As the opioid crisis continues to grow, the possibility of involuntary commitment for overdose patients is gaining more attention from advocates who see it as a necessary tool in the battle to save lives. However, many experts also acknowledge that there are significant legal and practical issues that still need to be addressed before the controversial strategy could be fully effective.
Involuntary commitment for patients with mental health concerns is a well-established practice in many states across the country, but using similar laws to force people with addiction disorders—who are outside the criminal court system—into substance use treatment is a much newer concept.
Many, like Charlotte Wethington, see the such a move as a powerful option to help patients who have either overdosed, so they might get the help they need to survive. Wethington, who lost her son Casey to an overdose in 2002, helped create Casey’s Law in Kentucky in 2004. The law gives parents, friends or relatives a pathway to intervene and get a patient into involuntary treatment for substance use disorders for a period of up to 360 days.
“The bottom line is you have to be alive to recover,” she says. “So, if recovery is our ultimate goal, then we need to use all the tools that we have in our toolbox to make that happen...or at least to facilitate that happening.”
An increasing number of state officials, parents and law enforcement officers have expressed interest in creating similar laws in other states.
“It’s certainly an area of great interest,” says Sherry L. Green, chief executive officer of the National Alliance for Model State Drug Law. “We’ve received a number of requests, including from some governors and drug policy directors, to look into the possibility of drafting language for an effective civil involuntary commitment law.”
According to Green, more than half of all states that have some process written into existing laws that would allow for civil commitment; however, in some states, healthcare professionals, parents and loved ones are not aware such laws exist.
Green says this lack of knowledge is a sign that many of the laws are not being used consistently.
“A lot of states started with involuntary commitment under mental health, and that’s fairly well fleshed out at the state levels. Those mental health commitment laws tend to be used extensively, and then when they were broadened to include substance use disorders, that’s less consistent and less used,” she says.
Getting help to those in need
Residents in the state of Florida have access to the Hal S. Marchman Alcohol and Other Drug Services Act of 1993 (Marchman Act). Under this law, someone with direct knowledge of another person’s substance misuse is able to petition the court to intervene in a two-step process.
Mark Astor, JD, founder of Drug and Alcohol Attorneys in Boca Raton, Fla., says the first step is petitioning the court to have the individual involuntarily assessed for treatment. This can be done on an ex-parte basis, meaning the subject of the filing doesn’t have to be aware of the proceedings. If the assessment is granted, the sheriff’s department collects the individual and brings him or her in for assessment on a five-day hold at a treatment facility of the petitioner’s choosing.
After that, a second petition is filed to secure involuntary treatment for the individual for a period of up to 90 days, although Astor says the treatment can be extended twice if necessary. There is also a hearing, he says, adding that the individual is entitled to contest the filing and have their own counsel.
Astor sees the law as a benefit in Florida, particularly because of the large number of people who come from out-of-state for treatment, often leaving family and friends many miles away.
“The Marchman Act at least enables the family to run to the courthouse and say, ‘Judge, my kid walked out of treatment,’ and can initiate something,” he says. “I think it’s a safety net for families.”
But while Astor notes the law’s advantages, he says it is not utilized nearly enough in Florida. There continues to be a lack of knowledge among treatment centers, parents and even emergency medical personnel about the law and its potential to initiate people into what could be life-saving treatment.
Legal and practical challenges
The involuntary commitment laws face logistical hurdles as well. Jessica Hulsey Nickel, president and chief executive officer of the Addiction Policy Forum, says communities that institute such laws need to ensure they have enough providers to serve patient needs.
“How well this works really does depend on having treatment capacity available,” she says.
Many state officials, Green says, are already struggling to find enough beds for those patients who actively want help for their addiction and are ready for treatment.
“They feel like they can’t really prioritize reserving treatment beds for people who don’t really want to be there in the first place,” she says.
There’s not only a need to increase the number of treatment centers overall, but many of those facilities would also need to be secured to ensure the safety and treatment efficacy of involuntary commitment patients.
“If you are committing someone to an unsecured facility, and because it’s involuntary and you don’t have any means of actually keeping them there, they can just walk out,” Green says.
Massachusetts, which allows for civil commitment under what’s known as section 35, solved this problem by creating several locked commitment facilities.
Massachusetts Gov. Charlie Baker, who also sits on the White House opioid commission, wanted to go a step further by requiring patients who were taken to the emergency room after overdosing to be involuntarily held for up to 72 hours. However, the policy was met with controversy and ultimately failed.
Raymond V. Tamasi, president and founder of Gosnold on Cape Cod—The Innovation Center, says even with the existing section 35 guidance, such commitments aren’t simple.
“It’s only available during certain times when the court is in session, so it really is a little bit awkward and cumbersome,” Tamasi says.
Green says one of the legal challenges with involuntary commitment laws is determining what level of deterioration or addiction a person has to demonstrate to warrant being involuntarily sent to treatment.
“If you look at the common reasons under involuntary commitment laws and why you can successfully commit someone involuntarily, you find it’s because they are a danger to themselves or others, or they lack the ability to basically care for themselves,” she says.
However, what that means for people with a substance use disorder and what specific evidence is necessary to prove that criteria has not been fully fleshed out yet in the courts.
“At what point in the deterioration of addiction are we going to say, ‘This person fits this criteria,’” Green says.
For that reason, much of the focus has been on individuals who have survived overdoses.
The role for treatment centers
Within states that do have involuntary commitment laws in place, experts say, many treatment centers and medical centers don’t fully understand these laws or highlight their potential use with the loved ones of prospective clients. Therefore, they avoid leveraging the policies.
Attorneys who specialize in the addiction field can assist treatment centers as they explore the concept. Astor says he is willing to work with treatment centers as a free resource and to offer consultations to help clients understand what information they need to secure an involuntary commitment in the state of Florida.
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.
“I believe personally that this is a tool that some families in the community definitely need when someone is in crisis and is in harm’s way,” Hulsey Nickel says.
Others, such Tamasi, question whether treatment centers can adopt other proactive strategies to help patients get into treatment that don’t have the controversy of involuntary commitment. Gosnold has begun partnering with hospitals and local law enforcement to place addiction professionals at the sites where individuals with substance use disorders might interact with community service personnel. For example, staff members might do ride-alongs with police or speak to patients emergency rooms.
The strategies, he says, have been effective, with an estimated seven out of 10 potential patients approached agreeing to begin treatment.
“Obviously you need a little bit of everything,” Tamasi says. “And we need to step outside of the box and do as many things as we possibly can. I’ve always been struck by the fact that treatment centers pretty much wait. The whole system of addiction treatment is built around someone getting to the point where they’re so desperate, they absolutely have to place that call. And that’s just not the way.”
Jill Sederstrom is a freelance writer based in Kansas.