Review of the Tasmanian Alcohol and Drug Dependency Act 1968

Submission Review of the Tasmanian Alcohol and Drug Dependency Act 1968 A submission by the Alcohol, Tobacco and Other Drugs Council Tas, Inc. (ATDC) Phone: 0362315002 Suite 1, Level 1, 175 Collins Street Hobart, TAS 7000 www.atdc.org.au Contact: Ella Haddad, Policy and Research Officer. January 2013 1

The ATDC Who we are The Alcohol, Tobacco and other Drugs Council Tas Inc. (ATDC) is the peak body representing the interests of community sector organisations that provide services to people with substance misuse issues in Tasmania. We are a membership based, independent, not-for-profit and incorporated organisation. The ATDC is the key body advocating for adequate systemic support and funding for the delivery of evidence based alcohol, tobacco and other drug initiatives. We support workforce development through training, policy and development projects with, and on behalf of the sector. We represent a broad range of service providers and individuals working in prevention, promotion, early intervention, treatment, case management, research and harm reduction. We are underpinned by the principle of harm minimisation, which aims to improve public health, social inclusion and co-morbid illness outcomes, for individuals and communities. We welcome the opportunity to submit to this important review. Introduction Compulsory detention for treatment of any illness or disorder is an area of policy where the rights of the individual must always be carefully balanced against the health needs of the individual. Community needs, as well as the needs of others affected by the relevant illness or disorder are relevant but should be seen as a secondary concern to the rights and needs of the individual deemed to require compulsory detention for treatment. Compulsory detention for treatment for drug and alcohol related disorders is a particularly sensitive area of policy. There are several reasons for this, one is because determining whether an individual with an addiction has capacity to consent to treatment for a drug or alcohol related disorder is quite different from other areas of medical treatment. There are also issues of diminished capacity (via cognitive impairment for example) which must be considered. The way the legislation will define drug use, dependence and addiction will be of vital importance. The presence of addiction alone is not sufficient reason to compulsorily detain someone for treatment. There must be an immediate and critical risk to the person s life, health and safety. Many people with addictions to drugs and or alcohol lead steady and productive lives and depriving them of their autonomy by compulsorily detaining them for treatment is a breach of their rights to consent to or refuse treatment for their addiction. The issue of capacity to consent is paramount. An individual affected by drug or alcohol addiction may lack capacity to consent to treatment when they are under the effects of drugs or alcohol, but be perfectly capable of giving or refusing consent to treatment while sober. In particular those addicted to alcohol may also suffer an alcohol related cognitive impairment which could affect their capacity independent of their addiction. 2

Government has a responsibility to ensure the safety, health and wellbeing of its citizens. But this does not extend to removing a person s autonomy to make decisions about their own drug use and or treatment. Government s role is to determine if, when and how to require treatment of individuals, and under what circumstances involuntary treatment is warranted. Any system which allows for the compulsory detention of citizens for drug and alcohol treatment must carefully balance the responsibility for government to care for its citizens in instances where their life is in danger, with the rights of individuals to make their own decisions about treatment as well as drug use. The criteria and guidelines must be clear and tight, as well as adequately enforced. There must be adequate protections in place for the individual, including representation by an advocate and/or lawyer, as well as avenues of appeal against involuntary treatment orders. At the heart of discussions must be a clear understanding of the aims and objectives of this legislation. Compulsory detention of individuals who are not charged or convicted of any offence is a serious step for Government to take. It is imperative that we have a clear understanding of what it is hoped we can achieve by requiring involuntary treatment. The ATDC believes it is possible to use legislation as a tool to intervene in crisis situations where there is a clear threat to the life, health and safety of an individual. However the provision of drug and alcohol detoxification or rehabilitation in isolation is not an adequate response. It can be futile to provide drug and alcohol treatment without also ensuring there is adequate community support for the individual at the conclusion of the involuntary treatment period. This includes supported accommodation in the community or housing assistance, counselling and ongoing drug and alcohol treatment where necessary, employment and family support. It is also important that we remain mindful of the possibility of unintended negative consequences of involuntary treatment such as the loss of housing, employment and family support and cohesion. 3

