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Preference: Law

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Doctors ‘obliged’ to speak out on asylum seeker health

AMA President Professor Brian Owler has accused the Federal Government of trying to intimidate doctors and other health workers from speaking out about the treatment of asylum seekers being held in immigration detention centres.

The AMA President has mounted a strongly-worded attack on controversial provisions in the Government’s Border Force Act aimed at gagging whistleblowers amid mounting claims that many detainees – including children – have been sexually and physically abused while in custody.

Professor Owler said doctors were ethical and morally obliged to advocate for the welfare of their patients, and the new laws – which threaten up to two years imprisonment for unauthorised disclosures – placed them in an invidious position.

“As doctors, we have an ethical and moral obligation to speak out if we have concerns about the welfare of our patients, whether it be the treatment of an individual or whether it be at a system level,” he said.

Asked if the AMA was advising doctors to refuse to work in detention centres under these conditions, the President said that it “wouldn’t matter what I said, I suspect. I think doctors would vote with their feet and they would go and provide health care to asylum seekers, because that’s what they do”.

“Doctors will always go and look after the patient, and they will put their own interests second.”

The apparent attempt to gag critics has come against the background of ongoing reports of abuse and assault at detention centres.

The independent Moss review of allegations of abuse at the Nauru detention centre, released in March, found evidence of rape, the sexual assault of minors, and guards trading marijuana for sexual favours from female detainees.

Despite this, a separate Senate committee inquiry heard last month that no detention centre staff accused of abusing children have been charged.

Transfield, which has a $1.2 billion contract to operate the Nauru and Manus Island detention centres, said that of 67 allegations, just 12 had been referred to police.

In other testimony, a former senior doctor with Immigration Department contractor International Health and Medical Services, Dr Peter Young, told the Senate committee that medical staff were directed not to report mental health problems.

Dr Young, who was director of mental health for IHMS, said he was told several times not to report that asylum seeker mental health had been harmed by being detained at the Nauru detention centre.

Separately, the Government-appointed Council on Asylum Seekers and Detention has been told that detainees begin to suffer serious mental health problems within three months of incarceration.

Immigration Minister Peter Dutton has sought to provide assurances that health workers who spoke out would not be prosecuted under the Act, but Professor Owler said much more was needed.

“The AMA has been concerned about the provision of health care to asylum seekers, particularly those in the offshore processing centres of Nauru and Manus Island,” he said. “Legal advisers have confirmed that the Act provides penalties, including potential imprisonment for doctors, nurses and other health workers who speak out about abuse or the wellbeing of asylum seekers.”

Professor Owler said that if medical whistleblowers were not liable for prosecution, then “it should be clearly and directly spelt out in the legislation”.

“We call for this exemption because, for a doctor, an asylum seeker is no less a patient than any other patient. If we are willing to compromise the rights of doctors and patients for one group, how can we ensure that other groups will not be compromised in the future?” he said.

Adrian Rollins

 

[World Report] 50 years of Medicare

In July, 1965, Medicare, America’s landmark national health insurance programme, became law. Today, it covers 55 million people. Susan Jaffe, The Lancet’s Washington correspondent, reports.

[Perspectives] Signing the US Medicare Act: a long political struggle

50 years ago, on July 30, 1965, US President Lyndon B Johnson signed the Medicare Act into law. The law created two new programmes, Medicare for those who had reached the social security retirement age of 65 years, and Medicaid for those whose incomes were below specific levels. In the context of the long history of struggles to obtain national health insurance in the USA, this was a momentous act. Admittedly, the law applied only to part of the population, the old and the poor, but it was nonetheless an important advance.

Future of public hospitals up for grabs at leaders’ retreat

Radical plans that could see the Federal Government dump all responsibility for public hospitals onto the States or pay for hospital treatment through a Medicare-style benefit scheme are up for discussion when Prime Minister Tony Abbott meets with his State and Territory counterparts at a special leaders’ retreat later this week.

The Prime Minister called the retreat to discuss reform of the Federation, and the division of responsibility for health services, particularly the funding and operation of public hospitals, is expected to be a central plank of the talks.

