Self-exclusion programs for problem gamblers in Australia.

ABSTRACT

In recent times self-exclusion programs for problem gamblers have experienced a significant increase in patronage in Australia. With the runaway success of these schemes, problems have been encountered in how to deal with the associated complications of implementing them effectively and techniques to improve them. These include dealing with complex legal situations and detection of those in the program who still try to gamble. The specific self-exclusion program discussed involves the largest group of gambling institutions in the country where over 2000 premises are covered. The type of gambling covered is slot machines within Australia, while having only 0.3 percent of the world's population, also being home to 20 percent of these devices.

1. INTRODUCTION

Although there are many definitions of a 'problem gambler', they all have the common theme in that they refer to a person who spends money on gambling irresponsibly that affects themselves, their partner, their family and their friends. For example, according to the Nevada Council on Problem Gambling (2003) a problem gambler is simply one who has an 'uncontrollable obsession with gambling'. Another similarly appropriate definition, quoted by The Australian National University (1999) as originating from the Department of Health in Victoria, Australia, reads that a 'problem gambler can be defined as a person who is spending time and money gambling in a way that may be harmful to them, and potentially, to those around them'. A popular method of detecting problem gamblers is the South Oaks Gambling Screen ('SOGS') described in Lesieur and Blume (1987). SOGS is a questionnaire developed by Dr Henry Lesieur and Dr Sheila Blume to pick out people with serious ("pathological") gambling problems among a group of people receiving treatment for substance abuse. It has since been used for detecting gambling problems in general, but is usually treated with caution since it can only provide an indicator at best.

There has been much research on the issue of problem gambling excellent general references include early papers by Lesieur (1987) and Lorenz and Yaffe (1986 and 1987). Typical Australian output includes the works of the Australian Institute of gambling Research (AIGR) (1997) and Dickerson et al. (1997) while the situation in New Zealand is covered by Abbott and Volberg (1991 and 1992) and Alexander (1999). There has also been considerable input regarding the Canadian position as typified by the report of Wynne Resources Ltd (1998) while the USA has produced reports such as those by Baseline Market Research (1992) and the National Council on Problem Gambling (US) (1997) while journal research includes that by Volberg and Stuefen (1991). For consistency, all monetary figures quoted in this paper are in US$.

The Productivity Commission, an independent advisory body to the Australian government on microeconomic policy, noted in its December 1999 report (Productivity Commission, 1999), that 290,000 Australians were 'problem gamblers' losing about $2.8 billion annually. The Commission's key findings, summarised by AIGR (2000), included conclusion that problem gamblers lose on average around $10,000 each per year, compared with just under $500 for other gamblers. They also claim that the prevalence of problem gambling is related to the degree of accessibility of gambling, particularly gaming machines.

It is widely reported that Australia has around 20% of the world's slot machines despite having only 0.3% of the world's population. In fact, with a $56 billion annual turnover in Australia on slot machines each year and only 14 million adults, this represents an average of $4000 per adult with a loss of around $400. A report by Smith (2003) reveals that Australians have gambled away about $120 billion during the past 30 years with current annual losses at over $11 billion. Slot machines now account for almost 60 percent of gambling industry income in the country.

Gambling is largely a state matter in Australia and each one has its own laws governing it. The only exception is Internet based gambling, which is the responsibility of the Federal government (Interactive Gambling Act 2001). Since about half of the country's 200,000 slot machines are in the state of NSW (and therefore about half of all money is lost there as well), an effort was made by the politicians there to deflect the often made criticism that they were the 'gambling state'. Measures were introduced via the Gaming Machine Act 2001 to restrict the numbers of slot machines to their then current levels and even to reduce them marginally. The state's only casino, Star City in Sydney, has 1500 machines while the vast majority of the 1500 registered clubs and over 2000 hotels each have somewhere between fifteen to several hundreds of them.

Quite sensibly, it was felt by NSW government advisory bodies that it was not good enough simply to keep the status quo and so other restrictions were also introduced related to slot machines. Some of these included shutting down their slot machine operations between the hours of 6am and 9am on each day of the week, making it an offence to cash a prize winning cheque, cease all externally visible or audible slot machine advertising and conduct a self-exclusion program.

