INVOLUNTARY EMERGENCY ADMIT FOR INDIVIDUALS WITH SUBSTANCE USE DISORDER

LITERATURE REVIEW:

October 2019

SYNTHESIS

f Evidence supporting the effectiveness of involuntary civil commitment for SUD is inconclusive.

y There are no studies of the direct effectiveness of involuntary civil commitment for SUD

> Data are from drug court and other diversion programs.

f Family and loved ones are the major proponents of involuntary civil commitment.

f All states have laws on involuntary civil commitment.

y 38 states have laws around involuntary civil commitment for SUD but very few of those states use the laws.

> Some state laws have SUD written directly into mental health civil commitment laws.

> Other states have specific statutes for SUD.

f State statutes differ

y How long commitment can be

y Who can petition

y Where the respondent can be sent

y What happens if a patient absconds

y What the level of burden of proof is

> However, the Supreme Court has said that the standard of “clear and convincing” evidence is required for involuntary hospitalization of a person who has a psychiatric illness and poses an imminent risk of danger to himself or others.

f parens patriae

y Latin for “parents of the fatherland”

y Legal doctrine that affords the state to act on behalf of its citizens when they are incapable of acting on their own behalf.

y To protect the health and safety of individuals and communities, the court may suspend an individuals rights to liberty and compel them into drug addiction treatment for a limited period.

PURPOSE

The Treatment Task Force of the NH Governor’s Commission on Alcohol and Other Drugs is gathering information on involuntary civil commitment for substance use disorders in an effort to make a recommendation to the Governor’s Commission about the practices.

A review of the literature and information from other states was gathered to learn more about involuntary civil commitment (ICC) for substance use disorder (SUD). This document highlights themes and includes the ICC laws in the six New England States.

f Concerns regarding civil commitment for Substance Use Disorder

y Requires patients be detained and most treatment programs are not secure facilities

y Infringement on civil liberties

y Capacity

y Funding

y Risk of overdose increases when someone leaves treatment

f States utilizing Involuntary Civil Commitment laws:

y Massachusetts

> Section 35

• 6,000 commitments in 2017

y Florida

> Marchman Act

> 10,000 requests in 2016

f Uniform Alcoholism and Intoxication Treatment Act of 1971 (UAITA)

y Uniform acts are template laws drafted by legal authorities that serve as prototypes for state legislatures.

y The UAITA outlined relevant considerations for states drafting ICC policies

> what criteria must be met before an individual can be committed (e.g., danger to self)

> who may initiate petitions

> how they are filed

> how long the court may enforce a commitment along with prescribed intervals for reevaluations

> Defendants may be granted the right to counsel to contest their commitment.

f Massachusetts Fatal overdoses dropped for the first time in seven years in 2017.State public health officials credit the following versus increased use of civil commitment:

y better training for medical professionals

y tighter regulations on painkillers

y increased treatment capacity

y wider distribution of the overdose reversal drug naloxone

y other initiatives

f Most addiction professionals support involuntary civil commitment for SUD

y Many voice concerns that people aren’t receiving evidenced based practices

INFORMATION BY NEW ENGLAND STATES

MASSACHUSETTS

https://malegislature.gov/Bills/191/S1139 

MA law (section 35) https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section35 

Section 35 Commission - https://www.mass.gov/orgs/section-35-commission

Recent report provided by the Section 35 Commission https://www.mass.gov/files/docu-ments/2019/07/01/Section%2035%20Commission%20Report%207-1-2019.pdf

f Massachusetts Section 35

◦ Requires clear and convincing standard of proof of substantial risk of physical harm

> A substantial risk of physical harm to the person himself/herself as manifested by evidence of threats of, or attempts at suicide or serious bodily harm; OR

> A substantial risk of physical harm to others as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; OR

> A very substantial risk of physical impairment or injury to the person himself/herself as manifested by evidence that such person’s judgment is so affected that he/she is unable to protect himself/herself in the community and that reasonable provision for his/her protection is not available in the community.

> Imminent danger

• Days or weeks

f ICC can only be requested by:

y Police officer

y Physician

y Spouse

y Blood relative

y Guardian

y Court official

f Law allows confinement in a secure setting such as a jail or prison for men only.

y Practice ended for women in 2016. Women are now sent to psychiatric hospital.

y Several legal challenges have been filed in recent years against commitment under Massachusetts Section 35.

y In 2017, Massachusetts Governor Charlie Baker proposed, Act Relative to Combating, Addiction, Accessing Treatment, Reducing Prescriptions, and Enhancing Prevention (CARE Act), expanding the state’s civil commitment. The proposed legislation, which did not pass, would have permitted medical professionals to “restrain or authorize the restraint” of a patient for transportation to a licensed treatment facility and confinement for up to 72 hours in such facility.

