Severe Substance Dependence Treatment Bill 2009Tuesday, March 09, 2010 Second ReadingI am pleased to rise to speak in the debate on the Severe Substance Dependence Treatment Bill 2009. This house has been anticipating this bill for many years. As far back as 2000 the Drug Policy Expert Committee proposed that the government review the Alcoholics and Drug-dependent Persons Act 1968 with the view to removing it from the statute book as it was cumbersome and not in tune with contemporary treatment approaches.
The government first began work on this bill in 2005, and at that time said the bill was expected to be introduced into Parliament in the 2006-07 year. The bill was then expected in 2008 after it was flagged in the 2008 annual statement of government intentions. It was the Minister for Mental Health's only legislative target for the year, yet she failed to deliver it. The legislation reappeared last year in the 2009 annual statement of intentions, but it was not until the very last parliamentary sitting week of the year that we finally saw the bill. Although we have waited all that time the bill does not fundamentally reform the way in which drug and alcohol treatment services operate, nor does it provide much-needed investment or resources to a cash-strapped and struggling drug and alcohol sector. What it does is update the heavily outdated Alcoholics and Drug-dependent Persons Act 1968 to put some protections in place for the individuals involved. I would like to go through some details of how the bill works.
The bill repeals and replaces the outdated Alcohol and Drug-dependent Persons Act 1968. It sets out criteria for the detention and treatment of persons with a severe substance dependence. In clause 5 a person is defined as having a severe substance dependence if: (a) the person has a tolerance to a substance; and
(c) the person is incapable of making decisions about his or her substance use and personal health, welfare and safety due primarily to the person's dependence on the substance.
Clause 8 sets out the situations where people are eligible to be considered for detention under the act as being where 'the person has a severe substance dependence' as previously defined, where 'because of the person's severe substance dependence, immediate treatment is necessary as a matter of urgency to save the person's life or prevent serious damage to the person's health', where 'the treatment can only be provided to the person through the admission and detention of the person in a treatment centre' and where 'there is no less restrictive means reasonably available to ensure the person receives the treatment'. The person must also be older than 18 years of age. The bill provides an improved framework to better support people with a severe drug or alcohol dependency who, as a result of their dependency, cause serious harm to themselves. This legislation aims to enhance their rights in comparison with the previous act and establish a system that can better respond to their immediate needs.
When they are trapped in a world of drug and alcohol dependency and abuse, people's ability to make decisions about their health and wellbeing is often significantly affected. Too often they lose the capacity to escape from a substance-dependent cycle, and without the support and concern of others they often end up with a disability or, unfortunately, dead. This legislation grants an individual the power to lodge an application for a detention treatment order at the Magistrates Court. This provides family, friends and members of the public an opportunity to better protect someone whose health and wellbeing is spiralling downwards as a result of dangerous substance use. A person lodging an application would need to get from a registered medical practitioner an examination and assessment of the drug-dependent person.
The medical practitioner would then need to seek a second opinion from a senior clinician at a drug and alcohol treatment centre. Once the assessment has been completed a person can lodge an application with the Magistrates Court. The person subject to the detention and treatment order will then be granted the right to obtain legal representation. A hearing must be held within 72 hours of the filing of the application, and the person who is subject to the application has the right to appear. Once a court order is made, the person is given a priority listing on the waiting list to access a treatment service. The legislation provides that a person can only be placed on a detention and treatment order for a maximum of 14 days. This differs somewhat from the current act, which allows the court to make a treatment order for a maximum of seven days, with a provision for the treatment centre to apply for an additional seven-day extension.
This bill also differs from the current act in that it introduces a set of guidelines which affect the operation of treatment centres and provide for greater involvement of a person throughout all stages of their treatment. As part of these new provisions a person entering a treatment facility will be given the right to nominate a person to act to protect their interests. This nominated person will be able to act as an advocate and provide support and assistance to the person receiving treatment. The Office of the Public Advocate will also play an important role in the administration of this legislation. Acting as an independent voice, the public advocate will visit and support the person subject to the detention and treatment order and assist them in exercising their rights. This bill also includes a provision for a discharge and case management plan to be developed, which does not exist in the current act. This will be developed in conjunction with the person on the detention and treatment order.
