PHLW's Leo Beletsky and Elisabeth Ryan wrote about the increasing use of "Section 35" commitments in Massachusetts over at The Crime Report. This law allows people with substance use disorders to be committed involuntarily to a secure facility for up to 90 days. This is not the way to handle the opioid crisis.
In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”
The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”
In this case, the facilities housing criminals and patients were, in fact, one and the same.
The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”
Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.
The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.
In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.
That highlights the perversion of our drug treatment system.
It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.
Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.
The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.
Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.
In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.
As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.
Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 inthis preliminary analysis.)
Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).
Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).
Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.
Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.
This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.
Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.
Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.
Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.
The way services are currently rendered is also a barrier.
Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.
Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.
Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.
See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach
Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs publichealthlawwatch.org, on Twitter at @phlawwatch. They welcome comments from readers.