Considerations in Civil Commitment of Individuals with Substance Use Disorders

For the past 4 years, the Northeast and Mid-Atlantic states have been experiencing a major heroin epidemic. This epidemic is exacerbated by those individuals who had initially become addicted to prescription opioid medications (e.g., oxycodone hydrochloride, hydrocodone bitartrate, meperidine) only to find that heroin was less expensive and more readily available. The trend towards heroin and prescription overdose deaths was evident not only in the Northeast but nationwide, with states such as New Mexico and West Virginia reporting overdose death rates 5 times higher than states such as Nebraska, which has the lowest overdose death rate. ¹ Nationally, drug overdose deaths tripled from 1990 to 2008. ¹ In 2009, oxycodone hydrochloride overdoses alone accounted for 39,147 deaths nationally. In 2013, there were 43,982 drug overdose deaths in the United States, of which 51.8% were related to pharmaceuticals. ² There also have been marked increases in emergency department visits and substance abuse treatment admissions related to heroin and prescription opioids. ³ There are 2 factors that render the current epidemic especially devastating. First, the increased use of both prescription opioids and heroin are more widespread, as evidenced by the increase in heroin-related arrests and emergency room visits in both urban and suburban areas. Second, the lethality of the epidemic is also evidenced by the increased number of overdose deaths often resulting from the increased purity of heroin or instances where heroin is combined with synthetic opioids, e.g., fentanyl. ⁴ - 11

In response to the heroin epidemic thus far, most attention has focused on law enforcement via interception of drug shipments and prosecution of drug dealers. As we know from the years of the “war on drugs,” this approach is important, but is only partially effective in ameliorating the epidemic because it only addresses the “supply side” of the issue. ¹² Heroin and prescription opioids are ubiquitous, as are those dealers who sell it. A recent New York Times article focusing on the heroin epidemic in Bennington, Vermont, points out that when one drug dealer is arrested, there is usually another waiting in line to take his or her territory. ¹³ Substance use disorder (SUD) treatment focuses on the “demand side” of the epidemic by offering a variety of treatment options (e.g., inpatient, outpatient, intensive outpatient, sober living facility treatment) to those experiencing opioid use disorders.

One of the problems, however, that is inherent with treatment of substance use disorders is motivating individuals to enter treatment voluntarily. For decades, voluntary treatment was the only option available for persons with substance use disorders to enter treatment. Although voluntary treatment is preferable on several levels (e.g., lack of coercion, pressure, while allowing for client autonomy, and self-determination), research indicates that mandated treatment can also be effective in treating substance use disorders. ¹⁴ – 22 As stated by Kelly et al., “Contrary to popular belief, when offenders mandated to SUD treatment are compared with individuals who are self-referred to treatment, mandated patients show substance use outcomes and crime reductions similar to or sometimes better than, those achieved by voluntary patients.” ^{15 (p213)} Drug courts are a prime example of extrinsically motivating adjudicated individuals (i.e., someone who had been charged and convicted of criminal offense) to enter SUD treatment as an alternative to incarceration. Drug courts were designed to take nonviolent persons who committed substance-related offenses and to divert them from the criminal justice system (i.e., jails, prisons) and into substance use disorder treatment. Unfortunately, however, this type of extrinsically motivated treatment applies only to those who have been convicted of drug-related charges (e.g., drug possession) or those who have been granted entry into pretrial intervention programs.23

In the absence of court-mandated treatment, the dilemma faced by parents and significant others is essentially how to motivate their loved one to enter treatment voluntarily. Many parents report experiencing constant fear worrying they will get the call they have been dreading, i.e., that their son or daughter is in an intensive care unit (ICU) or has died of a heroin overdose. For those families, the powerlessness they experience as they wait for their loved one to “hit bottom” is fraught with constant dread, leaving them to question whether there are any viable alternatives to help their loved ones. In response to these concerns, several states (approximately 37) have adopted civil commitment laws whereby family members and significant others can petition to the courts to have loved ones committed to substance use disorders treatment facilities. Although voluntary SUD treatment is certainly preferable, the dilemma parents and significant others face is that if they wait for an individual with a opioid use disorder to “hit bottom” and are then willing to enter treatment voluntarily, the risk is that his or her “bottom” may result in an overdose death before even arriving at treatment. Therefore, SUD civil commitment statutes that extend beyond those with mental health disorders becomes a viable means of mandating individuals with severe substance use disorders to enter treatment. On a practical level, involuntary treatment also becomes a means of diverting individuals with substance use disorders from jails and prisons and into treatment settings. Also, involuntary treatment may provide an alternative to homelessness that is especially common among this population.