Since coming to office, the Abbott Government has engaged in a high-stakes stand-off with the States and Territories over public hospital funding. In its first Budget, it disowned funding guarantees made under the National Health Reform Agreement and reduced the indexation of post-2017 funding to CPI plus population growth, ripping $57 billion out of the public hospital system over 10 years.

The move is seen as part of a broader gambit by the Federal Government to pressure the states into looking at alternate sources of revenue, including increasing the GST or broadening its base.

Treasurer Joe Hockey last week increased the pressure on the States by declaring that each level of government should be responsible for raising the revenue needed to pay for the services they provide.

Mr Hockey said reforms discussed at the leaders’ retreat must include “the States taking responsibility for their own budgets in order to ensure they can afford their ever-increasing expenditure – such as the costs of their public hospital systems as our population ages”.

The tactic has echoes in the Government’s current strategy – likened by AMA President Professor Brian Owler to introducing a patient co-payment “by stealth” – to freeze the indexation of Medicare rebates until mid-2018, forcing many practices to cut bulk billing and introduce or increase patient charges in order to remain financially viable.

The AMA is a fierce critic of both policies, and Professor Owler – who will deliver a nationally-televised address to the National Press Club Wednesday – warned of an “impending crisis” for the nation’s public hospitals unless more money was injected into the system.

Professor Owler said public hospitals were facing a “perfect storm” of increasing demand, missed performance targets and major funding changes.

“The combination of these factors will have devastating consequences for our public hospital system,” he told the AMA National Conference in late May.

State and Territory leaders, particularly NSW Premier Mike Baird, are similarly outraged by the Federal Government’s tactic. Mr Baird warned earlier this year that the States simply “do not have the capacity to meet those health costs on their own”.

The Queensland Government estimates the Commonwealth’s decision to claw back public hospital finding will leave the State $11.8 billion worse off by the middle of next decade, with serious consequences for the quality and availability of care.

“Unless these federal funding cuts are reversed, there will be a shortfall in funding for Queensland hospitals – and a resultant decline in the quality and timeliness of services – from July 1, 2017,” it warned.

It is in this heated atmosphere that the leaders are expected to discuss ideas for future hospital funding, including those prepared by the Department of Prime Minister and Cabinet.

In its Green Paper it makes five suggestions, including the Federal Government shifting full operational and funding responsibility for public hospitals onto the States and Territories, the creation of an MBS-style hospital benefits scheme, jointly funded individualised patient care packages, or the establishment of a single national or regional agencies to purchase health services.

Grattan Institute Health Program Director Professor Stephen Duckett and colleague Peter Breadon said introducing a Hospital Benefits Schedule was a promising idea that could see a return to shared incentives by exposing both the Commonwealth and States to the cost of growing demand for hospital care.

Although many of the factors forcing health costs up have little to do with the structure of the Federation, the Reform of the Federation Green Paper 2015 said improving the way the health system was funded and operated could improve prevention and care while making better use of funds – particularly by providing funding on the basis of outcomes rather than activity.

Professor Owler said that, whatever the funding model that might be developed, it needed to ensure public hospitals were given the resources they need to meet the growing demand for care while also providing the quality teaching and training that the next generation of doctors required.

He said that pushing responsibility for public hospital funding back to the States and Territories without providing them with the means to generate more revenue would be “irresponsible”.

Mr Baird declared public hospital funding was the most significant finance issue facing the States and Territories, and Professor Owler said he was particularly concerned about prospects for the smaller jurisdictions, some of which had areas of significant disadvantage and inequitable access to care, but which had limited revenue-raising capacity to fund improvements on their own.

“If the planned changes [announced in the 2014 Budget] go ahead, there will be serious consequences for frontline clinical services,” he said.

Adrian Rollins

AMA in the News – 21 July

Your AMA has been active on policy and in the media on a range of issues crucial to making our health system better. Below is a snapshot of recent media coverage.

Print/Online

Doctors, teachers face gags under immigration laws, Sydney Morning Herald, 4 June 2015
Doctors and teachers working in immigration detention facilities could face up to two years in prison if they speak out against conditions in the centres or provide information to journalists. AMA President Professor Brian Owler said this was the first time doctors had been threatened with jail for revealing inadequate conditions.

