Six Month Review of the Alcohol Mandatory Treatment Act
The Law Society Northern Territory (the Society) welcomes the opportunity to provide comment to the Department of Health (the Department) at the six month review of certain aspects of the Alcohol Mandatory Treatment Act (?AMT scheme?).
In developing this response the Society has conducted consultations with its Social Justice Committee which includes legal practitioners from Aboriginal and Torres Strait Islander Legal Services, Northern Territory Legal Aid Commission and the Criminal Lawyers Association of the Northern Territory.
The Society?s submission is also informed by international law and the guiding principles for detention[i].
The Society has made a number of recommendations in this Submission to assist the Department with its review. However, the Society remains opposed to the mandatory detention of a person who has not committed any offence.
The Society remains committed to the use of evidence based therapeutic approaches to assist in addressing alcohol misuse as a serious community health problem in line with the National Drug Strategy 2010-2015. Prior to the commencement of the legislative regime the Society?s concerns centered on:
- inadequate or non-existent safeguards to protect the rights of individuals the subject of the AMT scheme;
- lack of transparency;
- disproportionate impact on Aboriginal and Torres Strait Islander peoples; and
- lack of evaluative data or evidence of efficacy.
The AMT scheme provides for considerable infringements on individuals? rights to personal liberty and freedom of movement and exceeds what is necessary in the interests of health.[ii] After six months of operation the above concerns now have greater foundation. The AMT scheme provides few safeguards to protect against abuse of executive powers and those safeguards are not being observed or are operating poorly. The Society has a deepening concern that:
- the Tribunal processes are such that in the majority of cases procedural fairness and natural justice have been denied;[iii]
- the ATM scheme is in effect targeting Aboriginal and Torres Strait Islander people[iv];
- There are no identified outcomes and thus no evaluation of the effectiveness of the regime to achieve the stated goal of ?rehabilitation[v]?.
The Society wishes to note that this review is being conducted without any evidence that the AMT scheme is actually working. The Society submits it is unethical[vi] to intervene against someone?s will when it is unknown whether the intervention will benefit them.
The Society submits that the effectiveness of the AMT scheme as a health intervention should be externally reviewed using rigorous heath-based evaluation criteria. Unfortunate commentary such that the scheme is effective to ?keep people off the streets[vii]? undermines this purported objective and lends weight to the concern that this is arbitrary and thus unlawful detention.
The Society submits that urgent legislative reform is required which may address some of these concerns. Suggested reforms include:
- all individuals appearing before the Tribunal to be provided, at no cost to them, legal representation;
- the Tribunal publish data on all instances where legal representation is not provided;
- the Tribunal to demonstrate compliance with the requirement to provide all individuals with written reasons for decisions through publication of all decisions;
- removal of the penalty provisions;
- interpreters to be used in all cases where English is not the first language;
- the Tribunal, assessment and treatment facilities be required to publish numbers of cases where interpreters are used; and
- individuals to be entitled to appeal decisions of the Tribunal and not be limited to a point of law.
It is admitted that 99% of people assessed under the AMT scheme are indigenous[viii]. Most if not all of these people would have underlying heath issues and low literacy and numeracy capacity.
Those affected by this legislation are vulnerable people, who are deemed so unwell that they have no insight into their illness and require treatment that they will not, or cannot, consent to.
In failing to ensure natural justice is provided to these people the efficacy and fairness of this scheme is seriously undermined.
In accordance with Article 9 (2) of the International Covenant on Civil and Political Rights the AMT scheme should require an individual be provided with an interpreter, if they are unable to communicate adequately in English. The Department?s published guidelines ?Alcohol Treatment Guidelines for Indigenous Australians[ix]? require interpreters to be present. However s.19 (3) only requires the senior assessment clinician to explain the purpose of the examination, to the extent that is reasonably practicable. Without an interpreter present there is no guarantee that the affected person is getting a true or fair assessment in accordance with the AMT scheme. The presence of interpreters are also important in conducting health assessments generally.
The decision of RP v Alcohol Mandatory Treatment Tribunal of the Northern Territory  NTMC 32032 demonstrated that members of the Tribunal were not well versed in working with people where English was not a first language, nor were they in a position to identify the need for an interpreter. The case also demonstrated that the Tribunal members did not acknowledge or understand the processes formulated in the Anunga Rules[x].
Interpreters are there to benefit all parties. It is apparent that individuals under the AMT scheme are not provided with interpreters. An interpreter should be available through the entirety of the assessment and treatment process as well as before the Tribunal. This is to ensure the affected person gets a lawful assessment in accordance with the AMT scheme and understands and consents, where possible, to medical treatment.
Recommendation 1: The Tribunal members should receive cross cultural training.
Recommendation 2: The words ?to the extent that is reasonably practicable? in sections 19(3) and 116 to be deleted.
Recommendation 3: Interpreters should be provided for the entire duration of the assessment and treatment process.