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. ²⁴ The law provides for brief civil commitment (up to 7 days) for individuals experiencing a substance use disorder and longer-term treatment if proven necessary. Named for Reverend Hal S. Marchman, a dedicated and tenacious addiction treatment advocate, the Marchman Act provides mandatory commitment treatment programs whereby individuals with substance use disorders can be assessed and stabilized (i.e., detoxification or initiation of medication-assisted treatment; medical stabilization), with the goal of encouraging the individual to enter longer-term treatment programs voluntarily. The rationale behind the Marchman Act is that it provides time for individuals who lack decisional competence (i.e., the capablity of making a rational, informed decision regarding entering treatment as well as engaging in ongoing substance use treatment) to regain clarity and lucidity. Also, the rationale inherent in many of the civil commitment laws is that if an individual with a substance use disorder has impaired insight and compromised capacity to make rational, informed decisions by virtue of continuous substance use, it therefore seems unreasonable to expect individuals to provide informed consent to enter treatment voluntarily. The criteria utilized for civil commitment under the Marchman Act is as follows: “Lost power of self-control with respect to substance use and either: 1) has inflicted or threatened to inflict or unless admitted is likely to inflict physical harm or him or herself or another OR 2) 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 and of making a rational decision in regards theretofore; however mere refusal to receive such services does not constitute evidence of a lack of judgment with respect to his or her need for such services.” ^{24 (p 11 )}

Florida's Marchman Act is just one example of a SUD civil commitment law, and there is wide variation in civil commitment SUD laws from state to state both in terms of the length of confinement, as well as whether the law can mandate outpatient as well as inpatient treatment in the criteria used for commitment. ²⁵ For example, concerning the duration of confinement, state civil commitment laws for emergency commitment or emergency hold may range from 24 hours to 15 days, from 1 to 3 months for involuntary inpatient assessment and stabilization, and up to 12 months for inpatient involuntary commitment ²⁵ (see Table 1).

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Table 1

Examples of states with civil commitment laws for substance use disorders.

State	Emergency a	Assessment b	Commitment c	Outpatient d	Need e
Arizona52	ns	Up to 7-10 days	90, 180, 365 days	ns	Yes
Colorado32	Up to 72 hours	Up to 90 days	Up to 180 days	Yes	Yes
Connecticut53	Up to 48 hours	Up to 30 days	30, 90, 180 days	ns	Yes
Florida24	Up to 72 hours	Up to 5 days	Up to 60 days	Yes	Yes
Massachusetts54	ns	ns	Up to 90 days	ns	Yes
Minnesota38	Up to 72 hours	Up to 5 days	Up to 90 days	Yes	Yes
Missouri55	Up to 24 hours	Up to 96 hours	Up to 21, 90, 365 days	Yes	Yes
Ohio31	Up to 48 hours	Up to 7 days	ns*	Yes	Yes
Utah56	Up to 24 hours	ns	Up to 6 months	ns	Yes

Note. ns = not specified.

a

Provides for emergency involuntary admission.

b

Provides for brief involuntary admission for Assessment & Stabilization.

c

Allows for longer-term Involuntary Commitment with periodic reviews for recertification.

d

Laws include provisions for outpatient as well as inpatient involuntary commitment.

e

Laws provide for both “Need for Treatment” as well as Danger to Self/Others.

*

Ohio civil commitment is done on a county-by-county basis.

