Substance Addiction (Compulsory Assessment and Treatment) Bill

It gives me pleasure to take a call on the Substance Addiction (Compulsory Assessment and Treatment) Bill. I want to start with clause 22, “Requirements for specialist assessment”.

The people for whom this piece of legislation is important are those who have got significant addiction issues—so significant that they are at a point of it being life-threatening to them. The requirements under this particular clause—the specialist assessment—are to ensure that all the clinical advice and all the criteria with regard to their treatment are addressed appropriately before an application is then made for their compulsory treatment. The provisions for a court to make that compulsory treatment order sit within clause 32. It is an important part of the discussion that we had in the Health Committee. When you are actually compelling somebody into treatment, and you are withdrawing their ability to have free will and free access, it is a really important thing that we get that absolutely right in the legislation.

We looked, initially, at what happens under compulsory treatment orders within the mental health field, and looked to that as the model with which to ensure that somebody being compulsorily treated for their addictions would be able to retain the rights that they are due under that. It is a significant thing to have somebody take away from you the ability for you to decide how you want to be treated, and we have to, as legislators, ensure that we get that absolutely right. It is not an easy thing that we do. We are not talking about large numbers of people over the course of the year. I think that probably about 200 patients would possibly be in a position to have applications made for them and on their behalf.

We talked about the notion of compulsion and how important it is in this particular environment, where, generally speaking, when somebody is seeking treatment for whatever condition they may have, the usual way to do that is for that patient to be completely informed, and for that process to then allow them to make a decision. But we are talking about a different cohort of people who, because their addictions are so severe, may not be in a position to actually make those decisions for themselves.

During the course of the select committee process, there were some changes that we made to particular definitions: for example, the question of what a treatment centre is. One of the scenarios that was presented to the committee was around particular residential facilities and whether they could be considered as treatment centres. The decision was made that, being such a specialised field, we needed to ensure that we could define those appropriately to make sure that those centres were staffed by the people who had the expertise to deal with this significant cohort of people.

There were some other things that we really felt we needed to ensure that we get right, like the ability for that person to have somebody act on their behalf. This was where the role of the district inspectors came into play. It is similar to what happens in the mental health environment: somebody who is objective and can ensure that the rights of the patient are upheld.

We also talked a lot about what happens when somebody goes into this type of treatment and what might happen to their family members and their family’s ability to ensure that they know what kind of treatment their loved one is undertaking. So part of the legislation is to ensure that children, in particular, of patients have the ability to be notified when their loved one is having a compulsory treatment order placed upon them.

We spent a bit of time talking about what an approved provider and approved facility would be and just what the criteria would be to ensure that they could meet a particular standard. Some of the submitters said to us that they were concerned that the level of expertise to provide this type of care and this type of treatment is something that we have some way to go to address, even with the small numbers of patients that we will be treating over the course of a year. We have actually got some gaps in capacity and some gaps in knowledge in this country, and we were concerned at the select committee—and we discussed this quite a bit—about whether we would be in a position to have the treatment available, as is required in the legislation, from when the legislation actually is passed. There was some concern that that was not actually going to be in place.

So that is one of the things I would really like the Minister in the chair, Minister Dunne, to discuss: whether he is satisfied that the level of expertise is actually going to be available to ensure that the legislation is carried out to its full extent and whether there are plans in place that he is aware of to build that capacity into the health system. I will make some further contributions later, but I would ask the Minister whether he has got some confidence that he can supply to the Committee about that particular issue.

Tēnā koe, Mr Chair. I too would like to begin my contribution tonight by acknowledging many whānau around Aotearoa, in Kaikōura, in Te Wai Pounamu, and here in Wellington who are dealing with the after-effects of our latest earthquake. I hope that people out there know that we all stand in solidarity at this time. I particularly want to acknowledge the leadership of Kai Tahu, the Kaikōura rūnaka, and Takahanga Marae for opening their doors and showing, I think, the true spirit of whanaungatanga.

It is my pleasure to speak in this Committee stage of the Substance Addiction (Compulsory Assessment and Treatment) Bill. I do that as a member of this House who is incredibly interested in issues to do with ethics. I particularly would like to ask the Minister in the chair, Minister Dunne, some questions about the principles of ethics. Those two principles are informed consent and do no harm. Underlying this piece of legislation, and certainly in clause 7 of the bill, is that the State has the right to intervene in someone’s life and for those who—and I will read out clause 7—“have a severe substance addiction” there is an underlying assumption that they do not have the capacity to make informed decisions about what the most appropriate treatment is for them.

