Today’s correspondent is a paramedic from Tasmania who has questions regarding the Alcohol and Drug Dependency Act 1968 (Tas). This Act allows for the detention and compulsory treatment of those with chronic alcohol or drug addictions. My correspondent says:
From time to time we encounter patients who are dependent on alcohol or other drugs, and who are debilitated by virtue of acute intoxication, and/or chronic disease to the point that they may be a danger to themselves or to others. Typically, we might be called during an episode of acute intoxication and we might convey that person to the hospital for further assessment and management.
Typically, those patients are discharged from hospital following some short-term supportive care, such as monitoring, fluid replacement, and other supportive measures, and at a point where they have returned their capacity to make decisions and to function. Drug rehabilitation services outside of hospital are typically only available to voluntary admission patients and may not have spaces available at short notice.
Recently, a patient’s family member who was very concerned about the patient’s ongoing wellbeing on account of alcohol dependence and frequent admissions to hospital following binge drinking to the point of being comatose, brought to my attention the Alcohol and Drug Dependency Act 1968, which gives treatment facilities the legal ground to detain persons suffering from drug or alcohol dependence, and who may become, from time to time, a danger to themselves or to others, for a period of up to 6 months or more.
This was news to me. I had never heard of this Act. And it seems neither had any of the senior medical staff at the hospital that I spoke to about it. Never, in their knowledge, had this Act been used to detain a person suffering from alcohol or drug dependence. It was suggested to me that perhaps the Act was superseded by other provisions in other legislation. At any rate, it was suggested that legal advice would be needed before any patient would be held using the provisions of this Act.
If we consider the Mental Health Act 2013, it too has provisions for detaining unwell patients for the purpose of treatment. A person suffering from alcohol or drug dependence would not necessarily be captured by the Mental Health Act but might nevertheless have grave risks to their health and wellbeing stemming from their dependence.
My questions are:
- Would this Act substantially be in conflict with any other existing legislation?
- And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?
As a follow up my correspondent provided a link to the Department of Health and Human Services’ Review of the Tasmanian Alcohol and Drug Dependency Act 1968: Discussion Paper (September 2012).
Tasmania is not the only state to have laws to provide for the mandatory detention and treatment of those affected by alcohol. Victoria has mandatory detention and treatment laws in the Severe Substance Dependence Treatment Act 2010 (Vic) and New South Wales has the Drug and Alcohol Treatment Act 2007 (NSW); there may be others but I didn’t locate them in a reasonably brief search.
The Alcohol and Drug Dependency Act 1968 (Tas) provides that certain mental health services can be declared a treatment centre for the purposes of the Act (s 15). A person may be admitted to, and detained in, a treatment centre on the application of the person themselves, a relative or a welfare officer (s 23; ‘welfare officer’ is defined in s 16). An application by a person other than the patient must be supported by a medical practitioner (s 24). A person who has made an application may, within 14 days of the patient’s examination by the medical practitioner who wrote the necessary ‘medical recommendation’ detain and take the person to a prescribed treatment centre (s 26). On the basis of the application and the medical recommendation a person can be detained for up to 6 months or further periods of the detention is extended (s 27). A person may be discharged from a treatment centre on the order of the superintendent of the centre (s 28) or an order of the Alcohol and Drug Dependency Tribunal (s 29).
There is no provision to allow ambulance officers to detain a person but s 58 says:
If a police officer finds in a public place a person who appears to him to be suffering from alcohol dependency or drug dependency and to be in immediate need of care or control, the police officer may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety for the purpose of enabling him to be examined by a medical practitioner and to be interviewed by a welfare officer and of enabling any necessary arrangements to be made for his treatment or care.
The Mental Health Act does indeed provide for detention and involuntary treatment, but a person is not considered mentally ill because they are intoxicated (s 4(2)(k)).
To turn to the questions.
- Would this Act substantially be in conflict with any other existing legislation?
No, the Act has been maintained and updated to ensure that it is consistent with other legislation. The Alcohol and Drug Dependency Act 1968 (Tas) s 6 says:
Except as otherwise expressly provided therein, nothing in this Act prejudices or affects the operation of the Mental Health Act 2013, and the fact that a person is, or appears to be, suffering from alcohol dependency or drug dependency does not of itself prevent the making of any application, order, or direction under that Act in respect of him.