While the bill does not go into detail, the bill briefing informed us that the case management will be provided for a period of 6 to 12 months following discharge. The second-reading speech also commits to the development of a lead treatment service which will house case managers to support and assist the person receiving treatment. A revision of the current act is desperately needed; no-one is contesting that. However, the coalition parties will be taking a position of not opposing the bill as we have a number of concerns which I will outline over the course of this speech. In the first case I really must talk about the consultation, because the reality is that this government has had five years to develop this bill. It has been consulting on it for five years, but key stakeholders and those affected by the legislation have not been adequately consulted.
First of all I would like to quote the Association of Participating Service Users (APSU), which is the voice for alcohol and drug service users. It said:
It went on to say:
APSU is very concerned that it has not been adequately consulted. The Victorian Aboriginal Legal Service is also concerned about consultation. It stated:
Of those who have been consulted, many feel that they have not been heard or their concerns have not been appropriately incorporated. Drug and alcohol groups, while supportive of measures to better support and treat people with substance dependency, have voiced significant concerns about the implementation and the effectiveness of the legislation. Consumers and the legal fraternity have also expressed considerable concerns, arguing that this bill potentially infringes on the Victorian Charter of Human Rights and Responsibilities.
I would like to quote from Harm Reduction Victoria, which said:
It is very concerning that while the government has had five years to undergo extensive consultation with key stakeholders, genuine consultation has not actually occurred. As a result there are a number of points that are yet to be clarified.
Here we are today debating a bill that is the subject of some consternation and that raises many questions. I would now like to spend some time looking at the various provisions in the bill and the concerns that have been raised. First and foremost, a fundamental premise of this bill is that two weeks detention is actually effective. The government's discussion paper on the review of the previous act, under the heading 'Evidence to support or reject compulsory treatment of non-offenders', states:
It goes on to say:
That view is reflected in a lot of the work that has been done by Turning Point. The jury is very much out in relation to whether the two-week detention is effective. In terms of states across Australia, some states undertake a detention process and some do not. The review process goes on to list a number of strong points and also weak points in relation to such detention. One of the good things is that civil detention can be a life-saving intervention. It captures people at the highest risk and provides some time for time out, but it also potentially gives families an opportunity for respite from what can be very difficult situations.
However, the costs raise a real question about the appropriateness of compulsory treatment and the deprivation of the liberty of individuals. The limitations of compulsory treatment concern people who are not motivated to change their behaviour. There are some real concerns in relation to the bill. An important comment I received was from Margaret Hamilton, former chair of the multiple and complex needs panel. She said:
There are some real questions about whether the two-week detention is effective, which is the cornerstone of the debate. This new bill will give some potential to do some research and look for more evidence for the future. A critical issue for the service providers -- and this was raised by members of the drug and alcohol sector -- is the inability to perform what is required of them under this bill. The bill enables the detention of individuals, but current withdrawal facilities are not secure environments. One service provider aptly described this to me when he said, 'This legislation seems to have power but it does not actually have it. It does not reflect reality'. A person detained under this law can walk out of a treatment service if they choose to. An estimate from the sector is that 50 per cent of people do walk out. There are things that can be done. One-to-one staffing can be provided and they can try to talk people out of leaving, but if they want to go, they can. Police are often called to bring them back, but they can just walk out again. Some service providers in the sector say that for this law to be effective locked treatment facilities, similar to a model being piloted in New South Wales, should be funded. The peak alcohol and drug group, VAADA (Victorian Alcohol and Drug Association), has expressed its concern that in its current form the bill fails in its duty of care to ensure the safety and security of Victorians sanctioned under its provisions. In a media release, VAADA states:
Turning Point, a statewide drug and alcohol agency, also has concerns along these lines, and I quote:
There is real concern that this bill does not have the facility to enable its aspirations to be achieved. There is also some uncertainty about the role of treatment services under this bill. The minister's second-reading speech commits to the development of a drug and alcohol treatment service. There are currently three services located in Victoria: they are St Vincent's, Moreland Hall and DASWest. The government has had five years to consider, draft and finalise this bill, and yet the minister cannot tell us what the final model of delivery will look like.