Consultation Question 1 Is there potential for existing legislation (other than the ADDA) to support the delivery of alcohol & drug services to persons with a severe alcohol and/or other drug dependency (i.e., The Guardianship and Administration Act 1999, the new Mental Health Act?) & Consultation Question 2 Is there potential for future legislation such as a generic capacity act to effectively replace the need for the ADDA? In the long term, the ATDC would like to see Tasmania move to a framework of generic capacity based legislation. We understand the time and resources required to move to this framework, and that support would be needed from several areas across Government to achieve this change. The ATDC would like to see Government make a commitment to generic capacity based legislation, and to begin the process of change so that each time a relevant Act is due for review, there is the potential for it to be included in new generic capacity legislation. By moving to a capacity based framework, Government will be better able to set out how capacity is determined. Taking the drug or the issue of addiction out of the equation will mean the potential for a clearer capacity test, which would consider an individual s capacity to consent to treatment, regardless of how that capacity may be diminished (be it through addiction, cognitive impairment, acquired brain injury or disability for example). However in the meantime, we support repeal of the ADDA and the use of other legislation to deal with the limited circumstances in which compulsory involuntary treatment of individuals for drug and alcohol related addiction is warranted. Specifically, the Guardianship and Administration Act 1995 and the new Mental Health Act (once proclaimed) could be amended to allow for this particular group of clients to receive treatment. The ATDC believes compulsory treatment should only be imposed in limited circumstances. The criteria must be clear and tightly applied. We believe legislation can be used as a tool to manage health crises in individual cases and in extreme circumstances. The presence of an addiction alone is not sufficient to be used as justification for involuntary treatment. Addiction must be just one of the criteria, which must also include: a) The individual lacks capacity to give informed consent to treatment; b) There is an immediate threat to the life and safety of the individual; c) The individual is unable to manage their own care in the community; d) The necessary treatment can only be received via involuntary admission; and e) There are no less restrictive means available to ensure treatment. 4

Importantly, any treatment plan should have clear objectives and planned outcomes which focus not only on delivering alcohol and drug withdrawal or rehabilitation services, but also ensure relevant community supports are available for the individual when they end their involuntary treatment. Without ongoing community support, it is difficult to see the benefit of crisis treatment. It is foreseeable that without ongoing community support including drug and alcohol treatment as well as housing, family and other social supports, an individual could be subject to rolling periods of involuntary treatment which don t deliver lasting recovery. In his submission to a similar review to this one in Queensland, Dr Alex Wodak AM of St Vincent s Hospital explained that a small number of patients unable to manage self-care in the community present to hospitals requiring prolonged admission. The vast majority of these patients have severe cognitive impairment resulting from excessive alcohol consumption. These patients are often too well for hospital but are too difficult to place in the community. The main reason for the difficulty in placing these patients is the lack of supported accommodation in the community. These lengthy and inappropriate hospital admissions are disliked intensely by staff and the patients themselves, are expensive and a waste of scarce health resources. 1 By ensuring availability of supported accommodation and other relevant complimentary support services in the community, chances of lasting success in treatment are significantly higher. The alternative is running the risk of individuals being subjected to rolling periods of involuntary treatment without achieving long term recovery. 1 The Health and Disabilities Committee, Queensland Parliament. Inquiry into severe substance dependence and involuntary detoxification and rehabilitation Submission by Dr Alex Wodak AM, 3 January 2012. 5

Consultation Question 3 How should we define alcohol and drug dependency? The ATDC supports the use of definitions contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM) for the purposes of relevant Tasmanian legislation. The DSM is produced by the American Psychiatric Association (APA) and is considered the main definitive source of diagnostic information on all mental disorders worldwide. The existing version is the DSM IV, which contains the following definition of Substance Dependence. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period: 1. Tolerance, as defined by either of the following: (a) a need for markedly increased amounts of the substance to achieve intoxication or the desired effect or (b) markedly diminished effect with continued use of the same amount of the substance. 2. Withdrawal, as manifested by either of the following: (a) the characteristic withdrawal syndrome for the substance or (b) The same (or closely related) substance is taken to relieve or avoid withdrawal symptoms. 3. The substance is often taken in larger amounts or over a longer period than intended. 4. There is a persistent desire or unsuccessful efforts to cut down or control substance use. 5. A great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects. 6. Important social, occupational, or recreational activities are given up or reduced because of substance use. 7. The substance use is continued despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance (for example, current cocaine use despite recognition of cocaine-induced depression or continued drinking despite recognition that an ulcer was made worse by alcohol consumption. It is noted that in the soon to be released DSM V, there has been a shift in the way drug and alcohol related disorders are defined. The DSM V has moved away from the use of the word dependence, instead including a new category of addictions and related disorders. The new addictive diseases category will include a variety of substance-use disorders, however it is understood the diagnostic criteria for the disorders are to remain very similar to those found in the DSM IV. However the new definitions are finally set in the DSM V, the ATDC supports the use of similar definitions of addiction or dependence for the purposes of compulsory treatment in Tasmania. 6

