For most of my career in social work and social welfare policy advocacy I have favored a conservative approach to the use of civil commitment for persons with mental illness. This view has been informed by my knowledge of its historical abuse, especially as directed against women and minorities. When it comes to persons with addictions I have outright rejected the use of civil commitment procedures on philosophical grounds. The growth in opioid addiction, overdoses, and accompanying public health and social welfare challenges it poses have prompted me to reconsider my generally civil libertarian thinking on addiction and civil commitment. I now support the use of civil commitment/mandated treatment for addiction for two reasons. The first is a practical/instrumental consideration of the growing social and economic burden addiction is creating. The second is that a moral case can be made (as Art Caplan has) that we paradoxically promote the autonomy of individuals with severe addiction in the long term by temporarily abridging autonomy in the short term.
The Challenges of Autonomy and History
Even a cursory glance at the history of civil commitment and involuntary treatment in the United States and Europe reveals policies and practices in which some of the worst abuses of civil liberties have been endemic. These abuses have been motivated by a constellation of historical issue ranging from fear and medical ignorance to economics, racism, sexism, and political oppression. Let’s not pretend that any discussion of involuntary treatment doesn’t take place against this very dark horizon of excess and abuse. I have certainly couched many of my own reservations about civil commitment in this historical narrative. What’s more, the sad history of civil commitment has reinforced my philosophical reservations.
“…the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct. (J.S. Mill, On Liberty, Chapter V, p. 177)
Mill was an Englishman but manages to capture a very American sense of individual rights. Insofar as my actions do not cause harm to others, I am free to pursue my own ends. You may plead, argue, or even beg—that’s fine—but under most circumstance you cannot use the power of the state to interfere or coerce. Mill goes on to argue the terms under which the state may intervene to prevent crimes or maintain a social, political, and economic environment conducive to the exercise of liberty. Rereading Mill, I am struck by how many civil libertarians (I guess I must include myself in this) have read the first part quoted above but then ignored the rest of the chapter; it contains much more nuance than I had previously given credit. Perhaps I’ll revisit On Liberty in a later post. Nevertheless, I endorse the strict legal standards established by O’connor v Donaldson (422 U.S. 563, 1975) and Lessard v. Schmidt, (349 F.Supp. 1078, 1972) which have always struck me as fairly Mill inspired. When it comes to substance abuse, I have been opposed to the use of coercion outright based on my belief that all competent adults have the right to refuse medical interventions. This belief is also rooted partly in Mill’s ethics.
Holding in our heads, as many of us in the field of social welfare do, the history of civil commitment and our very Western understanding of autonomy, attempts to expand the use of civil commitment procedures often elicit a visceral response. I am reminded of the backlash against a JAMA article from 2015 called Improving Long-term Psychiatric Care: Bring Back the Asylum. To say the article caused a stir is an understatement. The controversy was probably enhanced by the fact that one of the authors is noted bioethicist and bomb thrower Ezekiel Emmanuel. It so happens I know the lead author Dominic Sisti from my days at Penn, and while I disagreed with his conclusions, I found his argument to be rooted in both reason and compassion. But, it took a while for the dust to settle and a meaningful discussion to emerge from the article. Why? Civil commitment is one of those issues that inflames passions. However, feeling are not the end of a debate. Sometimes they can be the beginning but they should never be the end. Given the scope of the addiction problem in the U.S.—specifically opioid addiction—it is time to reconsider coerced or mandated treatment (even the word “coerced” can make one cringe).
An epidemic? Probably
I don’t like to use the word epidemic lightly. Popular media tends to throw the term around in their typically sensationalist way to drive the fear and outrage that sells papers and drives clicks. That being said, the current jump in opioid overdoses is properly called an epidemic—or at the very least a crisis. Massachusetts alone has seen a 35% increase in opioid related deaths between 2014 and 2015. In 2015, the death rate in Massachusetts due to opioid overdoses was about 25 persons per 100,000 according to the CDC or 1751 individuals. Data for 2016 show an increase to 1,979 deaths (data are partially estimated). This increase in overdose deaths is common across much of new England, the mid Atlantic, and parts of Appalachia and the southwest. These increases are stunning in light of the fact that anti-overdose medications such as Naloxone are readily available in many places. Also, these rates may be a gross underestimate. There is a huge impact for substance abusers and their families: lost potential, parents losing children, children losing parents, and wives and husbands losing spouses.
While “psychic damage” may be hard to quantify, the actual burden on the social welfare system is something we can probably get a handle on. The foster care system, already struggling to meet demand, is under even greater strain. Further pressure is being put on police, ambulance services, homeless shelters, jails , and even librarians. We are also looking at an increased burden of infectious disease and new challenges in treating HIV/AIDS. And shall we also talk about the children born addicted to opioids?