The minister and her department have not yet determined whether they will establish a new treatment service and keep the existing three support services or whether they may work with the existing services and allocate one as the lead agency. Funding of $300 000 to $400 000 per annum has been allocated to cover additional costs for treatment services and case management and provide some funding for the Office of the Public Advocate, but we have not been told whether these are new dollars or are they coming out of funding for existing services. In terms of treatment planning, in the briefing we kept hearing that brokerage would be available to ensure discharge plans could be delivered, but we have not seen specific funding commitments to enable those brokerage dollars to be made available. There are also some broader issues for treatment services.
Do they have the specialist staff to fulfil the requirements of the act, especially when treatment is often required within constrained time frames? Will these high-needs individuals, who may be trying to leave a facility, detract from others who are seeking treatment from the same service at the same time? Given that treatment services are currently so full, will they be able to manage additional clients or will people end up in hospital beds waiting for a treatment facility? These are just a few of the many concerns about treatment agencies. As I mentioned earlier, a lot of concern has been expressed about certain provisions in the bill by consumers and the legal fraternity, many of whom deem aspects of this legislation to be in contravention of the Victorian Charter of Human Rights and Responsibilities.
The Scrutiny of Acts and Regulations Committee received a number of submissions regarding this legislation which expressed some concern about provisions in the bill limiting and impinging on the freedom and liberty of people subject to an order application. SARC found there was not enough evidence to support the effectiveness of short-term compulsory detention, about which I talked previously. The Human Rights Law Resource Centre believes the failure to justify the effectiveness of this form of treatment contravenes the requirements of section 7(2) of the charter. Section 10 of the charter states that a person must not be subjected to medical treatment without their free and informed consent. However, this bill supports a situation where an individual is subject to a detention and treatment order even in instances where they retain legal capacity and choose to refuse treatment.
Legal groups have also expressed concern about the detention and subsequent imposition of medical treatment without consent of a person who has not been found guilty of breaking the law. Also, the bill says a person can apply for legal representation but is required by the bill to request that representation notwithstanding the state they are in. It is very hard to expect them to take the initiative in organising legal representation, and a very positive improvement to the bill could be that Victoria Legal Aid be required to step in, as it is for various forms of family violence applications. These and a number of other concerns are very valid. It has been interesting to note that a lot of the debate has focused on whether or not the bill infringes on the charter rather than whether it is good legislation or policy. The reality is that these human rights concerns have been ignored by the government and this bill is an example of how toothless the charter actually is.
In terms of the regulations, when I attended the briefing on this legislation I was disappointed to find that little preparation or detail had been invested in completing the regulations. For example, the definition of a registered medical practitioner is a fundamental part of the bill. The government has flagged that this definition excludes general practitioners and could be limited to physicians with drug or alcohol specialisation. In terms of treatment centres, we do not know what sort of staff they need to have and what type of facility they need to be. The regulations have not been finalised, and there is uncertainty out in the community as to what will be the final result. For country Victorians who wish to make an application in the Magistrates Court, seeking a recommendation from a medical practitioner for detention and treatment of a person within 72 hours of filing an application can be particularly challenging. The fact is that Victorians in rural and regional areas do not have ready access to specialist physicians.
In addition, accessing a senior clinician at a metropolitan treatment centre, as required under clause 12(8) of the bill, creates significant issues for country Victorians. We need some detail on the regulations, and it is disappointing that we have not seen that yet so that some of these issues can be clarified. Another concern is the lack of accountability and the lack of commitment by this government to being accountable about the performance of the legislation in relation to the needs of the people it will affect. The government has said it will collect data and monitor the results and it will also conduct an evaluation within 12 to 24 months, but there is no commitment to the public release of the data or the results of the evaluation. There is no way the Parliament and the public can assess the effectiveness of the legislation. There is an opportunity for the public advocate to play a key role here. The public advocate will be notified about all cases and has an oversight role.