As outlined above, the criteria for treatment must also include a lack of capacity to give informed consent, an immediate threat to life, an inability to manage self-care, that involuntary treatment is the only method by which the treatment can reasonably be delivered, and there are no less restrictive means by which treatment could be given. Consultation Question 4 How should we define the client group? The ATDC supports a clear and detailed definition of the client group, similar to the relevant sections in the Mental Health Bill 2012. For example, Section 4 of the Mental Health Bill explains when an individual is deemed to have a mental illness for the purposes of the legislation, and makes several exclusions where conditions do not constitute a mental illness, thereby defining the client group as those who fall within the criteria contained in the Act. Any legislation providing for the involuntary treatment of individuals for drug and alcohol treatment must also provide definitions which clearly and precisely define the client group. As explained earlier, the presence of an addiction is not reason in itself to define the client group or justify involuntary treatment. Rather, there needs also to be an immediate threat to life, health or safety of the individual. The legislation will also need to include information on how cognitive impairment will affect a decision to require an individual to undergo treatment. Cognitive impairment, whether acquired through drug and alcohol use or otherwise, will have an effect on the capacity of an individual to consent to or refuse treatment, independent of any influence the addiction has on capacity. The ATDC supports a similar definition of capacity as is contained in section 7 of the Mental Health Bill 2012, which states that an adult is taken to have the capacity to make a decision about his or her own assessment or treatment unless certain things are established on the balance of probabilities. Section 7, Mental Health Bill 2012 Capacity of adults and children to make decisions about their own assessment and treatment (1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless it is established, on the balance of probabilities, that (a) He or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and (b) He or she is unable to - (i) understand information relevant to the decision; or (ii) retain information relevant to the decision; or (iii) use or weigh information relevant to the decision; or (iv) communicate the decision (whether by speech, gesture or other means). 7

Importantly, section 6 of the Mental Health Bill defines treatment for the purposes of the Act. Any involuntary treatment for drug and alcohol addiction should also contain a definition of what constitutes treatment, so that the objectives of involuntary treatment are clear. Consultation Question 5 What are the key factors that need to be taken into account with regards to timeframes for a person detained for the purposes of compulsory treatment? The ATDC believes compulsory detention for involuntary drug and alcohol treatment should be for as little time as possible, but long enough to ensure the relevant community supports are in place for the individual on discharge from care. It is not sufficient simply to deliver withdrawal or other alcohol and drug treatment and to then discharge an individual without adequate community supports in place to assist their further recovery. This includes, where relevant, housing support, disability support services, mental health treatment, counselling, ongoing alcohol and drug treatment, employment services and family support. One of the primary reasons some people are subject to ongoing periods of involuntary treatment is the necessary community supports are either not available or not suitable for the individual. For example group homes and disability support services may be available but unsuitable for the client who is ready for discharge. Similarly, there are cases where services may be available but unwilling to accept a client on discharge from involuntary care, as they are sometimes seen as too difficult to accommodate in existing services. This lack of service availability can lead to people being retained in involuntary care as they are still unable to maintain their own self-care in the community. We advocate for a shift in the focus from the acute care provider having to secure suitable after-care before an involuntary client can be discharged, to the complimentary service provider being required to make services available and accept discharged clients. If the focus is shifted in this way, additional resources must be made available to ensure there is capacity for the service provider to respond. This will result in a greater uptake of relevant complimentary services and a greater likelihood of ongoing and lasting recovery from addiction. 8

