of the respondent’s spectacular rehabilitation, would in my respectful view have been not only destructive of that rehabilitation, but inhumane. I recognise the need for public deterrence, but rehabilitation of this quality in a drug addict is such as to require the application of mercy, not a blind adherence to inflexible standards of punishment. The decisions of this court justifying shorter custodial sentences where rehabilitation has been successful are legion; see, for example: R v Wright (1989) 45 A Crim R 423 at 428; R v Betwell (4 December l990, unreported) at 2–3, 3–4; R v Dickinson (20 December 1990, unreported) at 2–3; R v Beatty (14 February 1991, unreported) at 3–4;R v Ayres (l4 March 1991, unreported) at 4–5. That is also the view elsewhere in Australia; see, for example: R v Bell (1981) 5 A Crim R 347 at 351–352 and R v Molina (l984) 13 A Crim R 76 at 77.”
Conversely, the failure of a defendant to complete the MERIT program should not adversely affect their sentence, as this would explicitly penalise them for entering into a voluntary treatment program, an act that is not part of the specific offences with which they have been charged.17 However, failure to complete MERIT provides an insight into the likely success of a future court-mandated rehabilitation program.
- of the 172 defendants assessed for entry to MERIT, 131 entered the program;
- 28 defendants did not meet the eligibility criteria;
- 13 defendants declined the opportunity to participate in MERIT;
- the majority of participants were not in the workforce (113 (86%) were on pensions, unemployment or other temporary benefits; 13 (10%) were employed; and five (4%) were “domestic or other”);
- the majority of participants had previous criminal histories (111 (85%) had previous convictions for a wide range of drug-related and non-drug related offences; 65 (50%) had served time in gaol);
- 43 (33%) of the 131 participants completed the MERIT program;
- 30 (23%) were breached for re-offending, continued missed appointments and non-compliance;
- 11 (8%) decided to voluntarily withdraw from the program;
- the remainder 47 (36%) were in the process of completing their treatment;
- the average length of stay in the MERIT program for all participants was 12.6 weeks;
- the average length of stay in the MERIT program for participants who completed the program was 16.7 weeks;
- the average length of stay in the MERIT program for participants who were breached or withdrew was 7.7 weeks;
- based on data from the NSW Police Service’s Computerised Operational Policing System (COPS), of the initial 43 graduates, only six had come to police notice after six to nine months, and five of those were for relatively minor offences.
In a subsequent study 20 of recidivism rates of 96 MERIT graduates in April 2002 (average time of 13 months between MERIT entry and COPS check), 39 (41%) of the graduates had not come under any police notice for criminal activity or through other police intelligence. This is significant given the participant’s criminogenic profiles.
The number of Lismore graduates is small, making it difficult to reach broad conclusions. Further, it is not as yet possible to conduct an analysis of the long-term effectiveness of MERIT.21
Nevertheless, these results provide a preliminary basis for suggesting that MERIT has the potential to become an effective response to the needs of drug dependent offenders and the problem of drug-related crime. It is especially promising that many of the participants who successfully completed the MERIT program did not reoffend, despite the majority of them having an established criminal history.
Table 5 contains data on the number of referrals, acceptances, ineligible offenders, failures and successful completions for all active MERIT locations. It is worth noting that, across the State (as at 30 April 2003), 61% of all participants referred to MERIT have been accepted into the program. Of those participants, 52% successfully completed the MERIT program, while another 20% were actively completing the program.
I have been involved with the MERIT scheme for a relatively lengthy time. The results have certainly exceeded my expectations. I commend it as an extremely worthwhile tool in the criminal justice system.
Table 2: Assessment details (Lismore)
|Declined to participate||13|
Table 3: Offender characteristics (Lismore)
|Time in gaol||66||(50%)|
Table 4: MERIT outcomes (Lismore)
|Breached (reoffending or non-compliance)||30||(235)|
Table 5: Overview data from all MERIT programs, current to 30 April 200322
|Referred to MERIT||2,584|
|Accepted into MERIT||1,586||(61%)|
|Ineligible, unsuitable, declined or did not appear||887||(34%)|
|Failed to complete program/court requirements or withdrew voluntarily||614||(39%)|
|Successfully completed program||656||(52%)24|
|Actively completing the program||316||(20%)|
* The author acknowledges the contributions of John Scantleton, Peter Didcott and Tom Gotsis, and the magistrates who have been involved in the program.
