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Murdoch University Electronic Journal of Law |
| Author: | Greg Swensen LLB |
| Issue: | Volume 1, Number 3 (September 1994) |
1. Introduction
There is a dearth of literature and case material about non-criminal legal
mechanisms that regulate drug users[1] in
Australia. We might surmise this may be due to an oversight, a lack
of interest in the rights of drug users, or due to an over-preoccupation
with the application of criminal regulatory mechanisms. Surprisingly, in a number
of recent publications concerned with legal mechanisms to control drugs
and their use, there is no discussion of the system of control, by
notification, that operates in Western Australia (WA) and a number of the
other States.[2] This omission seems to have arisen, at least in respect
to WAs system, by a failure to have understood the key role played by the
*Health Act 1911* (the Act) as an instrument of drug policy.[3]
Discussion of non-criminal legal mechanisms is pertinent as since the early
1980s there have been a number of proposals todecriminalise the use of a
number of classes of drugs.[4] Recently serious consideration has been
given to a trial scheme in the Australian Capital Territory (ACT) to
prescribe heroin as a form of treatment
for people with opiate-related drug problems.[5] As such a trial would
require a legislative framework and administrative structure, it is
opportune to consider the system of non-criminal controls of drug users
that has operated in this State since 1958, to highlight issues associated
with schemes designed to identify and control drug users and regulate
their access to prescription drugs.
This paper briefly reviews the characteristics of the notification system
that has operated in WA since 1958, with particular reference to the
administrative procedures instituted under the *Drugs of Addiction Notification
Regulations 1980 *[6] (the Regulations) and will consider whether the
rules of procedural fairness could be implied to way the regulations and
the associated "register of notified addicts" is operated.
The discussion of these issues will be used to argue there are serious shortcomings
in the operation and effect of the notification system, because it deters
people who use drugs from seeking medical treatment as they may be
notified as addicts, that many medical practitioners will be reluctant to
treat drug users, and if doctors were willing to treat notified addicts
they are significantly constrained in their capability to do so.
It will be concluded the WA notification system invades privacy and affronts
principles of natural justice as it fails to include procedures to review
decisions to notify, register or de-register and that by severely
restricting choice of doctor and choice of treatment, it has the effect of
supporting coercive treatment of drug addicts.
2. Administrative features of the notification system
The inviolable ethical duty of medical practitioners to maintain the confidentiality
of disclosures of their patients is overridden by the Regulations. This
qualification of the doctor-patient relationship involves the balancing of
two concerns. Firstly, the right to privacy and the correlative duty upon
medical practitioners to maintain confidence; and secondly, a public
interest in the epidemiology of diseases and medical conditions and the
protection of the community from harm that may result if individuals
afflicted by such conditions were left untreated. The acquisition of data
derived from the doctor-patient, though contentious, has been described as
"the conflict is not between good and evil, but between two principles of
equal merit. [Knox] suggested that the individuals right to privacy also
needs to be qualified in order to protect society which confers the right:
"Neither a concern for the individual nor a concern for mankind may
hold absolute sway over the other".[7]
The Act contains the foundations for three compulsory notification systems
with respect to:
(a) "notifiable diseases" (s 3), (b) "dangerous infectious
diseases" (s 248), and (c) "prescribed conditions of
health" (s 289B).
The first two systems are concerned with the notification of a wide range
of infectious diseases such as leprosy, cholera, HIV/AIDS and hepatitis.
The third system covers three "prescribed conditions of health"
- non-infectious stages of syphilis,[8] cancer[9] and addiction to
drugs.[10]
Under the Act the Governor-in-Council is delegated with the power to issue
regulations, conditioned by the objects[11] of Part IXA of the Act. The
limits on the scope of such a delegated power are determined by reference
to the enabling statute,[12] s 289C (a) - (d), ie that any regulations may
only apply to prescribed conditions of health, excluding non-infectious
diseases, and may "not require any person to submit to treatment
without his consent".[13]
A "prescribed condition of health" is defined in s 289B of the
*Health Act 1911* as
"such disease processes and physical or functional abnormalities as are prescribed
conditions of health to which this Part applies, but does not include any
infectious disease".
There is some difficulty in analysing the term "prescribed condition of health"
because it is debatable whether drug addiction can be accurately described
as either a disease process, or a physical or functional abnormality, as
contemporary research into drug use suggests much more complex mechanisms
of drug dependence.[14]
The Regulations are given a wide scope through the definition of "drugs"
in the Act,[15] and by including "drugs of addiction" as the substances
in the Eighth Schedule to the *Poisons Act 1964*. The list of Eighth
Schedule drugs, so-called drugs of addiction, includes both licit opioids
such as morphine, codeine and pethidine and illicit opioids such as heroin
and illicit non-opioids, such as cannabis, psilocybin and LSD.