Section 114 of the Act provides that the rules of natural justice apply to the Tribunal process.
Natural justice would require that parties know the charge against them, which in this instance would include knowing their legal status prior to the Tribunal?s decision, their rights to seek review of decisions and obtain independent legal advice. The Department advises that it now has an audio and a written Statement of Rights. The Society notes that the Statement of Rights falls considerably short of what is required, noting the Statement is silent regarding the individual?s legal status prior to the Tribunal?s decision, their legal rights and direction concerning the individual?s ability to access legal aid services at any time and for any reason.
Recommendation 4: The Statement of Rights be amended.
While natural justice does not always require that a person have the right to legal representation, a person entitled to an oral hearing before a statutory body is entitled to legal representation at that hearing, absent statutory provisions to the contrary.[xi] It has been said that where the person affected by an administrative decision is not capable of presenting his or her own case, the right to legal representation will be an element of natural justice[xii]. Those the subject of the AMT scheme are entitled to such representation. The AMT scheme creates broad powers but does not adequately protect these people against unlawful detention or treatment through error, malpractice, mismanagement and poor resources.
It stands as a testament to the robustness and fair workings of the policy and scheme as a whole that the policy makers should provide legal representation to ensure the Tribunal is fair. In RP v Alcohol Mandatory Treatment Tribunal of the Northern Territory  NTMC 32032 the Court found that the failure to provide RP with legal representation amounted to a denial of natural justice.
It is likely that this error of law and failure to afford natural justice has permeated the practice of the Tribunal from its commencement. The Society submits that had the party been legally represented the Tribunal would have been greatly assisted in avoiding the error resulting in the decision being set aside.
The decision reinforced:
- the special disadvantage of those before the Tribunal;
- the complex issues of fact to be determined by the Tribunal;
- the absence of merits review to correct errors of fact; and
- the significant impact of the outcome on parties before the Tribunal.
The decision in RP v Alcohol Mandatory Treatment Tribunal of the Northern Territory  NTMC 32032 demonstrates that there may be real issues to be determined. Should it be determined that there are issues of fact to be argued before the Tribunal in determining its jurisdiction there would be no-one present to assist the affected person make those submissions.
In support of the Society?s recommendation the Society also notes the highly restricted appeal rights, being a question of law only, would likely only be exercised where legal representation was present in the first instance absent legal representation the appeal mechanism is rendered nugatory. Finally neither the affected person nor their lawyer is required to be present (s.31) allowing decisions to be made ex parte.
It is in the interest of the Tribunal to have a legal representative there so that the Tribunal can be sure that the powers of the Tribunal properly enlivened and applied according to law.
Recommendation 5: Legal Representation is provided to the affected person for the duration of the entire process at no cost.
Recommendation 6: There should be a merits review mechanism in the Local Court.
Recommendation 7: There should be a power to stay a Tribunal decision pending a review.
The decision of RP v Alcohol Mandatory Treatment Tribunal of the Northern Territory  NTMC 32032, raises concerns regarding the nature of the Tribunal processes. This decision raises questions about the lack of transparency of Tribunal proceedings. Anecdotal reports also raise these concerns.
- Accessible appeal mechanisms;
- Reporting and publishing decisions;
- Providing reasons for the decision to the subject of said decision; and
- Allowing public access to the hearings.
Section 37 provides where the Tribunal decides to make a mandatory treatment order it must give a copy of the order and information notice for the decision to the affected person. Information notice, for a Tribunal, means a written notice stating the decision and the reasons for it (s.5). Failure to give reasons thwarts any purported appeal mechanism, allowing the inference of no good reasons. The reasons should set out findings and refer to evidence or other materials on which those findings were based. Relevant documentary material should be provided with those reasons.
Anecdotal evidence is that written reasons for the Tribunal?s decision have not been provided to affected persons despite the requirement under the AMT scheme. This failure to comply with the scheme casts doubt upon the practices of the Tribunal undermining public confidence in what is intended to be a protective mechanism.
Recommendation 8: The Tribunal demonstrates compliance with its statutory obligations to provide written reasons for its decision by publication of de-identified reasons.
Intersection with Adult Guardianship
The Society is concerned those individuals assessed as being a candidate for a Mandatory Treatment Order (?MTO?) are persons who may require protection under the Adult Guardianship Act. Such a person is inadequately protected by the presence of a public (non-legal) advocate and the mere ability to contact their primary contact person.
Recommendation 9: A provision is made allowing for referral to the Local Court for an order under the Adult Guardianship Act.
Discretion to Release
Once treatment has successfully stabilised a person?s health to address the risk of harm and restore sufficient capacity to allow the person to make decisions about future substance use or treatment for dependence, ongoing treatment should be undertaken on a voluntary basis. Currently, there is no discretion given to clinicians without a formal Application being made to the Tribunal particularly to allow a person to be discharged.