Medical research fund could be ‘slush’ fund: Labor, The Age, 5 June 2015
The Abbott Government could raid its Medical Research Future Fund to pay for election promises and “pet projects” under proposals before federal Parliament, Labor has claimed. AMA President Professor Brian Owler said decisions about which research projects would be funded needed to be made at arm’s length from the minister.  

Help for violence victims, Northern Territory News, 5 June 2015
A new resource to assist doctors in providing better support for victims of family violence was launched by the AMA at the AMA National Conference. AMA President Professor Brian Owler said the medical profession had a key role to play in the early detection, intervention and treatment of patients who has experience family violence.  

Experts fear flu season shaping as the worst on record, The Saturday Age, 6 June 2015
The first five months of 2015 have been the worst on record for influenza, with experts warning Australia could be in for a rotten flu season. AMA Chair of General Practice Dr Brian Morton said Australia tended to follow the northern hemisphere’s flu season, which had been severe due to the emergence of new flu strains.

Banned flu drug still being given to children, Sunday Mail Brisbane, 7 June 2015
A disturbing number of doctors have ignored multiple warnings against administering the flu vaccine Fluvax to children younger than five years, even though there are safe alternatives. AMA President Professor Brian Owler said this risked undermining an otherwise safe vaccine schedule.

Leaked trade deal terms prompt fears for Pharmaceutical Benefits Scheme, The Guardian, 11 June 2015
The leak of new information on the Trans-Pacific Partnership agreement (TPP) shows the mega-trade deal could provide more ways for multinational corporations to influence Australia’s control of its pharmaceutical regulations. AMA president Professor Brian Owler said while doctors were very concerned at the possible effects on Australia’s health care system, their fears were routinely dismissed by Trade Minister Andrew Robb.

Save the planet for better health, The Canberra Times, 24 June 2015
The biggest boost to public health this century could come from action to tackle climate change, such as shutting down coal-fired power plants and designing better cities, according to a Lancet Commission report. AMA President Professor Brian Owler said the Australian health system was not prepared for climate change.

‘Whistleblowers’ challenge Australia’s law on reporting refugee conditions, CNN, 2 July 2015
More than 40 doctors, nurses, teachers, and other humanitarian workers have signed an open letter to the Australian government, challenging a new bill that could put whistleblowers in jail for disclosing the conditions of Australian detention centres. AMA President Professor Brian Owler said the act puts doctors in a dilemma when treating detainees and asylum seekers if they have concerns about the provision of their health care.

Medibank dust-up sparks care debate, The Saturday Age, 11 July 2015
AMA President Professor Brian Owler said the contract clauses being pushed by Medibank Private that put financial risk for unplanned patient readmissions and preventable falls back on private hospitals are evidence the newly listed market leader has shifted its priority to shareholders.

Radio

Professor Brian Owler, 666 ABC Canberra, 28 May 2015
AMA President Professor Brian Owler talked about the issues surrounding the bulk billing of GPs.  Professor Owler said a doctor can bulk bill and this means they can accept the amounts from Medicare.

Dr Brian Morton, 5AA, 3 June 2015
AMA Chair of General Practice Dr Brian Morton discussed medicines on the drug subsidy scheme will rise in price on July 1. Dr Morton said that any medicine that currently costs consumers less than $36 will be hit by the rise.

Professor Brian Owler, 702 ABC Sydney, 4 June 2014
AMA President Professor Brian Owler talked about Medicare. Professor Owler said there have been a number of reviews but, these have never really been dealt with the schedule as a whole.  

Professor Brian Owler, ABC Classic FM, 11 June 2014
AMA President Professor Brian Owler discussed health issues including the “Don’t Rush” road safety campaign, neurosurgery, and vaccinations.

Dr Brian Morton, 3AW, 29 June 2015
AMA Chair of General Practice Dr Brian Morton talked about issues with Dr Google. Dr Morton said it could be beneficial when trying to understand a treatment a patient is undergoing.

Professor Brian Owler, 612, 13 July 2015
AMA President Professor Brian Owler discussed diabetes in Australia. Professor Owler said the majority of type 2 diabetes cases were preventable and encouraged people to eat healthier food and get regular exercise.  