Where a person is being assessed a medical practitioner, a welfare officer or others would have to consider whether or not a person is mentally ill within the meaning of the Mental Health Act. The mere fact that a person is intoxicated does not mean they are mentally ill, but neither does it mean they are not mentally ill. So, a practitioner would first have to consider that issue. If he or she determined that the patient did not meet the definition of mental illness then they would have to consider whether the person (Alcohol And Drug Dependency Act 1968 (Tas) s 24):
(a) … is suffering from alcohol dependency or drug dependency to a degree that warrants his detention in a treatment centre for medical treatment; and
(b) that it is necessary in the interests of his health or safety or for the protection of other persons that he be so detained.
If they are not mentally ill but do meet the criteria in s 24 then consideration could be given to action under the Alcohol and Drug Dependency Act.
- And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?
I doubt it. First a duty of care arises to ensure that one does not cause harm, not to ensure that harm is not suffered (see Stuart v Kirkland-Veenstra [2009] HCA 15; Graham Barclay Oysters v Ryan (2002) 211 CLR 540; see also the discussion in No duty to prevent a disaster and no duty to rescue (December 26, 2018)). That’s not to say the argument is impossible, that is once the person has entered into a therapeutic relationship the medical staff do owe a duty to consider all treatment options and to provide reasonable care for the specific patient.
Medical practitioners do not have the authority to detain a person, the application has to be made by the person, their relative or a welfare officer, but a treating practitioner could suggest to one of those persons that they should make the application and the practitioner could provide the necessary supporting ‘medical recommendation’. Whilst a medical practitioner could not be liable for not detaining the person, because they don’t have the power to do so (Stuart v Kirkland-Veenstra [2009] HCA 15) one could at least see the argument that they could be liable for not advising those who could make the application if they were of the view that the patient’s condition met the criterial in s 24, above.
I don’t know the clinical thinking of course, but it may that doctors are reluctant to make recommendations, even if they know of the Act, because there may be some questions about whether mandatory detention and treatment actually works (see for example the evaluation of the Alcohol Mandatory Treatment Act (NT), now repealed).
Conclusion
The Act exists and continues to sit beside the Mental Health Act 2013 (Tas). It’s provisions are there to be used in the right circumstances. If doctor’s don’t know of it that is a gap in their education and perhaps a gap in promotion by the relevant department. It may be that the Act is no longer considered ‘good’ or ‘best practice’ but I cannot comment on that. My brief answers are:
- Would this Act substantially be in conflict with any other existing legislation?
No; and
- And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?
That would be difficult but not an impossible argument to make. The treatment centre’s obligation would be to get a welfare officer involved or to suggest to the family that they make an application. The application cannot come from a medical practitioner but must be supported by a medical recommendation.
Australian Emergency Law 
Thank you Michael.
I’ve since discovered the AADA 1968 is due for repeal shortly with the introduction to Parliament of the Alcohol and Drug Dependency Repeal Bill 2019 40 of 2019. This bill had its first reading only a few weeks ago.
http://www.parliament.tas.gov.au/bills/Bills2019/40_of_2019.htm
Regards, Richard.
And on the argument of duty of care, it may be quite reasonable for a doctor not to know or use the Act. This is from the Fact Sheet filed with the repeal Bill (http://www.parliament.tas.gov.au/bills/Bills2019/pdf/notes/40_of_2019-Fact%20Sheet.pdf):
The purpose of this Bill is to repeal legislation that is out of date and unnecessary…
The ADDA is over 50 years old. Numerous amendments made to the ADDA overtime have rendered it confusing and difficult to apply.
The ADDA is out of step with human rights and current, evidence-based approaches to alcohol and drug service delivery. The ADDA permits a person with decision-making capabilities to be detained against their will for up to six months. Treatment however may only be given to a person who is detained under the ADDA if the person consents, or if the treatment is authorised by or under the Guardianship and Administration Act 1995.
The ADDA’s use has been in steady decline and has not been used since early 2016. The Tribunal has received only two applications in the last 16 years: the last in 2009.