The Society submits there should be a mechanism in the AMT scheme for the release of an individual from an assessment facility on the basis of a view formed by the assessing clinician. This is especially exemplified where an individual has been (wrongfully?) detained for a total of 8 days in a facility, in order for the Tribunal to merely confirm that individual does not meet or is unsuitable for a MTO, resulting in their release.
To address this concern the Society makes the following recommendation:
Recommendation 10: Clinicians be given the discretion to release (similar to the Mental Health Act).
The Society supports the removal of the penalty provisions.
The Society recommends that the Department consider a reward based scheme whereby affected persons can pay down fines through treatment, similar to the Work and Development Orders in New South Wales. This would promote respect and provide a catalyst for positive behavioral change. Motivation to attend treatment is widely regarded as a key issue if treatment programs are to be effective[xiii].
Recommendation 11: The penalty provisions are removed.
Recommendation 12: Tribunal to be given the legislative power to allow a reward base scheme to occur.
Assessable Persons ? scope of the ?trigger? provision
The Society remains concerned that the exercise of police discretion to place someone in protective custody is a highly subjective process which lacks transparency. The Society also considers it premature to recommend widening the avenues for intake while there is no evaluation or evidence to demonstrate the AMT scheme is working and while concerns remain regarding the Tribunal process.
The AMT scheme provides for immediate admission giving involuntary patients priority access and has taken places that would otherwise be offered to motivated voluntary individuals. Anecdotal evidence suggests that there is little or no availability for voluntary patients to access specialised treatment. Greater effort should be made to increase capacity and encourage voluntary access to available treatment programs.
Recommendation 13: No expansion to entry path.
Timing of assessment or appearance before Tribunal
The Society does not support an increase in the assessment period nor does it support increases to the timeframe for Tribunal determination. The Society continues to submit that the scheme provides prolonged timeframes for each of these two stages that are a significant infringement on an individual?s rights and equate to unnecessary or arbitrary detention.
The Society cannot imagine a scenario nor has any been presented where the interests of justice would be served by allowing such an extension. An individual may be detained, against their will, for up to 8 days for no purpose. After this time an individual may then be released, on the basis they are not suitable or do not meet the criteria for a MTO.
Recommendation 14: No additional powers are given to Tribunal or assessment clinicians to extend timeframes.
Leave of Absence
The Society does not recommend that there be any additional power vested in the Tribunal or the health professionals to extend an MTO due to a leave of absence or in circumstances where a party has absconded. The Society?s concern in this regard relates to the current lack of transparency or oversight of any such decisions raising real prospects of misuse.
Recommendation 15: No additional powers are given to the Tribunal or assessment clinicians to extend timeframes.
It is the submission of the Society that any decision to impose income management orders should be discretionary to safeguard against undue hardship.
Recommendation 16: Income Management Orders to be made discretionary.
Information and Publication
The Society considers given the seriousness of the decision to detain someone against their will, and the experimental nature of the AMT scheme, a centralised data collection system is necessary. This data should collect and publish information relating to:
- Legal representation;
- The use of interpreters;
- Health outcomes; and
- Social outcomes.
The Society remains committed to the use of evidence based therapeutic approaches to assist in addressing alcohol misuse as a serious community health problem. After six months of operation the Society is increasingly concerned that in light of the grave infringement on individuals rights and freedoms the AMT scheme has inadequate evidentiary support and alarmingly insufficient safeguards to protect the rights of Territorians the subject of the scheme.
[ii] Articles 9 and 12 International Covenant on Civil and Political Rights.
[iii] RP v Alcohol Mandatory Treatment Tribunal of the Northern Territory  NTMC 32032
[iv] NTG Legal Focus Group meeting (10 February 2014) identified 99% of persons involved in the scheme are Indigenous.
[v] It seems often forgotten we made a commitment to the Northern Territory people to introduce mandatory rehabilitation for the worst alcohol abusers in our community. We did this in response to the community?s call for action Minister Lambley, Transcript of Proceedings, NT Legislative Assembly 12 February 2014.
[vi] The NSW Legislative Council Standing Committee into Social Issues (Report 33- August 2004; p.88) concluded that that coercive treatment with the goal of rehabilitation or long term behaviour change cannot be ethically justified.
[vii] Minister Lambley Media Release 16 January 2014.
[viii] NTG Legal Focus Group meeting (10 February 2014).
[ix] http://www.health.gov.au/internet/alcohol/publishing.nsf/Content/AGI02 (accessed 17 February 2014).
[x] R v Anunga (1976) 11 ALR 412
[xi] R v Board of Appeal; Ex parte Kay (1916) 22 CLR 183.
[xii] Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557
[xiii] Hall, W. (1997). The role of legal coercion in the treatment of offenders with alcohol and heroin problems. Australian and New Zealand Society of Criminology, 30, 103-120.