A Drunken Disregard for Harm to Others: the Law Commission's Proposed Regime of Compulsory Treatment for Substance Dependence and Other Pipe Dreams

Abstract

There are many conceptions of someone who is substance dependent. Many would label their middle-aged neighbour who gets drunk every other night at the bowling club as an alcoholic. And most of us would agree that a P user, engaging in theft in an effort to fund his daily habit, is a drug addict. The continuum is vast, and those affected innumerable. It is perhaps then reasonable to conceive that there exists a point at which state intervention for the treatment of alcoholics and drug addicts is necessary and justifiable. But what is this point? When should the state have coercive power to detain and treat substance dependent persons in the absence of a criminal act? The New Zealand Law Commission has attempted to answer this very question. In a recent report, the Commission recommends a new regime of compulsory treatment for substance dependence. Interestingly, within their criteria required before coercive treatment is engaged the risk of harm to others posed by person who is substance dependent is not considered. This paper argues that such a consideration should be included in the regime’s recommended criteria. In support of this argument, this paper addresses and critiques each of the propositions advanced by the Law Commission which they argue necessitates the omission of such a consideration. In doing so, the importance of public protection from the vast array of drug and alcohol related harms will be explored, and such importance will be augmented by a discussion of jurisprudential theory on the appropriateness of state coercion. Potential errors within the Commission’s reasoning will be exposed and examined. This paper will advocate for the inclusion of a consideration of harm to others in light of proposed remedies to such errors. Principles of “therapeutic jurisprudence” will be used to promote and justify the consideration of harm to others, as will analogies with other regimes of compulsory treatment in the fields of both substance abuse and mental health alike, spanning both domestic and international jurisdictions. Analogies with other public health exceptions to the widely revered right to refuse medical treatment will also be used to support the inclusion of a consideration of harm to others. This paper will also consider floodgate arguments, questioning the appropriate limits of compulsory treatment based on harm to individuals alone. This paper concludes by recommending an inclusion of a consideration of harm to others within the proposed regime which accords with the overall objectives of the regime, analogous legal systems authorising compulsory treatment and relevant jurisprudential theory.