CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

Compulsory treatment for drug users

CRIMINAL JUSTICE SYSTEM-INITIATED DRUG TREATMENT AND CIVIL COMMITMENT

A number of literature reviews have concluded that treatment can effectively reduce drug use as well as the criminal activity which often accompanies it ([45]Anglin & Hser 1990; Gerstein 1990; Office of Technology Assessment 1990 in Anglin & Hser 1991, p244). There is also increasing evidence that those coerced into treatment by way of the criminal justice system achieve the same success as those entering voluntarily (Anglin & Hser 1991, p244).

The issue for makers of social policy is how to increase the number entering treatment, since 'the nature of drug use, especially at abusive and addictive levels, often inhibits or precludes self-motivation in the user toward voluntarily seeking treatment' (Anglin & Hser 1991, p247).

Many would say that 'when offenders, such as arrestees, probationers, inmates or parolees, are identified as substance abusers by the criminal justice system, remanding to treatment is a necessary and logical action ... One of the most successful of coercive efforts has been civil commitment' (Anglin & Hser 1991, p247; see also discussion below of countries which employ civil commitment). Carney, in his Drug Users and the Law in Australia (1987), points out that, in Australia, civil commitment policies for drug-dependent people date back to the 19th century, and were based on the early view of drug use as a 'disease' for which in-patient therapy should be compulsory (1987, p1).

As early as 1867, Victoria copied Scotland's move to amend its lunacy laws to allow inebriates to be admitted to 'lunatic asylums', and in 1872 passed the Victorian Inebriates Act, which was the first comprehensive Inebriates Act to be enacted outside America. The other Australian States followed, with legislation in Tasmania in 1873, in South Australia in 1874, in Queensland in 1898, in New South Wales in 1900 and in Western Australia in 1903 (1987, p3). Much of the Australian State legislation has survived to the present time. When Queensland was debating its legislation in 1896, the subject of drugs other than alcohol, i.e. 'opium, chloral and other drugs', came up for the first time (1987, p13). Legislation providing for voluntary or compulsory civil admission to treatment facilities of alcohol or drug-dependent people is in force in most of the major Australian jurisdictions - but is not much utilised. Carney (1987, pp52-53) outlines four approaches to the regulation of entry to civil treatment schemes for dependent drug users - the fourth 'applies the classic justifications for the enactment of criminal law, namely that the actions of the prospective patient constitutes an intolerable degree of harm to other members of the community. Judicial commitment of offenders, and some third party proceedings initiated by police officers, fit this model' (1987, p53).

Moving to the United States, the origins of 'civil commitment' for opiate-dependent (and also alcohol-dependent) people date back to the second half of the 19th century when some of the laws enacted to provide for the civil commitment of the mentally ill also permitted civil commitment of people dependent on narcotics ([46]Rosenthal 1988). In the United States civil commitment generally takes the form, described by [47]Brown (1988, p664), of the direct remanding of the individual to the health care system in which civil procedures alone are brought into play ... This administrative/judicial action need not involve provision of legal counsel, the potential for judgment by one's peers, access to witnesses for one's defense, etc.

With some exceptions (see Newman 1986, cited in [48]Brown 1988), diversion from the criminal justice system for drug treatment seems to be acceptable to both health and criminal justice authorities. However, in democratic countries, civil commitment of the drug user conflicts with many people's views regarding civil rights, the proper relationship of the individual to the State and the use of the health care system for social control. Regardless, legislation in a number of countries provides for such civil commitment for drug use. [49]Porter et al. (1986) point out that in 27 (comprising 32 separate jurisdictions) of the countries they surveyed, there was provision for civil commitment under certain conditions, as there are in 35 American States.

It has been argued (Bejerot 1983 & Webster 1986, cited in Brown 1988) that such extreme measures to deal with drug use must have wide public support. Generally the rationale for such action is that drug use is a threat to the country's stability (as in Singapore in the case of heroin dependence among young males) or a threat to the country achieving its economic goals, e.g. Malaysia, where the Government decided that the drug problem was a threat to national security as the country was 'losing its manpower to drugs' ([50]Rysavy 1990).18

In 1983, due to an increasing heroin problem in Malaysia, the powers of police and drug rehabilitation officers were extended, allowing them to arrest and detain persons suspected of using illegal substances. A positive urine sample resulted in mandatory drug treatment. Ten per cent of those in treatment in 1989 were undertaking rehabilitation for cannabis use only. All programs were the same, lasting a maximum of two years with two years' compulsory aftercare, an important part of which was the assignment of a drug-free 'guardian' to act as a role model and to provide positive support. Any infringement of rules during treatment resulted in severe punishment, and any drug use after release from treatment resulted in incarceration (Rysavy 1990). Needless to say the program has a high success rate, but is unlikely to fit other countries with cultures differing from that of Malaysia.

