Civil Commitment for Substance Use Disorders: Coercion or Compassion?

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CATEGORY 1 CME

Premiere Date: June 20, 2022

Expiration Date: December 20, 2023

This activity offers CE credits for:

1. Physicians (CME)

2. Other

All other clinicians either will receive a CME Attendance Certificate or may choose any of the types of CE credit being offered.

ACTIVITY GOAL

The goal of this activity is to review the clinical, legal, and ethical aspects of the civil commitment for substance use disorders.

LEARNING OBJECTIVES

1. Identify the legal basis of civil commitment for substance use disorders.

2. Formulate the ethical arguments for and against civil commitment for substance use disorders.

TARGET AUDIENCE

This accredited continuing education (CE) activity is intended for psychiatrists, psychologists, primary care physicians, physician assistants, nurse practitioners, and other health care professionals seeking to improve the care of patients with mental health disorders.

ACCREDITATION/CREDIT DESIGNATION/FINANCIAL SUPPORT

This activity has been planned and implemented in accordance with the accreditation requirements and policies of the Accreditation Council for Continuing Medical Education (ACCME) through the joint providership of Physicians’ Education Resource®, LLC, and Psychiatric Times™. Physicians’ Education Resource®, LLC, is accredited by the ACCME to provide continuing medical education for physicians.

Physicians’ Education Resource®, LLC, designates this enduring material for a maximum of 1.5 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

This activity is funded entirely by Physicians’ Education Resource®, LLC. No commercial support was received.

OFF-LABEL DISCLOSURE/DISCLAIMER

This accredited CE activity may or may not discuss investigational, unapproved, or off-label use of drugs. Participants are advised to consult prescribing information for any products discussed. The information provided in this accredited CE activity is for continuing medical education purposes only and is not meant to substitute for the independent clinical judgment of a physician relative to diagnostic or treatment options for a specific patient’s medical condition. The opinions expressed in the content are solely those of the individual faculty members and do not reflect those of Physicians’ Education Resource®, LLC.

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The United States of America has entered the third year under siege from not just 1, but 2 epidemics: COVID-19 and addiction. Each scourge has multiplied the victims and magnified the death toll of the other; together, they have caused immeasurable suffering and loss.² On November 17, 2021, the Centers for Disease Control and Prevention (CDC) made the grim announcement that annual overdoses passed the 100,000 mark. The 100,306 tragic deaths represent a nearly 30% increase from the prior year. Fatalities from synthetic and semisynthetic opioids, especially fentanyl, along with methamphetamine and cocaine were all higher in the past 12 months than in the period before.³ The vast majority of those who overdosed would meet criteria for a substance use disorder (SUD).

Mental health disorders and suicidal ideation also increased during this dire period in our nation’s history. The CDC surveyed 5470 US adults at the end of June and found that 40% of respondents reported symptoms of anxiety, depression, or other trauma- or stress-related disorder related to the pandemic. Of that cohort, 26% indicated they had either started or increased substance use to help manage their distress.⁴ The latest National Survey on Drug Use and Health (2019-2020) (NSDUH) found that in the period of study, 25.9 million individuals who had previously used alcohol and 10.9 million prior users of drugs endorsed the statement that they were “using substances a little more or much more” than they did before. In addition to these alarming statistics, 2020 data show that 97.5% of those aged more than 12 years who needed SUD treatment and did not receive it at a specialty facility in the last year did not believe treatment was necessary.⁵

In the face of such an enormous social, economic, and public health crisis, fearful and frustrated policy makers, demoralized health care professionals, and desperate family members of individuals struggling with SUDs have sought out potential solutions. It is no wonder that there has been growing interest in laws authorizing civil (involuntary) commitment for SUDs. Much of the scholarly attention has understandably been focused on the use of these statutes to curb the opioid use disorder (OUD) epidemic.^6,7 However, most state laws also apply to serious alcohol, cannabis, and stimulant use disorders that many clinicians more commonly see in their practices.⁸

This continuing education article is written for mental health care clinicians who, given the formerly mentioned data, are likely already caring for individuals with addiction in a variety of nonspecialty settings. Legal considerations, including state criteria and processes for civil commitment for SUD, will be outlined. These are the basis for the clinical ethics arguments for and against civil commitment: They are the central concern of the continuing education offered here. A case study and a review of recent literature will illustrate the values perspectives of the various parties involved in civil commitment for SUD. Civil commitment for SUD potentially pits compassion against coercion, requires a caregiver to choose paternalism over autonomy, and may compromise respect for individuals in discharging the duty of nonmaleficence. Overarching all these conflicts is the principle of justice and how civil commitment will impact the health disparities that the pandemic has both exposed and exacerbated.

