Severe Substance Dependence Treatment Act 2010

The Act defines several key concepts. Severe substance dependence is defined in section 5 by a three-part test: the person has tolerance to a substance; shows withdrawal symptoms when use stops or reduces; and is incapable of making decisions about substance use and personal health, welfare and safety due primarily to that dependence. This is narrower than clinical dependence; it requires incapacity for decision-making linked to the dependence. Treatment is defined in section 6(1) as anything done in the exercise of professional skills to provide medically assisted withdrawal from severe substance dependence or to lessen the ill effects or pain and suffering of withdrawal. It is therefore withdrawal management, not general medical care (though comorbid conditions are to be assessed and referred under section 28(3)(d)). Treatment centre means premises or a service declared by the Secretary to the Department of Health by notice in the Government Gazette (section 7(1)). Each centre must have a senior clinician, a registered medical practitioner with relevant expertise, who may delegate powers to another registered medical practitioner or nurse practitioner (sections 7(2)-(4)). The Act also distinguishes between the senior clinician and the manager of a treatment centre. Detention and treatment order is an order made by the Magistrates’ Court under section 20 authorising admission, detention and treatment at a specified treatment centre for 14 days from admission. The criteria for detention and treatment in section 8(2) are cumulative: the person has a severe substance dependence; because of that dependence, immediate treatment is necessary as a matter of urgency to save life or prevent serious damage to health; the treatment can only be provided through admission and detention in a treatment centre; and there is no less restrictive means reasonably available. Section 8(1) also requires the person to be 18 or older. The nominated person is a person chosen by the detainee to protect their interests, nominated in writing (section 24). The guardian, as defined in the Guardianship and Administration Act 2019, has rights to notice and representation. The Public Advocate has an automatic role: on notification of admission, the Public Advocate must visit the person and can make representations, provide advice, and assist with legal representation, second opinions, or revocation applications (section 27). The statement of rights and entitlements must be given in plain language and explained orally; if the person does not understand, further efforts must be made (section 26). The Act also defines ambulance paramedic, nurse, nurse practitioner, police officer, registered medical practitioner, and senior clinician in section 4.

The Act directly affects several groups. Primary subjects are persons aged 18 or over who have a severe substance dependence and meet the detention criteria: their life or health is at immediate and urgent risk, detention in a treatment centre is the only way to provide treatment, and no less restrictive alternative is available. These are individuals who are incapable of deciding about their substance use and health due to dependence, and who face a crisis requiring involuntary withdrawal management. The Act does not apply to minors (section 8(1)(a)). Applicants for a detention and treatment order can be any person 18 or older (section 10(1)). In practice this includes family members, health professionals, police officers, or others. The application must be accompanied by a recommendation from a prescribed registered medical practitioner who has personally examined the person and consulted the senior clinician of the proposed treatment centre (section 12). The examining medical practitioner cannot be the applicant, a family member, the person’s guardian, or the senior clinician of the proposed centre (section 12(8)). Ambulance paramedics, police officers, and licensed non-emergency patient transport providers are authorised to take a person to a treatment centre under a detention order (section 20(4)) and to apprehend a person absent without leave (section 34(4)). The Magistrates’ Court hears applications and revocation requests. Treatment centres and their staff , senior clinicians, managers, treatment teams, nurses, registered medical practitioners , have duties to admit, examine, treat, plan, and discharge. The Public Advocate has statutory duties to visit, represent, and assist detainees. Guardians and nominated persons have rights to be notified, consulted, and to appear or make representations. Family members may be consulted with the person’s consent (section 30(2)(c)). The Secretary to the Department of Health declares treatment centres and may pay for recommendations (section 39). The Act also affects VCAT which must provide guardian information on request (section 11). The Act may affect the person’s carers and support services involved in discharge planning. The Act does not create general obligations for all health practitioners; it is a specific coercive framework triggered only when the strict criteria are met.

