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October 31, 2022

Civil Commitment for Substance Use

The Quick Fix to Oblivion

By Sarah Winston

Introduction

Civil commitment is being used, in the majority of states, as a means of forcing people with substance use disorder (SUD) into court-mandated treatment. However, the treatment is largely undefined with no indication of best-evidence treatment being used, even with the general consensus on the effectiveness of medication assisted treatment (MAT) to treat SUD. The use of coerced treatment, as seen in civil commitment for substance use, has been found ineffective compared to voluntary treatment, and the decisional capacities of patients may be limited after diagnosis with a SUD. Judges play an integral role in the civil commitment process, but no decisional criteria or published opinions were found on the matter of civil commitment for substance use. This article describes the status of the laws on civil commitment for substance use and identifies key differences and questions for future research. 

Historical Background

The issue of civil commitment first came to the forefront in the American legal system in the 1845 court ruling of In the Matter of Josiah Oakes. This case justified the use of restricting the liberty of a person with mental illness for the purpose of treatment and built on the English Common law to create parens patriae, the rule of caring for people who are unable to care for themselves. This court ruling opened the door for states to develop mental hygiene laws, also known as civil commitment statutes, which allowed for the involuntary treatment of people with a diagnosed mental illness.

The 1970s ushered in a societal shift that narrowed the laws from “need for treatment” to the “dangerousness” standard. Most modern civil commitment criteria are based on the 1975 Supreme Court case O’Connor v. Donaldson. As a result, mentally ill individuals must either present a known risk of harm to themselves or others and be in such a state that they would be hopeless to avoid the hazards of freedom. The most common state statutes included language such as “danger to others,” “danger to self,” and “gravely disabled.” There was ongoing national debate in the early 1980s about the difference between including therapeutically oriented criteria in civil commitment laws, which merely expand states’ powers without making greater provisions for actual therapeutic treatment or, as the American Psychiatric Association (APA) recommended, a treatment standard for all people who were civilly committed.

As a result of this national conversation, in 1983, the APA created a model state law that pinpointed the importance of treatment and urged states to broaden the legal language of civil commitment laws to include the inability to care for oneself and the risk of deterioration from mental illness. The goal of the APA model law was to reflect the legal justifications of loss of liberty inherent in civil commitment and the actual therapeutic goals for civil commitment. In practice, the APA wanted the model law to limit the number of people who undergo civil commitment by allowing it only after a judicial finding that the patient is seriously mentally ill, suffering, and incompetent to make medical decisions. Unfortunately, the APA criteria have not been widely adopted by states.

Somewhat concurrently with the inception of civil commitment laws was the evolution of “drug dependence laws” in the mid-1800s, when Temperance Movement literature questioned whether or not alcohol had “irresistible” qualities for some people. Between the 1860s and 1890s, 14 states passed civil commitment laws for addiction, and “inebriate hospitals” sprouted up all over the country. The Harrison Narcotic Act of 1914 created a federal avenue that recognized addiction as a medical condition. In 1935, the U.S. Public Health Service created the National Treatment Center in Lexington, KY, to treat individuals with addiction issues. By the 1960s–1970s, the medical community and some states began to hypothesize that substance abuse should be recognized as a mental illness under the law, and approximately 20 states developed civil commitment procedures for individuals with SUD. As time went on, a lack of consensus grew in the medical community over the best treatment for SUD, coinciding with the changing of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the standard classification of mental disorders used by mental health professionals in the United States.

More recently, civil commitment laws for substance use have proliferated throughout the country, in a response to the over 630,000 drug overdose deaths in the United States from 1999–2016. Opioids comprised over 50 percent of those deaths, with more than 350,000 total deaths during the same period, and that rate continues to rise today. In 1991, 18 states had substance abuse involuntary commitment laws; by 1997, 31 states and the District of Colombia had promulgated laws. As of May 2021, a total of 35 jurisdictions had laws governing civil commitment for substance use.

Opioid Use and Classification as a SUD

The history of opium is as old as time, but 19th century Europe initiated the experimentation of morphine for non-medical purposes, which uncovered the negative effects of prolonged opioid use.