f Section 35 Commission created August of 2018 to further study impact of Section 35:

y Review medical literature and expert opinions on the long-term relapse rates of individuals diagnosed with substance use disorder following involuntary inpatient treatment including:

> the differences in outcomes for coerced and non-coerced patients

> any potential increased risk of an individual suffering a fatal overdose following a period of involuntary treatment

> medical literature on length of time necessary for detoxification of opioids and recommended time following detoxification to begin medication-assisted treatment

> the legal implications of holding a non-court involved individual who is diagnosed with substance use disorder but is no longer under the influence of substances

> whether the current capacity, including acute treatment services, clinical stabilization services, transitional support services and recovery homes, is sufficient to treat individuals seeking voluntary treatment for substance use disorder

> the availability of other treatments for substance use disorder, including those treatments used in less restrictive settings

> the effectiveness of the existing involuntary commitment procedures pursuant to section 35 of chapter 123 of the General Laws at reducing long-term relapse rates; and

y evaluate and develop a proposal for a consistent statewide standard for the medical review of individuals who are involuntarily committed due to an alcohol or substance use disorder pursuant to section 35 of chapter 123 of the General Laws, including, but not limited to, developing

> a proposed standardized form and criteria for releasing medical information for use in a commitment hearing under said section 35 of said chapter 123 that is in compliance with federal and state privacy requirements

> criteria and guidance to medical staff about filing a petition under said section 35 of said chapter 123.

f Bill S.917

y Would allow for individuals to petition the court for self-commitment

> Current law excludes self-commitment

> Also clarifies language around expert testimony

y Referred to the committee on The Judiciary on 1/22/19

f Bill S.918

y Would have patients sent only to facilities approved by MA office of public Health

> Referred to House Committee on 1/22/19

MAINE

Maine Involuntary Civil Commitment Laws http://www.mainelegislature.org/legis/statutes/34-B/ti-tle34-Bsec3861.html

https://legislature.maine.gov/statutes/34-B/title34-Bsec3801.html-

f Involuntary Commitment: ME Rev. Stat. Ann. tit. 34-B §

y 3801 defines a mentally ill person as:

> someone with “a psychiatric or other disease that substantially impairs that person’s mental health” including anyone suffering the “effects from the use of drugs, narcotics, hallucinogens or intoxicants, including alcohol.”

y ME Rev. Stat. Ann. tit. 34-B § 3864

y Petition to court can be completed by anyone

y Allows a court to involuntarily commit a person and implement a treatment plan if the application for commitment contains information that the person

> “lacks the capacity to make an informed decision regarding treatment”

> “is unable or unwilling to comply with recommended treatment”

> that the need for the treatment “outweighs the risks and side effects”

> that the “recommended treatment is the least intrusive appropriate treatment option.”

f In order to be committed to SUD treatment involuntarily, the patient must first be committed on an emergency basis

y Maximum period of detention is 4 months

f According to a search of Maine’s current bills, there is no pending legislation to amend the states current law

f According to The Maine Attorney General’s Office, the Maine statute is not utilized for SUD

CONNECTICUT

Connecticut Involuntary Civil Commitment Laws: https://www.cga.ct.gov/current/pub/chap_319j.htm#sec_17a-686

f Involuntary Commitment: Conn. Gen. Stat. Ann. § 17a-685

y Allows specific individuals to apply to the probate court to involuntarily commit someone to an inpatient treatment facility for alcohol or drugs and declare that the person has a substance use disorder

> dangerous to him or herself or others or

> is gravely disabled

f Petitioner can be

y the spouse

y relative

y conservator

y physician

y administrator of treatment facility

f Connecticut also has a provision regarding emergency admission for:

y dangerous to him or herself or dangerous to others unless committed

y needs medical treatment for detoxification for potentially life-threatening symptoms of withdrawal

y is incapacitated by alcohol

f Requirement of intoxication may be waived

y physician determines that the individual is in immediate need of medical treatment

> detoxification for potentially life threatening symptoms of withdrawal

f Length of Commitment

y not less than 30 days nor more than 180 days unless:

> the administrator of the facility, prior to the expiration of the time period, obtains a court order for recommitment

f According to a search of Connecticut’s Active bills, there is no active legislation to amend these laws

f According to the Department of probate court, 41 instances of commitments pertaining to substance use disorder in FY 2018.