The definition of drug addiction embodied in s 3(2)(a)-(c) of the Regulations,
replicates the 1957 World Health Organisation definition of drug
addiction,[16] as recommended to State health departments by National
Health Medical Research Council at its 43rd session, in May 1957.[17]
Sections 3(2)(a)-(c) of the Regulations set up three mutually exclusive forms
of dependence that may result from use of a drug addiction or a substitute:
* a "state of periodic or chronic intoxication produced by
consumption" (s 3(2)(a); * a "desire or craving to take a
drug" (s 3(2)(b); or * a "psychic or physical dependence"
(s 3(2)(c).
This arrangement produces the curious result that while an individual may
be addicted to one drug, the notification by a medical practitioner refers
to the person as addicted to all drugs as in the Regulations the term
"a drug of addiction" is used in s 3(2), whereas the term "addicted
to drugs" is used elsewhere: ss 3 (1), 4 (1). It is arguable that
though an individual may have a dependence to a specific drug, eg heroin,
it does not follow that he/she will be dependent on any of the other drugs
contained in the Eighth Schedule.
Another curious effect of the Regulations is that as they only encompass
so-called "drugs of addiction", it follows that any individual
dependent on a drug not in the Eighth Schedule (eg tranquillisers,
sedatives and analgesics), could not be notified by a medical
practitioner, even though such a person could satisfy any of the criteria
in ss 3 (2) (a) - (c).
3. The rules of natural justice in relation to notification
Is a medical practitioner making a decision under the authority of the Regulations
bound to follow the rules of natural justice when he/she notifies a person
suspected as being addicted to drugs? The Regulations oblige a doctor to
notify within 48 hours a person who they become "aware of or
suspect" is addicted to drugs: s 4 (1). The 1988 amendment that added
s 4 (3) introduced fines for contravention of s 4 (1), ranging from $100
(first offence) to $500 (third offence).[18] It is submitted as the 1988
amendment is a penalprovision, the courts are likely to interpret s 4 (1)
narrowly and strictly.
As the general rule now is that there must be a clear legislative intention
to exclude the application of the rules of natural justice, a decision to
notify someone as addicted to drugs should, it is argued, involve a fair
hearing (the maxim *audi alteram partem*) and must not involve bias by the
decision-maker (the maxim *nemo debet esse judex in propria sua causa*).
"[I]t may be accepted that there is a common law duty to act fairly, in the
sense of according to procedural fairness, in the making of administrative
decisions which affect rights, interests and legitimate expectations,
subject only to the clear manifestation of a contrary statutory intention".[19]
It is submitted that neither the Regulations, nor Part IXA of the *Health
Act 1911* contain a "clear manifestation" to exclude the rules of
natural justice. In Kiao v West Mason J considered that the application
and content of a duty to act fairly conditioned by a statute depended on
the construction of the statute. This means therefore that
"the expression procedural fairness more aptly conveys the notion of a
flexible obligation to adopt fair procedures which are appropriate and adapted
to the circumstances of the particular case".[20]
By amendment in 1984,[21] four grounds were inserted into the Regulations
by which entries may be deleted, *after two years*, from the register of
notified addicts (the Register) by the Executive Director, Public Health
(the Executive Director). These grounds were:
(a) if a person had died; (b) if the Director of the Alcohol and Drug
Authority has advised an individual has ceased to use drugs; (c) if a
false name had been used; or (d) if a person on the Register had no
contact for a period of 5 years in relation to their use of drugs of
addiction.
It is submitted that grounds (b) - (c) provide support for an argument for
the rules of procedural fairness govern the WA notification system. As the
Executive Director (in reality a delegate) is responsible for making
entries into the Register, it is required that he/she
"act in good faith and fairly listen to both sides, for that is a duty lying
upon everyone who decides anything ... They can obtain information in any
way they think best always giving a fair opportunity to those who are
parties in the controversy for correcting or contradicting any relevant
statement prejudicial to their
view".[22]
This means there should be procedures so that each person who has been notified
has the opportunity to contest the decision to enter his/her name onto the
Register. This should include options for an independent second opinion
from another medical practitioner and for review by an independent
decision-maker.
It is also possible that as the Regulations to notify drug addicts were first
introduced in 1958 in response to a Commonwealth request,[23] arising from
obligations from Australia being a signatory to various drug conventions,
that fundamental common law rights may be implied to support the
proposition that the Regulations should conform to the rules of procedural
fairness.