The Act imposes key duties on various actors and confers rights on the detained person. Duty of the applicant: must file a proper application with a current recommendation (section 10), serve the person, the treatment centre, and any guardian within 24 hours (sections 10(3), 11(3)), and provide evidence of service at the hearing (section 16). Duty of the prescribed registered medical practitioner: must personally examine the person, consult the senior clinician about less restrictive options and facilities, specify facts observed and those not observed, explain the purpose of the examination, and not make the recommendation if disqualified (section 12). Duty of the senior clinician: must examine the person within 24 hours of admission and confirm or discharge (section 23); determine treatment and prepare a treatment plan considering the person’s wishes, views of nominated person and guardian, alternative treatments, risks, and consequences (section 30); review and revise the plan regularly; ensure the person can obtain a second opinion (section 31); discharge when criteria no longer apply (section 35); prepare a discharge plan (section 36). Duty of the manager: must ensure statement of rights is given, Public Advocate informed, nominated person and guardian notified (section 25); assist the person to obtain legal advice if requested (section 26(5)). Duty of the Public Advocate: must visit the person as soon as practicable, make representations, provide advice, and assist with legal representation, second opinions, or revocation applications (section 27). Power to restrain or sedate: police or ambulance paramedics may use reasonable force to restrain, and a registered medical practitioner may administer or direct sedation, if necessary for safe transport, transfer, or return (section 38). Power of entry: requires announcement, statement of authority, opportunity to permit entry, and if refused, a police officer may use reasonable force (section 37). Rights of the detained person: to appear at the hearing (section 15(2)), to be represented by a legal practitioner (section 18(1)), to lead evidence and cross-examine witnesses (section 15(4)), to nominate a person (section 24), to receive a written statement of rights and an oral explanation in a language or mode they understand (section 26), to obtain a second opinion from a registered medical practitioner with relevant expertise (section 31), to apply for revocation of the order at any time (section 22), to be discharged when criteria no longer apply (section 35), and to have a discharge plan prepared and discussed with them (section 36). The person also has the right to have the Public Advocate assist them. The person does not have the right to refuse treatment; treatment may be provided without consent (section 28(2)). The person’s guardian has the right to appear and make representations at the hearing (section 18(3)).

The Act contains specific criminal penalties for breach of confidentiality orders. Under section 19(4), a person must not contravene an order made and posted under section 19(1) or (2) (closed court orders or publication restrictions). The penalty is 1000 penalty units or imprisonment for 3 years. Section 19(5) provides an even broader prohibition: regardless of whether the Court makes any order, a person must not publish or broadcast anything that identifies the person who is the subject of the application, the applicant, or a witness. The penalty is the same: 1000 penalty units or imprisonment for 3 years. Note that under section 19(6), publication does not include a communication made for administering or giving effect to the order. These are serious penalties, reflecting the sensitivity of proceedings involving severe substance dependence and the vulnerable status of the subject. The Act also creates an offence for contravening regulations (section 40(2)(g)), with a maximum penalty of 10 penalty units for any contravention of the regulations. However, the Act does not create general offences for failing to comply with procedural duties (e.g., failure to serve documents, failure to provide a statement of rights). Those duties are not enforced by criminal penalty but presumably through administrative or professional accountability mechanisms, or possibly through judicial review of the order itself. The power to enforce the order physically is vested in police officers, ambulance paramedics, and authorised persons who can use reasonable force to restrain, sedate, enter premises, and apprehend (sections 20(4), 34, 37, 38). The Act does not provide for civil liability for unlawful detention, but the common law remedies of false imprisonment and habeas corpus would remain available. The Act’s enforcement regime is thus split: strict criminal penalties for breach of confidentiality; physical coercion powers for carrying out the order; and no express penalty for breach of procedural obligations by officials, other than the potential invalidity of the order or professional discipline. The court can revoke an order if the criteria no longer apply (section 22(9)) or if the initial order was made without proper service (section 16(3) conditions). The Act also provides that a detention order lapses if the person is not admitted within 7 days (section 21(4)), and can be extended only once (section 21(7)).

Section 6(2) expressly provides that the Severe Substance Dependence Treatment Act 2010 prevails over the Medical Treatment Planning and Decisions Act 2016 and the Guardianship and Administration Act 2019 in respect of any treatment given under this Act, including treatment under an order. This is a crucial supremacy clause. It means that the usual requirements for consent, advance care directives, and guardians’ authority under those Acts are overridden while a detention and treatment order is in force, but only for treatment under this Act. The Guardianship and Administration Act 2019 is still relevant for the definition of guardian and Public Advocate, and for the ongoing role of a guardian in relation to other decisions. The Act also interacts with the Magistrates’ Court Act 1989: section 9(2) provides that except where this Act makes provision, the Magistrates’ Court Act applies to proceedings. The definition of family member in section 4 is drawn from the Magistrates’ Court Act 1989. The Act interacts with the Health Practitioner Regulation National Law (Victoria) through definitions of registered medical practitioner, nurse, and nurse practitioner. The Act interacts with the Victoria Police Act 2013 for the definition of police officer. The Ambulance Services Act 1986 provides the definition of ambulance paramedic. The Non-Emergency Patient Transport and First Aid Services Act 2003 is referenced for transport providers. The Act repealed the Alcoholics and Drug-dependent Persons Act 1968 (section 42(1)) and transitional provisions convert existing orders under that repealed Act into detention and treatment orders under this Act (section 43). The Act does not interact directly with mental health legislation such as the Mental Health Act 2014; it is a separate scheme for substance dependence, not mental illness. However, section 28(3)(d) requires that if a person has a coexisting medical condition or mental disorder, they must be appropriately assessed and referred to relevant services, and treatment coordinated. The Act also interacts with the Oaths and Affirmations Act 2018 for the form of evidence (section 13(2) refers to evidence by oath, affirmation, or affidavit). The Act does not displace the Charter of Human Rights and Responsibilities Act 2006; rather, section 3(2) directs that interpretation must keep limitations on human rights to the minimum necessary.

