Drug and Alcohol Treatment Bill 2007

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to provide for a trial, in a prescribed area, of the involuntary
treatment of persons with a severe substance dependence with the aim of protecting
their health and safety, facilitating their stabilisation through medical treatment and
giving them the opportunity to engage in voluntary treatment.
The Bill replaces the application of the Inebriates Act 1912 in the area to be
prescribed by regulation, and is generally in accordance with proposals arising from
a review of that Act set out in the Legislative Council Standing Committee on Social
Issues’ Report on the Inebriates Act 1912.
The Bill is divided into Parts, each Part dealing with a discrete subject-matter relating
to the treatment and care of dependent persons.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.
Clause 3 sets out the objects of the proposed Act.
Clause 4 provides that the proposed Act only applies to individuals over 18 in an
area to be prescribed by the regulations.
Clause 5 defines certain words and expressions used in the proposed Act.
Part 2 Involuntary detention and treatment
Clause 6 provides that a person must not be detained in a treatment centre unless an
accredited medical practitioner has issued a dependency certificate in relation to the
person.
Clause 7 provides for the appointment of accredited medical practitioners.
Clause 8 provides for premises to be declared treatment centres under the proposed
Act.
Clause 9 provides for the assessment of a person by an accredited medical
practitioner and the issue of a dependency certificate if the practitioner is satisfied the
criteria stated in the clause applies to the person.
Clause 10 provides that if an accredited medical practitioner is unable to access a
person to conduct an assessment, a Magistrate or authorised officer may authorise the
practitioner to visit and assess the person to decide whether or not a dependency
certificate should be issued.
The authorisation may only be given if the Magistrate or officer is satisfied of the
criteria stated in this clause.
The practitioner and any other person authorised may enter premises, by force if need
be, to carry out the assessment.
Clause 11 provides that the accredited medical practitioner must arrange for an
interpreter to be present at the assessment if the person to be assessed is unable to
communicate adequately in English but can communicate adequately in another
language.
Clause 12 provides that if the accredited medical practitioner is not satisfied a
dependency certificate should be issued in relation to the person, the practitioner
must, if the practitioner considers it appropriate, give advice on alternative options
available for treating the person.
Clause 13 enables the dependent person to nominate another person to be the
dependent person’s primary carer. The dependent person may revoke or vary the
nomination at any time.
An accredited medical practitioner must, in carrying out his or her functions under
the proposed Act or the regulations, normally give effect to the nomination.
However, this does not apply if the practitioner reasonably believes that to do so may
put the dependent person or any other person at risk of serious harm.
Clause 14 provides that a person for whom a dependency certificate has been issued
must not be detained for treatment for more than 28 days from the day the certificate
is issued, and as soon as practicable after the certificate is issued, the person must be
brought before a Magistrate for a review of the issuing of the certificate.
Clause 15 provides that any person administering any medication to a dependent
person must have due regard to the possible effects of the administration of the
medication, and must prescribe the minimum medication, consistent with proper
care, to ensure that the dependent person is not prevented from communicating
adequately with any person engaged to represent the dependent person at a review
under proposed Part 4.
Clause 16 provides that an accredited medical practitioner must, as soon as
practicable after the dependency certificate is issued, give the dependent person an
oral explanation and a written statement of the person’s legal rights and other
entitlements under the proposed Act.
The accredited medical practitioner must, if the dependent person is unable to
communicate adequately in English but is able to communicate adequately in another
language, arrange for the oral explanation to be given in the other language.
Clause 17 provides that an accredited medical practitioner must, not later than 24
hours after the dependency certificate has been issued, take all reasonably practicable
steps to notify the primary carer of the dependent person that the person has been
detained.
Clause 18 provides that an accredited medical practitioner must, as soon as
practicable after the dependency certificate is issued, give the dependent person a
statement of the rights of appeal conferred on the person under the proposed Act.
Clause 19 provides that an accredited medical practitioner must take all reasonably
practicable steps to notify the primary carer if the dependent person is absent from a
treatment centre without permission, fails to return at the end of a period of leave, is
discharged from a treatment centre or an application is made to extend the effective
period of a dependency certificate relating to the person.
If the person is referred to or discharged to another centre the accredited medical
practitioner must also state in the notice the name of that centre.
Clause 20 provides that a transport officer may take a dependent person to or from a
treatment centre and use reasonable force in exercising functions under this clause or
any other provision of the proposed Act applying this clause, and restrain the
dependent person in any way that is reasonably necessary in the circumstances.
The officer may also carry out a search of the person, if the officer reasonably
suspects that the person is carrying anything that would present a danger to the
officer, the person or any other person, or that could be used to assist the person to
escape from the officer’s custody.
Clause 21 provides that an accredited medical practitioner may permit a dependent
person, in certain circumstances, to be absent from a treatment centre for the period,
and on the conditions, the practitioner thinks fit.
Permission may be given on any grounds the practitioner thinks fit, including, for
example, compassionate grounds or that the dependent person requires medical
treatment.