1 “Therapeutic jurisprudence” can be viewed as emphasising an underlying aspect of the accepted sentencing principle of rehabilitation — treatment — and actively providing a comprehensive treatment plan as an integral part of the justice process. See generally, D Rottmann and P Casey, “Therapeutic Jurisprudence and the Emergence of Problem-Solving Courts” (1999) National Institute of Justice Journal 12, and the many articles listed under “Selected Recent Publications” on the webpage “International Network on Therapeutic Jurisprudence”: www.law.arizona.edu/depts/upr-intj/intj-menu.html.
2 Advice from Crime Prevention Division, NSW Attorney General’s Department, 31 May 2003 (unpublished).
4 Local Courts Practice Note No 5, 20 August 2002, .
5 Including those dealt with by a court attendance notice or summons.
6 As indicated on p 33, current and outstanding charges are relevant.
7 The determination of a treatment plan is entirely within the discretion of the MERIT team, as they possess the required health care expertise: op cit n 5 [11.1].
8 Although some aspects of treatment may have commenced in cases where the assessment and report were not able to be finalised expeditiously.
9 Bail Act 1978, s 36A.
10 Flexibility, for instance, is usually required in relation to adjournments.
11 op cit n 4, [10.1].
12 op cit n 4, .
13 op cit n 4, [12.3]
14 For a description of the rationale of substitution pharmacotherapy, see Appendix 1
15 op cit n 4, [13.1]
16 Unrep, 19 May 1992, NSWCCA, per Hunt CJ at CL (Gleeson CJ and Matthews J agreeing).
17 op cit n 40, [13.1].
18 D Reilly, Scantleton & P Didcott, “Magistrates Early Referral Into Treatment (MERIT): Preliminary findings of a 12-month court diversion trial for drug offenders” (2002) 21 Drug and Alcohol Review 393.
19 Ibid at 394–395.
20 Scantleton, J Linden, B Boulton & P Didcott, “MERIT, A co-operative approach addressing drug addiction and recidivism,” Second Australasian Conference of Drugs Strategy, Perth 7–9 May, 2002.
21 A further study, which will examine long-term effects, is underway: D Reilly, J Scantleton &
P Didcott, op cit note 18 at 395. Studies need to consider, inter alia: the health and social outcomes of participants, recidivism and the impact (if any) on sentencing (including any impact on the prison population).
22 op cit n 2.
23 This percentage figure is calculated as follows:
(131 (acceptances) –
47 (actively completing program))
24 This percentage figure is calculated as follows:
(1586 (acceptances) –
316 (actively completing program))
Appendix 1 — Substitution Pharmacotherapy
The Australian Drug Foundation* explains the rationale of the substitution pharmacotherapy, in particular, methadone treatment, as follows —
“Many people believe that it is preferable for heroin users to stop taking drugs altogether. Although for some heroin users this is achievable, for others there is a high risk of relapse into heroin use. Methadone maintenance has helped many people reduce the recurrence of compulsive heroin use.
Methadone treatment, like any other drug treatment, is not a ‘cure’ for heroin dependence. However, research has shown that it can improve the health of people dependent on heroin in a number of ways —
- people are less likely to use heroin that may be contaminated with other substances;
- methadone is taken orally, which makes it cleaner and safer than injecting heroin. This reduces the risks of sharing equipment and becoming infected with blood-borne viruses such as Hepatitis B and C (which may lead to long-term liver problems) and HIV — the virus causing AIDS;
- the routine involved in methadone treatment encourages people to lead a balanced and stable lifestyle — including improved diet and sleep;
- people are less stressed, as they do not have to worry about where their next ‘hit’ of heroin is coming from;
- methadone lasts longer in the body than heroin, so it only has to be taken once a day;
- it allows people to handle the withdrawal process with less discomfort;
- criminal activities conducted to obtain illegal drugs are reduced;
- it helps people cut their connections with the drug scene;
- it’s cheaper — although there is usually a dispensing fee with methadone, this is relatively cheap compared to the cost of illicit drug use (the recommended dosage fee at the time of writing this information was $7.50, although this amount may vary between dispensers);
- under certain conditions, take-away doses of methadone are also available, which help clients return to a more stable lifestyle.
Other considerations with a methadone program
- it is recommended that clients on a methadone program also receive professional counselling;
- methadone, like heroin, is a potent drug and can be dangerous if used incorrectly;
- while people are on methadone, they are still physically dependent on opioids;
- there is no ‘high’ experienced from a methadone dose;
- clients must commit to attending daily for their dose, therefore, holidays etc may be difficult to organise;
- and there are side effects.”
* Source: Australian Drug Foundation, 23 May 2003. home page: www.adf.org.au