Television

Prof Brian Owler, ABC Brisbane, 29 May 2015
The AMA has warned that doctors’ fees could go up if the freeze on Medicare rebates for GP visits continues, and that even patients with private health insurance could end up paying more

Prof Brian Owler, Channel 9, 31 May 2015
A new online tool to help doctors identify and respond to family violence has been rolled out. The resource launched by the AMA allows doctors to provide information on support services.

Dr Stephen Parnis, Channel 7, 13 June 2015
AMA Vice President Dr Stephen Parnis discussed warnings Victoria was on the verge of a whooping cough epidemic. Dr Parnis said deaths from whooping cough were not common but were entirely avoidable.

Dr Brian Morton, Channel 10, 20 June 2015
AMA Chair of General Practice Dr Brian Morton warned of a spike in emergency department admissions, with the price of some of the most common Pharmaceutical Benefits Scheme prescription medications set to rise.

 

Records access and management on closure of a medical practice

In July 2014, a Melbourne general practice made headlines when the Australian Privacy Commissioner found that it had breached the Privacy Act 1988 (Cwlth) by failing to properly secure patient medical records.1 The practice had relocated, leaving its records behind in a garden shed; when a thief broke in, the records became accessible to the public. The case raises the question of how patient medical records should be stored and transferred at the time of a practice closure or other change in operations, such as physical relocation or retirement of a practitioner. Significant changes to practice operations occur frequently in Australia due to corporatisation, relocation or retirement. This article outlines the legal and regulatory requirements that govern how patient records are to be managed in such circumstances.

Overlapping requirements

When a practice closes, its medical records are subject to enforceable legal, regulatory and professional standards and rules. In the Australian Capital Territory, New South Wales and Victoria, specific laws govern the management of medical and other practice records.2–5 In other jurisdictions, there are privacy and information management laws of general application, including the federal Australian Privacy Principles (which replaced the former National Privacy Principles on 12 March 2014). These overlapping laws necessitate compliance with the Australian Privacy Principles, as well as the relevant requirements of state or territory law. Relevant non-legislative regulation includes the code of conduct of the Medical Board of Australia (the Code),6 and the Royal Australian College of General Practitioners’ accreditation standards (notably, standard 4.2)7 and Handbook for the management of health information in private medical practice.8 Other sources that are outside the scope of this article include practices’ private contracts and contractual terms of service, such as for indemnity insurance and with medical centre service providers.

Regulations and laws

The definitions of medical records and patient health information are somewhat fluid. They can include consultation notes, correspondence, diagnostic referrals and results, patient-directed correspondence or information, financial and appointment records, as well as policies and procedures. Ambiguous or undocumented ownership of medical records and patient health information can create significant risk for practice owners and practitioners.

Professional standards regulation

Requirements for the disposal, transfer and access of records on closure or relocation of a medical practice place personal responsibilities on individual medical practitioners and duties on corporate medical practice entities. A recent high-profile case was clear in its finding that the practice’s administrative services provider was responsible for the maintenance and control of up-to-date records.9

The Code advises careful health information management at all times, particularly at practice closure. Its provisions guide the assessment of medical practice in cases of disciplinary action against registered medical practitioners.6 According to Skene, “provisions of the Code may have legal effect, despite not being legislation or case law”, because they provide normative standards by which good medical practice is defined and against which accusations of questionable medical practice might be judged by the relevant disciplinary tribunal or admitted as evidence in court proceedings.10

Three statements in the Code are relevant here. At 8.4, it states that “[m]aintaining clear and accurate medical records is essential” to prevent unauthorised access, facilitate patients’ right to access information contained in their records, and prompt facilitation of patient-initiated requests of health information transfer. Second, the Code at 3.13 stipulates that medical practitioners adequately inform patients of a decision to end a professional relationship; arrangements to ensure continuing care of the patient ought to “include passing on relevant clinical information”. This statement applies equally to the ending of a professional relationship in the context of the closure or transfer of a practice as to the end of a professional relationship that has become ineffective or compromised. The Code states at 3.15 that advance notice should be given with facilitation of continuity of care via the transfer of records at practice closure. In addition to these three requirements, medical practitioners must follow applicable health information law in their own jurisdictions, with the law taking precedence when the two conflict. In short, medical practitioners are obliged to comply with the Code’s stipulations that medical practitioners are personally responsible for their patients’ records.6