RHODE ISLAND

Rhode Island Involuntary Civil Commitment laws

http://webserver.rilin.state.ri.us/Statutes/TITLE23/23-1.10/23-1.10-12.HTM

f § 23-1.10-12. Involuntary commitment of alcoholics.

y A person may be committed to the custody of the department by petition

> spouse

> guardian

> relative

> certifying physician

> the administrator in charge of any approved public treatment facility

y Hearing must be within 10 days of petition

y The petition shall allege that the person is misusing alcohol who habitually lacks self-control as to the use of alcoholic beverages and that he or she:

> has threatened, attempted, or inflicted physical harm on himself or herself or another and that unless committed is likely to inflict physical harm on himself or herself or another

> will continue to suffer abnormal mental, emotional, or physical distress, will continue to deteriorate in ability to function independently if not treated

> is unable to make a rational and informed choice as to whether or not to submit to treatment

y Petition must include certificate of a licensed physician who has examined the person within three (3) days before submission of the petition

> Maximum of a 30 day commitment

> Can re-petition for up to 90 days

• Can apply for recommitment if after examination it is determined that the individual is likely to inflict physical harm on himself or herself or another

y A person committed under this chapter may at any time seek to be discharged from commitment by writ of habeas corpus

> Can also be appealed within 48 hours

f There is no current legislation to amend the RI statute

f According to the Rhode Island Department of Behavioral Healthcare Developmental Disabilities and Hospitals, The statute is not being utilized for Substance Use disorder.

VERMONT

Vermont Involuntary Civil Commitment Laws https://legislature.vermont.gov/statutes/sec-tion/18/197/08402

f Title 18 : Health Chapter 197 : Mentally Ill Users Of Alcohol Or Drugs

y “drug addict”

> a person who shows signs of mental illness because of his or her use of drugs, hallucinogens, stimulants, or sedatives or who has an uncontrollable desire for their use or consumption.

y Civil commitment of “drug addicts” falls under the same statute as mental health civil commitment laws

y Patient must be seen

f A person in need of treatment means

y a person who has a mental illness

y is a danger to self or others

> he or she has inflicted or attempted to inflict bodily harm on another

> placed others in reasonable fear or harm

> He or she is a danger to people through action or inaction

f Application must be accompanied by the certificate of a physician.

y Patient can be held until examined by a physician

> If time does not permit examination, law officer or mental health professional may take patient into temporary custody.

• Without serious delay

f Can be held up to 90 days

f Petition can be made by anyone

f There are no current amendments proposed to this bill

f According to the Vermont Attorney General’s office

y The current statute has never been used

y There has been recent proposed legislation to remove the current statute

> There is no interest in state government to have an ICC for SUD in Vermont

y Some law enforcement support utilizing current law or new laws for ICC

NEW HAMPSHIRE

New Hampshire Involuntary Civil Commitment Laws

http://www.gencourt.state.nh.us/rsa/html/X/135-C/135-C-mrg.htm

http://gencourt.state.nh.us/bill_status/billText.aspx?sy=2017&id=859&txtFormat=html 

https://legiscan.com/NH/bill/SB220/2017 

f New Hampshire statute specifically excludes substance use disorders from definition of mental illness.

y Only New England state that does not have Involuntary Civil Commitment laws for some form of substance use disorder

f Senate Bill 220-FN

y Would amend current statue to include individuals with opioid use disorder

y Patients with OUD could be committed to state psychiatric hospital on an emergency basis

> Would utilize existing system for psychiatric commitment

y Referred to interim study on 9/22/17

y No further information

STATES WITH NEW ICC LAWS

UTAH

f Essential Treatment And Intervention Act

y Passed in the 2017 general Session

> Chief Sponsor: LaVar Christensen, Senate Sponsor: J. Stuart Adams

> This bill establishes a process for an individual suffering from a substance use disorder to receive court-ordered essential treatment and intervention.

y Law allows petition to court to be filled by a relative

> Parent

> Stepparent

> Grandparent

> Sibling

> Spouse

> Child

y Essential treatment means court-ordered treatment for a substance use disorder

> Recurrent use of alcohol and/or drugs causes clinically and functionally significant impairment.

• Health problems

• Disability

• Failure to meet major responsibilities at work, school, or home

y Petition reviewed first by the court

> Respondent has the right to challenge

y Examination then completed by Essential Treatment Examiner and reviewed in court hearing and petitioner must prove:

> The respondent is suffering from a substance use disorder.

> If not treated the substance use disorder will result in serious harm to respondent or others.

• Drug overdose

• Suicide

• Serious bodily self-injury

• Serious bodily injury because the individual is incapable of providing the Basic necessities of life, including food, clothing, or shelter

• Causing or attempting to cause serious bodily injury to another individual

y The petitioner must provide information about at least one local substance abuse authority or approved treatment facility or program where the respondent can receive essential treatment.

> DSAMH has approved local authority contracted program or certified Justice program

y Financial guarantee must be provided by petitioner or other for cost not covered by respondents insurance.

y If the court finds that the requirements have been met, it can order initial treatment for up to 360 days, subject to periodic review. The order will designate the facility for essential treatment.

y The treatment provider is required to:

> Examine the respondent at least every 90 days.

> Notify the respondent and their personal representative or guardian (if any), of what happened at the examination and the results of the examination.

> Release the respondent from the treatment facility if the examination determines that the conditions justifying essential treatment and intervention no longer exist.