Brown summarises the conditions that 'on the basis of other societies' actions, have been described as necessary to the implementation of civil commitment procedures:

• there needs to be the appearance of risk to the larger society through the subgroup's (i.e. drug users') inappropriate behaviours;
• there needs to be the capacity to marshal public support for such action;
• there must be a capacity to identify and isolate the subgroup demonstrating the offending behaviour;
• the subgroup must be without sufficient political support to withstand the competing political pressure;
• there must be the machinery to process, detain and confine those whose behaviour is inappropriate or threatening; and
• there should be a belief in the ability of the community to put in place initiatives that will humanely change individuals' behaviour for their own and for the larger society's well-being ([51]Brown 1988, p676).

Brown goes on to say that it is likely that jurisdictions will retain the option to call upon civil commitment in the event of a situation arising which has the capacity to 'disrupt the normal course of society and for which criminal prosecution may be seen as either inappropriate, unwarranted or infeasible'. At the same time, only with the greatest conservatism will civil commitment be likely to be employed, due to a general distaste for such emergency measures ([52]Brown 1988). The contribution to the spread of AIDS of intravenous drug use, and its repercussions for individual drug users and the wider society, is potentially one such situation.

Throughout the wide variety of countries providing for civil commitment for drug use, there have been few studies of the efficacy of such treatment ([53]Brown 1988). However, some studies have been produced by the US and these are discussed below. Generally, in the majority of countries, grounds for commitment are provided either in mental health legislation or specific drug legislation. Countries using mental health legislation usually include provision for commitment for threats both to others and to self. Germany, Japan and Somalia, for example, provide for civil commitment if the drug-related disorder 'constitutes an imminent threat to public safety, or when individuals pose a danger to their own life and health' ([54]Brown 1988, p666). Bangladesh, on the other hand, specifies only the existence of psychiatric disturbance without elaboration of threat, and Trinidad and Tobago emphasise the individual's inability to provide for himself (Brown 1988). Fifteen out of 43 countries surveyed by [55]Porter et al (1986) provide for civil commitment under legislation specific to drug use, where the criteria may be limited to evidence of dependence (as in Mexico, Columbia, Peru, Thailand and Malaysia). Some (i.e. Argentina, Italy, Australia and Sweden) also include reference to the threat posed to others and/or to the need for treatment. In Victoria (Australia) under the Alcoholics and Drug Dependent Persons Act of 18 December 1968, an alcohol- or drug-dependent person 'suitable for treatment' (i.e. 'who habitually uses drugs of addiction to such an extent that he has lost the power of self-control with respect to the use of drugs of addiction' (Porter et al 1986, p126), may be committed for seven days and, at the discretion of the medical officer in charge of the assessment centre (the decision-making authority), for another seven days.

A consensus statement issued by the participants at a meeting in the US to examine research findings relating to civil commitment and mandatory treatment, particularly in relation to hindering the spread of AIDS, found that 'treatment is effective in reducing intravenous drug abuse and that the length of time in treatment is positively related to treatment success, the criminal justice system is important for identification and retention of drug abusers in treatment' ([56]Leukefeld & Tims 1988). It was further recommended at this meeting that 'the term "compulsory treatment" be used rather than "civil commitment" to capture a wider range of possible interventions, since civil commitment is only one type of compulsory treatment. Further, it is essential that candidates for compulsory treatment receive appropriate legal protections.' In the US, despite interest in the early 1970s due to 'high rates of recidivism and criminal justice system over-crowding and the shift away from a rehabilitative philosophy in corrections, programs for drug-abusing offenders have languished in the 1980s until fairly recently' ([57]Anglin and Hser 1990, p424).

However, the 1960s saw the beginning of civil commitment for drug-abusing offenders in some States of the US. These were based on the therapeutic community philosophy. There are few evaluations of treatment for offenders except for these civil commitment programs, and such programs as have been developed are so recent that they have not been evaluated.