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Assessment, treatment and detention orders for drug dependency

Under Part 7A of the Controlled Substances Act 1984 (SA), the Youth Court of South Australia may make orders for the assessment and treatment of children for drug dependency ("Youth Treatment Orders"). The paramount consideration in the administration, operation and enforcement of this legislation must always be the best interests of the child, subjected to, or proposed to be subject to an order [s 54A]. The Youth Treatment Orders jurisdiction of the Youth Court is governed by Chapter 8 Part 5 of the Uniform Special Statutory Rules 2022 (SA).

Initially an order may only be made in relation to a child who is subject to detention in a training centre at the time the order is made (whether or not the period of detention has commenced), and the order will cease when the child is released from detention [s 54B(3) and (6)]. A date will be declared by the Governor by proclamation at which time orders may be made in relation to children who are not subject to detention in a training centre [s 54B(7)].

All references in this section are to the Controlled Substances Act 1984 (SA), unless stated otherwise.

A person may be assessed, treated or detained, and reports provided as required, despite the fact that a person has reached the age of 18 years if the order [s 54J]:

  • was made before the person reached 18 years of age; and
  • did not specify that the order was to expire on the person reaching 18 years of age

A child cannot be ordered to pay for the costs of their own assessment or treatment [s 54K]. A person who is ordered to pay these costs may apply to vary or revoke the order [s 54K (3)].

Who may apply for a Youth Treatment Order

Youth Treatment Orders may be made by the Court of its own motion, if there are proceedings before it involving the relevant child [s 54C]. Alternatively, if there are proceedings before the Court:

  • prosecuting a child for an offence, an application may be made by a person authorised by the Director of Public Prosecutions or the Commissioner of Police [s 54C(a)];
  • under the Children and Young People (Safety) Act 2017 (SA) or any other child protection law, an application may be made by the Chief Executive of the Department for Child Protection [s 54C(b)].

In any case, an application to make these orders may also be made to the Court by [s 54C(c)]:

Before making an order in relation to a child who is in the custody or guardianship of the Chief Executive of the Department for Child Protection, the Court must ensure the Chief Executive has been given notice of the proceedings and an opportunity to make submissions [s 54D(5)].

Assessment Orders

An assessment order requires a child to attend a nominated assessment service and for the service to provide a report to the applicant, the child (or a person representing a child) and the Court following its assessment [s 54B(1)(a)].

The Court may only make an assessment order in relation to a child if satisfied [s 54D(1)]:

  • There is a reasonable likelihood that the child is habitually using one or more controlled drugs; and
  • The child may be a danger to themselves or others; and
  • The child has refused to voluntarily seek an assessment; and
  • No other appropriate and less restrictive means is available to ensure the child receives the assessment.

Treatment Orders

A treatment order requires a child to attend a nominated treatment service and for the service to provide a report to the applicant, the child (or a person representing a child) and the Court following its assessment [s 54B(1)(b)].

The Court may only make a treatment order in relation to a child if the child has been assessed by a medical practitioner (pursuant to an assessment order or otherwise) as being dependent on one or more controlled drugs [s 54D(2)(a)], and:

  • The child may be a danger to themselves or others; and
  • The child has refused to voluntarily seek treatment; and
  • No other appropriate and less restrictive means is available to ensure the child receives the treatment; and
  • The treatment and care of the child pursuant to the order will be governed by an appropriate treatment and care plan aimed at treating the child’s dependency on controlled drugs.

A child may be assessed and given treatment in accordance with a treatment order, and reports provided, despite the refusal of consent by the child [s 54H]. Other treatment may be provided (other than treatment for the child’s dependency on controlled drugs), in accordance with the Consent to Medical Treatment and Palliative Care Act 1995 (SA). For more information, see Medical Treatment and Related Issues, Consent.

Detention Orders

A detention order is an order authorising the detention of a child for the purpose of ensuring compliance with an assessment order or a treatment order [s 54B(1)(c)].

A detention order must be for the shortest period the Court thinks appropriate, and must not exceed 12 months [s 54B(4)]. The order must also be reviewed by the Court at regular intervals until the child is released from detention [s 54B(5)].

The Court may only make a detention order in relation to a child if [s 54D(3)]:

  • The Court has made an assessment or treatment order in relation to the child and either the child has failed to comply with the order or the Court is satisfied that is likely that child will fail to comply; and
  • No other appropriate and less restrictive means is available to ensure the child complies

A child may only be detained at an assessment or treatment service, unless the child is already subject to a period of detention in a training centre. In this case the child may be detained at the training centre, but only for the period of the other detention [s 54I].