Is it possible to imply fundamental common law rights may arise through the
Commonwealth being a signatory to international treaties?[24] This broad
issue has been considered in relation as to whether the right to a trial without undue delay existed
because the doctrine of fundamental rights was brought into Australian law
through the Commonwealth being a party to the *International Covenant on
Civil and Political Rights*. Kirby P observed that
"[a] more relevant source of guidance in the statement of the common law
... may be the modern statements of human rights found in international
instruments ... adopted by organs of the United Nations, ratified by
Australia and now part of international law".[25]
However, a comment by the Full Court of the Federal Court that a decision-maker
might "properly take into account in a general way the existence of
Australias international obligations,"[26] may mean a court may be
prepared to imply fundamental rights when a person is notified because of
a close connection between the legislation and international drug treaties
signed by the Commonwealth, to satisfy adoption in domestic laws.[27]
4. Shortcomings in the notification system
The three forms of drug addiction specified in ss. 3(2)(a) - (c) are vague
and unclear. It is debatable whether the majority of doctors have the
requisite experience or knowledge to identify and distinguish drug dependence
due to either period or chronic intoxication, desire or craving, or
psychic or physical dependence. To overcome these doubts guidelines should
be issued setting out the criteria for each form of addiction and to
clarify the degree of suspicion or knowledge that is required before the
duty to notify is triggered. Such guidelines may also assuage concerns by
doctors as to whether they may have breached the Regulations: s. 4 (1). S.
5 (2) contains a curious distinction for removal of a persons name from
the register of notified addicts, as it sets up a preferential method for
de-registration after two years for individuals treated by the Alcohol and
Drug Authority (ADA),[28] whereas persons who have had no "direct or
indirect" contact with the Health Department "in relation to
their use of drugs of addiction", can only be de-registered after five
years.[29] Taken in conjunction with other factors, the provision in s 5
(2) (b) may support arguments that the Regulations may offend the scope of
the enabling power in s 289C (d) of the *Health Act 1911* as to compulsory
treatment.
Ambiguity exists in s 5 (2), because while de-registration may occur after
the expiration of two years if any of the four conditions arise, the
inclusion of the words "for a period of at least 5 years" in s 5 (2)
(d), suggests two contradictory results, ie de-registration after both two
and five years in the case of persons who have had no contact with the
Department.
It is submitted there is a lack of clarity as to the purpose of the system.
Is it to identify persons with a prescribed condition of health (ie drug
addiction), because such persons pose a risk to themselves and/or to the
community? Or, is the purpose to regulate medical practitioners by
preventing them prescribing certain classes of drugs to certain classes of
individuals?
The latter line of reasoning is fortified by requirements in ss 51A-51F of
the *Poisons Regulations 1965*,[30] which prohibit medical practitioners
prescribing drugs of addiction, other than methadone, as a treatment for
notified drug addicts (s 51B), unless the individual has been notified and
the medical practitioner has been authorised to prescribe methadone (s
51C). In practice general practitioners are rarely, if ever, so
authorised because of a stringent assessment
(s 51D) and the imposition of conditions (s 51E).
The case of Cranley v Medical Board of Western Australia[31] concerned a
medical practitioner who had built up a practice in Perth over a 17 year
period that principally treated drug addicts.[32] The outcome was a
successful appeal against the Medical Board finding of "infamous or
improper conduct in a professional respect"[33] because of alleged
excessive or inappropriate prescribing of drugs to persons who were either
notified addicts or had a history of dependence, as Dr Cranley
successfully argued his practice was consistent with a harm reduction
policy, an approach recognised by a body of respectable medical opinion.
Dr Cranley's practice had arisen in part as many of his patients experienced
severe restrictions on their ability to legally obtain Fourth Schedule
drugs, as many general practitioners were reluctant to prescribe to them.
As Dr Cranley was prevented by the Poisons Regulations (s 51B) from
prescribing drugs of addiction to notified drug addicts he developed a
practice that involved the prescription of diazepam (Valium), including
in the form of ampoules for parenteral use and other Fourth Schedule
drugs, such as Doloxene and Rohypnol.
It could be said Dr Cranley's practice exploited a weakness of the notification
system in that while it prevented him from prescribing Eighth Schedule drugs,
he was able to prescribe other drugs, including those in an injectable
form, as a treatment outside the scope of the Regulations.
It should be noted that many of his patients were reluctant to participate
in the ADA's methadone treatment program because it not only entailed
notification as a pre-condition, but it was considered to be inflexible
and impersonal. In addition to the stigma of notification, participation
in the ADA methadone program involved the taking of identification
photos.[34]
An implication of the Cranley case is that it suggests the notification system
had the effect of creating a quasi-compulsory form of medical treatment
for notified addicts, what Ipp J described as the "orthodox treatment",
largely available only through the ADA. The combined effect of this
consequence and the earlier provision for de-registration if the
individual had been successfully treated by the ADA, raises the question
whether the notification system offends s.289C (d) of the *Health Act 1911*.