Privacy and practice management law

The ACT, NSW and Victoria each have specific laws that govern the closure of practices.2,4,5 The ACT’s requirements are the most stringent, stipulating in Principle 11 that health practices which close, merge or relocate must inform ACT Health, publish a notice in a daily newspaper and give each consumer at least 30 days’ notice.2 This requirement applies to each health service practice in the ACT, including the premises and operators where or through which a person provides health services.

In NSW, individual practitioners are personally responsible for breaches of the Health Practitioner Regulation (New South Wales) Regulation, while for medical corporations, a medical practitioner must be appointed personally responsible for the corporation’s record keeping. In Victoria, the Health Records Act requires health service providers to publish a notice of closure and an explanation of their records management in a locally circulating newspaper. No advance warning of closure is required, but practices must comply with guidelines issues by the Health Services Commissioner.11

Where a practice closes without an identified practice to which records will be transferred, the requirements for record retention that apply in each jurisdiction remain, as do requirements of the Code while a medical practitioner remains registered and thus subject to the Code.

In short, despite the overlapping and complex nature of requirements for medical record storage, management and disposal at times of practice closure or major business disruption, the implications for patient continuity of care and practitioner responsibility are significant. Primary Health Networks might be well placed to facilitate record transfer or custody in similar cases of practice closure without transfer arrangements in place.

State-based legal requirement for Schedule 8 prescriptions: why so complicated?

Inconsistent prescription requirements between Australian states and territories create unnecessary complexity for health professionals

In Australia, medicines defined as Schedule 8 (S8) under the Standard for the Uniform Scheduling of Medicines and Poisons are strictly regulated because of the high risk of misuse and/or physical and psychological dependence associated with them.1 They have to be prescribed, dispensed, documented and destroyed in specific ways that are in compliance with each state and territory’s different drug regulations. S8 medicines are under stricter control than Schedule 4 (S4) medicines (other prescription-only drugs), for which requirements have been standardised between states and territories.2,3

Australia has no central body to regulate the handling of S8 drugs. Although the Therapeutic Goods Administration (TGA) is the national body for the regulation of medicines, each state and territory self-regulates under the general principles established by the TGA and has its own interpretation and legislation regarding S8 drugs, resulting in varied prescribing requirements. The legal requirements for obtaining authority and writing prescriptions for S8 medicines are listed in Box 1 and Box 2: they are often difficult to find and are long and daunting to read.

Impact on practice

The establishment of a national registration agency, the Australian Health Practitioner Regulation Agency (AHPRA), in 2010 meant that Australian health professionals were allowed to freely practise in any state or territory. Greater mobility of health practitioners between jurisdictions has been accompanied by new problems.

First, to the best of our knowledge, prescribers newly relocated to a different state or who practise across more than one jurisdiction have no single, clear resource that documents the slight nuances in each state or territory’s regulations. Legal requirements for prescribing S8 drugs are not accessible in a prescriber-friendly manner. Pharmacists can guide prescribers on the regulations and legality of prescriptions; yet the same confusion applies to pharmacists who move interstate.

Second, travelling patients bringing an S8 prescription interstate might discover that a legal prescription in one state is not legal in another. The dispensing pharmacist would need to contact the medical practitioner in the patient’s home state to find a solution. If this could not be done, treatment would be delayed until a local prescription was obtained from a medical practitioner in the state the patient was visiting.

What can we do?

It may be impractical to unify health care legislation in Australia to eliminate the complexity. However, all states and territories could maintain individual regulations but unify the S8 legal requirements. Given that S4 requirements are standardised between the different states and territories, why are S8 requirements treated differently?

For the moment, resources highlighting state-based S8 requirements for prescribers should be made readily available. A comprehensive quick-reference guide, such as the table we provide here, minimises the ambiguity in legal requirements for health practitioners, and its use may also reduce the amount of time spent by pharmacists and doctors in correcting non-compliant prescriptions.