Despite the fact that the medical profession has itself been the gateway to opioid addiction for many users, we tend to want the individual to shoulder the entire burden. A position that is hard to justify when one considers that the U.S. accounts for 5% of the world’s population but consumes the vast majority of its prescription opioids; perhaps up to 80%. The use of prescription opioids has been linked to the use of heroin. Despite this structural problems associated with addiction, the backlash against individuals with substance abuse problems has been sadly predictable. One sheriff in Ohio has made headlines by refusing to allow his officers to carry Narcan. Will this our response to the suffering of others and the suffering of their families? Just put them out to pasture? The Governor of Maine has argues that the “Lazarus” effect of Narcan serves to do little more than create a moral hazard and encourage abuse (the same stupid argument was used against the distribution of free condoms during the height of the AIDS crisis). While the debate over the use of Narcan rages in places like Ohio and Maine , one consideration that has not received the same media attention is the use of civil commitment procedures to treat addiction and therefore reduce the overall burden on first responders.
There are 38 states that have statutes permitting the use of civil commitment for the purposes of addictions treatment. There is wide variability state to state in terms of the ability and willingness to use civil procedures to mandate D&A treatment. These laws are only used regularly in about 15. In 5 states statues have never been used. Here in Massachusetts, involuntary treatment for addition is defined under section 35 of the Massachusetts General Laws. Section 35 permits the courts to involuntarily commit someone whose alcohol or drug use puts themselves or others at risk for up to 90 days. The action must be requested by spouse, blood relative, or guardian or police officer, physician, or court official who must fill out papers at local court. The court can order commitment only if there is a medical diagnosis of alcoholism or substance abuse, a likelihood of serious harm to the subject or others as a result of the substance abuse exists. Very similar to the standards for psychiatric commitment. Several states, including the libertarian bastion of New Hampshire, are considering similar legislation. In some cases persons with addiction are asking to be committed.
But legal does not mean ethical. To be ethical, mandated treatment must be justified in terms of both means and ends. In other words, we must be able to justify civil commitment as ethical in theory as well as effective in practice. I’ll touch on the effectiveness question first.
Effectiveness of Mandated Care
The big question of course is does mandated treatment work? The immediate response of many people is “no,” believing that persons with addiction must first “want to get better.” This general attitude may relate to how we conceptualize addiction and recovery, especially in the U.S.; we believe that recovery requires not just an abatement of symptoms, but also a moral conversion. The actual evidence is not so clear cut, and appears to favor the notion that mandated treatment is as effective or almost as effective as is voluntary treatment. Mandated treatment has been endorsed by NIDA. There is no denying that there is a lot of room for more and better research on this topic; addictions treatment in general is an area that is in need of more research and innovation. That said, NIDA argues that the relapse rates for addiction are similar to those of other chronic diseases. Assuming that forced or mandated treatment is roughly equivalent in its effectiveness to voluntary treatment, the question then becomes whether it is morally justifiable to force an adult to undergo such treatment.
The Ethics (Re)considered
I understand that any effort to curtail individual autonomy will be controversial; I myself have been a vocal critic of paternalism in social work. Nevertheless, we need to have a conversation about the limits of individual autonomy rather than taking it to be an absolute. A rather one sided and ham-fisted article on The Daily Beast talks about civil liberties and autonomy without considering whether a person with a severe substance abuse disorder can meaningfully exercise those rights. Furthermore, we often marginalize another prima facie duty which is to approach out clients with beneficience, that is, to understand that there are times when we must act in the best interest of others when their capacity to make decsions is compromised
Art Caplan has argued that rather than understanding autonomy as an absolute value that must be upheld at all times, we are justified in abridging autonomy when, paradoxically, it helps guarantee autonomy. It is worth reading the entire article, but in short, Art’s argument is this: a person suffering from a severe substance abuse disorder is no longer capable of meaningfully exercising personal autonomy due to the “behavioral compulsion” of the addiction. If a person undergoes detox and enters into recovery, he or she may regain control over those compulsions and thereby exercise autonomy in a meaningful way. He or she may make plans for the future, deliberate over choices, and significantly reduce the risk that the state will be forced to take away his or her freedom after a criminal act is committed. Thus, we curtail autonomy to promote autonomy.
For the reasons outline above, I have changed my position on involuntary treatment for substance abuse disorders. The use of civil commitment procedures is justified both morally and instrumentally. We should be under no illusions that there is not the possibility of abuse of the system. There is need for a nuanced debate on what the conditions or criteria for civil commitment should be. If psychiatric commitment is any indicator, the policy and legal debates will be intense and ongoing. Those reservations aside, the scale of the opioid problem and its impact on individuals, families, and our social welfare system justify this approach.