Report on the Six Month Review of the Alcohol Mandatory Treatment Act 2014
Letter to the Minister for Health
The Society remains concerned that the efficacy of AMT, in the treatment of alcohol addiction, remains to this date un-tested and un-proven. It is likely that by virtue of incarceration under AMT there is an opportunity for clinicians to address and manage other chronic health conditions resulting in benefit to the subjects. However, it has not established that these benefits cannot be achieved by other less restrictive means. Whilst positive health outcomes are to be applauded the Society also calls for an independent assessment of the scheme?s effectiveness to ensure that the significant cost of AMT and the significant incursion on the rights and liberties of Territorians is warranted and effective for treating alcohol addiction.
The Society welcomes a further opportunity to comment on this legislation and encourages reform of procedural aspects of the legislation.
The Society does not support the amendment to s.9 of the AMT Act to allow for other referral mechanisms. Until the effectiveness of the scheme has been established the Society does not recommend additional referral mechanisms other than voluntary self-referral.
The Society supports the recommendation to repeal s.72 of the AMT Act so as to remove the criminal offence provisions.
Use of Interpreters
The Society continues to call for mandated use of interpreters at all stages of the process when English is not a person?s first language.
The report assumes that all Aboriginal people speak the same language which is incorrect. The commentary around the use of interpreters in recommendation 3 is thus too simplistic. The Aboriginal Interpreter Service (AIS) states that there are more than 100 Aboriginal languages and dialects spoken in the Northern Territory. The report also assumes that there is adequate diversity in the current AMT workplace to provide interpreter services however the AIS does not recommend using untrained or unqualified interpreters. The report asserts that sufficient cultural diversity exists within the staff without providing tangible evidence to support this assessment.
The Society supports the formulation of principles to be inserted into the AMT Act related specifically to the admission, management and care of Aboriginal people.
The AMT Act only refers to a guardian or decision maker in the definition of primary contact and the Society submits this is insufficient. This definition merely provides that if the person already has a guardian or decision maker then they are the primary contact. The report makes no recommendations about the appointment of a guardian suggesting that consequential amendments relating to the introduction of the Advance Personal Planning Act (APPA) address the Society?s concern.
The AMT Act and APPA for that matter do not address the issue of a person who, as a result of their alcohol misuse, is deemed to have lost the capacity to make appropriate decisions about his or her personal welfare. The AMT Act in such circumstances ought to automatically require a Court to appoint a guardian. Without such guardian being appointed care givers must rely solely on using the coercive powers of the AMT Act to legitimise treatment. In such circumstances a patient cannot consent to treatment.
The Society supports an amendment to section 17 to allow an application to be made to the Tribunal for an extension of time for completion of the assessment in exceptional circumstances. However, the Society believes that natural justice must be afforded, providing a patient with a copy of the application and an opportunity to be heard. A copy of the Tribunals decision must also be provided.
The Society does not support all examples in the report as amounting to ?exceptional circumstances? that would warrant an extension to the assessment period eg: staff shortages. Exceptional circumstances ought to be limited to issues of the health and wellbeing of the patient.
The Society does not support the recommendation to remove s.104 (4)(b) that excludes ?Agency Employees? from appointment to the Tribunal. The Society supports provisions that provide for Administrative, Institutional and Adjudicative independence of the Tribunal.
The role of the Tribunal is primarily to decide whether the criterion in section 10 of the Act is satisfied based on the evidence before it. This is a question of law and few opportunities exist to bring evidence before the Tribunal.
The Society considers that administrative and institutional independence of the Tribunal are improved by the vesting of responsibility for the Tribunal in the Department of Attorney-General and Justice creating greater separation from the ?interested? agency.
Further independence in the appointment process can be achieved without legislative reform. Particularly the Society supports a process of appointment that is fair, transparent and merit based to promote equity and diversity. It is appropriate that members of the interested agency be excluded from appointment.
It is a fundamental principle of natural justice and the rule of law that a person will have ?one?s rights and obligations adjudicated by an impartial and independent court or tribunal.? The Society submits that public confidence in the Tribunal is paramount and independence from the executive is an important attribute. A Tribunal member must have:
?The ability to make decision free from external pressures and without fear of personal consequences, including reprisals.
Actual and perceived conflicts of interest challenge the community?s confidence in the Tribunal. The Society considers that allowing employees of the Department of Health to be appointed to the Tribunal would be a retrograde step and would undermine community confidence in the Tribunal?s independence.
The concerns identified in the report, (such as reluctance to challenge recommendations made by the Senior Assessment Clinician) would not be assisted by allowing employees of the Department of Health to be appointed. These concerns are better addressed by the usual safeguards of independent decision making such as:
- ensuring the legislative provisions allow for the decision maker to assess independently all matters relevant to its discretion (e.g. by way of counsel assisting);
- ensuring adequate avenues for judicial review, and
- providing legal representation to patients appearing before the Tribunal (e.g. to call evidence, to put the Senior Assessment Clinicians report to proof).
Allowing Department of Health employees to be appointed to the Tribunal could bring into question the independence of the Tribunal and the appearance of conflict weighs heavily against further involvement of the interested agency.
The Society does not agree that all persons appointed to the Tribunal would have the same high potential conflict of interest as members of the Department of Health. The role of the Minister in the appointment could not overcome this damaging perception.
The Society recommends that the legislation expressly exclude employees from the Department of Health from appointment to the Tribunal.
The Society does not in principle object to the removal of persons engaging violent and disruptive behaviour from the treatment facility to an assessment centre as set out in recommendations 31 and 32. However, the Society notes there needs to be a procedure for dealing with a person once they return to the assessment centre and a variation to the Order of the Tribunal would most likely be required.
 Assoc Prof P O?Connor: Tribunal Independence The Australasian Institute of Judicial Administration Incorporated; p91