The Act as at the version date (30 September 2021) incorporates amendments from several Acts. The Pharmacy Regulation Act 2010 (No. 39/2010) substituted the definitions of registered medical practitioner and nurse practitioner, inserted a definition of nurse, and amended section 38 relating to sedation powers, all effective 24 August 2010 before the Act commenced. The Statute Law Revision Act 2011 (No. 29/2011) made minor amendments: updating a reference in section 22(3)(b) to the senior clinician, and repealing Part 6 (sections 44-50) which had contained transitional and other provisions; these were effective 22 June 2011 and retrospectively 10 August 2010. The Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014) inserted the definition of police officer, and amended sections 13(1), 13(3), 18(2), 20(4)(a), 22(7)(b), 34(4)(a), 37(3), and 38(2)(a) to replace references to “member of the police force” with “police officer”, effective 1 July 2014. The Medical Treatment Planning and Decisions Act 2016 (No. 69/2016) amended section 6(2) to insert a reference to that Act, effective 12 March 2018, to ensure the Severe Substance Dependence Treatment Act prevails over the new medical treatment planning regime. The Oaths and Affirmations Act 2018 (No. 6/2018) amended section 13(2) to allow evidence by affirmation or affidavit in addition to oath, effective 1 March 2019. The Guardianship and Administration Act 2019 (No. 13/2019) substituted the definition of guardian and amended the definition of Public Advocate, and amended section 6(2) to include reference to that Act, effective 1 March 2020. The Non-Emergency Patient Transport Amendment Act 2021 (No. 29/2021) amended sections 20(4)(c) and 34(4)(c) to update references to the Non-Emergency Patient Transport and First Aid Services Act 2003, effective 30 September 2021. No amendments are noted as not in operation in this version. The Act also has a built-in review requirement: by 1 March 2015 the Minister must ensure a review is completed (section 41). The source does not indicate whether that review was conducted or resulted in amendments.

The Act itself does not cite any cases, and the version provided includes no judicial consideration in the text or endnotes. However, practitioners should be aware that the Act has been considered by Victorian courts and tribunals, although the source does not name any such cases. Because the instruction requires that we only name cases the source names, and the source names none, we can only state that the Act does not reference any litigation, but we may infer that the strict procedural requirements , such as the 72-hour hearing window, the obligation to serve the subject, the requirement for a certificate of available services, and the balance of probabilities standard , have likely been the subject of judicial interpretation on issues like what constitutes “less restrictive means” or “reasonable steps” for service. The Act’s confidentiality provisions (section 19) have a high penalty and could be litigated. The power to sedate (section 38) and use force (section 37) could give rise to tort claims. The review mechanism in section 22 (revocation) and the requirement that the senior clinician discharge when criteria no longer apply (section 35) provide avenues for challenge. The source includes a note in section 31(5) that if a second opinion finds criteria are not met but the senior clinician disagrees, the order remains in force and the person can apply for revocation. This could be litigated. The Act’s relationship with the Charter of Human Rights and Responsibilities Act 2006 (section 3(2)) may have been the basis for challenges. However, without source data, we cannot describe specific outcomes. The Act’s purpose and objective provisions (sections 1 and 3) are likely to be central in any case considering the legality of detention. The Act does not provide a separate merits review body; the Magistrates’ Court has exclusive jurisdiction (section 9). Appeals from the Magistrates’ Court would lie to the Supreme Court on a question of law or by judicial review. No such cases are referenced in the provided text.