> Send a report describing the reasons for release to the court after the respondent has been released, describing the reasons for release and also send copies to the respondent’s personal representative or guardian (if any).

y The fee to file a Petition for Essential Treatment is $360

> If the petitioner cannot afford to pay the filing fee, they can ask the court to consider waiving that fee.

y Four petitions have been filed

> One was to essential treatment but did not arrive at assessment and case was dismissed.

WASHINGTON

f Ricky’s law, The Involuntary Treatment Act, was named after Ricky Garcia who suffered from drug addiction for many years and often became suicidal when under the influence of substances.

y Passed by the legislature in 2016

y 2 year ramp up in order to:

> Develop a treatment facility

> Train the involuntary commitment investigators

y As of April 1 2018 approximately 550 Designated Crisis Responders (DCR) have been trained.

y 45 Beds as of April 1, 2018

y the title of the facility was initially Secure Detoxification Facility

> Misinterpreted by variously payers and providers to mean that the only treatment was actual detoxification and subsequent discharge.

y Language was reworked during the most recent legislative session

> Secure withdrawal management and stabilization facility:

• A facility operated by either a public or a private agency or by the program of an agency substance use disorder.

> Secure withdrawal management and stabilization facilities must provide the following services:

• Assessment and treatment, provided by certified chemical dependency professionals.

• Clinical stabilization services

• Acute or subacute detoxification services for intoxicated individuals

• Discharge assistance provided by certified chemical dependency professionals, including facilitating transitions to appropriate voluntary or involuntary inpatient services or to less restrictive alternatives as appropriate for the individual

• Security measures sufficient to protect the patients, staff, and community

• Be licensed or certified as such by the department of health

y DCR cannot hold someone more than 72 hours.

> Imminent danger due to be gravely disabled

> Imminent likelihood of serious harm

> Must be a facility available

• Receiving facility must be named

y Non-emergent detention

> Criteria is the same except:

• No longer imminence but is considered serious likelihood.

y The use of emergent detentions are available across the state.

y Non-imminent detentions are only available in 8-10 counties

> Due to the need for the DCRs to directly petition the court to get an order for detention.

y Emergency detention

> DCR can detain on their own without the need to petition the court directly for an order. The DCR can sign a notice of emergency detention.

y The timeline of judicial oversight is the same for mental health and substance use.

> Initial 72 hours.

• Evidence threshold is preponderance of evidence

> Fourteen day commitment

• Evidence threshold is preponderance of evidence

> Ninety day commitment

• Evidence threshold is clear cogent and convincing level of evidence.

> 180 day commitment

• Evidence threshold is clear cogent and convincing level of evidence.

y Utilization rates are still low.

> This is the first year of this new part of the Involuntary Treatment Act

WASHINGTON STATE INVOLUNTARY CIVIL COMMITMENT DATA

LITERATURE REVIEW:

Cavaiola, Alan A. PhD; Dolan, David MS (2016). Considerations in civil commitment of indi-viduals with substance use disorders. SUBSTANCE ABUSE 2016, VOL. 37, NO. 1, 181187 http://dx.doi.org/10.1080/08897077.2015.1029207

This article provides a basic overview of the Marchman Act, Florida’s ICC law. The authors pro-vide their perspectives on reasons that influence the need for ICC laws as well as reasons for opposition. The article also provides recommendations for ICC legislation.

f Voluntary treatment is preferred

f Research indicates that mandated patients show substance use outcomes and crime reduction similar to or better than voluntary patients do.

y Data from drug courts and diversion programs.

y A person must be already involved in a court-mandated program.

f Parents and loved ones have no option for their loved one other than waiting for them to “hit their bottom”.

y Because of this, approximately 37 states allow for involuntary civil commitment.

y Allowing people to “hit bottom” can be overdose and death.

f One example of civil commitment law referred to as the Marchman Act was passed into legislation in 1993 by the Florida legislature. This was one of the first of such civil commitment. Laws written specifically to address those with substance use disorders.

y Allows for civil commit up to 7 days.

y Long-term care if proven necessary.

f Patients with SUD are seen as not having decisional competence in order to accurately assess their own need for treatment.

f Criteria utilized to determine ICC for the Marchman act:

y Lost power of self-control with respect to substance use and either:

> Has inflicted or threatened to inflict or unless admitted is likely to inflict physical harm or him or herself or another.

> is in need of substance abuse services and by reason of substance abuse impairment, his or her judgment has been so impaired that the person is incapable of appreciating his or her need for such services.

y Other states statutes are varied on components of involuntary civil commitment (ICC)

y Limits on length of confinement.

y Outpatient or residential.

y Criteria required for ICC.

> Danger to self or others.

> Grave disability.

> Lack of decisional capacity.

> Incapacitation.

> Failure to manage personal affairs.