The Legal Basis of Civil Commitment

Hall and Appelbaum’s detailed review of the history of commitment for SUD clearly demonstrates that it is not a new practice in the United States.⁹ Many of the luminaries of 19th-century American psychiatry advocated for legislation to permit the commitment of individuals (primarily with alcohol use disorder) to newly established inebriate asylums.⁹

In response to social and political forces, the ethical and medical pendulum swings between the 2 legal bases of civil commitment: Parens patriae is in general the more clinical standard based on beneficence, while police powers is a more legal standard grounded in nonmaleficence.¹⁰ Parens patriae is the legal doctrine that the state is responsible for safeguarding the interests and welfare of those unable to protect themselves, even if that protection requires a corresponding restriction of self-determination. Police powers give the state the authority to limit autonomy to the extent that it is necessary to protect the health and life of citizens from harm and ensure public safety. Civil commitment for mental illness, and even more for SUD, places these 2 legal perspectives and the clinical practices that implement them in ethical tension, as the following case study illustrates.

Case Study

“Jeff” is a divorced man, aged 28 years, and a graduate of a technical school. He was fired from his job for the fourth time in 2 years when he repeatedly arrived late and hungover for work as a computer technician. Jeff has been admitted to the local academic medical center’s intensive care and medical units for alcohol intoxication and withdrawal, and gastrointestinal bleeding, 5 times in the last year. He has failed multiple residential and outpatient programs that provided both psychotherapy and medication-assisted treatment. Even several stints in jail for public intoxication, as well as the loss of his driver’s license after a crash occurred when he was driving drunk, have not motivated him to stop drinking.

Jeff has not been diagnosed with any other mental illness and has never been psychotic, suicidal, or homicidal. Upon his most recent admission, he is diagnosed with cirrhosis, and the gastrointestinal physician informs Jeff and the treatment team that complete alcohol cessation is critical if Jeff is to have any chance to survive. Jeff does not fully appreciate the gravity of his prognosis and remains ambivalent at best about stopping drinking. The hospital consultation-liaison psychiatrist has evaluated Jeff several times and has determined that when the patient is not intoxicated or in withdrawal, he retains decisional capacity.

Jeff’s father, “Dr Frank,” is a general surgeon, and, with Jeff’s permission, he asks to speak to the psychiatrist, as he does not agree that his son has decisional capacity. Jeff’s parents have found him passed out in a filthy apartment with no food, often covered in his own body fluids, more times than they can count. Dr Frank asks the psychiatrist, “How can you say someone who is drinking himself to death is in his right mind?” Frustrated, Dr Frank asks the psychiatrist, “Can Jeff be committed, as he is surely a danger to himself?”

Civil Commitment in State Law

Figure 1. 34 States (Plus Washington, DC) With Civil Commitment for Substance Use Disorder¹¹

As of May 2021, if Jeff is a resident of 34 states or DC, the psychiatrist will be able to tell Dr F that civil commitment is a possibility. The Prescription Drug Abuse Policy System (PDAPS) defines substance use laws for involuntary commitment as follows: “Involuntary commitment is a legal process through which an individual who is deemed by a qualified agent to have symptoms of substance use disorder is ordered by a court into treatment in an inpatient setting.” The PDAPS identified the jurisdictions where SUDs may meet criteria for civil commitment (Figure 1).¹¹ In other states, like Arizona and Arkansas, substance use is specifically excluded from the definition of mental illness utilized in the involuntary commitment statute.⁸

Table 1. Examples of Parties That State Law Allows to Petition for Commitment for SUD

Civil commitment for SUD is distinct from involuntary commitment for mental illness and from legally mandated treatment in a criminal justice context, such as through drug courts. Psychiatrists know well that many involuntarily committed patients have cooccurring addiction and mental illness. In 2020, the NSDUH found that 17 million individuals had comorbid mental illness and SUD.⁵ A common example is the patient with posttraumatic stress and alcohol use disorders who becomes suicidal when intoxicated. In contrast, in states with civil commitment for SUD, a patient like Jeff may be involuntarily committed solely for severe, chronic alcohol use disorder. Numerous legal and psychiatric scholars have drawn attention to the heterogeneity of state laws on several key provisions,^12,13 including who can initiate commitment (Table 1) and the grounds for commitment (Table 2).