Under this piece of legislation, upon application of somebody who is over the age of 18, we as a society can compulsorily treat that person, which means we can detain them in a facility that they have not given consent to being detained in. I think that the fundamental ethical principle of informed consent, complemented by do no harm, does actually deserve the scrutiny of the House. So I would very much appreciate the Minister’s justification for that ethical principle being compromised.

But, in highlighting that, I also want to note clause 57 of the bill, which is titled “Right to legal advice”. This clause was particularly remedied by the Health Committee process, because it did make some changes to the initial bill that was presented to the House. The assumption under this particular clause is that every patient is entitled to request a lawyer to advise him or her on their status and their rights as a patient and that the lawyer, if they agree to act on behalf of the individual, is permitted access to the patient’s records, files, and everything that pertains to that person being, under this piece of legislation, treated in a facility that they have not consented to.

So when I think about the ethical principles of informed consent and do no harm, I actually think the safeguards are within the legislation, but I do think that there is merit in the Minister talking about those principles. Underlying this piece of legislation, I think, are some very sound principles. Unfortunately, we have people in our society who become so addicted that, actually, that addiction means that they do not have the capacity to make appropriate decisions and look after themselves and their families.

I am particularly interested in families where people in this situation have dependent children, for example. What is the State’s responsibility within that context to ensure that the person receives the treatment they want, but also to ensure that the family has some pathway to reunification? Unfortunately, I think, people who have addictive tendencies—some people are now saying more and more that it is hereditary, that we are all born with it, and that under some circumstances there is really nothing we can do to moderate that particular disposition. So I think that the intention of this legislation and the provisions that we are making are valid, but I also think, at this time, it is appropriate that the Minister who is responsible for the legislation explain it a bit more thoroughly to the people of New Zealand. Kia ora.

I want to take this opportunity to actually thank the Health Committee, which put a lot of work into ensuring that this bill would help to fit with the very purpose that this bill’s intention was actually implemented for. I did not sit on the Health Committee on this particular bill, but I can actually see, through the recommendations made, that a lot of these recommendations are actually common-sense recommendations that can only be helpful to the practitioners, the professionals, and actually the end-users, who are the patients and whānau. I also want to echo what previous members have said in the Committee with the questions that they have asked the Minister, and I do look forward to the duration of this bill through the Committee stage and to having those answers given and provided by the Minister.

I want to also just point out that New Zealand First is, in fact, supporting this bill. Like previous members have said, I want to add to the fact that there comes a time in life for compulsory assessment and treatment for individuals with severe substance addiction who are totally unable to make decisions about their own treatment. This bill, New Zealand First believes, addresses this problem that members of our communities face in dealing with their loved ones who are going through an addiction like this. For whatever reason they have become addicted, what they face, along with whānau, is a real challenge, and we see that in today’s world, which is very different from that of the likes of my parents; with the degree of drugs that are being used in our community and society, we have to ensure that the legislation that we are bringing through is fit for the modern-day life that we now face and that our children face in the future.

It is a good bill. It is good that the bill is repealing the Alcoholism and Drug Addiction Act 1996. This is well past its use-by date. We in this House must acknowledge, as I said, that addictions have changed over the last 50 years and so has the way that we treat people with addictions. The current legislation does present some real challenges, not just for family and friends but also for health practitioners when we, as a society, are dealing with the growing scale of drugs and the problems that we have here in New Zealand.

Family members right around New Zealand become distressed when they are left out of the decision-making process when dealing with the simplicity of actually simply wanting to protect the ones whom they love when they cannot make the choice themselves. New Zealand First agrees that the criteria for compulsory addiction treatment in clause 7 appear to be robust. These provisions target individuals who have impaired informed decision-making choices and will require compulsory treatment. This means that there must be appropriate treatment provided and available to individuals simply because it is actually quite vital that a patient’s condition is correctly monitored and that it is reviewed. If the clinician believes that the criteria for compulsory treatment of any of the patients they are dealing with no longer apply, then the patient will be released and the after-care plan, which is critical for the patient’s success, can only be a positive outcome.