Other measures either adopted or still under consideration include the placing of visible clocks on the wall in all slot machine venues, limiting the maximum currency accepted by bill acceptors on the machines and slowing down the reels on the machine. There are warning signs on the dangers of gambling and where help can be obtained on every machine. All of these innovations are designed to assist the problem gambler, and indeed any gambler, in taking a serious look at their gambling activities.

In this regard, essentially all gambling organisations in the country have been required to introduce a program of responsible gambling practices. This reflects a public interest concern to contain, or minimise the harm, from irresponsible individual action.

2. SELF-EXCLUSION PROGRAMS

Of all these practices, it is the mandatory program of self-exclusion in NSW that is one of the most rapidly growing in the country. Self-excluded players are ones who recognise they have a problem and want to do something about it by having the gambling institution effectively barring them from playing. Specifically, these patrons self-exclude themselves from playing slot machines (sometimes referred to as 'gaming machines' if card machines are included). The programs administered by hotels and registered clubs in NSW are of the most interest since slot machines are by far the major form of gambling available in them. A report on a responsible gambling trial program for NSW Registered Clubs is given by McMillen and Toms (1999).

There are self-exclusion programs operating in other parts of the world, such as the voluntary scheme operated by the Missouri Gaming Commission in the USA since 1997. This scheme has severe penalties for those patrons who breach their agreement since they are arrested for trespassing upon discovery in a Missouri casino. Despite this, about 100 gamblers each month decide to enter the program and by the end of it was reported by the National Centre for Responsible Gaming in 2004 that over 5125 people had joined the program. There are also self-exclusion programs operating in Canada where for example, all gaming facilities in Ontario have programs where patrons can exclude themselves from all Ontario Lottery and Gaming Corporation (OLGC) venues indefinitely.

'Game Change' is the name given to the NSW hotel industry's harm minimisation program with a major element of it being the conducting of a statewide self-exclusion program. The most innovative and successful implementation is that run by the NSW branch of the Australian Hotels Association (known as AHA (NSW)) where any patron may make a request to be self-excluded. This can be done in one of four ways, usually by first contacting a gaming counsellor directly or via a hotline. There is no cost for participation in the program and the rules are basically the same in that self-exclusion is entirely voluntary since an individual enters on his/her own initiative.

When a patron contacts the organization and arranges an interview time, they will be asked to come in and discuss their situation with a gaming counsellor or a representative lawyer. They will go through a self-exclusion agreement, in the form of a 'Deed', clause by clause, and explain to the patron exactly what the Deed entails. It is a legal document with a set of conditions to which the patron must agree. At the end of the interview, the patron is asked if he/she wants to be self excluded, and is then invited to sign the Deed.

In the case of the program conducted by the AHA (NSW), he/she will be asked to nominate by name, the venue/s that he/she wishes to exclude him/herself from since there are more than 2000 possibilities. (In the vast majority of cases it is less than ten per person.) Alternatively, the patron may simply nominate the districts where he/she lives and/or works. They will also be asked which venue/s, if any, have provided the patron with membership cards, in order that the patron can be removed from venue/s' mailing list.

A self-excluded person cannot play the machines at the venue from which he/she has nominated to be self-excluded. Furthermore, the self-excluded person is not permitted to enter the restricted gaming area for any reason or purpose. However, they are permitted to go to the venue from which he/she is self excluded for the purpose of having a meal or a drink. If the patron does enter the restricted gaming room, or use slot machines at the venue, they will be approached by a staff member who will remind them of their undertakings and ask them to leave the restricted gaming room, and/or the venue.

Typically, patrons in such programs are asked to sign the Deed that will exclude them for between six months and twelve months. Surveys of similar programs in Europe and Canada suggest that periods of up to five years are not unusual. At the end of that time the patron is free either to sign another Deed or simply do nothing. Breaking the Deed before its expiry time is no easy matter and the organization must be convinced that the patron no longer has the gambling problem perceived at the time of signing. This usually means convincing at least one gaming counsellor that this is indeed the case.

