Key messages

  • A defined process must be followed when applying for a detention and treatment order under the Severe Substance Dependence Treatment Act 2010 (the Act).
  • The Magistrates' Court may only make a detention and treatment order in very limited circumstances. 
  • Any person over the age of 18 can make an application to the Magistrates' Court to have a person placed under a detention and treatment order, provided certain criteria are met.
  • Alcohol and other drug services should assist the person subject to the order and the applicant to get expert advice. 
  • An overview of the process for making an application, and the process during the Magistrates' Court hearing is provided on this page and in the information sheet, Summary of procedure for making an application for a detention and treatment order

 

Process for making an application for an order

The following information explains how an application to the Magistrates' Court for a detention and treatment order is made under the Act. 

Any adult person over 18 years can apply to the Magistrates' Court for a person to be placed on a detention and treatment order. 

The Summary of procedure for making an application for a detention and treatment order provides an overview of the process for making an application and the process during the Magistrates' Court hearing.

Step 1: Obtaining a recommendation for a detention and treatment order from a doctor

The person who is proposed to be the subject of the application must be examined by a  prescribed registered medical practitioner (see Information for prescribed registered medical practitioners for full definition). The practitioner must personally examine the person proposed to be the subject of an order to complete a recommendation.
 
The recommendation lasts for 72 hours after the date and time it is signed by the practitioner and must be attached to the application to the Magistrates' Court. The recommendation provides medical evidence to the Court that all the criteria for a detention and treatment order apply to the person. If the practitioner does not think that all the criteria apply, they cannot make a recommendation. 

The prescribed registered medical practitioner must also discuss the case with the senior clinician at the treatment centre (currently St Vincent's Health) prior to making a recommendation. 

If a person cannot be examined by a doctor, or refuses an examination, the applicant can apply to the Magistrates' Court for a special warrant. A Magistrate will only make a special warrant if they have enough evidence to believe the criteria for a detention and treatment order will likely apply to the person. Evidence regarding the criteria is given to the Court on oath (in person) or by providing an affidavit. 

Step 2: Making the application to the Magistrates' Court 

Five copies of the Application for a detention and treatment order, together with the recommendation and any other relevant documents must be provided to the Magistrates' Court. The application must be filed with the Court that is closest to where the person named as the respondent in the application lives. The registrar of the Court checks the form and gives a time and date for the court hearing. 

The application must be made within 72 hours of when the recommendation from the prescribed registered medical practitioner was signed. The Court cannot accept a recommendation that is more than 72 hours old. 

The prescribed registered medical practitioner who makes a recommendation for a detention and treatment cannot also lodge the application for that order. 

Step 3: Giving copies of the application to other people

Within 24 hours of an application being made to the Magistrates' Court, the applicant must take all reasonable steps to give a copy of the application, the recommendation and any other attached documents to: 
  • the person named as the respondent in the application -- the application must be provided in person within 24 hours of the application being made 
  • the manager of the treatment centre where the person will be detained and treated -- the application can be provided in person or by fax. If the applicant chooses to serve documents by fax, they must call the treatment centre to ensure that the application was received 
  • the person's guardian (if they have one) - wherever possible the application should be provided to the person's guardian in person. If hand delivery is not possible, fax or email are also acceptable. The applicant should call the guardian to ensure that a faxed or emailed copy was received. 
Applicants must apply through the Victorian Civil and Administrative Tribunal (VCAT) to be informed whether the person named in the application has a guardian.

Step 4: Before the hearing at the Magistrates' Court 

The hearing is held at the court where the application was lodged. The applicant may bring people to the court to provide evidence.

As soon as possible before the hearing, the treatment centre must provide a certificate of available services to the Magistrates' Court. The certificate provides information about what facilities and services are available at the treatment centre for the treatment of the person.

Step 5: The hearing at the Magistrates' Court 

The hearing of an application for a detention and treatment order must be held within 72 hours of the application being filed. 

The magistrate has to decide whether the criteria for making a detention and treatment order apply to the person. It is the responsibility of the applicant to establish that each of the criteria applies. 

The magistrate can make a detention and treatment order if the person does not come to the hearing, but they need to be sure that the person knew that the hearing was going to take place. The magistrate may ask the applicant to give evidence of how and when the application was given to the person or what reasonable steps were undertaken to provide the application.

The magistrate may delay the hearing if necessary. This may include allowing the person more time to get legal help or a copy of the application to be given to the person's guardian, if this has not been done.  

If appropriate, the Court, either on its own initiative or upon an application from a party, can make one or both of the following orders:
  • that the whole or a part of the hearing be held in a closed court (which limits who can be in the courtroom during the hearing)
  • prohibit or restrict the publication/broadcasting of the hearing or any evidence or matters contained in documents given during the hearing.   
If the magistrate makes a detention and treatment order, the registrar at the Court provides a copy of the order signed by the magistrate to the applicant. 

Step 6: Arranging transport to the treatment centre

The applicant must arrange for the person to be taken to the treatment centre. The current treatment centre is:
Emergency Department
St Vincent's Health
41 Victoria Parade VIC 3065 

Telephone: (03) 9231 2211

After hours: (03) 9231 2211 

Information about how to arrange transport is available in the guideline, Arranging transport to a treatment centre

The applicant can seek advice about arranging transport from the manager of the treatment centre. The preferred method of transport is by ambulance to ensure the person's safety. The applicant should provide the ambulance service with contact details for the prescribed registered medical practitioner who made the recommendation for the order. 

The ambulance should be booked no more than 24 hours before it is required. The applicant must be present when the ambulance arrives and able to show them a copy of the detention and treatment order signed by the magistrate. 

Step 7: Admission to the treatment centre

When the person arrives at the treatment centre, they will be admitted and given treatment for their severe alcohol or other drug dependence. If the person is not admitted within 7 days of the detention and treatment order being made, the order expires. 

The person will be detained and treated for up to 14 days, depending on their circumstance. 

The applicant's formal role ends once the person is admitted and they will only be contacted again if the person applies to the Magistrates' Court to have their order revoked. 

Family members or friends of the person can ask to be involved in the treatment. They should talk to a member of staff about this. They can also give support to the person when they are discharged from the treatment centre if the person agrees. 

Step 8: Post release

People discharged from the treatment centre are provided with a discharge plan and resources to support them after they exit the treatment centre.  

St Vincent's Health staff will notify the relevant alcohol and other drugs treatment provider when the person is about to be discharged and this service will engage with the client to assist them during this period and beyond.  In many cases an alcohol and other drugs worker will be at the discharge meeting. 

All funded alcohol and other drug treatment services will provide priority access to clients discharged from treatment under the Act