CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

Diversion programs in other countries

OTHER COUNTRIES

An overview of international legislation relating to diversion, in countries covered by the World Health Organization ([39]Porter, Arif & Curran 1986), indicates that many countries provide for diversion to drug- and alcohol-dependence treatment programs both separately and in combination, the covering legislation falling into a variety of categories (e.g. mental health, public health, criminal or specialised treatment laws).16

The legal disposition of drug- or alcohol-dependent persons is frequently covered by the criminal law (e.g. under specified statutory offence) or mental health legislation. In Victoria, for example, treatment programs for drug and alcohol dependence include provision for both voluntary and involuntary admission, while other provisions governing treatment may be found in road traffic laws and the mental health legislation (Porter, Arif & Curran 1986, pp36-37). Porter et al. emphasise the importance of treatment as a service to the public and the individual concerned, which should be available at every stage of the criminal justice system.

Initial contact between the offender and the police can be very important, as it may create the kind of crisis that motivates a person to undergo effective treatment, and the police should be 'both legally entitled and encouraged to refer the person directly to a treatment program, in lieu of arrest, for a short time until the emergency passes'. They claim that there are definite advantages in including treatment provisions in drug control legislation because of the flexibility it gives to the courts in imposing alternatives to penal sanctions ([40]Porter, Arif & Curran 1986, p116).

To summarise some relevant points raised by Porter et al's overview of international diversion legislation: 1.

1. Cannabis is rarely named specifically in legislation relating to diversion for drug users who commit offences. Usually the legislation refers to 'narcotics', 'opiates', 'alcohol' or 'other drugs'. Although cannabis is usually not specifically singled out (as distinct from alcohol, for example, which is mostly treated in a special class of its own with specialised treatment), it falls within the general class of substances for which many countries legislate compulsory reporting and/or registration followed by referral into a treatment program. 2.
2. There are many precedents among overseas countries for diversion and voluntary or non-voluntary commitment to treatment. There are also examples of such diversion occurring at every stage of the criminal justice process. 3.
3. There is a clear lack of evaluation of programs, which means results cannot be quantified, but the general impression is one of diversion to treatment being more acceptable all round than imprisonment without rehabilitation, which would otherwise be the situation in countries with a total prohibition policy. 4.
4. Civil commitment appears to be common internationally, but in Australia legislative provisions for civil commitment exist only in certain States, e.g. NSW and Victoria. (This is discussed further under the heading Compulsory Treatment for Drug Offenders: Criminal Justice System-Initiated Treatment and Civil Commitment.) 5.
5. There are a wide variety of legislative approaches to treatment and many different routes.

Among the problems raised are: 1.

1. The different objectives (sometimes conflicting) of health professionals and legal practitioners, when diversion for treatment is involved. 2.
2. The clear need for evaluation programs and for planning for these when the program is established. The importance is stressed of evaluating treatment programs in terms of the objectives stated in the legislation. It is important to establish realistic and concrete objectives for treatment in addition to the overriding goal of reducing morbidity and mortality. 3.
3. With regard to compulsory treatment, it is acknowledged that it is in conflict with individual liberty and freedom of decision, and it is emphasised that the legislation should lay down the conditions governing participation in voluntary treatment programs, e.g. should the 'voluntary' status be ended if the client is not cooperating? 4.
4. On occasions there may be legislation that is not used or does not work because of lack of suitable treatment facilities and resources.

Drug diversion schemes of various types operate in overseas countries. In France, for example, an offender who complies with a court-determined treatment order is not liable to prosecution; in Germany, a period of treatment can be credited against a custodial sentence; in Massachusetts, a court-appointed diversion scheme operates to stay court proceedings ([41]Porter 1986, p171). In some countries, e.g. France and Italy, a person voluntarily undergoing treatment, on completion is issued with a certificate as evidence to protect against subsequent prosecution for offences committed prior to treatment ([42]Leroy 1991). Of the 51 jurisdictions surveyed by the WHO, 22 diverted persons for treatment at one or more of these stages in the criminal justice process: (a) instead of arrest; (b) after arrest, pending trial; (c) after trial in lieu of imprisonment (e.g. suspended sentence); and (d) correction with imprisonment (e.g. during confinement or as a condition of parole) (Porter, Arif & Curran 1986, p57).

A major issue for legislators is whether such diversion should be mandatory. If diversion is mandatory prior to or instead of trial, this amounts to decriminalisation of the offending behaviour.17 In Sweden, which allows for compulsory commitment, there is now legislation in place criminalising drug use and widening the powers of the authorities to take adult alcohol and drug-dependent people into care. Sweden is a country with a strong temperance tradition which has led to 'an obsession with substance misuse generally'. Faced with the problem of AIDS and with economic difficulties, a 'new moralism' has developed in this country leading to these harsher drug measures (Gould 1989, p731).

Another approach to the handling of cannabis offenders is that taken in the United Kingdom, where more than half of the police constabulary areas have allowed police officers to take note of drug users found in possession of quantities of drugs consistent with personal use. Police then have the option not to proceed with a legal charge unless the individual has been cautioned on more than two occasions previously ([43]Wodak 1993).

A recent example of a pre-court initiative involving an attempt to bring drug users into contact with treatment is the 'Southwark Arrest Referral Pilot Program', funded by the British Home Office Local Drug Prevention Team. This three-year pilot program, commenced in March 1991, is being carried out to establish the effectiveness of arrest as an intervention for drug users wanting help. Police provide arrestees with information on local drug referral agencies and cards are sent to all charged offenders. Also, drug workers are on call to visit the relevant police stations. Though referrals were not numerous, most of those participating in referral programs reported reduced drug use in the following 12-month period.

The flaw in the program to date is the lack of effort and encouragement on the part of the police. However, it reflects an attempt to bring into a closer working relationship police and local welfare agencies in a harm reduction effort rather than simply to exercise law enforcement against drug users ([44]Walters & Coventry 1993, p12). Although the British Criminal Justice Act was proclaimed in 1991 with specific sections relating to the treatment of drug and alcohol dependent offenders (Criminal Justice Act 1991, s69, schedule 1, cited in Walters and Coventry 1993, p11) and allowing for referral and assessment procedures as components of non-custodial orders, it does not establish diversionary programs for drug offenders.