5. Conclusion
While this paper has discussed a number of shortcomings in the WA system
of notifying drug addicts, it has not sought to answer the underlying
issue of the need for such a system. Implicit in an argument for a
notification system is the notion that we ought to make choices that
favour private interests over public interests. If such a choice was made
it would mean
"a shift in authority away from largely public regulatory interests to those
of private concerns together with a similar shift of decision-making power
away from administrators and government towards the judiciary".[35]
The imposition of the duty by the *Drugs of Addiction Notification Regulations
1980* on medical practitioners to notify drug users is flawed to the
extent it depends on poorly defined criteria and involves a combination of
subjectivity, careful judgement and a thorough understanding of the
mechanisms of drug dependency.
There are also serious concerns about the shortcomings in the notification
system due to the non-articulation of rights and the failure to follow the
requirements for procedural fairness to protect those rights.
As an instrument of policy, notification of addicts does not achieve the
aim of restricting the use of drugs that cause dependency, as it does not
encompass drugs outside the Eighth Schedule of the *Poisons Act* known to
result in dependency eg tranquillisers, sedatives and analgesics.
The system is also difficult to justify on public health grounds as either
protecting the community or enabling the treatment of drug dependent
persons, as there is persuasive evidence that notification deters people
from seeking treatment from GPs. The continuation of a system as it is
presently operates should be questioned.
Notes:
[1] The pejorative term "drug addicts", frequently used to refer to this population of individuals, will only be used in this paper in context of the legislative meaning given to thisterm.
[2] Carney T. *Drug Users and the Law In Australia* Law Book Co, Sydney, 1987; Fox R & Mathews I. *Drugs Policy: Fact, Fiction and the Future..* Federation Press, Annandale, NSW, 1992.
[3] For instance, the *Australian Health and Medical Law Reporter*, CCH Australia, Sydney, at 23-700, only refers to the *Poisons Regulations 1965*.
[4] Australian Foundation on Alcoholism and Drug Dependence, *Social Policies on Drugs, Alcohol, Cannabis, Heroin: A Discussion Paper* AFADD, Canberra, 1982; Kirby MD. *Drugs, Problems of Reform and Living It Down (Address to AFADD National Drug Institute*, Brisbane May 1983). Law Reform Commission, Canberra, 1983; Fox R. "Examining existing drugs policies". (1990) 1(3) *Criminology Australia* 10; Rolfe JL, *Background Issue Papers To International Conference On Drug Control: Legal Alternatives and Consequences*, Melbourne, November 1989. Victorian Drug Rehabilitation and Research Fund, Melbourne, 1990; Woltring H, "Examining existing drugs policies: the 1988 UN Convention - help or hindrance?" (1990) 1(4) *Criminology Australia* 19; Carney T, Drew L, Mathews J, Mugford A & Wodak A. *An Unwinnable War Against Drugs: The Politics of Decriminalisation* Pluto Press, Leichardt, NSW, 1991.
[5] Australian Capital Territory, Legislative Assembly, Select Committee on HIV, Illegal Drugs and Prostitution, *Second Interim Report: A Feasibility Study on the Controlled Availability of Opioids*, ACT Legislative Assembly, Canberra, 1991; Bammer G et al. *Feasibility Research Into the Controlled Availability of Opioids*, (2 Vols). Canberra, National Centre for Epidemiology and Population Health, Australian National University, 1991; Bammer G. "Is a trial heroin treatment program in the ACT feasible?" (1992) 4(2) *Criminology Australia* 16; Hartland N, McDonald D, Dance P, Bammer B "Australian reports into drug use and the possibility of heroin maintenance" (1992) 11 *Drug & Alcohol Review* 175; Bammer G, Douglas B, Moore M, Chappell D. "A heroin trial for the Australian Capital Territory? An overview of feasibility research". In Heather N, Wodak A, Nadelmann EA, OHare P (eds), *Psychoactive Drugs and Harm Reduction: from Faith to Science*, London, Whurr Publishers, 1993.
[6] Which re-enacted the arrangements established by the *Notification of Diseases (Non-Communicable) Regulation 1958*,*Government Gazette*, 29 April 1958, p. 769.
[7] Keppel S. "Use of personal health information by third parties for research purposes". (1992) 7 *Auckland University Review* 1, 11.