With regards to the criteria utilized to determine commitment, there is also variation on whether states utilize criteria such as danger to self or others, grave disability, lack of decisional capacity, incapacitation, failure to manage personal affairs, and addiction/loss of control. ²⁵ Involuntary commitment can be initiated not only by family members and significant others petitioning the court but also by police intervention or at the time of an emergency department treatment by physicians. Under the Marchman Act, there are 5 types of involuntary commitment: (1) being taken into protective custody (by the police), (2) emergency department admission, (3) alternative involuntary assessment for minors. (It should be noted that none of the aforementioned forms of commitment require prior judicial review; however, judicial review would be required if a person were held for more than 72 hours.) The other 2 forms, (4) involuntary assessment and stabilization and (5) involuntary ongoing treatment, do require judicial review. The person who is committed has a right to a court hearing within 5 days of admission to a licensed addiction treatment facility. ²⁴ In the instance of protective custody, the police officer must take the person to a “safe environment,” whether that be home, a hospital, detoxification facility, or other licensed addiction treatment facility. Also, the police must notify a licensed addiction treatment facility within 8 hours of taking the person into custody and arrange transportation to that facility. Similarly, in instances of emergency admission, a person may be admitted to a hospital, a detoxification facility, or other licensed addiction treatment facility with certification from a physician; however, that individual must be evaluated by a qualified addictions professional within 5 days in order to determine if further involuntary inpatient commitment is warranted. If not, that individual must be released with appropriate referral for outpatient follow-up care. If further assessment and treatment is deemed necessary, (by virtue of that individual still meeting the criteria for involuntary commitment), then a petition can be filled with the court and the individual will be retained in treatment.24

In instances where family members or significant others petition the court for involuntary commitment, a court hearing must take place within 10 days of the petition of being filed with the court. The respondent has a right to legal counsel at that hearing. 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. 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.24

The impairment of decisional capacity in individuals with SUDs is one of the cornerstones of most effective civil commitment laws. ²⁶ For example, one of the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th Edition) criteria for SUD is the continued use of the substance despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or worsened by the substance. ²⁷ Therefore, individuals with SUD may lack the ability to delay gratification and often make decisions with short-term gains and long-term losses, and treatment is often viewed by the individual to hinder their immediately gratifying use of the substances. ²⁵ Other research has examined whether individuals with opioid use disorders have the ability to provide voluntary informed consent to treatment or research participation. ²⁸ There are times when individuals with an SUD are unable to make rational decisions about substance use and the necessity of treatment, especially when the disorder has progressed to such a severe level that loss of control is evident.28

Civil commitment for individuals diagnosed with substance use disorders does provide a viable option for mandating individuals with severe substance use disorders to treatment; however, there are those who oppose such legislation on the basis that it interferes with one's civil liberties guaranteed under the 14th Amendment of the Constitution. ²⁹ Civil commitment could be construed as depriving individuals with substance use disorders of their freedom or constitutional rights. However, the same argument could be made of a mentally ill individual who threatens to harm self or others and is involuntarily committed. ²⁹ Few would question the necessity of commitment in instances where imminent harm is threatened. However, there are those who may object to civil commitment on the basis that it is essentially coercive, paternalistic, and takes away one's right to consent to treatment. ³⁰ Others might object citing the shortages of state-funded treatment beds, which are often limited and subject to lengthy waiting lists (e.g., there are several counties in Ohio that demand that family members pay 50% of the costs of involuntary hospitalization up front ³¹ ). Civil commitment laws would most likely add to these already burgeoning waiting lists. There are also costs incurred to state budgets when providing involuntary commitment. Another objection to civil commitment involves concerns the potential abuses of involuntary commitment. Hypothetically, a parent or spouse could petition the court to confine a family member who does not meet the criteria for involuntary commitment or who may not meet the DSM-5 criteria for a substance use disorder. In those instances, assessment and judicial review would, hopefully, reduce the likelihood of this type of potential abuse. Others object to SUD civil commitment, as it may represent a form of social control. ³⁰ There may also be a potential that unscrupulous treatment providers may petition the court for an increased length of stay for someone involuntarily committed to their facility, in order to fill beds. Again, judicial review may help to reduce the likelihood of this type of abuse. Also, some question the degree to which police, emergency department physicians, or judges are sufficiently trained and knowledgeable about addictions in order to make a determination regarding whether a person truly requires involuntary commitment.30

Although the potential for these types of abuses of the involuntary commitment statutes exists, they may be mitigated by the criteria for commitment (e.g., danger to self and others, and/or decisional incapacity) that are included in most statutes. For example, Colorado statutes pertaining to involuntary commitment includes the term “grave disability” as one of their criteria, which is defined as “….a condition in which a person as a result of misusing substances or being under the influence of substances is not capable of acting on their own behalf.” ^{32 (p 41 )} Most state statutes have checks and balances built into their laws whereby involuntary commitment decisions are not made by one individual but rather by several professionals, including addiction trained professionals who are required to provide an assessment of the person to be involuntarily committed. ^{24 ,}25

Factors that increase the efficacy of civil commitment legislation

Abensur ³³ offers an overview of civil commitment legislation for substance use disorders, along with recommendations for states that are considering such legislation. She also proposes recommendations for how civil commitment legislation would address “due process” concerns, in order to avoid potential 14th Amendment violations: 1.