The Deed used in New South Wales is by the gambler alone. The Deed is kept by the Hotels Association as a record of the patron's self exclusion. It is in the form of an expression of desire 'to be denied entry from the area in designated venues set aside for gaming purposes or in which there are gaming machines'. It authorises the hotel to keep a photograph of the self-excluded person at the designated venues and to remove the patron in accordance with the Deed and to use reasonable force to do so. It also releases the hotel from actions that could otherwise be brought by the patron.

3. LEGAL CONSIDERATIONS

There are important legal and clinical considerations that must be addressed in any self-exclusion program. In the case of AHA (NSW), having signed a Deed as outlined above, the next question is that of enforcement if the patron fails to comply with its terms. If they do so, they have not broken the law as such and therefore are not subject to prosecution.

There are many permutations and combinations of facts that can be imagined. What about wins and losses during the period of self-exclusion where a patron breaches the terms of the Deed? For example, a self-excluded patron enters an establishment and wins a considerable amount of money. They are then 'spotted' by staff who ask them to leave. Is the patron entitled to keep the winnings since they have gained it in contravention of the Deed? Second, a self-excluded patron enters an establishment and loses a considerable amount of money. They then identify themselves to staff and blame them for not recognising them and stopping them gambling. The patron then asks for the return of all their losses. Are they entitled to do so since the establishment does not appear to have fulfilled their commitment to the patron under the Deed? And what if the staff did recognise them but were too busy/uninterested to stop them gambling--does this make a difference to their claim?

And then, what about problems arising when staffs seek to remove a self-excluded gambler from the premises? A section in most Deeds is that 'reasonable force' may be used to remove a self-excluded patron from the gaming room. This term is far from well defined. What if a patron is injured while being removed? What if an innocent bystander is injured when staff is trying to remove a self excluded patron? How does this fit in with the general law on such matters? Are staffs indemnified if they are considered too vigorous in removing a suspected self-excluded gambler, particularly if they are mistaken and cause injury? And what about mistaken identity? Suppose that a patron is incorrectly identified as a self-excluded gambler. He/she cannot prove otherwise at the time and is asked to leave the premises but they refuse. Reasonable force if then used to remove the patron who suffers no physical injury but extreme embarrassment and humiliation in front of their friends, family and others in the process. Is the establishment liable or the staff member involved liable in a damages claim?

All such questions must be considered in the context of the general law--both statute and case law--and in the light of the Deed. Which, if any, of the clauses in the Deed override or modify common law rights?

There is some law on the subject, but it is rather underdeveloped, so principles must be drawn from broader areas of contract and tort law. One example is a case from 2000 in New South Wales, Reynolds v Katoomba RSL (2000) Aust Torts Reports 81-545. This involved a problem gambler, Reynolds, who was attending Gamblers Anonymous. He had reached an agreement with the club's secretary manager that his cheques not be cashed on the premises and that he was not to be given credit. The club did cash his cheques and he lost in the vicinity of $50,000 over a four-year period. Reynolds sued the club in negligence. He lost. It was held that the club did not owe a duty of care to the gambler to prevent harm to him from his gambling. He was a 'free citizen' and 'responsible for his own actions'. The Court of Appeal held that it would only be in extraordinary cases that economic loss caused by gambling would be accepted to be a form of loss for which the law would permit recovery. It was the deliberate and voluntary nature of the activity that took it out of the arena of compensable loss.

But once you introduce the Deed of self-exclusion, is there a basis of arguing that this is in the area of the 'extraordinary case'? There is law developing in the area. Where the hotel knows of the problem and can be said to have taken advantage of this, for example plying the known problem gambler with alcohol (Wolfe, 1995).

These are just a few of the legal aspects among many others that have yet to be tested in law since these programs are relatively new in Australia, but it is only be a matter of time before test cases may arise. That is not to say that the programs are without other problems since their success is also perversely contributing to their downfall in that they are becoming so labour intensive in other ways that they are becoming difficult, if not impossible, to manage.