The Classification of SUD in the DSM

In 1952, the APA published the first DSM. The DSM-I classified SUD as drug addiction and alcoholism arising from a primary personality disorder, and drug addiction was merely a “reaction” to a personality disturbance. The APA periodically revisits the DSM by updating the classification system of disorders and diseases and incorporating new research findings. In 1959, the APA published the DSM-II and asserted that drug dependence could occur without withdrawal; medically prescribed drugs were excluded from diagnosis because they were taken in proportion to the individual’s “medical need.” In 1980, the APA published the DSM-III in response to the growing need for reliable diagnostic tools for clinicians and researchers. For the first time, SUD was classified independently, and the new criteria for diagnosis were based on the Research Diagnostic Criteria, which sprouted from the diagnostic criteria for alcoholism. The DSM-III was the first time that SUD was used to classify drug dependence. The APA also made it clear that a personality disturbance was often present and may be intensified by a SUD.

In 1987, the APA published the DSM-III-Rand, which eliminated the Abuse category and incorporated elements into a new Dependence category. In doing so, the APA stated that “surgical patients [who] develop a tolerance to prescribed opioids and experience withdrawal symptoms without showing any signs of impaired control over their use of opioids” are not considered to fall in the category of substance dependence.

The DSM-IV was published in 1994 and listed SUDs as Substance-Related Disorders, Substance Dependence, and Substance Abuse. These updates were created to improve upon the reliability and external validity of an SUD diagnosis and address “diagnostic orphans,” individuals with symptoms for whom neither diagnosis was met. The DSM-IV-TR, published in 2000, further clarifies that “the criteria for Substance Abuse do not include tolerance, withdrawal, or a pattern of compulsive use and instead only the harmful consequences of repeated use.” In 2013, the APA published DSM-5, which classified SUDs as Substance-Related and Addictive Disorders in which SUDs are commonly seen in individuals with antisocial personality disorder and are associated with poorer prognosis. This newest version represented the largest shift away from the Abuse-Dependence balance and the largest revisions to the diagnostic criteria.

SUDs and Mental Illness

There are divergent opinions about the interplay between SUDs and mental illness and whether they should be treated separately or together in order to benefit the patient. The therapeutic soundness of involuntary civil commitment for substance abuse should depend on the clinical argument for the use of MAT as the baseline for best-evidence treatment. Over the last few decades, there has been substantial scientific advancement in the identification of endogenous G-proteins coupled with opioid receptors. These scientific discoveries have given the public drugs such as methadone and fentanyl to treat chronic and acute pain, but they also increased mortality rates among individuals with SUD. The complete lack of information about what treatments are being utilized during civil commitment makes this analysis difficult to complete.

State Analysis of Civil Commitment Laws  

As noted above, as of May 1, 2021, 35 jurisdictions authorize involuntary civil commitment for substance use, and accordingly, 16 jurisdictions are silent regarding SUD as grounds for involuntary civil commitment. Of the 35 jurisdictions that have a law for civil commitment for substance abuse, 29 states explicitly authorize civil commitment on substance use grounds within the statutory language. Six of the 35 jurisdictions do not explicitly authorize “civil commitment” on substance use grounds, but a person can still be placed in “involuntary temporary detention,” as in Virginia, or a “treatment order,” as in Nebraska. In comparison, all 51 jurisdictions in the country have statutes that govern long-term civil commitment. Of the 35 jurisdictions authorizing involuntary civil commitment for substance use, 24 jurisdictions (68 percent) promulgated a civil commitment law based on substance abuse after 2010. There was little state-level data available that described the legislative purpose of why states adopted and created these laws; it could be inferred that the proliferation of laws from 2010 to the present has to do with a response to the growing opioid crisis and the publication of DSM-5 in 2013.

There are a total of nine different individuals or entities that can initiate the commitment process for civil commitment for substance use. Most states have multiple categories of individuals who can initiate the process, but in a majority of states (21) any interested person can initiate the commitment process, followed by family (17), designated staff at a medical facility (15), a general medical professional (11), law enforcement (9), a government official (9), a mental health professional (8), or friend (4). Two states don’t specify who can initiate the process.

The maximum duration of an involuntary civil commitment for substance use ranges from 14 days (California and Washington) to one year (Kentucky). The majority of jurisdictions, 15, set the maximum duration at 90 days. Thirty-two jurisdictions allow a physician (MD) to perform the initial clinical assessment. The other healthcare professionals who can perform the initial clinical assessment, depending on the state, are registered nurses, physician assistants, nurse practitioners, practitioners with substance use expertise, counselors/social workers, mental health professionals, psychologists, and psychiatrists.