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.

The “dangerous to self or others” clause is similar to that used in mental health crisis whereby a person must voice and admit to clear homicidal or suicidal intent or plan in order to be eligible for civil commitment. However, in a landmark case heard before the Supreme Court (O'Connor v Donaldson ³⁴ ), the Court held that state intrusion on individual liberties could occur in 2 instances, i.e., state police power and “parens patriae” (defined in Black's Law Dictionary as “the state's capacity to provide protection to those unable to care for themselves” ³⁵ ). There were several relevant rulings in the O'Connor v Donaldson case. For example, the State cannot constitutionally confine “a nondangerous individual” who is capable of surviving safely in freedom by himself or with the help of a willing responsible family member or friends. Yet, the Court also ruled that the state must demonstrate at least 1 of 3 possible justifications for civil commitment: 1.

Danger to self or others

Although correlations between suicidal/homicidal behavior in substance intoxicated individuals have been noted in the research literature, ³⁶ not all individuals with substance use disorders will meet this “dangerous” criteria. One particular court case (O'Connor v Donaldson ³⁴ ) resulted in the delineation of the dangerousness criteria by proposing justifications for instances whereby an individual would be unable to care for him or herself in a reasonable manner and/or where there is a necessity of treatment “to cure a mental illness.” ³⁴ These are certainly more applicable to those diagnosed with substance use disorders who are unable to provide informed consent to treatment or in instances where the individual is unable to provide for his or her basic needs, e.g., proper food, shelter, clothing, or safety needs. These justifications would be more applicable to an individual with a severe substance use disorder (or someone who is experiencing substance induced delirium), who may not be able to make a reasonable and informed decision regarding treatment on their own behalf. Similarly, the National Alliance on Mental Illness in Colorado also provides definitions of those individuals who are considered “gravely disabled” by virtue of mental illness or substance use disorders.37

Minnesota has one of the better-delineated civil commitment laws for individuals with substance use disorders. ³⁸ In their definition of a “chemically dependent person,” the Minnesota law ³¹ defines those who would fall under the statute:

Subd. 2. Chemically dependent person.

Minnesota's laws provide for up to 72 hours for an emergency commitment for a “chemically dependent person,” who must then be evaluated by a psychiatrist within 48 hours of their confinement. If it is deemed that person is in need of further SUD treatment, that individual may be confined for up to 90 days. The confined person may petition the court for early release at any time during those 90 days. In states that allow for longer-term commitment, a court hearing is necessary to prove that extended treatment is warranted. Court procedures for commitment of minors with SUD are often more complicated. ³⁹ Not surprisingly, due process obfuscation has resulted in committed individuals filing lawsuits against the police.40

The dilemma of commitment based solely on danger to self or others has plagued the mental health field for over the past 3 decades according to E. Fuller Torrey. ⁴¹ He notes that at one time civil commitment was based on both the need to prevent harm to self or others and would be used in situations where individuals were incapable of caring for themselves or to cure a mental illness (as stated in the “parens patriae” standard). Torrey concludes that many of the tragic failures in the mental health system can be attributed to laws that have essentially abandoned those individuals with mental illness who need treatment but who do not overtly verbalize intent to harm self or others. The recent shootings in Santa Barbara, California, by the alleged assailant Elliot Rodger serve as a tragic example of failed mental health statutes. Rodger had not expressed intent to harm others when the police had arrived at his apartment to do a wellness check hours before the shootings. According to media reports, Rodger's family had requested that the police do the wellness check on their son because of concerns with sudden changes in his mood and behavior. ⁴² However, since homicidal or suicidal ideations or intent had not been expressed by Mr. Rodger (who was described as being very cordial by the police officers), they determined that there was no basis for involuntary commitment and therefore did not transport him to an emergency room for psychiatric evaluation. Similarly, it is unlikely that individuals with opioid use disorders would express a specific intent to overdose or intent to harm themselves, yet danger can be inferred from continued use and loss of control over opioid use. Also, with the increased incidence of overdose deaths as a result of intravenous heroin use, it is also important to consider whether this type of behavior would be deemed by the court as fitting into the category of “dangerous risk to self.” Although danger to self or others can be inferred by someone diagnosed with a substance use disorder (e.g., as evidenced by the high rate of accidents among those who are alcohol or substance intoxicated as well as overdose deaths), it would be more likely these individuals would demonstrate an inability to care for him or herself that would provide a basis for the need for involuntary treatment. ³⁷ Therefore, for involuntary commitment laws to be effective when applied to those with substance use disorders, it is imperative that that “need for treatment” criteria be included, as in the Florida, ²⁴ Colorado, ²⁸ and Minnesota ³⁸ statutes cited earlier.