1 Current requirements of Australian states and territories for obtaining authority to prescribe Schedule 8 medicines

State or territory

Required authority

Australian Capital Territory4

Write “Standing short term approval” for treatment of less than 2 months. For treatment of longer than 2 months, write “CHO approval number” followed by approval number from the ACT Chief Health Officer

New South Wales5

From Director-General NSW Health for psychostimulants, alprazolam, methadone, buprenorphine, flunitrazepam and hydromorphone

Northern Territory6

None

Queensland7

None

South Australia8

From SA Minister for Health for more than 2 months of treatment13

Tasmania9

From Tas Secretary for Health for more than 2 months of treatment14,15 (1 month for alprazolam, prior approval for psychostimulants, fentanyl and hydromorphone)

Victoria10,11

May need a Drugs and Poisons Regulation Group permit to prescribe to drug-dependent patients

Western Australia12

From WA Department of Health Chief Executive Officer for more than 2 months of treatment

2 Current legal requirements for prescribing Schedule 8 medicines in each state of Australia

 

Australian Capital Territory4

New South Wales5

Northern Territory6

Queensland7

South Australia8

Tasmania9

Victoria10,11

Western Australia12

Prescriber

                

Name

✓

✓

✓

✓

✓

✓

✓

✓

Address

✓

✓

✓

✓

✓

✓

✓

✓

Phone no.

✓

✓

✓

x

✓

x

✓

x

Qualification

✓

x

✓

✓

x

x

x

x

Signature

H

H

H

H

H

H

H

H

Patient

                

Name

✓

H

✓

H

✓

H (with initials)

✓

✓

Address

✓

H

✓

H

✓

H

✓

✓

Date of birth

x

x

✓

H

✓

x

x

✓

Medicine

                

Name

✓

H

✓

H (description of the medicine)

✓

H

H

H (description of the medicine)

Form

✓

Not specified

✓

✓

Not specified

H

Strength

✓

H

✓

✓

Not specified

H

Quantity

✓

H (in words and figures)

✓ (in words and figures)

H (in words and figures)

✓ (in words and figures)

H

H (in words and figures)

H

Direction

✓

H

✓

H

✓

H

H

H

No. of repeats

✓

H

✓

H

✓

H

H (in words and figures)

H

Interval for repeats

✓

H

✓

H

x

H

x

H

Date

✓

H

✓

H

✓

H

✓

✓

Only one S8 drug per prescription*

Multiple items allowed

✓

✓

✓

Not specified

✓

Multiple items allowed

✓

✓ = required. x = not required. H = information that must be written in the doctor’s own handwriting. * Exceptions apply: different forms of the same drug are acceptable.

The Alcohol Mandatory Treatment Act: evidence, ethics and the law

High rates of alcohol-related harms have long troubled the Northern Territory, with per capita alcohol consumption levels about 50% higher than the Australian average, and alcohol-attributable deaths occurring at 3.5 times the national rate.1 The Alcohol Mandatory Treatment Act 2013 (NT) (AMT Act) is the latest measure introduced to combat this issue, permitting “civil commitment” of individuals for residential alcohol rehabilitation for up to 3 months. Civil commitment for alcohol and other drug (AOD) dependence is the “legally sanctioned, involuntary commitment of a non-offender into treatment”.2

We contend that there is little evidence of the scheme’s efficacy, and that the NT Government could adopt more cost-effective alternatives that would not involve the dubious application of a medical intervention to reduce public intoxication, with its concomitant legal and ethical issues.

The Police Administration Act 1981 (NT) provides that, where a person is apprehended by police three times for public intoxication over 2 months, they must be referred for assessment by a senior assessment clinician (SAC) in accordance with the AMT Act. Under the AMT Act, the SAC — who is not required to be a medical doctor — must assess the individual within 96 hours and then request a mental health assessment or make an application to the Alcohol Mandatory Treatment Tribunal (the tribunal). The tribunal need not follow the SAC’s assessment report recommendations, but can make a mandatory treatment order in relation to the person if they meet the same criteria used by the SAC; in particular, that “the person’s alcohol misuse is a risk to the health, safety or welfare of the person or others”; “there are no less restrictive interventions reasonably available to deal with this risk”; and “the person would benefit from a mandatory treatment order” (s 10 of the AMT Act).