There are four different grounds for involuntary commitment for substance use. Thirty-three jurisdictions require “danger to yourself” and 34 jurisdictions require “danger to others.” This tracks with the Supreme Court case O’Connor v. Donaldson noted above, which found that an individual not posing a danger to self or others is capable of living without state supervision, and the state has no right to commit the individual to a facility against his or her will. Some states have added other categories such as “protection of unborn child” (Minnesota, South Dakota) and “danger to property” (Kansas, North Carolina, North Dakota, Washington). These additional categories create more opportunities for individuals to qualify under the state statute for civil commitment for substance abuse.

Under some involuntary civil commitment for substance use statutes, treatment without consent is allowable; such treatments include restraint (13), medication (12), seclusion (10), surgery (4), and electric shock (1). The laws vary. For instance, Georgia, Hawaii, Kansas, Louisiana, Maine, and Oklahoma allow for unconsented medication, restraint, and seclusion. Georgia and Louisiana allow for unconsented restraint, seclusion, and surgery, while Louisiana allows for all five unconsented treatments. This results in individuals with SUD having less agency and autonomy. None of the statutes mentions best-evidence treatment such as MAT for opioid use disorder or discusses what the treatment is for substance use once the individual is civilly committed.

Problems with Civil Commitment for Substance Use Disorder

There are many problems with civil commitment for substance use, but four issues stand out in the 35 jurisdictions that currently use civil commitment for SUD in the United States. First, there is little data about states’ usage of civil commitment for substance use disorder. Second, there’s a lack of data regarding what treatments are being used in civil commitment for SUD, and some data that the treatments being used are not the most effective. Third, by its nature, civil commitment for SUD is coerced treatment and has been found to be less effective than voluntary treatment. Lastly, there is seemingly no information about the judges’ and court clinicians’ discretionary role in civil commitment and how their decisions impact individuals without binding medical evaluations.

Lack of Data Around the Use of Civil Commitment

Basic statistics about civil commitment in the United States are generally inaccessible to the public, kept in silos in state institutions if rarely kept at all, and rarely if ever shared at a federal level. A 2016 book entitled Committed: The Battle Over Involuntary Psychiatric Care said it best: “there is no federal database that tracks the number of patients who are committed against their will to psychiatric units each year....Given the loss of liberty, the personal distress, and the stigma involved, this lack of data is astounding.” The lack of data is an issue because it is harder to determine how frequently commitment is used, how effective the treatment being utilized is, and how patients fare after their civil commitment. Without data, the legal intent of civil commitment laws gets lost in how they actually do or don’t work for the people they are meant to serve.

One study examined the utilization of civil commitment laws in 33 jurisdictions. Of those jurisdictions, nine (Delaware, the District of Columbia, Georgia, Indiana, Kansas, Maine, Rhode Island, Tennessee, and Utah) never applied the statute; another four (Arkansas, Kentucky, Louisiana, and North Carolina) rarely used it. Of the other 20 jurisdictions, only seven had data available on the number of involuntary civil commitments based on substance abuse. Florida and Massachusetts committed the most, with 9,000 and 4,500, respectively. Colorado averaged 150–200, Hawaii had 83 in 2009, Missouri had 166 in 2011, Texas had 22 in 2010, and Wisconsin had 260 in 2011. Alarmingly, seven other states reported that commitment did occur in their state, but there was no central location for the data. The remaining six states (Connecticut, Iowa, Mississippi, North Dakota, Ohio, and Oklahoma) were familiar with their civil commitment statute, but were unable to report on its use. With limited data at the state level, it is difficult for academic researchers and medical professionals to track the effectiveness and success of civil commitment for SUD. The lack of data is additionally surprising, considering that many of the civil commitment laws have been firmly in place for decades. There are systemic challenges that may make it difficult for the public to have access to civil commitment data, including patient medical privacy concerns, the collection of data over fragmented medical systems, and the variability of legal standards for commitment and how those laws are being applied in practice.