> Addiction/loss of control.

Under the Marchman Act, there are five types of involuntary commitment:

f Being taken into protective custody (by the police).

f Emergency department admission.

f Alternative involuntary assessment for minors.

f Involuntary assessment and stabilization.

y Requires Judicial Review.

f Involuntary ongoing treatment.

y Requires judicial review.

Once a petition has been filed a court hearing must take place within 10 days of the petition of being filed with the court.

f The respondent has a right to legal counsel at that hearing.

f If the court determines that involuntary admission is warranted, then the respondent is admitted to an “addiction receiving” treatment facility where an assessment commences upon admission.

f The treatment provider has 5 days to report their findings to the court, at which time, the judge may vacate the order for further involuntary treatment or may extend the length of involuntary commitment for up to 60 days.

Opposition to ICC

f Violation of civil liberties.

f Coercive.

f Risk of abuse of power.

f Over-burdened system.

f Cost.

Recommendations for Civil Commitment Legislation

f A family member, friend, doctor, clergy, or member of the law enforcement may petition the court for the civil commitment of a substance-dependent individual.

f A hearing shall occur during which:

y The respondent is present.

y The respondent may be represented by counsel of his choice:

> If the respondent is indigent, counsel shall be appointed to represent him.

y The respondent’s counsel represents the interests of the respondent

> Adversarial in nature

> including but not limited to cross-examination of state witnesses and production of expert and nonexpert witnesses on behalf of the respondent.

f If the court finds clear, cogent, and convincing evidence that the respondent is a substance-dependent individual and as a result of substance dependence is dangerous to himself or others, it shall order for a period not in excess of 90 days commitment to and treatment by an inpatient facility.

y “Dangerous to oneself” is defined as actions in the relevant past that indicate a substantial risk of physical harm to oneself, including threats or attempts of suicide or serious bodily harm or other conduct demonstrating that the person is a danger to himself.

y “Dangerous to others” is defined as actions in the relevant past that indicate a substantial risk of physical harm to other persons, including homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

f Minnesota ICC law

> Up to 72 hours for an emergency commitment for a chemically dependent person

y Must then be evaluated within 48 hours by a psychiatrist

y Up to 90 days if determined necessary

y Clear determination of danger to self or others

Mandros, Athena (2018). Is Involuntary Commitment the Right Solution for the Opioid Crisis? Open Minds. https://www.openminds.com/market-intelligence/executive-briefings/is-involuntary-commitment-the-right-solution-for-the-opioid-crisis/

Athena Mandros’ article provides some information about the practice of ICC in different states as well as proposed changes to state ICC law. The article offers perspective for both creating ICC statute and against changing statute.

f 36 states allow for Involuntary Civil Commitment (ICC) for Substance Use Disorder

y Included is Vermont which only allows ICC for drug addiction treatment

y Additionally, Rhode Island and Montana only allow ICC for alcohol Use Disorder

y Most recently Utah added ICC laws in 2018

f Other states have recently proposed legislation around ICC

y Pennsylvania—Allow parents to have physician examine adult children and write treatment plan that the court would make mandatory

> Senate Bill 710

y New Hampshire Senate Bill 220

> Allow family members to petition court to confine addicted relatives in state mental hospital for treatment

y Washington— Senate Bill 5811

> allow involuntary commitment if person has been arrested three or more times for drug-related crimes; have been hospitalized for drug use; or have three or more visible track marks indicating intravenous heroin use

f Studies of ICC show mixed evidence of effectiveness.

y 2017 study by The Lancet showed higher rates of relapse for heroin users who were mandated to treatment than those who entered treatment voluntarily

y 2012 research-based guide published by NIDA suggests that those forced into treatment do as well as or better than those not forced into treatment

f Issues arise with involuntary civil commitment .

y Many states don’t utilize current laws

y Systems not set up for ICC

y Treatment capacity

Bhalla, Ish P; Cohen, Nina; Haupt, Claudia; Stith, Katie; Zong, Rocksheng (2018). The Role of Civil Commitment in the Opioid Crisis. The Journal of Law, Medicine & Ethics, 46 (2018): 343-350.

The following article provides a brief history of ICC laws for substance use disorders. The Authors provide a general overview of the different state laws on ICC, the different components of the statutes as well as the standards set forth.

f As the opioid crisis deepens, one policy response is Involuntary Civil Commitment for SUD.

f Medical, ethical and legal questions are under examined.

y Issues related to:

> Civil Liberties

> Public Health

y The legal basis for civil commitment lies in parens patriae.

> The state’s power to protect the citizen’s health and safety

y The first civil commitment laws were from adapted during the second half of the 19th century.

