As outlined in Part I of this series, the legislature and the Governor are working on a number of measures to address the opioid epidemic. Much of what we are doing or proposing responds to the perception discussed in Part I of this series that prescription opioids have been much too available.
Another big theme in the discussion is treatment — making treatment for the disease of addiction more available in a host of ways. A particular issue that will be part of the conversation is expanding the ways in which people with addictions can be forced into treatment. This Part II offers background on the issue of coerced treatment and seeks feedback on the Governor’s proposal to allow physicians to hold people with addictions against their will for days or weeks or, after court approval, months for treatment.
Substance Abuse Treatment
Modern treatment for substance abuse disorders increasingly involves the use of medications to reduce the craving for and/or reduce the pleasure available from substances of abuse. Medications soften the powerful compulsion to relapse, but do not, in themselves, change the lifestyle and thought patterns associated with the habit of using substances. So, talk therapy — group or individual counseling — remains central to addiction treatment. In addition, as people try to change their lifestyle, they may need support in finding employment, housing and new peer groups.
Addiction treatment can occur in a variety of settings — from a website to a church basement to a therapist’s office to a residential house to a prison. Outpatient treatment has the advantage that one can actually practice drug-free living in a real life setting. Inpatient treatment allows more focus and reduces the risk of exposure to situations that will trigger relapse. People going through withdrawal may need a brief inpatient detoxification, but then may be able transition to outpatient treatment which is, of course, vastly less expensive.
Coercion of Treatment Participation — Theory
People often initiate treatment for substance abuse under pressure — a spouse, an employer, a school administrator or a judge brings down the hammer and threatens consequences if things don’t change. The person entering substance abuse treatment may or may not be at a point where they would seek treatment on their own.
Because people with addictions so often do not seek treatment voluntarily, a major public policy question is whether we can or should force more people into treatment through the expanded use of legal compulsion — physically holding them against their will or threatening them with incarceration if they do not begin and continue in treatment, following the rules of an inpatient facility if so ordered.
I was fortunate in the 90s to be part of an academic group that spent several years studying addiction and the role of coercion in recovery. There is a consensus literature that says, in summary, that coerced treatment often helps. Much of the research is government sponsored and supports the effectiveness of government programs. Some of it has an advocacy dimension to it. There is a critique of it which merits consideration. But overall, I find it credible.
Even if the research is hard to evaluate, most of us can get a sense of the potential effectiveness of coerced treatment from our own experience: We have all been dragged to a meeting or entertainment venue and suddenly found that we are getting something out of it. Of course, if we are so angry about being there that we are incapable of paying attention, we may not benefit, but if forced to stay, windows in our anger may open from time to time that allow some learning to occur. And, in fact, we may get as much out of it as willing participants.
Coercion of Treatment Participation — Practice
At a certain point about 15 years ago, I got tired of talking about people with addiction in an academic setting and wanted to talk directly with people with addiction. I started working as an attorney in drug court. My clients taught me a lot about what coercion means and completely changed my perspective on the issue.
I knew from prior research that the quality of treatment is very uneven. But, when I started to work in drug court the meaning of that reality set in more clearly. If consumers of treatment have no choice about being in treatment or where they get treatment, then providers of treatment have less incentive to provide good quality treatment. And people who are committed to treatment cannot complain about quality issues — they risk having the committing judge hear the complaint as evidence of bad attitude or impending relapse.
In our current system, where a high percentage of the patients in many facilities are there under legal coercion (1/3 on average nationally, or perhaps higher, certainly varying locally), the culture in some treatment facilities may suffer — the incentives to fake compliance and insight, simply to escape confinement, make necessary good faith conversations about recovery harder to have (although urine testing can help keep the process honest).
My appreciation of the delicacy of conversations about recovery was reinforced by the failure of a project I initiated in Dorchester Court ten years ago. We attempted to run a program of screening and brief intervention for substance abuse — judges were asked to make non-coercive referrals to the program. The results suggested that clients were afraid to be honest about their substance use after being sent from the courtroom to our little room in the court basement.
It is impossible to translate the consensus finding that says “coerced treatment works” into a conclusion about how well coerced treatment is working in any particular locality — there is no substitute for constant local monitoring of quality and outcomes. And all too often, we don’t have in place the trained personnel, robust information systems and contractual mechanisms to hold treatment providers accountable for results.
Given these realities, I feel we should coerce treatment only with great caution and only when we have very good quality monitoring in place.
Moving Civil Commitment out of the Department of Correction
The Governor’s Working Group on opioids made a number of constructive recommendations on how to expand access to and improve treatment, which the Governor has adopted and, in many cases, already implemented.
Among the working group’s findings, sensitive to the hazards of coerced treatment, was that:
It is important that treatment occur in a clinical environment, not a correctional setting, especially for patients committed civilly under section 35 of chapter 123 of the General Laws.
Section 35 is the mechanism through which people can be brought before a judge and committed to inpatient treatment against their will because of a “likelihood of serious harm.” The Supreme Judicial Court has recently reviewed this procedure and found that people can be committed for the relatively short and non-renewable periods allowed under Section 35 without proof beyond a reasonable doubt of necessity.
