Michael Stein is chair of health law, policy and management at the Boston University School of Public Health and author of “The Addict: One Patient, One Doctor, One Year.” Paul Christopher is an assistant professor of psychiatry and human behavior at Brown University.
Your daughter uses heroin and can’t stop. She doesn’t want — or doesn’t think — she needs treatment. You know, as does she, that we are in the midst of a fentanyl crisis where most heroin on the street is invisibly laced with this synthetic opioid that is driving the overdose and death rates higher and into the daily headlines. Should you turn to the courts — as are an increasing number of parents, probation officers and doctors — to save her from herself?
Court-ordered opioid treatment, known as civil commitment, gives judges the authority to hospitalize people against their will. Commitment is not a criminal charge, only a decree that has the force of law, obliging a person to receive medical treatment. In Massachusetts, which has one of the highest rates of opioid deaths nationally, addiction-related civil commitments have doubled in the past decade, to more than 6,000 last year, largely in response to the opioid crisis. More than 30 states now have commitment laws for substance users on the books.
But while policymakers and families might be desperate for tools to address the opioid crisis, we need to recognize that we don’t yet know know the impact of commitment laws. We need to carefully and empirically review these laws as we consider sequestering and treating more opioid users against their will.
Doctors already have the power to commit people based on mental-health concerns. In Massachusetts, suicidal or psychotic patients can be hospitalized against their will for up to 72 hours for psychiatric evaluation. Other states allow for similar or longer detainment before a hearing. Emergency-room physicians have the authority to hold people for this short period without court approval. If a longer period of treatment is required, a doctor can petition a court for civil commitment. The rationale is that the state bears responsibility and therefore has the authority to intervene when people are unable (or unwilling) to protect themselves.
If your daughter’s addiction poses an imminent risk for overdose (which some consider a form of unintentional suicide) is this pressing danger reason enough for a judge to hospitalize her against her will for up to 90 days? Has a world with fentanyl produced a new understanding of “imminent risk”?
Those who believe that civil commitment is being overused say opioid use is not reason enough to take away a person’s liberty. Others contend that people should only be held for shorter periods of time. Still others reject any application of involuntary treatment on the view that if a person chooses to misuse opioids, and is not a danger to anyone else or to civil order, he or she should bear the consequences of that decision.
The moral questions are vexing. But the growing use of civil commitment brings up three practical concerns:
First, we don’t have any idea if it works. There is no careful research on civil commitment — even as to what kinds of treatment are currently being offered during these forced inpatient stays — and therefore no evidence that civil commitment saves lives. Yes, commitment enforces a relatively short-term period when patients cannot get their hands on opiates and can receive some addiction treatment. But after release, the risk of relapse and overdose returns unless commitment leads to initiation of long-term medication treatment. The risk is perhaps even higher after commitment because the user’s body is now more sensitive to the drugs. It may be that there is a parallel to the dangerous trend we see among drug users who are criminally incarcerated and then released only to overdose shortly thereafter.
Second, it may be that shorter periods of involuntary hospitalization are just as effective as civil commitments in addressing the imminent risk that opioid use poses. But as it stands, we simply don’t know. In both instances, what is likely to produce lasting benefit is whether clinicians can arrange, and whether patients are willing to begin, medication treatment.
Third, as expensive civil commitments grow, funding is required to increase the number of beds to house committed patients. The policy implication in a world of limited resources is that lawmakers will choose to pay for commitment rather than pay for building a more robust, outpatient, medication-based treatment system — our best hope for stemming the opioid crisis.
We need studies to guide the crafting of new commitment laws and the revision of existing ones. How long should commitment last? What services should be required during commitment that increase the chances of a safe release back to the community? Without data, judges will face desperate parents and their children and continue to direct commitments one by one, restricting civil liberties without knowing whether they are reducing overdose deaths or if the clinical and public health resources are justified.