This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Detention and treatment orders for drug and alcohol dependence

Information about when a person can be detained for treatment for drug or alcohol addiction.

In some cases, a magistrate may order a person with a severe dependence (addiction) to alcohol or another drug to be detained and given treatment.

This can only happen as a last resort if it is necessary to save a person's life or to prevent serious damage to their health.

The purpose of this law is to treat the person while they withdraw from the substance so they can recover capacity to decide whether they want the treatment to continue.

See ss. 3, 6—Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

What is severe substance dependence?

A person has a severe substance dependence if they have developed a tolerance to a substance (like alcohol or heroin) and they:

  • get withdrawal symptoms when they stop or cut down their use of the substance and
  • are not capable of making decisions about their use of the substance and their personal health, welfare and safety, due mainly to their dependence.

See ss. 10, 12,13—Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

Who can apply?

Anyone over 18 years old may apply to the Magistrates' Court for a 'Detention and treatment order' to protect a person who has a severe substance dependence. For example, an applicant may be a member of the police force or a concerned family member.

A doctor's recommendation is needed

The application must be accompanied by a recommendation from a doctor who specialises in addiction, or a psychiatrist. The doctor has to conduct a personal examination of the person who is alleged to have a substance dependence before they make a recommendation. They need to consider the definition of severe substance dependence, and the criteria for a detention and treatment order before making a recommendation.

If necessary, the court may issue a special warrant that allows police to enter premises (accompanied by a specialist doctor) so that the person can be examined.

The qualifications that a doctor must have, the form that the recommendations must take and the special warrant are prescribed in the regulations (link below).

The recommendation is only valid for 72 hours.

See ss. 10, 12, 13—Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

Criteria for a detention and treatment order

The magistrate may only make a detention and treatment order (DTO) if satisfied that:

  • the person has a severe substance dependence
  • because of the person's severe substance dependence, immediate treatment is necessary as a matter of urgency to save their life or prevent serious damage to their health
  • the treatment can only be provided to the person through the admission and detention of the person in a treatment centre, and
  • there is no less restrictive means that is reasonably available to make sure the person receive the treatment.

If a detention and treatment order is made

If a detention and treatment order (DTO) is made the person will be taken to a treatment centre. Currently the only gazetted treatment centre in Victoria is St Vincent's Hospital. The DTO lapses in 7 days if the person has not been admitted for treatment in this time, unless an extension is granted by the court.

Within 24 hours of being admitted to the treatment centre, the person will be examined by a doctor. The doctor will decide whether the person still meets the criteria and needs to stay for treatment.

The staff will give the person information about their rights and about the treatment they will get. This information must be given within 24 hours of admission.

Treatment under the Act is limited to 'anything done in the course of the exercise of professional skills to provide medically assisted withdrawal from a severe substance dependence or to lessen the ill effects, or the pain and suffering of the withdrawal'. This treatment may be given without the consent of the person who is detained.

The court order lapses in 7 days if the person has not been admitted for treatment unless an extension is granted by the court.

See ss. 5, 6, 8, 20, 28, Part 3—Severe Substance Dependence Treatment Act 2010 (Vic) (opens in a new window)

How long can person be detained?

A person can only be detained for up to 14 days. During this time, they cannot leave the treatment centre unless the doctor grants leave.

The doctor must discharge the person from their order as soon as they do not meet the criteria.

See s. 20(3)—Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

Revocation applications

The person who is detained under a detention and treatment order can apply to the Magistrates' Court for the order to be revoked at any time within the 14 days. This application can be made on their behalf by a person they nominate or by their guardian.

See s. 22—Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

More information

Severe Substance Dependence Treatment Act 2010 (Vic)

  • s. 5—explains when a person may have a severe substance dependence
  • s. 6—meaning of treatment
  • s. 8—criteria necessary before a person can be detained
  • s. 15—conduct of the court hearing
  • s. 20(2)—when a court may make a detention and treatment order
  • s. 28(2)—on admission, a person can be treated without consent
  • s. 22—applications for an order to be revoked

See Severe Substance Dependence Treatment Act 2010 (Vic)(opens in a new window)

Severe Substance Dependence Treatment Regulations 2011 (Vic)

  • reg. 6—who is authorised to make an assessment and recommendation
  • Schedule 1—application for a detention and treatment order
  • Schedule 2—recommendation for a detention and treatment order
  • Schedule 3—special warrant for police to enter premises, accompanied by a prescribed medical practitioner so that a person may be assessed
  • Schedule 4—order for detention and treatment

See Severe Substance Dependence Treatment Regulations 2011 (Vic)(opens in a new window)

Department of Health

See:

References

VLA Professional support resources

There are more details about this law on the Civil justice practice support pages.

See 'Severe Substance Dependence Treatment Act 2010' in Practice resources—Civil law resources—Mental health and disability(opens in a new window)

Updated