[8] Health (Venereal Diseases) Regulations 1973, *Government Gazette*, 2 March 1973, p. 587.
[9] Health (Notifications of Cancer) Regulations 1981, *Government Gazette*, 27 July 1981, p. 3065; Health (Cervical Cytology Register) Regulations 1991, *Government Gazette*, 3 January 1992, p. 16.
[10] Drugs of Addiction Notification Regulations 1980, *Government Gazette*, 26 September 1980, p. 3313.
[11] s 289A "The objects of this Part are to promote the prevention and alleviation of such disease processes, and of such physical or functional abnormalities, as are not infectious and as are prescribed".
[12] Pearce DC, *Delegated In Legislation in Australia and New Zealand* Butterworths, Sydney, 1977.
[13] *Health Act 1911*, s 289C (d).
[14] In it's 13th report the World Health Organisation Expert Committee On Addiction-Producing Drugs strongly recommended that the term "drug dependence", defined as "a state arising from repeated administration of a drug on a periodic or continuous basis", should be the preferred nomenclature instead of the term addiction: *WHO Technical Report Series No. 273* WHO, Geneva, 1964.
[15] *Health Act 1911* s 3(1) "Drug" means any substance, organic or inorganic, used as medicine, or in the composition or preparation of medicines, whether for external or internal use, and includes soap and perfumes, cosmetics, absorbent cotton wool and surgical dressings and also includes therapeutic substances. This definition includes things not ordinarily regarded as having the meaning of a drug, but excludes legal drugs such asalcohol, tobacco and prescription drugs not in the Eighth Schedule that are addictive. (Tobacco was only removed from the s 31) definition in 1990: *Tobacco Control Act 1990*, s 38.
[16] WHO, *Expert Committee on Addiction-Producing Drugs, Seventh Report*, WHO Technical Report Series No 116. Geneva, World Health Organisation, 1957.
[17] Wall BP. *A Study of Persons Notified As Drug Addicts In The State of Western Australia During 1980-1985*, Unpublished Master of Applied Science dissertation, Curtin University of Technology, Bentley, 1989.
[18] *Government Gazette*, 14 October 1988, p. 4160.
[19] Kiao v West (1985) 159 CLR 550, 584 per Mason J.
[20] Id at p. 585.
[21] *Government Gazette*, 9 November 1984, p. 3587.
[22] Lord Loreburn in Board of Education v Rice cited in Hotop SD, *Principles of Australian Administrative Law* 6th ed. Law Book Company, 1985, p. 192.
[23] This was done through the National Health and Medical Research Council (NHMRC) at its 40th session, held in November1955.
[24] Cf Australia, Attorney General's Department, Committee of Review of Commonwealth Criminal Law (Gibbs J Chairman). *Final Report* Australian Government Publishing Service, Canberra, 1991: chs 15-18; Fox R & Mathews I, *Drugs Policy: Fact, Fiction and the Future* Federation Press, Annandale, NSW, 1992: ch 6; Manderson D, *Proscription and Prescription - Commonwealth Government Opiate Policy 1905-1937*, Australian Government Publishing Service, Canberra, 1987.
[25] Jago v District Court of New South Wales and Ors (1988) 12 NSWLR 558, 569.
[26] Gunaleela and Ors v Minister for Immigration and Ethnic Affairs and Ors (1987) 74 ALR 263, 280.
[27] Ryan, *International Law in Australia* 1984 pp 57-60 cited in Fox R & Mathews I, *op cit* p. 70.
[28] If the Director of the ADA advises the Executive Director the person who has been registered for two years or more has ceased to use drugs: s 5(2)(b).
[29] S 5(2)(d).
[30] Section 51AA imposes upon drug addicts a duty to disclose their status as a "drug addict" if they seek to obtain a drug of addiction from a medical practitioner. The "drug addict" in s 51AA logically refers to a notified addict, but as there is not duty for a doctor nor the Health Department to inform someone that he/she has been placed on the register of notified addicts, this provision places the individual in an invidious position.
[31] Unreported Judgement of Supreme Court of Western Australia December 1990. Appeal no 1211/1990.
[32] Dr Cranley gave evidence that since graduation in 1952, he had seen between 25,000 and 35,000 patients in regard to drug problems, and that he had about 500,000 consultations with drug addicts. Id. p. 19.
[33] *Medical Act 1984*, s 13(1)(a).
[34] This provision, justified to ensure accurate identification, occurs in methadone programs throughout Australia. However, this requirement is not covered in the *National Policy On Methadone*, Department of Community Services and Health, Canberra, 1993.
[35] Baldwin R & Hawkins K. "Discretionary justice: Davis reconsidered" [1984] *Public Law* 570, 598.