Clause 22 enables an accredited medical practitioner to apprehend a dependent
person, or direct that the person be apprehended, if the person fails to return to a
treatment centre on or before the expiry of a permitted period of absence, fails to
comply with a condition of the permission or absents himself or herself from the
centre otherwise than in accordance with the proposed Act.
Clause 23 enables an accredited medical practitioner to request a police officer to
apprehend, or assist in apprehending, a dependent person if the practitioner is of the
opinion that there are serious concerns relating to the safety of the person or other
persons if the person is taken to a treatment centre without the assistance of a police
officer.
The police officer may enter premises to apprehend the dependent person, may
apprehend the person without a warrant and may exercise any powers conferred on
a transport officer under the proposed Act.
Clause 24 enables an accredited medical practitioner to discharge a dependent
person from a treatment centre at any time if the practitioner is satisfied the person’s
continued presence at the treatment centre will not achieve the purpose for which the person was detained.
Clause 25 provides that an accredited medical practitioner must take all reasonably
practicable steps to ensure that the dependent person, and the primary carer of the
person, are consulted in relation to planning the person’s discharge and any later
treatment or other action considered in relation to the person and the accredited
medical practitioner must also take all reasonably practicable steps to provide the
person, and the person’s primary carer, with appropriate information about follow-up
care.
Part 3 Official visitors
Clause 26 enables the Minister to appoint a person to be the principal official visitor
to oversee the official visitor program conducted under the proposed Act, to refer
matters relating to any significant alcohol or drug dependency issues or dependent
person safety or treatment issues to the Minister and to act as an advocate to the
Minister for persons receiving alcohol or drug dependency treatment.
Clause 27 provides that the Minister must appoint appropriate people to be official
visitors under the proposed Act. An official visitor may refer matters relating to any
significant alcohol or drug dependency issues or patient safety or treatment issues to
the principal official visitor or any other appropriate person or body, may act as an
advocate for patients about issues arising in the alcohol or drug dependency
treatment system and may inspect alcohol or drug dependency treatment centres.
Clause 28 provides for matters relating to principal official visitors and official
visitors in Schedule 3 to the proposed Act to have effect.
Clause 29 provides that the principal official visitor must ensure that 2 or more
official visitors visit each treatment centre.
When visiting a treatment centre, the official visitors must inspect every part of the
centre at least once, make any necessary inquiries about the treatment and detention of dependent persons in the centre, examine and sign the registers, books, records and other documents produced to them in accordance with the proposed Act, and enter the fact of their visit in the official visitors book at the centre, together with any observations they think appropriate to make.
A visit may be made with or without previous notice and at any time of the day or
night, and be of such length, as the official visitors think appropriate and a visit may
be made at the request of the primary carer of a dependent person being treated at the centre.
Clause 30 provides that the director of each treatment centre must allow official
visitors to have access to every part of the centre, permit the official visitors to see
and interview each dependent person, give full and true answers to the best of his or
her knowledge to all questions the official visitors ask in relation to the centre and
the dependent persons and produce to the official visitors any registers, books,
records and other documents relating to dependent persons and their discharge.
Clause 31 provides that an official visitor may report to the Minister about any
matter arising from the exercise by the official visitor of his or her functions.
Clause 32 enables a dependent person, or the primary carer of the person, to notify
an accredited medical practitioner that the person or carer wants to see an official
visitor.
The accredited medical practitioner must tell an official visitor about the request not
later than 2 days after receiving the notice.
Clause 33 provides that anything done or omitted to be done by an official visitor
does not, if the matter or thing was done or omitted to be done in good faith for the
purpose of executing the proposed Act or the regulations, subject the official visitor
personally to any action, liability, claim or demand.
Part 4 Review and extension of dependency
certificates
Clause 34 provides that a Magistrate must hold an inquiry about the issuing of each
dependency certificate to determine whether or not, on the balance of probabilities,
the dependent person meets the criteria for detention.
If the Magistrate is satisfied, on the balance of probabilities, that the person meets the
criteria for detention, the Magistrate may confirm the issuing of the dependency
certificate, or confirm the issuing of the dependency certificate, but for a shorter
period.
If the Magistrate is not satisfied, on the balance of probabilities, that the person meets
the criteria for detention, the Magistrate must order that the person be discharged.
Clause 35 enables an accredited medical practitioner to apply to a Magistrate to
extend the effective period of a dependency certificate if the practitioner is satisfied
that the dependent person is suffering from drug or alcohol related brain injury and
that additional time is needed to carry out treatment and to plan the person’s
discharge.
Clause 36 provides that the Magistrate must determine whether or not the detention
and treatment period should be extended and if so for how long, but for not more than
3 months from the day the dependency certificate was issued.
Clause 37 provides that the review or the consideration of an application must be
conducted quickly and with as little formality and technicality as the requirements of
the proposed Act, the regulations and as the proper consideration of the matters
before the Magistrate permit.
