Ethicolegal Issues

From an ethicolegal standpoint, it is uncertain whether the standard of a likelihood of serious harm is high enough to justify the degree of invasiveness of the intervention. The standard “likelihood of” represents a relatively low bar of proof, as opposed to the “clear and convincing” or “beyond a reasonable doubt” standard, which are the standards typically employed in legal considerations regarding civil liberties. The statute is intended to serve as a last resort measure for people with severe and debilitating addictions. Empirical data show that requests for Section 35 have increased by 85% from 2010-2017, with nearly 58% approved between 2016-2017.¹⁶ These statistics raise the question of whether the low standard of proof contributes to rising rates of involuntary commitment and whether the option is not being exercised as a last resort pathway as intended.^{Reference Becker17}

The statute cap on period of commitment of up to 90 days raises further consideration. There is no documented medical evidence to date that suggests that this particular length of time is effective with regards to the treatment of addiction disorders. The mandate thus seems to be arbitrary, depriving individuals of their liberty for a period of time that is scientifically unfounded.

Privacy, Liberty, and Dignity

While the very nature of the intervention involves a significant breach of privacy and liberty, the majority of the ethical issues raised by Section 35 lies in the implementation of the law itself. For example, patients have historically been handcuffed at several stages of the treatment process and then placed in holding cells.^{Reference Becker18} Approximately 40% of all patients are committed and treated at the large MASAC facility, where they are under the watch of armed correctional officers and are required to wear prison-like jumpsuits for identification. According to press reports, since the MASAC opened in 2017 there has been at least one serious assault, one rape, three suicide attempts and one suicide amongst the patient population.¹⁹ The superintendent reported that approximately 15 patients had been physically attacked in at least two dozen fights in the facility.²⁰ A 2017 lawsuit alleged that patients were housed close to violent sex offenders, and were routinely strip searched and segregated.^{Reference Cramer21} The latest lawsuit in 2019 laid similar claims, with additional allegations that the patients were placed in solitary confinement subject to abusive treatment from correctional officers and made to follow prison-like rules and regulations.²² The lawsuit claims that “many, if not most, emerge from prison traumatized by the experience and even more vulnerable to relapse and overdose”. ²³ Other reporters who interviewed former patients described unhygienic conditions, including descriptions of bathrooms soiled with feces and lacking soap.^{Reference Szalavitz24}

The Massachusetts government faced similar challenges previously, with involuntary commitment for female patients suffering from opioid use disorders. Women who were housed at the Massachusetts Correctional Institute at Framingham lodged similar complaints regarding treatment in a correctional facility. Recognizing this, the Massachusetts government passed legislation in 2016 that ended involuntary commitment for women at the Framingham facility. The legislation specifically acknowledged that the women deserved to be treated like patients in hospitals, and not in prison facilities.^{Reference Moss25}

Risk-Benefit Trade-Offs

Proponents of involuntary commitment and treatment maintain that the privacy breached is justified due to the favorable benefit to risk ratio that the intervention poses. A systematic review evaluating the effectiveness of compulsory drug treatment, however, concluded that evidence does not suggest improved outcomes related to compulsory treatment, with some studies even suggesting potential harms.^{Reference Werb, Kamarulzaman and Meacham26} They concluded with a recommendation for the prioritization of non-compulsory treatment modalities to reduce drug-related harms.

Another large study compared relapses in opioid use in opioid-dependent individuals released from compulsory drug detention centers with those from voluntary medication treatment centers in Malaysia.^{Reference Wegman, Altice, Kaur, Rajandaran, Osornprasop, Wilson, Wilson and Kamarulzaman27} The study concluded that opioid dependent individuals in compulsory treatment are “significantly more likely to relapse to opioid use after release, and sooner, than those treated with evidence-based treatment,” suggesting that compulsory treatment has no role in the treatment of opioid use disorder.

Data regarding the effectiveness of involuntary commitment in specific states are limited, but there has been a call for rigorous study of existing statutes.^{Reference Jain, Christopher and Appelbaum28} However, a few studies have examined provider receptiveness to involuntary treatment. For example, a 2007 study surveyed members of the American Psychiatric Association, of whom the majority had direct experience with involuntary commitment.^{Reference Brooks29} The study found only 22% supported civil commitment for alcohol addiction, and 22.9% for drug addiction. Another study from Minnesota examined provider reception to involuntary treatment also found that providers were generally opposed to it.^{Reference Anderson30}

Outcomes data released by the Massachusetts government seem to reflect the literature as well. According to the Massachusetts Section 35 outcomes report, people who are involuntarily committed under the Section 35 pathway are at a 2.2 times greater risk of overdosing post release relative to those who are voluntarily treated.³¹ Notwithstanding the possibility of confounding variables, this statistic is startling, and raises significant doubt as to the overall impact and cost effectiveness of the intervention.

Standard of Care During and Post Commitment

Several Massachusetts treatment facilities fail to provide the standard of care treatment to all patients committed.³² In July 2019, the Section 35 Commission (established in Section 104 of Chapter 208 of the Acts of 2018) released a report detailing the active treatment facilities in Massachusetts, along with the number of beds they possess and the treatment they offer. Although every facility in the report is listed as offering various options for medication assisted treatment (MAT), evidence suggests that those who are committed rarely, if ever, receive such treatment. The report goes on to mention that, “Practice varies by facility, medication-assisted treatment (MAT) may be offered as a complement to addiction counseling and other supports.” ³³ Based on the report data and existing press coverage, this statement portrays the reality of the situation slightly better, which is that although MAT may be offered, it is rarely so. In fact, according to the discharge data in the same report, only 12% of patients across three facilities (High Point Women's Addiction Treatment Center, High Point Treatment Center at Shattuck Hospital and High Point Men's Addiction Treatment Center) received MAT.³⁴ It is also well known and often cited that the MASAC, which houses 40% of all patients involuntarily committed, does not provides MAT to any of their patients.^{Reference Blanchard35} There are no data on whether or not the other facilities provide MAT to their patients, and this uncertainty highlights an urgent need for their collection and dissemination. This is a national concern for both the USA and Canada, with other regions also lacking outcomes-oriented, granular data.³⁶

Evidence shows MAT is effective at reducing overdose mortality in people dependent on opioids and involuntary commitment alone is substantially less effective in reducing negative outcomes.^{Reference Sordo, Barrio, Bravo, Susan, Borum and Petrila37} A substantial number of patients are not treated with MAT, however. It is unacceptable for any state to take away patient autonomy, under the guise of treatment, and to then subject patients to inferior and outdated methods of treatment, all the while denying them the standard of care. Furthermore, the facility to which a patient is sent, and by extension the treatment received, depends on morally arbitrary factors such as gender, a judge's expert but subjective consideration, space at a facility, insurance status and other related factors. This also raises ethical concerns regarding the fairness of the process.

The failure of the government to commit to the long-term care and management of patients is a further ethically problematic issue. Massachusetts law does not mention the need for any coordinated or long-term care for patients who are involuntarily committed. Like most addiction disorders, opioid use disorders are chronic in nature, requiring long-term care and management for the long-term difficulties associated with mental health disorders and societal stigma.^{Reference Jones and Mccance-Katz38} This is reflected in the Section 35 data, which shows that a significant number of patients who are discharged enter into medical facilities, shelters, and nursing homes directly.³⁹ The post release overdose risk data released by the Massachusetts Section 35 report further underscores the concern for long-term management.⁴⁰