Controlled Substances Youth Treatment Orders Legislation Introduced in SA

Thursday 28 June 2018 @ 1.18 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On Thursday 21 June 2018 the South Australia Government introduced the Controlled Substances (Youth Treatment Orders) Amendment Bill 2018 (SA ) ("the Bill") to provide the option of mandatory treatment for children and young people experiencing drug dependency which can have a devastating impact on young people, their futures and their families, and can have negative impacts on the broader community. In a media release the Attorney-General's Department stated:

"The Controlled Substances (Youth Treatment Orders) Amendment Bill 2018 recognises the importance of tackling substance abuse before children reach adulthood. The changes offer parents an additional option when their child is unlikely to voluntarily seek treatment and may be a danger to themselves or others. . . . It is expected that these laws will be used after other interventions have failed and in cases where a medical assessment suggests treatment is required. The Youth Court will oversee the  application of the laws to ensure they are used responsibly." 

About the Bill in Detail

The Bill amends the Controlled Substances Act 1984 (SA) to permit an application to be made to the Youth Court for a series of orders in relation to a child or young person under the age of 18 years with a drug dependency problem. According to the Government, he Youth Court has been selected because it is the jurisdiction in SA with the specialist expertise in matters relating to persons under the age of 18 years.

Who may apply for an Order: People applying to the Youth Court may be family members or certain other interested persons; for example, applications can also be made by a person prosecuting the respondent for an offence and by officers involved in youth corrections and child protection. In the government's view, this is to reflect the likelihood that, in some cases a respondent might already be before the Youth Court in relation to an offence or child protection proceedings, or may be in detention in a youth training facility, at the time that an application for a youth treatment order is considered appropriate. Further, applications can also be made by a medical practitioner who is providing treatment to a respondent in relation to their use of controlled drugs and even the Youth Court itself may also make orders of its own motion if there are proceedings before the court involving the respondent.

Assessment Order: The Bill provides that the Youth Court would first make an assessment order which would require a respondent to attend at a nominated "assessment service". Following the making of an assessment, the court would need to be satisfied that:

  • there is a "reasonable likelihood" that the respondent is habitually using one or more controlled drugs,
  • that the respondent may be a danger to himself or herself or to others, and 
  • that the respondent is unlikely to voluntarily seek a relevant assessment. 

The assessment service is required to report to the applicant and to the Youth Court following its assessment.

Treatment Order: Once an assessment order has been made, the Youth Court may make a "treatment order" requiring the respondent to attend a nominated treatment service. For a treatment order  to be made the respondent must have been assessed, whether pursuant to an assessment order or otherwise, as being dependent on one or more controlled drugs,  satisfied that the respondent must be a danger to himself or herself or to others and that the respondent is unlikely to voluntarily seek relevant treatment. Further, the  treatment service is required to report to the applicant and to the Youth Court following its treatment of the respondent.

Meaning of Dependency: The Bill provides guidance on the question of what is "dependency on controlled drugs" -  stating it is to be determined by reference to diagnostic criteria for a dependence syndrome published by the World Health Organization.

Failure to Comply: Where a respondent fails to comply with an "assessment" or" treatment order", the Youth Court may make a detention order authorising the detention of the respondent for the purpose of ensuring compliance with the relevant order.  An order made by the court can only operate for a maximum of 12 months.

Comments on the Bill 

The Bill is seen as a major reform by the SA Government with Stephen Wade MLC, the Minister for Health and Wellbeing who is responsible for the Bill saying:

“The Marshall Government understands this process is a substantial change from past practice but that need is born of the reality that intervening effectively to address a young person’s drug dependence reduces the harm they and their families will experience, . . . A broad consultation process will be undertaken with key health, justice and child protection agencies to ensure a model of care is developed that reflects the best available evidence."

The legislation according to the Minister:

". . .  also recognises that the Youth Court, police officers, youth correction officers and medical practitioners can have important insights into individual cases of young peoples’ drug dependence and enables them to seek an order."

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