> Addressed alcohol use disorder

> The arguments both for and against civil commitment were similar to the ones that continue present day

• the lack of judicial review of admission decisions

• the initial absence of due process, Literature Review

• persisting medical doubts about the efficacy of involuntary treatment

f 38 Jurisdictions allow civil commitment for SUD

y RI and MT only allow for alcohol use disorder

y VT only allows for drug use disorder

y IN, ME, NE, TN, VA include SUD and alcoholism in their statutory definition of “mental illness.”

y Most states, do not classify SUD or alcoholism as mental illnesses and may have different criteria and procedures for

> civil commitment of persons with mental illness

> civil commitment of persons with alcoholism or other substance abuse

f Petitioners may include:

y the person’s spouse, guardian, relative, or health care professionals, including a physician, physician assistant, advanced practice registered nurse, or psychologist

f In some states, any responsible adult with knowledge of the circumstances may petition to have the individual committed for treatment.

y In other states, commitment proceedings may only be commenced by the administrator or director of a treatment facility or hospital where the individual has been receiving treatment on an emergency basis

f The Supreme Court has said that the standard of “clear and convincing” evidence is required for involuntary hospitalization of a person who has a psychiatric illness and poses an imminent risk of danger to himself or others.

y All states that permit civil commitment of those with substance use disorder have likewise adopted this standard

> which is less than the standard used in criminal cases (proof beyond a reasonable doubt)

> greater than the standard used in most civil cases (proof to a preponderance of the evidence)

f Due to increased potency of illicit opioids, the threshold with which civil commitment laws are used has changed.

f Results of research are mixed.

y No specific research on civil commitment for SUD

> Research is from diversion programs and drug courts

f Limited use of civil commitment for SUD’s is attributed to:

y societal reluctance to restrict autonomy through non-criminal mechanisms of social control

y reluctance on part of clinicians and others to expend funds on involuntary interventions when access to voluntary addiction treatment is so limited

y genuine societal ambivalence over whether substance abuse should be viewed as willed conduct or the consequence of unwilled illness.

f Civil Commitment laws must balance the patient’s autonomy with public health interests.

y Case must go beyond addiction and indicate the individual is a harm to self or others

f Patients risk of overdose is a concern

y If a patient is not sufficiently motivated and returns to their pre-confinement level of use, they are at high risk for overdose

f Policy and legal concerns

y “Beyond reasonable doubt” does not apply

y Rules of evidence do not apply

y Risk of harm to self or others is predicting the future

Sederstrom, Jill (2017). Would Involuntary Commitment for Addiction Save Lives? Behavioral Health Executive. https://www.behavioral.net/article/prescription-drug-abuse/would-invol-untary-commitment-addiction-save-lives

This article illustrates the arguments both for and against involuntary civil commitment and overs an overview of the Marchman Act.

f Opioid Crisis is a major catalyst in exploring involuntary civil commitment laws.

y Significant legal and practical issues

f Many advocates of laws are parents who have lost adult children to overdose.

f Hal S. Marchman Alcohol and Other Drug Services Act of 1993 (Marchman Act)

y Court petition to have the individual involuntarily evaluated

> Can be filed by anyone with knowledge of the person’s substance misuse

> Can be filed ex-parte

y If grated, the person is held for 5 days at a treatment facility and an evaluation is completed

y A second petition is filed to secure the patient in treatment for up to 90 days

> Can be extended 2 times

> A hearing is held and respondent is entitled to counsel and can contest the commitment

f Issues arise around capacity for treatment

y Also, civilly committed patient facilities need more security

f Controversy remains among medical professionals, addiction specialists, and state officials about whether the benefits of involuntary commitment outweigh the harms of impeding on civil liberty.

Vestal, Christine (2017) Support Grows for Civil Commitment of Opioid Users, PEW Trust. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/15/support-grows-for-civil-commitment-of-opioid-users

The following article discusses current legislation to change some states ICC laws for SUD. The article provides general information regarding Section 35, Massachusetts ICC laws for SUD.

f Most civil commitment laws have been ineffective for individuals with opioid use disorder

y judges are reluctant to take away some ones civil liberties.

f MA Has civil commitment

y Used exclusively for opioid use disorder

> If it is during business hours, MA civil commit usually occurs in 1 hour. On weekends and off hours, petitioners must wait

f Parents and other family are the strongest proponents of involuntary civil commitment

f Most addiction professionals support involuntary civil commitment

y Problems are with quality and availability of treatment

y Another concern is if continued treatment will be available when the patient is discharged

f States other than MA and FL use their Statute so seldom that most people are not aware that the law exists

y With opioid crisis interest in civil commitment renewed

f MA law is far from ideal.

y Massachusetts is the only state where people with addictions who have not committed a crime are held in prisons.

y In 2014, the ACLU and other civil rights groups sued Massachusetts for locking women up because of their addictions.

y The state responded in 2015 by enacting a law providing for women to be held in a state mental hospital instead, and renovated the hospital to include opioid treatment beds designated for women who have been civilly committed.