Table 2. Sample State Criteria for Civil Commitment for SUD

States also differ in the actual process of civil commitment for SUD. The general steps found in most statutes are illustrated in Figure 2. Similar to commitment proceedings for mental illness, the petitioner is required to present facts to support their case; a health care professional with addiction expertise must evaluate the evidence to determine if it meets the specific criteria for commitment in the respective jurisdiction; and an attorney represents the patient in a hearing before a judge.⁸ The court officer must use a clear and convincing standard in their deliberations. Commitment is usually to an inpatient unit, although in some jurisdictions, an individual can be committed to a residential or outpatient setting. The duration of commitment may be from 1 day to more than a year, with an option for renewal of the court order.¹²

Figure 2. General Steps in the Process of Civil Commitment for SUD

Perspectives of Stakeholders

A crucial aspect of public health policy is to solicit the diverse perspectives of stakeholders involved in an issue under consideration.¹⁴ We are fortunate to have limited yet valuable data on the opinions of the various parties involved in the civil commitment for SUD process. It should be noted that many of those surveyed, especially individuals who have been committed, are from Massachusetts—a state with among the highest rates of civil commitment for SUD. The civil commitment process for SUD in that state has been critically scrutinized in academic and media reports alike.^6,15

Clinicians. A 2021 survey of 165 addiction medicine physicians found that nearly 3 times as many doctors favored civil commitment for SUD (60.7%) than either opposed it (21.4%) or were unsure of their position on the question (17.8%). A concerning finding is that nearly 30% of the respondents, despite being addiction experts, did not know if SUD was grounds for civil commitment in their state and indicated the need for more education and research on the practice.¹⁶ This study found almost 3 times as much support for civil commitment for SUD than did a similar study conducted more than a decade earlier.¹⁷ This relative change in opinion mirrors the steady growth in civil commitment laws for SUD, with 25 states in the last 4 years authorizing or amending legislation.¹⁸

Christopher et al surveyed clinicians who performed court-ordered evaluations of individuals with SUD as part of commitment proceedings.¹⁹ Of the 33 participants who completed the survey, the overwhelming majority (76.7%) opined that civil commitment constituted an effective and appropriate intervention to minimize risks associated with SUD. A similar number (73.3%) believed that civil commitment for SUD resulted in more overall good than harm.¹⁹

Individuals with SUDs and those who care for them. Evans et al offered nuanced and contextualized qualitative data from interviews about pros and cons of commitment with individuals who had been committed for OUD, along with their allies and clinicians involved in the process. Respondents identified positive themes: that the intervention was lifesaving; that it protected vulnerable patients who were out of control or a danger to themselves or others; that it gave families options; that it was preferable to dying or going to jail; that it provided treatment access that could not otherwise be obtained; that the experience could be a life-changing event; and that it promoted public health and safety. Among the negative motifs that participants cited were feeling coerced and as if they were incarcerated; that the ordeal divided their family; that they endured withdrawal without medications to treat OUD; that it potentially increased risks over the long term; and that the practice was not evidence-based.²⁰

Ethical Analysis and Recommendations

The viewpoints of individuals with addiction, their families and caregivers, as well as the addiction health care professionals who treat them should inform— although not determine—the ethical analysis and recommendations about civil commitment for SUD. Good clinical ethics are based on good medical facts, and perhaps the most crucial empirical ethics concern is the lack of data about the efficacy and outcome of civil commitment.¹⁶ Even from a utilitarian orientation, this information is necessary to calculate the overall utility or benefits of the intervention as weighed against the harms.²¹ Most of what is known about the effectiveness of civil commitment for SUD is drawn from a 2005 review of research on legal coercion in addiction. The authors concluded²²:

Regrettably, 3 decades of research into the effectiveness of compulsory treatment have yielded a mixed, inconsistent, and inconclusive pattern of results, calling into question the evidence-based claims made by numerous researchers that compulsory treatment is effective in the rehabilitation of substance users.

This empirical lacuna is so significant because the strongest argument made by proponents of civil commitment is that it saves lives. Opponents of the statutes would argue that, even if civil commitment reduces overdoses in the short term, studies in criminal justice cohorts show that it may actually increase the risk of death from overdose once the patient is discharged.²³ This risk is amplified in the many programs that do not provide evidence-based treatment of OUD.²⁴ Not using opioids decreases tolerance, and the traumatizing experience of commitment may alienate the individual from voluntarily seeking further care. Psychiatrists are quite familiar with serious and imminent danger to self and others being an acceptable basis for involuntary commitment for patients, and even with grave passive neglect in many jurisdictions. However, as seen in Table 2, the civil commitment statutes for SUD stretch the latter best interest standard beyond that utilized in involuntary commitment for mental illness.