Lack of Data about the Usage of MAT in Civil Commitment Treatment

The lack of data regarding the treatments used in civil commitment for SUD, particularly on whether MAT is being used, is also concerning. MAT is the gold standard for such treatment and can be used to treat opioid addiction through methadone, buprenorphine, and naltrexone. MAT treatment works by normalizing the brain chemistry to block the euphoric effects of opioids, relieving cravings and normalizing body functions without some of the negative effects of withdrawal. The treatment also combines counseling and behavioral health therapies to treat SUD. MAT has been proven effective in helping patients recover from addiction and has been shown to be a safe and cost-effective avenue to reducing fatal overdoses. This begs the question of whether states, through civil commitment, should provide treatment that does not comply with the documented best-evidence treatment. However, although the efficacy of MAT has been measured, there is no evidence that MAT is being used in civil commitment programs for the treatment of SUD. Moreover, MAT is not yet widely adopted overall. Although MAT improves patient retention in treatment, improves social function, and reduces the overall risk of infectious-disease transmission, less than half of private-sector treatment programs have adopted MAT, and within those programs, only 34.4 percent of patients actually receive the treatment.

Coercive Treatment Appears to be Less Effective for the Civilly Committed

Although compulsory legally mandated treatment may be appealing to some, it is a debated topic that raises a number of ethical and motivational concerns. Civil commitment is classified as compulsory treatment, as individuals are forced to enter treatment primarily as a result of a legal order. The overall goal of compulsory treatment is to decrease drug-related crime and other negative consequences of substance use through the treatment of individuals with SUD. Before the majority of civil commitment laws for substance abuse were promulgated, only expensive private voluntary treatment centers were available. Voluntary treatment was preferred over drug court-mandated treatment because there was a lack of coercion, less pressure, maintenance of patient autonomy, and self-determination. Drug courts were designed to take non-violent persons who committed substance-related offenses into treatment in order to divert them from the criminal justice system and get them the medical help they needed. Civil commitment represents the middle ground between drug courts and voluntary treatment; this involuntary treatment became another way for the government to divert individuals with SUDs into treatment settings.

Despite the history of civil commitment for substance abuse, there is a lack of data on short-term and long-term outcomes following commitment. For example, treatment programs that use MAT have reported that 70 to 85 percent of patients who enter treatment voluntarily stay for one year or more, and after the first six months of stabilization, the illicit use of opioids falls below 15 percent. These numbers can only be established with voluntary treatment and access to MAT. But civil commitment is not voluntary, and MAT has not been shown to be used in any of the jurisdictions where civil commitment exists for SUD. Most civil commitment facilities do not provide evidence-based care, and instead draw from the 12-step model used by Narcotics Anonymous. Many experts say that abstinence-based programs, like the 12-step model, are not only ineffective, but also place patients at a heightened risk of overdose upon release. A study out of Massachusetts uncovered significant differences in outcomes between individuals who received voluntary treatment and those who were committed to involuntary treatment. The study found that a higher percentage of those who had a history of involuntary treatment died of an opioid overdose compared to those with a history of voluntary treatment. This could indicate some limitations for individuals dually diagnosed with mental illness and SUD placed in involuntary treatment.

Another issue regarding outcomes and whether treatment is voluntary is a patient’s decisional capacity. Decisional capacity is defined as a patient’s ability to use information about an illness and the proposed treatment options to make a choice that is congruent with one’s own values and preferences. Decisional capacity as defined above is a clinical construct, and because cognition is the main determinant of capacity, conditions such as SUD that affect cognition can impair an individual’s decision-making capabilities. Individuals with SUD may have impaired decision making as it pertains to choices related to their addiction, including consent for addiction treatment, consistency in maintaining a choice of recovery, and changing values regarding treatment over time.

It is possible that many individuals suffering from SUD are unable to make rational decisions, such as understanding that treatment is necessary. Additionally, individuals with SUD lack the ability to delay gratification and instead make decisions with short-term gains and long-term losses; since treatment is viewed as a hindrance to the immediately gratifying use of the substance, people may not agree to treatment. This also calls to question the effectiveness of involuntary treatment.

An interesting example of this issue involves Florida’s law. In Florida, the Marchman Act of 1993 is one of the only statutes involving civil commitment laws that has a documented intent. It offers individuals seven days to be assessed and stabilized with a goal of encouraging individuals to later enter a long-term treatment program on a voluntary basis. This rationale is based on providing patients who lack decisional capacity to make an informed decision regarding future treatment, and creates a space for individuals to enter treatment voluntarily.