Consultation Question 6 Should it be possible to detain a person who is alcohol or drug dependent if the person has capacity but is unwilling to consent to treatment? If so, under what circumstances? The ATDC does not support compulsory detention and treatment for an individual who is able but unwilling to consent. It is a long established common law principle that people have the right to determine their own medical treatment, including the right to refuse treatment even if to do so is against medical advice. It should be noted that accepting dependence and refusing treatment are not mutually exclusive, or indicative of a lack of capacity to consent. Consultation Question 7 What provisions or safeguards would be required to protect an individual who is compulsorily detained for the purpose of alcohol and drug treatment? When a government contemplates legislation which would allow for the compulsory detention of individual citizens who are not charged with or convicted of any offence, human rights considerations must be at the forefront of discussions. Individuals deemed suitable for a legislative order requiring involuntary treatment must have access to an advocate or personal representative and to legal aid. They should also be given access to all documentation in relation to the decision to provide compulsory treatment. If they are currently under the care of a case worker or other community services worker, they must be able to retain access to that worker or organisation. There must also be adequate avenues of administrative appeal when orders for involuntary treatment are made, either through a tribunal or through the Tasmanian courts system. Consultation Question 8 What resources and complementary services need to be made available if any to support an individual who has undergone compulsory treatment? The ATDC sees the provision of complementary services as the key element to making any term of involuntary treatment successful. We see a real risk in providing drug and alcohol treatment in isolation. The risk of relapse is high, particularly if treatment is delivered in an involuntary capacity, if individuals are not supported in the community to continue on a path of recovery. Community supports including support to gain and maintain accommodation, ongoing drug and alcohol treatment or counselling, employment assistance and family support are key to any recovery 9

process and all of those relevant to an individual should be offered as part of the compulsory treatment plan. By shifting the focus to the complimentary service provider rather than the drug and alcohol treatment provider, more people would be encouraged into community support. This is explained by Dr Alex Wodak, quoted in question two (footnote 1). It can be futile to provide detoxification or other drug and alcohol treatment services to an individual, without addressing the underlying cause of their addiction or dependence and providing relevant community support in addition to alcohol and drug treatment. Consultation Question 9 Are there any other general issues that need to be considered as part of the ADDA review in addition to those key issues that have already been discussed? Another issue raised by Dr Wodak in the submission mentioned above is the fact that there is a general lack of voluntary detoxification and rehabilitation services in the community. He saw it as disappointing that involuntary detoxification and rehabilitation services were being considered at all, while voluntary services were already in short supply. We are aware waiting lists are long for similar treatment services in Tasmania and there is a genuine risk that someone deemed in need of compulsory treatment would have to wait for access to complementary services. The ATDC would like to see significantly more funding available for existing services to continue to provide the drug and alcohol treatment services which are currently available. A firmer focus on preventing the harms associated with drug and alcohol misuse at an earlier stage will in time lead to a reduction in need for voluntary as well as involuntary treatment. Focussing on early intervention in drug and alcohol treatment is a better approach to population health and would lead to a reduction in the prevalence of acute crisis need which would warrant involuntary treatment. The ATDC received feedback in its consultations for this submission in relation to voluntary clients leaving treatment before sustainable recovery has been achieved. The possibility of voluntary clients opting in to a pre-determined and agreed period of treatment, which cannot be changed, was raised. While we understand this is outside the scope of the review, we draw attention to the possibility of investigating compulsory treatment orders for drug and alcohol detoxification. This would need to be done in consultation with consumers. 10

Consultation Question 10 Is it really necessary and should it be possible to provide for the involuntary treatment of people with alcohol and drug dependencies? & Consultation Question 11 At what point is it reasonable to intervene and under what conditions should this occur? As long as it is used in very limited circumstances, with clear guidelines and definitions, involuntary treatment can play a part in the alcohol and drug service system. As discussed earlier, the presence of an addiction alone is not reason enough to warrant compulsory treatment. The client group must be clearly defined, as must be the criteria which must be met to warrant an order for involuntary treatment. Consultation Question 12 Is there a need for specific drug and alcohol dependency legislation? & Consultation Question 13 Which option(s) do you support and why? The ATDC does not see specific legislation for drug and alcohol treatment as a necessity. We support using existing legislation to allow for involuntary treatment, in limited circumstances. Specifically, we support Option 4 Repeal the ADDA and utilise existing legislation, and Option 5 Repeal and move parts of the ADDA to existing legislation. We support Tasmania moving to a generic capacity based legislative framework (option 7). We understand this would be a long term prospect and would like to see Government commit to this approach soon, so that by the time each relevant Act is due for review, it can be amended to allow for generic capacity based legislation. If Government commits to this now, it should be achievable in the mid to long term. 11