This wraparound support helps the individual not only actually deal with the secondary effect, which is the addiction itself, but also helps actually deal with the primary cause of an addiction. We know from feedback from submitters—there were 39 submitters and there were 15 heard orally—that the challenge that is faced is in terms of making sure that we are not only addressing legislation to help with the addiction and substance issues but also making sure that we are wrapping services around the patients so that they can actually cope with the day-to-day life of going back out into society and are able to reintegrate into their community.

I do want to say too that clause 4 of this bill defines who an approved provider is: “(a) a person who is certified, under the Health and Disability Services (Safety) Act 2001, to provide some mental health services;”. The recommendations by the Health Committee for amending clause 4, for us, really were common sense and we were really pleased to see through the commentary and through feedback that this bill, in fact, will help alleviate the current challenges that practitioners and whānau do have with trying to ensure that the people whom they love actually get the services and help that they need. So New Zealand First supports this bill.

The Green Party is supporting this bill. I was not on the Health Committee when it heard submissions on the bill, but having spoken to my former colleague, Kevin Hague, who oversaw this through the select committee process—he spoke highly of the select committee process and the officials and the work that they did to ensure that this bill struck the careful balance between meeting the needs of people who are suffering from severe substance addiction and the right of individuals to give informed consent about their treatment. There are occasions in which there is a need for intervention, but it only affects very small numbers of people.

I think the best thing we can say about this piece of legislation is that it vastly improves the Alcoholism and Drug Addiction Act of 1966, which is well overdue for changes. The Law Commission undertook a very helpful report that identified a number of problems with the existing legislation, including that although two medical certificates are required before a person could be committed, there is no requirement that either of these certificates be issued by a specialist alcohol and drug practitioner following a personal assessment. The committal process, under the current legislation, begins with an application to the District Court, and families are finding it very difficult to make applications. There are delays and problems satisfying the regulatory requirements for applications.

The statutory period of detention under the current legislation is 2 years, which is quite extraordinary because it far exceeds what would normally be necessary to undertake any programme of treatment. The Alcoholism and Drug Addiction Act makes very inadequate provision for review of the detention decision, and that is something that has been addressed by the piece of legislation that we are debating this evening. There are, generally considered, insufficient safeguards to protect the rights of people held under the Act, and there are few treatment facilities that are certified to accept people under that particular regime and, consequently, there is not able to be the flexibility and the type of treatment programme available. There are significant improvements in this legislation that should result in both greater protection of individuals’ rights and the potential for review, and should also ensure that there is greater access and treatment available for those individuals whose lives may be threatened by severe substance addiction.

I guess I will just make a couple of other points. One of them is that, fundamentally, we are starting to understand that addiction is not just a personal or individual problem; actually, it can be quite environmental. Financial stress, homelessness, and other life circumstances can contribute to addiction even though, clearly, there potentially could be hereditary or genetic aspects to it. I think it is important that we take an approach that addresses all of the environmental factors and looks to enable individuals to be empowered to live their lives in a healthy way.

Secondly, one concern that we have, overall, is inadequate funding of the health system and, particularly, the mental health system, and that is going to pose challenges for the wraparound support services that are needed by people in the future. So although the Green Party does support this bill—and I congratulate the Minister, the officials, and the select committee for making a substantial improvement to outdated legislation—I think that, overall, the more that society is faced with challenges of increasing inequality, increasing numbers of children growing up in poverty, and increasing homelessness, we could potentially be seeing an increase in the incidence of vulnerability to substance addiction. It is really important that we treat that as a health issue first and foremost, rather than a criminal issue, and that we ensure that there are sufficient treatment programmes available for people so that they are able to get the help that they need when they need it, because all of us in New Zealand are better off if we do not have people in these dire circumstances.

Can I thank those members who have taken part in the debate so far for their constructive and very useful comments. I want to take some time to comment on some of the matters that they have raised and the questions that they have posed. Can I begin by taking a phrase that the previous speaker, Julie Anne Genter, used when she spoke of the need to maintain a careful balance, and I think that that is a very accurate description actually of what we are trying to do with this piece of legislation.

The Committee may be amused to know that my first association with the old Alcoholism and Drug Addiction Act was in 1983 when I was the chair of the Wellington coordinating committee on alcohol and drugs, and we decided then that the 1966 legislation, which was but a child of only 17, was well and truly outdated. So here we are, as the Act passes into its 50th year, finally putting it to a gentle rest.