The NT is not the first Australian jurisdiction to introduce civil commitment laws to combat alcohol dependence. Victoria replaced its Alcohol and Drug-dependent Person’s Act 1968 with the Severe Substance Dependence Treatment Act 2010, which significantly reduced the amount of time that a person could be detained for the purposes of treatment; it now allows for detention and treatment of a person experiencing severe substance dependence for up to 14 days.

New South Wales replaced its Inebriates Act 1912 with the Drug and Alcohol Treatment Act 2007 and, in 2013, introduced the Involuntary Drug and Alcohol Treatment Program, which allows for initial detention of “identified patients” for 28 days, with an option to extend treatment to 3 months. An inquiry conducted into the operation of the original Inebriates Act, which had permitted civil commitment of patients dependent on alcohol for up to 12 months, described this legislation as “essentially punitive rather than therapeutic, treating dependence on a legal and widely available drug — alcohol — as if it were a criminal offence, and using ‘treatment’ as a means of social control rather than for the benefit of the person”.2 Tasmania’s Alcohol and Drug Dependency Act 1968 is presently under review.

The updated NSW and Victorian statutes remove extended periods of incarceration, providing improved protection of patient rights, better reflecting international best practice. For example, the Victorian legislation allows detained patients the right to obtain a second opinion from a registered medical practitioner with relevant expertise in substance dependence. Conversely, the appropriateness of the AMT Act is questionable, given the paucity of evidence for lengthy civil commitment in treating alcohol dependence and the Act’s limited protection of individual rights.

Evidence, ethics, human rights and international guidelines

Evidence for the use of civil commitment in treatment of alcohol dependence is limited. A systematic review concluded there was little evidence for civil commitment of AOD-dependent people, noting most research suffered from methodological limitations.3 This built on a comprehensive systematic review that determined there was no reliable evidence comparing efficacy of compulsory residential treatment with that of voluntary treatment among non-offenders.4 An Australian National Council on Drugs report similarly concluded that “the empirical evidence for the effectiveness of compulsory treatment is inadequate and inconclusive”.5

In the absence of evidence, expert consensus provides useful guidance on acceptable use of civil commitment. The World Health Organization advises that treatment for AOD emergencies should be for short periods only, and that the patient should be released on completion of withdrawal.6 Where an individual becomes “severely mentally disabled”, civil commitment can only be justified when an effective treatment program and adequate facilities are available, the period of commitment is limited, and the individual’s involuntary status is subject to periodic review.6 The United Nations Office on Drugs and Crime (UNODC) considers short-term detention permissible where individuals are at serious risk of harming themselves or others, but compulsory clinical interventions should cease once the acute emergency has been avoided and autonomy re-established.7 Regarding long-term mandatory treatment, the UNODC concluded that:

Evidence of the therapeutic effect of this approach is lacking… It is expensive, not cost-effective, and neither benefits the individual nor the community. It does not constitute an alternative to incarceration because it is a form of incarceration… With sufficient voluntary treatment resources, appropriate referral for treatment from the criminal justice system, and community mobilization, the residual need to use this form of compulsory/involuntary treatment should decrease until it is not used anymore at all.7

These conclusions reflect human rights and ethical considerations regarding mandatory treatment. Generally, coercive treatment is not permitted under the international right to health, which includes rights to control one’s health and body, and to be free from non-consensual medical treatment.8 States must refrain from applying coercive medical treatments, unless on an exceptional basis (such as treatment of mental illness).9 Restriction of individual rights may be permitted, but state parties bear the burden of justifying such serious measures, which must be proportional to the perceived public health threat.9 Ethicists have also concluded that if temporary mandatory treatment for the purpose of creating autonomy may be ethically justifiable — but restoration of autonomy must be “the end of any moral argument for mandatory treatment”.10

Specific issues concerning the AMT Act

Some welcome changes are being made to the AMT Act following a 6-month review.11 Criminal sanctions for absconding from treatment have already been removed, and the NT Government is presently debating whether to broaden referral pathways into the scheme (for example, through allowing medical practitioners to refer individuals to the program). However, concerns remain regarding the lack of evaluation of the program; the use of what is ostensibly a medical intervention to target a social problem; opacity around tribunal proceedings; the potentially discriminatory application of the scheme to Aboriginal people; and the scheme’s questionable cost-effectiveness.