4. THE CURRENT SITUATION

By 2005 the self-exclusion program at Star City casino in Sydney had over 1500 patrons while Crown casino in Melbourne had over 3000. The AHA (NSW) scheme, in operation since 2001, has already exceeded nearly 1000 gamblers signed from around the state with numbers expected to double within the next two years. Some hotels may have no patrons at all who have nominated them or, in the case of the larger inner Sydney hotels, well over 100 patrons. At the moment the identification system is very much a manual one and consequently prone to serious error. The current technique is that a passport size photograph of self-excluded patrons is sent to each of the relevant hotels. These are placed discreetly behind the bar and it is up to the hotel staff to identify these patrons if they enter the gaming area.

Identification by anyone of a stranger for whom they only have one small photograph is very difficult, and made even more so when they have no idea when or if a self-excluded person may appear among the hundreds of other patrons that arrive on a daily basis. When there are a significant number of self-excluded gamblers to spot the problem multiply in difficulty. If the number gets over, say, twenty, it is essentially impossible to catch them all on every occasion.

To make matters worse, it is not uncommon for a self-excluded patron who is trying to gamble in one of these establishments to wear a disguise. This can be in the form of a wig, glasses, beard, a variety of different hairstyles or a combination of all of these. In extreme cases there have been instances of patrons dressing as members of the opposite sex to avoid recognition. It is clear that this type of manual detection system is rapidly becoming unworkable since it is prone to a high error rate in poor identification.

5. FURTHER RESEARCH

To help rectify the situation, the authors are currently investigating other means of conducting an effective self-exclusion program with regard to the cost, accuracy, legal implications and acceptance being the main criteria to be satisfied. A pilot survey of twenty-five randomly selected self-excluded gamblers revealed some interesting preliminary statistics. These include the fact that nearly sixty per cent have stolen money, the majority had broken their Deed and there is widespread substance abuse among the participants. When several options were presented to them as a remedy to assist them not to break their Deed, nearly three-quarters said they would wear at least one of an ankle or wrist bracelet or even an implant that would emit a signal if they tried to enter a gaming room.

These aspects, along with biometric options such as face recognition, retina and iris scanning and finger printing are all under consideration. Each of these, however, currently brings its own difficulties. There will have to be a trade-off in cost and feasibility of any system used with the outcomes compared to the current manual techniques.

6. REMARKS

Self-exclusion programs have shown themselves to be an effective method of assisting problems gamblers, but its success is also becoming part of its difficulties. The current situation of detecting selfexcluded gamblers by manual means is rapidly becoming unworkable due to the large numbers of patrons involved. It may well be that, if nothing suitable can be found, then the status quo may well have to suffice until the situation changes or if technology improves. It may also be that privacy issues swamp everything and render any such solution impotent.

Cooperation with and acceptance by government agencies will be an important aspect of securing endorsement for any goals of a self-exclusion program. Gambling institutions in Australia are strongly committed to having a self-exclusion program that is effective and are constantly striving to find areas for improvement.

In the meantime, it may not be very hard for a self-excluded gambler to sneak in if that is what they really want to do. And working out the implications of such breaches of their self-exclusion arrangements will need to be conducted in the courts, unless government and the gaming industry act to introduce legislation to cover the field. Until such time, the law can only change by the slow and incremental consideration of issues such as those listed above through the courts. This will be a long and painful process.

REFERENCES

Abbott, M. and Volberg R.A. (1991). Gambling in New Zealand: Report to the New Zealand Department of Internal Affairs.

Abbott, M. and Volberg R.A. (1992). Frequent Gamblers and Problem Gamblers in New Zealand: Report on Phase Two of the National Survey Report to the New Zealand Department of Internal Affairs.

Alexander, J. (1999). Problem Gambling: the Need for a Comprehensive Policy Response to an Important Health Issue, paper presented to the Conference on Problem Gambling and Policy, Hyatt Hotel, Auckland, 29-30 July.

AIGR (Australian Institute of Gambling Research), (1997). The Extent and Impact of Gambling in Tasmania with Particular Reference to Problem Gambling

AIGR (Australian Institute of Gambling Research), (2000). The Productivity Commission: Key Findings, AIGR Fact Sheet, 8 May 2000.