Conditions of detention

The Chief Executive of the Department of the Minister administering the Controlled Substances Act 1984 (SA) is responsible for ensuring that [s 54L]:

  • The child is able to receive family visits while detained;
  • The child has access to training, education and courses;
  • The person responsible for exercising functions under the visitor scheme has access to the child to monitor their health, safety and wellbeing;
  • The child is reviewed by a medical practitioner with expertise in addiction, psychiatric or paediatric medicine every four days of detention;
  • A nurse is present at the same premises and a doctor is on call to attend those premises at all times while the child is detained;
  • If the child is detained for assessment, the assessment occurs as quickly as possible, and the child is detained for the minimum period necessary;
  • If the child is detained for treatment, a treatment plan is implemented as soon as possible under which the child will receive treatment each day during detention and that arrangements are made for ongoing treatment support following detention; and
  • The child has rights to equivalent to those of a child detained in a training centre under the Youth Justice Administration Act 2016 (SA).

Representation of children

The Court must not make an Youth Treatment Order unless satisfied that the child is assisted or represented in the proceedings by a family member or advocate [s 54E(1)].

Legal representation

Children are entitled to be represented by a legal practitioner (at no cost to the child) in relation to proceedings for assessment, treatment and detention orders under Part 7A of the Controlled Substances Act 1984 (SA) [s 54M(1)]. Children will automatically be allocated a lawyer by the Legal Services Commission, who will offer to provide them with legal representation.

A child, may however, choose to engage a legal practitioner at his or her own expense, appear personally (unrepresented), or have the Public Advocate or another advocate appear on their behalf [s 54M (3)].

Orders made in the child or representative’s absence

However, the Court may make an order in the absence of the child or representation for the child if satisfied:

  • the order should be made urgently; or
  • the child was required by summons to appear at the hearing and failed to appear; or
  • the child has made an informed and independent decision not to be present and not to be represented (and that the child is capable of understanding the nature and possible consequences of the proceedings).

The Court may adjourn a hearing to which a child is summoned to appear to a later date if satisfied the summons has not been served or there is another adequate reason [s 54E(5)]. An adjournment must usually be for not more than 7 days [s 54E(7)].

If the Court makes an order in the child’s absence for urgency, the Court must make only an interim order and summon the child to appear at a hearing to say why the order should not be confirmed as a final order [s 54E(3)]. An interim order will continue until the conclusion of the hearing to which the child was summoned, but must be confirmed by the Court [s 54E(8)]:

  • on the failure of the child to appear at the hearing; or
  • having considered any evidence given by or on behalf of the child; or
  • with the consent of the child (or the person representing the child).

The Court may confirm an order in an amended form [s 54E(9)].

Who gets a copy of the order

An order for the assessment, treatment or detention of a child must be served on the child personally (given to the child), and is not binding on the child until that time [s 54G(1)]. The same applies to an order that is changed in any way by the Court – the changed order must be served personally (given to the child), and the change is not binding until that time [s 54G(2)].

An order must be given to the child together with a statement outlining the child’s relevant legal and other rights in relation to the order [s 54G(3)].

The order must also be given to the nominated assessment or treatment service [s 54G(4) and (5)]. The applicant for the order may also be requested to provide copies of the order to a medical practitioner treating the child or a family member or advocate for the child who has a proper interest in the health, safety and welfare of the child [s 54G(6)].

Variation and revocation

The Court may vary or revoke a Youth Treatment Order of its own motion if there are proceedings before it involving the relevant child. Alternatively, the Court may vary or revoke an order on the application of any of those who may apply for such an order in the first place [s 54F(2)].

A child subject to an order may also apply for the order to be varied or revoked with the permission of the Court. The Court may only grant permission if there has been a substantial change in circumstances since the order was made or last varied [s 54F(2)]. All parties must be given a reasonable opportunity to be heard on the matter [s 54F(3)].

Appeals against Youth Treatment Orders

If the order is made by a magistrate, there is a right of appeal to the Supreme Court, constituted of a single judge [Youth Court Act 1993 (SA) s 22(2)(b)]. If the order is made by a Judge of the Youth Court, there is a right of appeal to the Court of Appeal [s 22(2)(a)].

On appeal, the Court may confirm, vary or revoke the order, remit the matter for hearing or make any other order necessary or desirable in the circumstances [s 22(3)].

Appeals must be lodged within 21 calendar days of the order the subject of appeal [Uniform Civil Rules 2020 (SA) r 214.1].

Legal advice should be sought before lodging an appeal.

    Assessment, treatment and detention orders for drug dependency  :  Last Revised: Tue Nov 23rd 2021
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.