f Commitment laws in seven states (Alabama, Arizona, Idaho, Illinois, Nevada, New Hampshire and Wyoming) specifically excluded drug addiction as a legal justification

f In five other states (Maryland, New Jersey, New Mexico, Oregon and Utah), commitment laws for mental illness made no mention of drug addiction or alcoholism and no separate laws existed for drug use.

f Utah has enacted new civil commitment laws for OUD

f Bills vary on who can petition and for how long

f PA, a new bill would allow parents to have a doctor examine their adult child and write a treatment plan, and then appear in court and ask a judge to make the plan mandatory

f In NH, a bill would allow family members to petition the court to have an addicted person confined in the state mental hospital for treatment.

f Washington’s bill would amend an existing civil commitment law to add opioid use as a sufficient cause for commitment.

y people may be detained if

> within a 12-month period, they have been arrested three or more times for drug-related crimes

> have been hospitalized for drug use

> have three or more visible track marks indicating intravenous heroin use.

f Research shows that mandated treatment is just as effective as voluntary.

f Most civil commitment treatment is not treatment

y 12 step programs

y No medication assisted treatment available

Marcelo, Philip (2018) Use of Forced Rehab on the Rise in Opioid Addiction Battle. https://www.nbcdfw.com/news/health/Forced-Rehab-Opioid-Addiction-Battle-Data-Analy-sis-483433791.html

This article provides information regarding Section 35, Massachusetts ICC laws and the increase risk of overdose following release from the commitment. It brings into question the effective-ness of ICC and the issues with Section 35. The article shares other state initiatives to change their current ICC laws.

f In some key states the use of involuntary commitment for drug addiction is rising.

y In many places, lawmakers are trying to create or strengthen laws allowing authorities to force people into treatment

f Research suggests involuntary commitment largely does not work and could raise the danger of overdose for those who relapse after treatment.

y Tolerance has decreased

f Expanding civil commitment laws

y violate due process rights

y overwhelm emergency rooms

y confine people in prison like environments

> treatment sometimes amounts to forced detox without medications to help mitigate withdrawal symptoms.

f Wisconsin signed a law in 2017 allowing police officers to civilly commit a person into treatment for up to three days.

f Washington state legislation that took effect April 1 2018 granting mental health professionals short-term emergency powers. In both states, a judge’s order would still be required to extend the treatment.

f Proposed changes to MA law would allow for 3 days of involuntary civil commitment without a judge’s order

y Legislation aim is a stop gap for nights and weekends when judges are not available

y Opponents are concerned that giving doctors the power to detain would burden ER’s which are already overwhelmed with patients with mental health disorders

f Florida reported more than 10,000 requests for commitment in both 2016 and 2015, up from more than 4,000 in 2000

f Massachusetts reported more than 6,000 forced commitments for drug addiction in both fiscal years 2016 and 2017, up from fewer than 3,000 in fiscal year 2006.

f Researchers caution there has not been enough study on whether forced treatment is actually working.

y Many states don’t track whether people are being civilly committed multiple times or if they continue to maintain abstinence as a result

f Fatal overdoses dropped for the first time in seven years in 2017 in MA

y State public health officials don’t credit increased use of civil commitment

> better training for medical professionals

> tighter regulations on painkillers

> more treatment beds

> wider distribution of the overdose reversal drug naloxone

> other initiatives.

f MA Department of public Health Study 2016 study indicates that those involuntarily committed are 2 x as likely to die by overdose then those who went to treatment voluntarily.

y This finding could be a result of those being mandated to treatment being more complex cases and thus more likely to overdose regardless of whether treatment was mandated.

f Until recently civil commit, patients in MA went to prisons.

y practice ended for women in 2016,

y Many men are still sent to the Massachusetts Alcohol and Substance Abuse Center (MASAC)

> housed in a minimum-security prison in Plymouth MA

> Given DOC uniforms

> Subject to solitary confinement

> Room Searches

> No medication like methadone or buprenorphine for withdrawal

Hall, Martin; Walton, Mathew. (2017) Involuntary Civil Commitment for Substance Use Dis-order: Legal Precedents and Ethical Considerations for Social Workers. Social Work in Public Health 2017, VOL. 32, NO. 6, 382–393.