To date, no formal evaluation of the clinical effectiveness of the program has occurred. The government has provided short vignettes containing patients’ success stories and has released reports containing numbers treated, but with no indication of post-discharge relapse rates.12,13 Given the aforementioned paucity of evidence for civil commitment, this lack of evaluation is concerning.

It is also disturbing that the scheme is openly targeted at “chronic drinkers who are publicly intoxicated”11 — not all problem drinkers. This use of a medical intervention to deal with a perceived social problem should concern clinicians. Even if pathways into the program are expanded to allow medical practitioners to refer patients into the program, as the NT Government is debating, this will not address other shortcomings. Any police power of referral is worrying, particularly given acknowledged risks associated with delays in transfer from police custody to assessment facilities.11

The AMT Act also differs from other jurisdictions in that it is mandatory in respect of the coercive nature of its treatment regime and referral into the program; once a client is referred by police, the SAC has no discretion as to whether to refer them to the tribunal. It is troubling also that the tribunal could reach a different conclusion from that of the assessing SAC, and make a mandatory treatment order in the absence of medical support.

Proceedings of the tribunal are not published, reflecting a lack of transparency in this quasi-judicial process. Concerns have also arisen in relation to procedural fairness under the AMT Act; lack of an advocate or interpreter has previously led to invalidation of a tribunal decision on appeal.14

The AMT Act has also been criticised for de-facto discrimination against Aboriginal people. Reportedly, almost everyone assessed under the AMT Act is Aboriginal.15 Homeless or itinerant individuals are much more likely to fall foul of the scheme. Homelessness rates among Indigenous Australians are up to four times higher than those of non-Indigenous Australians,16 and the practice among them of staying in the “long grass” (living rough) has been well documented.17 When read together with research confirming high rates of alcohol usage among homeless and itinerant Aboriginal people,18 it is unsurprising they are more likely to be referred through the scheme than non-Aboriginal citizens.

The AMT Act may infringe s 9 of the Racial Discrimination Act 1975 (Cwlth), by prohibiting enjoyment of a human right based on race, colour, descent, or national or ethnic origin. Although the scheme could constitute a “special measure” taken for the benefit of Aboriginal people, this would be difficult to justify given that the legislation was not written to apply specifically to Aboriginal people. The High Court of Australia recently determined that a law restricting possession of alcohol on Palm Island in Queensland did constitute a special measure, but in very different circumstances.19 Given the AMT Act goes well beyond restricting possession and severely limits the freedom of movement of affected individuals, a different determination could be reached in this instance. The proposed expansion of referral pathways into the program could mitigate this inherent discrimination, but as the legislation stands, legitimate questions remain regarding its application to Aboriginal people.

Finally, it is disquieting that around $27 million annually is being spent on a potentially discriminatory program lacking in evidence;20 between July 2013 and June 2014, a total of 418 people were referred to the program, representing an approximate expenditure of $64 000 per person.13 There are a number of more cost-effective interventions that could be implemented in place of the AMT scheme, which would represent a significantly less punitive approach towards AOD-dependent people in the NT.

Supply-side interventions, such as restrictions on alcohol pricing and hours and days of sale for licensed premises, have been shown to be effective in reducing harms associated with alcohol consumption.21 Rather than punishing individuals for drinking, such restrictions are targeted at those who stand to profit from alcohol misuse. In respect of treatment interventions, capacity-building among primary health care organisations to manage AOD dependence is more readily justifiable than continuation of the AMT scheme, as the clinical and cost-effectiveness of this approach has also been demonstrated.22 Implementation of any or all of these interventions using the significant funding allocated to the AMT scheme could see enormous benefits flow to the NT population more broadly, rather than providing for the temporary and likely ineffective compulsory treatment of a small number of people.