The ADDA is not used because people suffering from alcohol or drug issues can and do receive treatment and services on a voluntary basis like any other consumer of health services.
The Alcohol and Drug Service, a part of the Tasmanian Health Service, works with people with severe substance dependence, and their families, to identify admission and treatment pathways as a voluntary patient, or under authority of the Guardianship and Administration Act. People who are admitted are free to leave at any time.
Following the post I received the following by email:
Duty of care is an interesting notion. If it is meant to refer primarily to the avoidance of doing harm, that would imply that a medical person would not be in breach of their duty of care to a patient if they simply watched the patient bleed to death, when they might have intervened to stem the bleeding. In other words, surely, in some circumstances there is a duty to act as well?
In other words, could the decision not to act be seen, in some circumstances, as an active engagement with the patient? I recall a Dr being deregistered one time for failing to stop and intervene at a RTA. But deregistration is a professional rather than a legal issue I suppose.
Actually, I think I might be confusing legal and professional standards. In some cases, there might be a breach of professional standards without a concurrent breach of the law.
All of those are fair and valid points and where why I said the argument discussed in the post was difficult but certainly not impossible. There is no duty to rescue a stranger so a doctor can stand by and watch a person bleed to death if they have never had a therapeutic relationship with them. Many will say that is inconsistent with the decision in Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J); affirmed on appeal Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting)) but that case did depend on its unique facts and many commentators argue that it is an unsound decision. The doctor who was deregistered after a motor accident was, I assume, Dr Dekker in WA. The Court of Appeal overruled that decision – see (Dekker v Medical Board of Australia [2014] WASCA 216 discussed in my post Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop? (January 3, 2015)). The Court of Appeal there rejected the notion of a general duty to render assistance because, when phrased like that, it failed to take into account all the circumstances.
Doctors and hospitals, on the other hand, do have a duty to act in the best interests of their patients- they cannot just ignore them (see Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 both discussed in my post Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018)).
In the context of the discussion there are arguments pulling in both directions. Where a person is brought to hospital ‘during an episode of acute intoxication’ then the staff have to treat that acute episode. They may not be aware of the patient’s long-term conditions and may not be able to form the view required by s 24 of the 1968 Act. I cannot imagine they are under a duty to refer everyone who comes into a welfare officer or to suggest to the family compulsory treatment. Equally the doctor cannot be under a duty to actually detain the person as they don’t have the power to do so.
If a person was admitted to hospital and actually spent some time there due to the effects of their alcohol addiction and welfare or social workers were involved then it would be arguable that a duty to consider whether action under the Alcohol and Drug Dependency Act 1968 (Tas) was warranted.
There may be a duty to tell the family about the Act particularly if they asked (and they would not have to ask ‘about the Act’ but about ‘what can we do…?’) but that runs into problems of ‘who is the patient?’ Clearly it’s the person with the intoxication and if he or she gave specific instructions not to discuss their case with the family that would be a problem. Even without specific instructions it may be improper to go to the family and say ‘I think your family member has a long term and chronic problem with drugs/alcohol …’ if that has been determined during a confidential doctor/patient relationship. The better course would be to counsel the patient to tell their family (again depending on all the circumstances).
The person’s alcohol addiction is not caused by the doctor or the failure to give that advice to the family and unless there was clear evidence that compulsory treatment would change some outcome then proof of damage would be hard.
And then there’s the question of what would the ‘reasonable doctor’ do and that’s where I raised the clinical issue of does compulsory treatment work. If the consensus of medical opinion is that it does not, it may be reasonable not to consider it in the same way doctor’s don’t have to consider other treatment options that don’t work.
So my answer was that yes, it would be possible to argue that failure by a doctor to advise the family of the Alcohol and Drug Dependency Act 1968 was a breach of duty, but it could be a very hard case to establish. Like the WA Court of Appeal said in Dekker’s case (discussed above) it would depend on all the circumstances so a simple ‘it would be’ or ‘it would not be’ answer is not possible.
And yes, professional standards are not the same as tort law. A doctor or other registered health professional may be subject to disciplinary action even if they are not liable in tort or have committed no crime – that is part of why we have professional discipline so the profession can set the standards it expects of members which is considering very different things to the legal dispute resolution between parties.