Recommendations for civil commitment should not be initiated without giving a great deal of consideration and forethought. As stated in the Report of the Civil Commitment Review Task Force, “Civil commitment and emergency mental health holds represent a significant curtailment of liberty for persons with a psychiatric or substance use disorder and therefore their use should be applied to a narrowly defined set of circumstances.” ^{43 (p 3 )} “Civil commitment or certification represents a substantial deprivation of liberty. The adverse effects on persons subject to commitment or certification can long endure after his or her civil liberties are restored.”^43(p2) In spite of the possible criticisms and potential abuses of civil commitment of individuals with substance uses disorders, speaking from our perspective as treatment providers, civil commitment can provide a humane approach in hopefully enhancing one's motivation towards recovery. Involuntary commitment can also improve diagnostic clarity, especially for someone who may be experiencing comorbid disorders.30

Although civil commitment may provide a desperate but extreme measure to get their loved one help, it is also important for the public and families to be realistic that any single treatment attempt will not necessarily produce a positive treatment outcome (e.g., abstinence, improved daily functioning, improved ability to exercise good judgment). In other words, a single treatment attempt will most likely not produce a “magic cure.” Obviously, there will be instances where individuals committed to treatment who will go through the motions and bide their time until they can complete the mandated duration of involuntary confinement rather than exploring and implementing substantive change. However, if one accepts substance use disorders as chronic in nature, and that not everyone attains abstinence (or sobriety) as a result of their first treatment experience, there can still be value in a treatment experience, even if it does involve involuntary commitment. For example, in Alcoholics Anonymous and Narcotics Anonymous, it is generally accepted that there are few “first time winners” (i.e., those who achieve sobriety/abstinence in their first attempt at attending self-help groups). Prochaska et al. ⁴⁴ concluded from their research that individuals with substance use disorders would on average make anywhere from 5 to 7 treatment attempts before continuous abstinence was achieved. Every exposure to treatment may therefore become an opportunity to “plant the seeds” of recovery and help motivate the individual towards ongoing recovery.

Civil commitment may be viewed as a step towards motivating a person by providing a period of stabilization that allows that individual to make a more rational decision regarding ongoing treatment. Certainly further research needs to be done to determine whether civil commitment results in individuals seeking long-term treatment and an exploration of other outcomes (e.g., improved functioning in areas of health, family, legal status). Also, research needs to focus on what types of state civil commitment laws are most effective (e.g., Are longer-term inpatient confinements more effective than shorter-term commitment? Also, might outpatient civil commitment be appropriate and more efficacious for some individuals? Could a combination of inpatient and outpatient commitment produce more effective treatment outcomes?) ³⁷ Thus far, there are a few studies ⁴⁵ – 49 that suggest that civil commitment “among substance abuse patients improves treatment outcomes.” ^{50 (p 16 )} One study in particular examines the outcome of 100 Florida residents involuntarily committed under the Marchman Act. ⁵¹ This study found that the treatment completion rate (i.e., those who completed treatment successfully, as opposed to those who left against medical advice once the criteria for involuntary commitment was no longer met) was 69%. ⁵¹ When compared with a group of individuals admitted to the same treatment facility voluntarily, the rate of completion was 70%. Given the overdose death statistics cited at the beginning of this commentary, civil commitment has the potential to be an effective tool in enhancing recovery motivation and may help to save lives. Hopefully it is not a step back to the Lexington narcotics farms of the 1930s.