Update: On March 15th, Governor Baker signed into law a compromise bill that excluded the 72-hour hold. Key provisions included a 7-day limit on first outpatient opioid prescriptions—save opioids prescribed for the treatment of substance use disorders—and mandatory substance abuse evaluation of patients within 24 hours of receiving care for an opioid overdose in an emergency department.
Original post. Amidst a surging crisis of opioid abuse and overdoses, many policymakers have called for expanded use of coercive treatment. Many states, including Massachusetts, already allow physicians, police, and court officers to seek a court order authorizing involuntary addiction treatment (formally referred to as substance use disorder (SUD)). But new legislation, The Act Relative to Substance Use Treatment, Education, and Prevention (STEP) currently before the Massachusetts state legislature (H.3944) could expand the scope of involuntary treatment and reduce judicial oversight.
This proposal is an ill-considered response to a public health crisis. To be sure, policymakers face an understandable pressure to take decisive action. But this approach fails to balance that imperative for speed and public confidence with sound scientific, legal, and ethical principles.
As originally introduced by Massachusetts Governor Charlie Baker, The STEP Act would allow licensed physicians, nurse specialists, psychologists, and social workers (or, when such personnel are unavailable, the police) to impose a new 72-hour “hold.” During this three-day period, an individual could be restrained for emergency treatment and compelled to enter an inpatient treatment facility based solely on a reasonable belief “that failure to commit … would create a likelihood of serious harm.”
Following the 72-hours, the patient must be discharged unless he or she consents to treatment or a court orders commitment. A patient can request an emergency hearing to challenge the 72-hour hold, but neither a court order nor diagnosis by an addiction specialist would be necessary to authorize the initial detention.
Although this provision does not appear in the version of the Bill recently passed by the Massachusetts House, there are efforts to re-introduce it into the text as the House and Senate work to develop a final bill amenable to both bodies; there are also a number of other jurisdictions that may be considering similar policy tools.
The opioid crisis has complex underlying causes and defies simple solutions, but there is broad agreement that the treatment gap is a major driver of the current epidemic. Overall, only 11 percent of patients with SUDs are estimated to be receiving science-based treatment. In Governor Baker’s words, the STEP Act would tackle this problem by opening a “wider window” for emergency department personnel, other health care providers, and even concerned family members to engage SUD-affected individuals in treatment and risk-reduction interventions following acute episodes (e.g., non-fatal overdose).
Limited Evidence For Forced Commitment
That this wider window would translate into improved health outcomes is doubtful. First, evidence in support of involuntary treatment of non-offenders with SUDs is both limited and methodologically weak. More rigorous data suggest that individuals who are forced into treatment are more likely to relapse upon discharge than those who voluntarily seek care. This finding is buoyed by fundamental behavioral theory, which holds internal motivation and self-efficacy to be critical to the long-term success of addiction treatment and other behavioral interventions.
Measures such as the proposed 72-hour hold also present practical obstacles. Massachusetts, like other states, already faces a shortage of beds in specialized inpatient treatment facilities, translating to an average wait-time ranging from two weeks to over a month. As a result, many patients held for 72 hours would have to remain in the emergency room or other non-specialty clinical setting before being transferred or discharged.
In these settings, patients presenting with overdoses or other acute SUD-related events currently do not receive proper stabilization treatment, overdose prevention education, and other risk-reduction interventions. But that has far more to do with scarce financial resources, staffing, and space, than it does with a lack of adequate legal authority for detention. In fact, the 72-hour hold may make matters worse by straining already overburdened and underequipped institutions without beneficially adding to health care providers’ limited set of patient-centered tools to engage and support treatment uptake.
Similarly, by blurring the line between health care and incarceration, the proposed approach would also threaten provider-patient trust. The proportion of overdose events in which witnesses do not call for first responders remains high — over 50 percent by some estimates. In response, police departments in Massachusetts and across the nation are adopting amnesty policies. A growing number of US jurisdictions have also enacted Good Samaritan laws to encourage drug users to seek help without fear of criminal repercussions. Even formerly-totalitarian countries such as Cambodia, China, and Vietnam are now renouncing involuntary treatment.
The STEP Act would move Massachusetts—and other states that follow—in the opposite direction. The strengthened likelihood of short- or long-term detention (possibly in a correctional facility) could well push users and people who care for them away from seeking professional help when it is most needed.
Overall, reliance on involuntary treatment across the US unnecessarily and perilously undermines patients’ civil liberties. Massachusetts already permits mental health professionals to hold patients who pose a serious likelihood of harm for 72 hours, but the state’s highest court has ruled that involuntary treatment of patients without court approval is permissible only when there is an “imminent threat of harm” and “no less intrusive alternative.” The STEP Act, by contrast, would open the door to involuntary treatment without any judicial oversight, or any finding that such treatment was the least restrictive means of preventing imminent harm. Indeed, the STEP Act would authorize coerced treatment in the absence of any evidence showing that such an approach would save lives. Given that the burden of civil commitment and coerced treatment has historically fallen disproportionately on the most disadvantaged and vulnerable people, the state must tread carefully.
As the human and economic toll of opioid abuse continues to soar, inaction is not an option. Last year, Governor Baker’s Opioid Abuse Working Group advanced an array of evidence-driven recommendations, including bolstering treatment capacity, health care provider training, criminal justice reform, and scaling-up prevention education and naloxone access. Notably, an expanded mechanism for involuntary treatment was not among the proposed solutions — and sensibly so.
In addition to expanding treatment access and lowering barriers to evidence-based care, states should consider other innovative—but less draconian—measures. For example, health care providers and pharmacists could be trained to use their state’s prescription monitoring programs to facilitate early intervention and treatment uptake. Substantial resources could be deployed to support specialty case managers at emergency departments and other facilities, with the goal of assisting people with severe cases of substance use disorder and their caregivers with treatment placement, insurance, and other matters. Given the heightened risks among individuals involved with the criminal justice system, correctional and community supervision institutions could also play a much more proactive role in overdose education and prevention efforts.
Fortunately, there is no shortage of bold and innovative approaches available to curb the opioid crisis that rest on a sound scientific, ethical, and legal foundation. An expansion of involuntary treatment is not one of them.