Gov. Charlie Baker of Massachusetts is proposing legislation that would add civil commitments — no court involvement unless the patient requests it — to a route to treatment for people with substance use disorders (SUDs). Modeled after the state’s civil commitment law for people with mental illness, the proposal would allow a mental health professional to commit someone to a mandatory 72-hour hold in a medical facility. The measure is supported by treatment providers, although there are questions about the details. But there are important questions about the ethical and medical implications of coerced treatment.

Treatment providers in the state applaud the governor for taking steps to deal with the opioid epidemic. But they are concerned about two basic issues: (1) there is already a 20-day wait for what is called a “recovery bed” and (2) what happens to the person after the three days are up.

There is already a civil commitment law on the books in the state, known as Section 35, allowing for people with SUDs to be committed for 90 days. Until 10 years ago, that commitment was to a prison — Bridgewater State Hospital for men or MCI Framingham for women. Both facilities are run by the state Department of Corrections, and neither provided treatment, said Vic DiGravio, president and CEO of the Association for Behavioral Healthcare (ABH). About 10 years ago, the state began procuring community-based Section 35 facilities: currently, there is one for men in Boston and one for women in New Bedford. Both are run by High Point Treatment Center, an ABH member.

But often the High Point facilities do not have enough beds, so that over the past seven years, men and women committed for SUDs are still sent to the prisons, said DiGravio.

“One of the good things about the governor’s bill is that this will stop,” said DiGravio of the practice of sending Section 35 people to prisons. The bill would create a separate treatment facility on the grounds of the old Taunton State Hospital, originally called the “State Lunatic Asylum” and now falling into disrepair, although some of the buildings are in the National Historic Register. These will be long-term Section 35 beds. While it’s good that there will be some kind of expansion of treatment, DiGravio said that the real problem is a lack of capacity.

SUD version of Section 12

Currently, the only commitment available for people with SUDs is the 90-day commitment, which requires a court order. However, people with mental illness who are a danger to themselves or others (suicidal or homicidal) can be committed for three days by a mental health professional, under Section 12. Under the governor’s proposal, there would be a mirror version of Section 12 for people with SUDs. There would be no court involvement unless the patient requests it. But allowing such a provision in the event of SUDs raises many questions for mental health professionals, who wonder how they can tell when someone who is a drug user is dangerous enough to themselves to be committed.

“The emergency rooms are asking this question,” said David Matteodo, executive director of the Massachusetts Association of Behavioral Health Systems. “You could say everyone who comes in there because of drugs is dangerous to themselves.”

However, Matteodo, like DiGravio, is pleased with the proposal. “We think it’s bringing attention to this area, and it’s our business to take care of these people,” he said. “There are a lot of questions about capacity, insurance payments, emergency room backups and so on.”

DiGravio and Matteodo will be among those testifying at a legislative hearing on the commitment proposal November 16. “We think the legislature will provide some clarity,” said Matteodo.

Problems with coerced treatment

There is a possibility that people would not want to present for treatment if they thought they could be held involuntarily for three days. That’s not “treatment.” This is something that worries H. Westley Clark, M.D., former director of the Center for Substance Abuse Treatment at the Substance Abuse and Mental Health Services Administration, and a vocal supporter of the rights to privacy and civil liberties for patients with SUDs.

“The Massachusetts proposal is essentially a state’s ‘right to keep you from harming yourself’ proposal,” Clark, a lawyer, told ADAW. He noted that there are already laws on the books concerning potential harm to others.

The use of 72-hour holds for the reason of danger to self is usually thought of in connection to suicidality. But people with SUDs aren’t necessarily suicidal. “The use of the extraordinary powers of the state to keep you from harming yourself based not on a imminent threat to others in society but on one’s use of psychoactive substances, places this measure into an arena of dire consequences,” said Clark. “What about inveterate smokers? What about those who are obese? What about those who drive while intoxicated? What about those who have hypertension but who don’t get care?”

Clark said that while this “paternalism” may sound good, it isn’t. “Procedural due process not withstanding, is this a slippery slope? I suspect so,” he said. “When liberal jurisdictions and well-trained physicians are willing to sacrifice privacy rights and civil liberties in the service of a population health notion, then we are indeed in a strange time.”

Clark warned about “unintended consequences” of civil commitment. “The issue of relapse and the resulting frustrations by family members is understandable,” he said. But instead of commitment, he recommends models like that of Proschaka and DiClemente, who argue for efforts being made to engage people with SUDs.

Capacity problems

“People shouldn’t have to be civilly committed to treatment to get access to treatment,” said DiGravio, noting that the treatment system in the state, robust as it is, can’t treat everybody who is asking for it. “We have a well-thought-out continuum of care in Massachusetts, and we’re way ahead of most of the rest of the country in that regard, but we don’t have enough capacity.”

There are problems with capacity, agreed Matteodo. “But this is where I come down — I give the governor all the credit. Because what are we going to do, say indefinitely that we don’t have the room to treat people? If people need treatment, we have to build it, create it, give it to them.”

The governor filed the bill in October, and it was part of a collection of opioid initiatives he announced last week. If the legislature passes it, the civil commitment provision will take effect nine months later.