In the proceedings, the Magistrate is not bound by the rules of evidence but may
inform himself or herself of any matter in the way the Magistrate thinks appropriate
and as the proper consideration of the matter before the Magistrate permits.
The proceedings are generally open to the public but the Magistrate may order the
proceedings be conducted wholly or partly in private or prohibit or restrict the
publication or broadcasting of certain matters.
If the dependent person is unable to communicate adequately in English but is able
to communicate adequately in another language the dependent person may be
assisted in the proceedings by a competent interpreter.
The dependent person must be represented in the proceedings by an Australian legal
practitioner or, with the leave of the Magistrate, another person chosen by the
dependent person, unless the dependent person states that he or she does not wish to
be represented.
Clause 38 permits the Magistrate to adjourn the proceedings for up to 7 days.
Clause 39 permits the Magistrate to issue a summons requiring a person to attend as
a witness in the proceedings or to attend the proceedings and to produce any
documents in the possession or under the control of the person relating to the
proceedings and specified in the summons.
Clause 40 provides that unless the Magistrate otherwise determines, the dependent
person, or a representative of the dependent person, is entitled to inspect, or
otherwise have access to, any medical records relating to the dependent person in the
possession of another person.
An accredited medical practitioner may warn the representative of the dependent
person that it may be harmful to communicate to the dependent person, or any other
person, specified information in those medical records.
Clause 41 provides that a person must not, whether before or after the proceedings
are completed and without the consent of the Magistrate, publish or broadcast the
name of any person to whom the proceedings relate, who appears as a witness in the
proceedings or who is mentioned or otherwise involved in the proceedings. This does
not prohibit the publication or broadcasting of an official report of the proceedings
that includes the name of any person the publication or broadcasting of which would
otherwise be prohibited by this clause.
Clause 42 provides that the proceedings must be recorded and regulations may be
made about the way in which the evidence may be recorded and the circumstances
when the evidence must be transcribed.
Clause 43 provides that subject to the proposed Act and the regulations, the
procedure for the proceedings, and for the conduct of the proceedings, is to be
determined by the Magistrate.
Clause 44 provides that a person must not refuse, neglect or for any reason fail to
obey or comply with an order or determination of the Magistrate under the proposed
Act.
Clause 45 provides that if a person is aggrieved by an order or determination of the
Magistrate they can appeal to the Administrative Decisions Tribunal against the
order or determination.
Part 5 Miscellaneous
Clause 46 places restrictions on a person holding certain offices at the same time.
Clause 47 provides that a person must not disclose any information obtained in
connection with the administration or execution of the proposed Act or regulations
except in certain circumstances.
Clause 48 provides that the proposed Act will not limit or affect any power conferred
on a police officer or any other person by or under any other law with respect to
stopping, searching or detaining a person (whether or not a dependent person) or
taking any such person to any place.
Also, nothing in the proposed Act prevents an accredited medical practitioner from
taking any action the practitioner thinks fit to protect a dependent person detained in
a treatment centre, or any other person in the treatment centre, from serious physical
harm.
Clause 49 provides that any member of staff of the NSW Health Service, health care
professional or police officer who, in good faith, exercises a function that is conferred
or imposed on that person by or under the proposed Act is not personally liable for
any injury or damage caused by the exercise of that function.
However, this does not relieve a medical practitioner or other person from liability
the practitioner or other person would have been subject to had the treatment been
carried out with the person’s consent.
Clause 50 states how documents may be served under the proposed Act.
Clause 51 enables the Director-General to approve forms (other than prescribed
forms required by the proposed Act) for the administration of the proposed Act.
Clause 52 provides that clause 3 of the proposed Act is intended to give guidance in
the administration of the proposed Act and does not create, or confer on any person,
any right or entitlement enforceable at law.
Clause 53 provides that proceedings for offences under the proposed Act or
regulations may be dealt with summarily before a Local Court.
Clause 54 enables the Governor to amend proposed Schedule 1 by inserting, altering
or omitting the name of a substance.
Clause 55 enables the Governor to make regulations for the purposes of the
proposed Act.
Clause 56 is a formal provision that gives effect to amendments of the Inebriates Act
1912 in Schedule 4 to the proposed Act.
Clause 57 provides for a review of the proposed Act as soon as possible after its
commencement and a report on the outcome of the review must be tabled in each
House of Parliament within 2 years of the commencement.
Schedule 1 Substances
Schedule 1 contains the list of substances for which there is concern about severe
substance dependence.
Schedule 2 Dependency certificate
Schedule 2 contains the form of a dependency certificate issued for the involuntary
detention and treatment of a dependent person in a treatment centre.
Schedule 3 Provisions relating to principal official
visitor and official visitors
Schedule 3 contains provisions about the remuneration and tenure of office of the
principal official visitor and official visitors.
Schedule 4 Amendment of Inebriates Act 1912 No 24
Schedule 4 makes amendments to the Inebriates Act 1912.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.