The article shares a historical perspective of both mental health and substance use disorders and the Legal and ethical considerations of ICC laws. There are specific examples of court rul-ings on ICC cases and consideration of the public health perspectives involved in ICC decisions.

f In an effort to prevent negative health outcomes and deaths resulting from SUD, several U. S. states have passed involuntary civil commitment (ICC) laws that allow concerned persons to petition local courts to forcibly remand individuals with SUDs to treatment

y severe SUD that endangers self and/or others satisfies necessary criteria to legally override an individual’s right to refuse treatment

f Laws are from 2 state function:

y police powers

> invoked to protect citizens from being harmed by dangerous substance related behavior

y parens patriae

> Latin for “parents of the fatherland”

> legal doctrine that affords the state to act on behalf of its citizens when they are incapable of acting on their own behalf

> To protect the health and safety of individuals and communities, the court may suspend individuals’ right to liberty and compel them into drug addiction treatment for a limited period

f Two forms of mandated treatment

y Court Mandated

> After a conviction or in place of a conviction

y Involuntary Civil Commitment (ICC)

> Court is petitioned to remand someone for treatment without any criminal findings

• Intent is reduce harm to the individual and community

• Also avoids future legal problems

f Civil commitment for mental disorders

y All states have laws

f Civil Commitment for SUD

y Not all states have laws

y Most are amendments to mental disorder statute

y Many states the laws exist but are not used

f State statutes differ

y How long commitment can be

y Who can petition

y Where the respondent can be sent

y What the punishment is for absconding

y What the level of burden of proof is

f Involuntary Civil Commitment for reasons not related to SUD

y Incompetence

> Guardian elected

y Public health

> Forced to undergo treatment

• Tuberculosis

f Court rulings regarding ICC

y Robinson Vs California (1962)

> Lawrence Robinson was pulled over and arrested for having track marks and jailed

> Supreme court decided this was

• Cruel and unusual punishment

• Violation of the Fourteenth Amendment to imprison individuals simply for their desire or likelihood of committing a crime

> Justice Thomas Clark Offered dissenting opinion

• He argued there were two stages to use, voluntary and involuntary

• A state could imprison individuals in the first stage to prevent them from progressing to the second stage

• state laws must transition to treating individuals as sick rather than criminal once they had entered the involuntary stage.

• Justice Clark opined that the state can constitutionally mobilize its police powers to protect citizens from becoming involuntary drug users

y O’Connor v. Donaldson (1975)

> Kenneth Donaldson was committed to Chattahoochee State Psychiatric Hospital in 1957 for a delusional disorder after his parents petitioned. He remained there until decision was overturned in 1971

• Supreme court noted that imminent danger to self or others was required for ICC

• State had ongoing responsibility to justify commitment

• mental health professionals may be deemed personally liable when they violate individuals’ right to liberty on the basis of a failed appeal to their dangerousness.

y Addington v. Texas (1979)

> Frank O’Neal Addington appealed decision that he was a danger to others

> Courts disagreed about burden of proof

• “preponderance of the evidence,”

• a stronger condition of “clear and convincing evidence”

• the most stringent “beyond a reasonable doubt” condition.

> Supreme court ruled for “clear and convincing evidence as burden of proof

f These opinions ultimately informed the Uniform Alcoholism and Intoxication Treatment Act of 1971 (UAITA)

y Uniform acts are template laws drafted by legal authorities that serve as prototypes for state legislatures.

y The UAITA outlined relevant considerations for states drafting ICC policies

> what criteria must be met before an individual can be committed (e.g., danger to self)

> who may initiate petitions

> how they are filed

> how long the court may enforce a commitment along with prescribed intervals for reevaluations

> Defendants may be granted the right to counsel to contest their commitment.

f Two factors that help form ethical considerations of ICC

y how substance use and SUDs are defined and understood.

> If SUD is a moral failing, it should not be a condition for ICC

y What level degradation of autonomy occurs for SUD patients and does that level warrant ICC?

> Is the level of effect on autonomy a continuum?

f Arguments supporting ICC being unethical

y SUD does not sufficiently impair autonomy to the point that revoking civil liberties are justified

> SUD is not an illness or moral failure and is no different than non-drug pleasure seeking

• Impossible to prove individuals have lost their autonomy

y individuals are free to govern their bodies and cannot be compelled to treatment against their will for any reason.

> Pluralistic view

• What is moral and right should be left up to individuals

y Libertarian views

> “slippery slope” theory

• After you restrict one right, they are all in jeopardy

f Arguments supporting ICC being ethical

y The United States has well-established procedures of revoking citizen’s right to liberty for the purpose of protecting the health and safety of individuals and communities.

y Neuroscience that supports the concept of addiction as a brain disease

f Many new state laws are named after adult children who have died

y Parents lobbied for legislation

Brown, Karen A Twist On ‘Involuntary Commitment’: Some Heroin Users Request It (2016) Weblog post. Shots [BLOG], Washington: NPR.

The following article provides an overview of a problem in Massachusetts where individuals with SUD are telling family members to apply for involuntary civil commitment on their behalf, which some say is circumventing the law.

f Civil Commitment in MA is being requested in many cases

y Officially under the law you cannot request your own commitment

> Many people are having family petition court

f Some people say this is circumventing the law

y Eliminates wait times for treatment

> Some patients back out of civil commitment when they realize there are no treatment facilities available and they are going to prison

f Women are sent exclusively to privately run treatment facilities