Given that the government will not commit to reporting on the outcomes of this legislation, I strongly encourage the public advocate to comprehensively report in her annual report to Parliament on the details of the operation of the act and to provide her assessment about whether it is meeting its objectives. In terms of implementation, I have a very important quote here from Turning Point, the statewide drug treatment agency, which says:
Unfortunately we have not seen those detailed plans. The Human Rights Law Resource Centre raises a very good issue about the implementation challenges. It says:
How can we take what is a two-week detox and effectively implement it and ensure that those who wish to access voluntary treatment can do so on an ongoing basis to genuinely address their substance issues? Professor Jon Currie, the respected addiction medicine specialist from St Vincent's Hospital, talked about this bill being window dressing. The major issue in drug treatment services is to get a long-term response because the short-term response is really not a great model for treatment of addiction and the failure rates are exceptionally high. His view is that if the government really wanted to make a difference, then money would be best spent by increasing funding for long-term and accessible drug treatment services. That leads me to make some comments about drug and alcohol services in Victoria generally. Currently an average of six people a year are admitted to treatment centres under the existing act.
That number used to be 12 but has halved under this government. The government has said it does not want or expect this bill to increase the number of people treated under a detention and treatment order, but we know there are many Victorians with drug and alcohol abuse issues and people who need urgent assistance. Many do not have the capacity to assist themselves -- they are homeless or they are stuck in supported residential services or in rooming houses without the support of family and friends. Those who do try to access drug and alcohol services are then put on a waiting list. The reality is that the minister does not want any more people coming through our treatment centres because she knows the services are already stretched to breaking point. It has been estimated that what is available is only 50 per cent of the services that are actually needed. Waiting times have blown out to weeks, months and in some cases even years, and people have been known to die while waiting to access a bed. Accessing treatment is particularly difficult for rural Victorians with drug treatment needs.
The government collects and publishes some limited data on drug and alcohol services. In the past I have asked the minister questions on notice about waiting times for people needing to access a drug treatment bed. The responses I received from her said:
What we hear from groups and individuals is that drug treatment agencies are under massive pressure. Harm Reduction Victoria says:
VAADA says:
It goes on to say:
We need a commitment from this government to expand the collection of data regarding drug and alcohol services so that we can effectively assess whether the demand is being met by the services that are available. In the minister's own region a Barwon Health alcohol and drug program which prescribes methadone was forced to refuse help to about 150 people in the first half of 2008. Another case involves a 25-year-old woman who, after years of chronic alcohol abuse, developed brain damage. Rather than being able to access urgent specialist treatment and support, she was put on a waiting list and died two years later, still waiting. The current lack of treatment options is taking a huge toll on Victorian families and communities, but this legislation does nothing to address the growing pressure on services to ensure that Victorians with a substance dependency are able to access services when they need to. VAADA has found:
I would like to quote from Harm Reduction Victoria one more time:
There are real concerns right across the board. Under this government treatment services are forced to turn away people voluntarily seeking treatment services. We know that at least 50 per cent of Victorians with a substance abuse issue also have a mental illness. Many are homeless, unemployed or have a disability. We know that people are falling through the cracks and the service systems are operating in silos. In last year's state budget we saw the overall funding for drug prevention and control decline by an astonishing 11 per cent in real terms, and this government has failed to invest in one single additional drug treatment bed. At the same time the number of Victorians being admitted to hospital each year due to alcohol abuse has increased by more than 51 per cent under this government.
Service provider VAADA says:
There is very strong feedback from the community and from the service providers that what we need to do is make sure we can increase access to drug and alcohol treatment services to help ensure that people do not get to the stage where the operation of the Severe Substance Dependence Treatment Bill would actually come into place. We know that a number of people who need access to those services do not come to the attention of the system, so we need this type of legislation in place to address that. Accordingly we will not be opposing the bill. We believe the Alcoholics and Drug-dependent Persons Act 1968 is outdated and requires reform, but after many years in the making this bill is unfortunately just tinkering at the edges. It improves current practice but fails to come up with new ideas, new approaches or new funding for a service system that is massively under pressure. Many substance-dependent persons are falling through the cracks as a result.
The Victorian government has not funded the drug and alcohol treatment services, and as a result Victorians with a severe substance dependency are not getting access to the treatment and support they need. This bill will provide a framework to help the handful of people who need to access these services, but what we need is a broader drug and alcohol system that can support the many hundreds of thousands of Victorians who need broader drug and alcohol treatment services and who need to be able to access them when they are ready to get assistance and support. That is the Victoria we need to aspire to so that people do not get to the stage where they have such a dependency that they require the assistance provided under this bill.
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