Currently, some of the facilities to which people are civilly committed are managed by the Department of Correction. Consistent with the finding above, the working group recommended that we should “transfer responsibility for civil commitments from the Department of Correction to the Executive Office of Health and Human Services.” In its action plan, the administration took a first step on this by planning to transfer facilities for women (241 were civilly committed to Framingham in 2014) and study the feasibility of transferring services for men (1,705 were civilly committed to Bridgewater in 2014).
As a result of this recommendation, more of the patients coerced into treatment under Section 35 would be in settings that are less coercive structurally. A collateral (unspoken) benefit would be that the Bureau of Substance Abuse Services would have a better handle on Section 35 referrals and be better able to manage them in the context of the public treatment system that it administers.
Expanding Civil Commitment through Hospitals
Among the working group’s recommendations was to “increase entry points to treatment”. That is a fundamentally sound recommendation and it can be translated to support many possible action steps, including both more coerced treatment and more access to voluntary treatment.
The administration has proposed a bold stroke on the issue of coerced treatment which goes beyond the specific recommendations of the working group. In Sections 11 to 15 of his opioid bill, the Governor proposes to create a completely new pathway to coerced treatment. Essentially, the bill would give physicians the power to “pink slip” persons with addictions and hold them for treatment as they now can hold people with major mental illness.
In many respects, it makes sense to try to shift treatment referrals out of the court system — judges using Section 35 do not all have the necessary expertise to evaluate treatment need; courts are not open 24/7 as emergency rooms are; treatment referrals should be more closely integrated with the public health treatment system; treatment should be as divorced as possible from the coercive setting of the courthouse. In this respect, the change parallels the proposed change in the management of Section 35 commitments.
But the legislation does more than encourage hospital referrals to treatment — it authorizes physicians to hold persons with addictions against their will. Based on a preliminary examination or based on the circumstances, a physician will be able to physically restrain or authorize the physical restraint of a person and send them to a treatment facility for 3 days of further examination. The facility will then be able to hold the person pending a court hearing and decision, a process that may last up to 15 days. The decision timeline may be extended by the administrative justice for the district court.
While we already use procedures like this for people with major mental illness, expanding the procedures to cover substance abuse is not an incremental step. The threshold decision as to “likelihood of serious harm” may be more subjective. People with major mental illness who get pink-slipped are threatening suicide or homicide or obviously just not talking sense. In contrast, people with addictions are generally neither suicidal nor homicidal nor disoriented. It is unclear when they would meet the statutory standard for serious harm:
a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.
When people are committed by a court using the same standard pursuant to Section 35, the court often has testimony of family members and others available about the extreme situation that the person is in. In the emergency room setting, all the physician will necessarily know is the fact of an overdose and whatever the person chooses to share in their typically agitated state after having been revived with Narcan. Should the fact of an overdose be evidence enough to restrain a person?
Another fundamental difference from the mental illness context is that often a few days of medication will stabilize a mental health patient. By contrast, we know that people with addictions are not cured by medication and often stabilize only after months of treatment. They will remain at high risk of relapse (and overdose, especially if their tolerance is down) when released after 3 days or even the full 90 days available after a court order under the new law. Both the loss of liberty and the likelihood that the commitment will be contested may be much greater than in the mental illness context.
Attempting to identify secure treatment referral destinations and restraining involuntary patients until they can be transported to them could pose a significant new burden on emergency rooms. While they may therefore not really use the new powers, the proposal has the potential to lead to an unmanageable increase in referrals for secure treatment. There are approximately 50,000 emergency room visits per year involving substance abuse in the Boston area alone, while there are only roughly 5,000 Section 35 commitments per year statewide. It seems likely that there is a subpopulation of persons with addictions who have family members who are concerned enough and able to force them in to a Section 35 process. But there may be a much larger group who would get swept in through the new process.
As another comparison, annually statewide, approximately 50,000 patients are transported to mental health hospitals for mental health care and approximately 10,000 are admitted for additional care after the initial 3 day hold. It is unclear that we have the capacity to absorb the new coerced referrals — we lack reliable measurement of treatment demand, but it appears that acute detox services are often difficult to locate. Many existing facilities may not be secure enough to be inappropriate for involuntary commitments.
In addition to these concerns and the broader concerns about coerced treatment voiced above, the special concern that I have about this proposal is that it may transform hospitals into places that most persons with addictions will want to stay away from. If persons with addictions know that they may end up held for a few days or a few weeks, they may tell their “running” buddies not to bring them to the hospital if they appear to be overdosing. By also authorizing police to pink slip people in “emergency situations”, the bill may give persons with addictions more reasons not to involve first responders in overdose situations. It may undermine police efforts to serve as agents of voluntary treatment access. It may also undermine efforts to implement voluntary screening and brief intervention in the emergency room setting where it appears to be effective.
I certainly understand the motivation of the Governor’s proposal. One wants to wrap one’s arms around young people with addictions and just make them stop. But I do have concerns about the proposal. I’d very much appreciate your local insights into the quality of treatment and the pros and cons of greatly expanding coerced participation in treatment through hospitals.
I’m really grateful for all those who have taken the time to respond to this post. I especially thank those who have offered personal perspectives — as family members or as patients: I congratulate those who achieved good outcomes and wish strength to those still struggling. I salute your courage in speaking out. I have read all the comments through today, January 11.
I’ve closed this thread, but we can continue the conversation — the legislative process is moving forward to a different, and I think better, place.