Baseline Market Research, (1992). Casino Gambling in Chicago: Staff White paper. Report to the Chicago Metro Ethics Coalition

Dickerson, M., McMillen, J., Hallebone, E., Volberg, R. and Wooley, R. (1997). Definition and Incidence of Problem gambling, Including the Socio-Economic Distribution of Gamblers, report prepared for the Victorian casino and Gaming Authority.

Lesieur, H.R. (1987). Gambling, Pathological Gambling and Crime in The Handbook of Pathological Gambling, T. Galski (ed). Springfield, IL: Charles C. Thomas.

Lesieur, H. R. and Blume, S.B. (1987). The South Oaks Gambling Screen (SOGS): A New Instrument for the Identification of Pathological Gamblers, American Journal of Psychiatry 144; 1184-1188.

Lorenz, V. C. & R. A. Yaffee, R.A. (1986). Pathological Gambling: Psychosomatic, Emotional and Marital Difficulties as Reported by the Gambler Journal of Gambling Behavior 2: 40-49.

Lorenz, V. C. and Yaffee R.A. (1987). Pathological Gambling: Psychosomatic, Emotional and Marital Difficulties as Reported by the Spouse, Journal of Gambling Behavior 3: 13-26.

McMillen, J. and Toms, M. (1999). The Responsible Gambling Trial Program for NSW Registered Clubs. Sydney: AIGR, University of Western Sydney.

National Council on Problem Gambling (US). (1997). Problem and Pathological Gambling in America: The National Picture.

Nevada Council on Problem Gambling (2003). Frequently Asked Questions, URL: http://www.nevadacouncil.org/aboutPG/faq.html

Responsible Gaming Council, Ontario: URL: http://www.olgc.ca/responsible_ini.jsp

Productivity Commission 1999, Australia's Gambling Industries, Report No. 10, AusInfo, Canberra Smith, K. (2003). Report on URL: http://www.news.com.au, 9 February.

The Australian National University.(1999). Letter dated 23 April from Professor Terry O'Neill to Dr Robert Campbell, URL: http://www.pc.gov.au/inquiry/gambling/subs/sub175a.pdf

Volberg, R. A. and Stuefen, R.M. (1991). Gambling and Problem Gambling in South Dakota. American Journal of Psychiatry 144:1184-1188.

Wolfe, J, Casinos and the Compulsive Gambler: Is There a Duty to Monitor the Gambler's Wagers?' (1995) 64 Missouri Law Journal 687

Wynne Resources Ltd and AADAC (Alberta Alcohol and Drug Abuse Commission), Adult Gambling and Problem Gambling in Alberta 1998, Alberta, Canada

Rosalind F. Croucher, Macquarie University, Sydney, AUSTRALIA

John S. Croucher, Macquarie University, Sydney, AUSTRALIA

Professor Rosalind F. Croucher is currently Professor and Dean of Law at Macquarie University. She hold a B.A. (Hons) in history and an LLB from the University of Sydney, along with a PhD from the University of New South Wales in the field of legal history. She is the author of 7 books (sole, coauthored, or edited) and one in press, on inheritance law, estates and trusts and law and religion; 9 major encyclopedia entries in national and international publications; and over 60 research papers in her areas of expertise. She is highly regarded as a presenter both in the academic and professional communities. In 1994 she was elected to the International Academy of Estate and Trust Law and in 2004 she was awarded an Honorary Fellowship by the Australian College of Legal Medicine in 2004 and elected as a Foundation Fellow of the Australian Academy of Law.

Professor John S. Croucher earned his first PhD in Operations Research at the University of Minnesota in 1973 and a second PhD in history at Macquarie University in 2005. He is currently a Professor of Management at the Macquarie Graduate School of Management (MGSM) at Macquarie University in Sydney, Australia. John is the author of 15 books on statistics, mathematics, crime, history, humour and management along with over 75 research papers in his fields of expertise. He is also well-known as a regular newspaper columnist in the UK and Australia and for his extensive media appearances, including eight years as a television presenter on football telecasts.