Judicial and Clinical Decision Making for Civil Commitment

Of the 35 jurisdictions that allow for civil commitment for SUD, a clinical assessment is required in 33 jurisdictions. Of those 33 jurisdictions, the clinical assessment is only binding on the commitment decision in four jurisdictions. In the 29 other jurisdictions, the clinical assessment is not binding on the court’s decision to commit. 

There is seemingly no information about the judge's discretionary role in civil commitment. The judge’s decisions impact all individuals facing civil commitment, but especially impact individuals in the 29 states in which the clinical assessment is not binding on the court. In those 29 jurisdictions, the judge may either agree or disagree with the court clinician, and the judge’s ruling directs the outcome of the civil commitment proceeding. Judges can make decisions without knowing if they are harming or promoting the interests of the individual or the general public because they are not medical professionals. Unsurprisingly, there are not many judicial opinions or testimony about these processes and the criteria they use to make these decisions. For instance, it is unknown whether courts take into account the type of treatment the patient would receive during a civil commitment for SUD.

The other four jurisdictions (Iowa, North Carolina, South Carolina, and West Virginia) maintain that a court clinician’s evaluation is binding on the court’s ruling. This places court clinicians, which includes doctors, nurses, nurse practitioners, physician assistants, practitioners with substance use expertise, counselor/social workers, mental health professionals, psychologists, and psychiatrists, among others, at the center of a legal decision. A recent study among court clinicians in Massachusetts who performed clinical evaluations for civil commitment found that judges almost always agreed with the clinical evaluator. The study’s authors noted that the clinicians’ broad latitude in their decision making is concerning, as there is very little known about the formal determinations used in civil commitment proceedings.

Civil Commitment in Massachusetts

Massachusetts is an example of an additional problem with civil commitment for SUD. In 2021, more than 6,000 people filed petitions to involuntarily commit individuals in Massachusetts under section 35 of the state’s mental health code for a maximum of 90 days. The law came into effect in 1970 and applied to “alcoholics,” allowing civil commitment for up to 15 days. In 1987, the definition expanded to include “substance abusers.” Reporting from 2022 uncovered that Massachusetts has been and still uses jails and prisons for most civil commitment for SUD. The Massachusetts Alcohol and Substance Abuse Center in Plymouth is a facility that houses civilly committed male patients and is a former Massachusetts minimum security prison. Massachusetts also uses Stonybrook Stabilization and Treatment Center under the civil commitment law, which is operated by the county sheriff’s department. The Men’s Addiction Treatment Center in Brockton is the only non-correctional facility in Massachusetts for civil commitment, and it is run by the Department of Public Health. When the petitions are submitted to state court, there is no way to know which facility the individual will be sent to. Legislators are poised to decide whether to provide additional funding to correctional facilities for civil commitment, reigniting debate regarding the system.

Conclusion

Civil commitment has a long history in the United States, but as the need for evidence-based treatment has exploded in the last 20 years, civil commitment for SUD without such treatment appears to be a problematic if not questionably ethical practice. The lack of data regarding usage, treatment, and outcomes further punctuates the issues with civil commitment. More research is needed to understand the clinical and judicial criteria for the use of civil commitment, the prevalence of MAT in civil commitment, and how the use of coerced treatment aims to help individuals with SUD. Before more states adopt or create civil commitment laws for substance use, a much deeper reckoning must occur about the usage of proper treatments to treat addiction in civil commitment and a deeper understanding of how the loss of liberty inherent in this process is ethically questionable when not utilizing the gold standard treatment of MAT.

    Sarah Winston, MPH, JD

    Washington, D.C.

    Sarah Winston graduated from Temple University Beasley School of Law and Temple College of Public Health in January 2021 with a dual JD/MPH. She is an active member in good standing in the District of Columbia Bar and the U.S. Court of Federal Claims. She works and lives in Washington, DC. Ms. Winston is interested in continuing her career at the intersection of law and public health in topic areas such as vaccines, Medicaid, Medicare, aging, the opioid crisis, administrative law, and public health preemption. She may be reached at [email protected].

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