Several provisions contain traps for the unwary. Time limits are strict: the recommendation is only current for 72 hours after examination (section 12(7)(b)); the hearing must occur within 72 hours of filing (section 15(1)); the order lapses if the person is not admitted within 7 days (section 21(4)) with only one possible 7-day extension (section 21(7)); the senior clinician must examine within 24 hours of admission (section 23(1)); revocation applications must be heard no later than 48 hours after filing (section 22(5)). Missing any of these windows could render proceedings void. Service requirements are critical: the applicant must personally serve the subject within 24 hours of filing (section 10(3)(a)), and serve the treatment centre and guardian (sections 10(3)(b), 11(3)). If personal service is not effected, the court may still make an order only if satisfied all reasonable steps were taken and it would be detrimental to the person’s health to delay (section 16(3)). The applicant must give evidence of service at the hearing (section 16(1)). Failure to serve properly is a ground to refuse the order. Disqualification of the recommending doctor: the doctor cannot be the applicant, a family member, the guardian, or the senior clinician of the proposed treatment centre (section 12(8)). This is broader than many expect , even the senior clinician of that centre cannot make the recommendation, even though they may have examined the person. The recommendation must distinguish facts observed from facts not observed (section 12(4)(b)), and the doctor must have reasonable grounds for relying on non-observed facts (section 12(5)). The certificate of available services is mandatory: the court must obtain it before making an order (section 20(2)(c)), and if the served treatment centre does not have facilities, its senior clinician must request a certificate from another centre (section 14(3)-(4)). Leave of absence does not extend the order: section 33(4) gives the example that 5 days’ leave does not extend the 14-day order. Discharge plan is mandatory: even if the order expires or is revoked, a discharge plan must be prepared (section 36(1)). Use of force requires announcement: before entering premises under a warrant or order, the person must announce their authority and give an opportunity to permit entry; only if refused can a police officer use force (section 37(2)-(3)). Sedation may only be administered by a registered medical practitioner (or within scope of practice for paramedics and nurses under section 38(3)), and only if necessary for safe transport, transfer, or return (section 38(2)). The onus on revocation is on the applicant for revocation, not the detaining authority (section 22(8)). The person must prove on balance of probabilities that one or more criteria no longer apply. The Act prevails over the Medical Treatment Planning and Decisions Act and Guardianship and Administration Act (section 6(2)), so advance care directives or guardian decisions about treatment are overridden under this Act.

Compliance with the Severe Substance Dependence Treatment Act 2010 requires strict adherence to its procedural and substantive requirements. For applicants (any person 18+), the key steps are: obtain a current recommendation from a prescribed registered medical practitioner who is not disqualified (section 12(8)); ensure the recommendation is based on a personal examination within the last 72 hours (section 12(7)); file the application at the proper venue nearest the person’s residence (section 10(4)); within 24 hours, personally serve the subject, serve the treatment centre, and serve any guardian (sections 10(3), 11(3)); obtain evidence of service; request guardian information from VCAT (section 11); attend the hearing and prove on balance of probabilities that each criterion in section 8(2) applies (section 15(5)); after the order is made, consult the treatment centre and arrange for the person to be taken and admitted within 7 days (sections 21(2)-(4)); if no bed, apply for a single 7-day extension (section 21(5)-(6)). For medical practitioners making recommendations: personally examine the person; form the opinion that all criteria apply; consult the senior clinician of the proposed centre, discussing less restrictive options and confirming facilities (section 12(2)-(3)); explain the purpose of the examination to the person as far as reasonable and record the steps taken (section 12(6)); do not make the recommendation if disqualified; specify facts observed and not observed, with reasonable grounds for the latter (section 12(4)-(5)); use the prescribed form (section 12(7)(a)). For treatment centres and their senior clinicians/managers: on receiving an application, provide a certificate of available services to the court (section 14); if no facilities, request one from another centre (section 14(4)); on admission, examine within 24 hours and either confirm or discharge (section 23); ensure statement of rights is given orally and in writing in the person’s language, with further attempts if needed (sections 25, 26); notify the Public Advocate (section 25(1)(b)); notify nominated person and guardian (section 25(1)(c)); develop a treatment plan considering enumerated factors and discuss with the person and others (section 30); review and revise regularly; facilitate second opinions (section 31); if transfer is beneficial or necessary, obtain approval from receiving centre and notify stakeholders (section 32); handle leave of absence and apprehension (sections 33, 34); discharge the person when criteria no longer apply, prepare a discharge plan after consulting the person and relevant others, and provide copies (sections 35, 36). For police officers, ambulance paramedics, and transport providers: exercise powers of entry only after announcing authority and seeking permission; use reasonable force only if permission refused and only if a police officer (section 37); use reasonable force to restrain and administer sedation only when necessary for safe transport, transfer, or return (section 38); conduct frisk or ordinary searches only if reasonable suspicion of danger or escape risk, and explain the purpose (section 38(4)-(7)). For any person: do not publish or broadcast anything that identifies the person who is the subject of the application, the applicant, or a witness (section 19(5)), and comply with any court order restricting publication (section 19(4)). For the Public Advocate: on notification of admission, arrange a visit as soon as practicable; provide representation, advice, and assistance (section 27).