There are a number of points that I want to pick up, but I guess the starting point is to be very clear about who and what it is we are talking about here. We are not talking about people who suffer temporary or passing intoxication from alcohol and drugs. We are talking about people who have a severe, progressive, long-term addiction that has proved difficult to treat in any other environment. So immediately the audience is a limited one.

A speaker earlier referred to a couple of hundred patients a year. I think that is probably at the outer margin, but it is a very small and discrete number. Let me just pick up some of issues, therefore, that members have raised. Poto Williams raised questions about gaps in capacity in terms of the ability to provide treatment services and time frames, and she is right to make that point. One of the reasons why the Health Committee recommended, and I certainly accept the recommendation, of a 1-year lead in to the implementation of the bill—so it does not take effect until 2018—is to ensure that we have as adequate a range of facilities as we can get by that time, that we also have knowledge and awareness amongst the health professionals who will be working with these people, and that we will have identified some of the gaps in capacity.

This legislation is a culture step forward from the previous legislation. Those health professionals who will have formed the view of the inadequacy of the current legislation will need to be brought along to understand that there is a new environment that is more reflective of their needs and, therefore, more able to respond to the types of circumstances that they face with their particular patients.

That brings me to the point that Louisa Wall made about the principles of informed consent and do no harm. One of the really important issues here is that the health profession generally, I think, understands the principle of informed consent, but, in this instance, you come back one step: the issue at heart here is not so much informed consent but the capacity of the person to be able to consent. That is going to open up another range of issues for the health sector and for those working with these people as to how that consent is obtained and whether it is of a quality that is sufficient for the purpose. If you look at the clauses of the bill post - clause 7, you will see that they really try to address this particular concern.

Clause 10 makes it very clear that compulsory treatment is the option of last resort. I think that is an important point, because often one comes across families who will be just absolutely frustrated that their particular loved one is in a downward spiral and nothing seems to be able to be done to intervene to help them. So by making it clear that we are looking at people who have severely impaired capacity, which is defined in clause 9, that this is treatment of last resort, in clause 10; and that there are very particular provisions around what is appropriate treatment, the duration of that treatment, and the protection of the rights of the individual during that treatment, we are trying to strike what Julie Anne Genter described as that careful balance between dealing with a problem and its enormity, which other people need to see the need has to be resolved, while respecting the rights and the integrity of the individual who is the subject of the legislation.

That, I think, is where the current legislation fell down. The way it was designed in 1966—it was still at the time when we had public drunkenness as an offence. If one reads the social commentaries at the time of people like James K Baxter, this sort of legislation was actually used as a way to get people off the streets—find that they did not have adequate means of support, suspect they had an alcohol or drug problem, and “bang!”, the Alcoholism and Drug Addiction Act suddenly started to apply. We have moved on from that environment, and I think it fell into disrepute because society had moved on also. What this legislation tries to do is recognise that there are people out there with genuine problems and genuine needs, and we, as a compassionate society, need to have in place mechanisms that help them through that addiction and, hopefully—and we can never be confident of this, but hopefully—set them on the path to living reasonable and sustainable lives in the future.

I hope that it is not 50 years before we have this debate again. I suspect many of us will not be here at that time, and in that regard, I am delighted that the Health Committee has recommended—

💬 Scott Simpson: The member will be.

I probably will be, yes. I am delighted that the select committee has recommended a 3-year review, because I think that ensures that the legislation will remain current. I also think it ensures two other things. Firstly, the points that Louisa Wall made about this whole issue of consent and how that is applied will have been tested. If it is proved to be deficient in the legislation, we will be able to address it. Secondly, the question that a number of members have raised about the adequacy of our services will have been identified and tested as well. So to those members who have spoken I thank them for their support and for their questions. Although this is a bit like the tortoise and the hare, the tortoise is going to win eventually, but just not tonight. Thank you.

The question was put that the following amendment in the name of the Hon Peter Dunne to clause 11 be agreed to:

in subclause (1), delete “that”.

Amendment agreed to.

Part 1 as amended agreed to.

Part 2 agreed to.

Part 3 agreed to.

Schedule 1 agreed to.

Schedule 2 agreed to.

Clause 1 agreed to.

Clause 2 agreed to.

Bill to be reported with amendment presently.