There is a deontological imperative that human beings have an innate dignity and should be regarded with the utmost respect and empathy, even—and perhaps especially—during the process of civil commitment. There is also a more pragmatic and communitarian rationale for this approach: As with mental illness, research has found that experiencing the process of commitment as humane and compassionate improves the likelihood that the individual will not relapse to substance use and will follow up with care.²⁵

Christopher, Appelbaum, and Stein have called upon state authorities to end the criminalizing and stigmatizing of civil commitment that has been the most frequent objection of those committed under dehumanizing conditions and their advocates.²⁶ The implementation of current statutes does not provide sufficient due process to protect the rights and liberties of individuals with addiction. In addition, the vague, broad provisions of the laws may allow too much latitude for clinical examiners, judges, and petitioners acting upon complex motivations. Christopher found that evaluators most frequently cited danger to self (ie, a suicide attempt or repeated overdoses) or threats toward others (like interpersonal violence). These are established grounds for involuntary commitment that organized psychiatry has long endorsed. What is more concerning is that examiners expanded the interpretation of serious and imminent at-risk behaviors, even at times beyond the law, and judges generally ruled in accordance with their recommendations.¹⁹

Whether civil commitment for SUD is in most cases beneficence-based or a coercive breach of autonomy turns on the question Dr Frank asked the psychiatrist: “How can you say someone who is drinking himself to death is in his right mind?” The issue of decisional capacity as grounds for civil commitment for SUD has not received sufficient attention. Most mental health professionals would likely agree that individuals in the throes of acute intoxication with stimulants or in florid withdrawal from alcohol are incapacitated. Yet far fewer might concur that individuals with chronic and severe addiction lack decision-making capacity outside those 2 medically compromised states. This is true even if intense craving for the substance diminishes their ability to make what we as professionals or as a society would consider life-affirming choices. The divergent assessments of the capacity of individuals and the rationales for those judgments recapitulate among the oldest conceptual debates in addiction: Is it a moral flaw, a learned behavior, or a disease?

Walton and Hall rightly suggest that the philosophical underpinnings of civil commitment for SUD are implicitly grounded in the brain disease model that predominates in American psychiatry, medicine, and law.²⁷ Loss of control, rationality, and even eventually capacity due to prolonged heavy use of substances of abuse, are core assertions of the brain disease model.²⁸ If this supposition is accurate, the scientific basis of that model needs to be more explicitly articulated as the meta-ethical justification for the deprivation of civil liberty. Those who think addiction is a choice or a habitual behavior^29,30 may dispute the contention that, except when in acute states of intoxication or withdrawal, individuals with SUDs lack the capacity, control, or reasoning cited as a primary ethical validation of civil commitment.

The most common and compelling argument of those opposing civil commitment for SUD is that it violates the legal and ethical doctrine of the least restrictive alternative. It is manifestly unjust, critics say, to involuntarily treat patients who cannot access evidence-based treatment for addiction due to lack of funding, availability, and a host of other social determinants of health. Independent of the side of the question of civil commitment for SUD they are on, many constituents agree that if individuals have their rights curtailed, evidence-based addiction treatment, including medication-assisted therapy, and concurrent treatment for cooccurring mental illness, as well as follow-up care, should be mandatory. Fairness and our fiduciary duty as health care professionals also demand that treatment not end with the commitment. Addiction experts know well that serious addiction is most often a chronic disease that requires continuing recovery services.³¹ Currently, under most state laws, there is no such mandate, in part due to a lack of appropriate resources.⁸

Concluding Considerations on Coercion

Coercion has always been a significant force in addiction treatment, operating through family dynamics, employment, career pressures, and threat of legal sanctions, among others.³² Civil commitment for SUD may be seen as a legitimate and more formalized extension of prosocial influences, or as a coercive recourse to a legal solution for what is the complicated social, economic, cultural, and human problem of addiction.³³

Dr Geppert is a professor in the Department of Psychiatry and Internal Medicine and director of ethics education at the University of New Mexico School of Medicine in Albuquerque. She is the lead ethicist for the western region and director of education, Veterans Administration National Center for Ethics in Health Care, and an adjunct professor of bioethics at the Alden March Bioethics Institute of Albany Medical College. She serves as the ethics editor for Psychiatric Times™.

References

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