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Legislative Memo: In Opposition of An ACT to Amend the Mental Hygiene Law Regarding Involuntary Drug Treatment

June 16, 2014

Subject: S.7014 (Boyle)

(AN ACT to amend the mental hygiene law, in relation to requests for emergency services for persons intoxicated, impaired or incapacitated by alcohol or substances).

S.7651-A (Carlucci) 

(AN ACT to amend the mental hygiene law, in relation to establishing protocols for assisted outpatient treatment for substance abuse).

A.10025 (Gunther)

(AN ACT to amend the mental hygiene law, in relation to establishing protocols for assisted outpatient treatment for substance abusers).

S.7652-A (Martins) 

AN ACT to amend the family court act, in relation to involuntary treatment services for services to minor.

Position: OPPOSED

In the current legislative session more than two dozen bills have been introduced in response to growing concern regarding opioid addiction and drug overdoses. This memo addresses, in brief, four of those bills (identified above).

The problem of opioid abuses is serious, and its causes are complex. However, in seeking to address this problem, each of these bills relies principally upon the broad exercise of authority to compel treatment – including emergency treatment pursuant to civil commitment – when what is required is a comprehensive public health strategy.

The proposed legislation fails to take into account the complex circumstances that give rise to drug use; nor does it propose public policy interventions supported by evidence-based research.

What’s more, the enhancement of police powers is given effect with language that is vague and overbroad.

  • The legislation grants courts broad discretion to compel medical treatment or to require that individuals are taken into custody for treatment. The legal standards for making such determinations are imprecise and the procedures are complicated, which all but ensures violations of due process and errors in diagnosis and treatment.
  • The authority to subject an individual to compulsory treatment is based upon criteria — such as “substance abuse disorder” and “substance abuse impairment” – that lack clinical definition. And the criteria on which a civil commitment order is based may include factual assertions that are highly subjective. Statutory ambiguity in this context invites misinterpretation and errors in judgment that could cause serious harm.
  • An application or petition to compel outpatient treatment or to order detention for emergency services may be initiated by persons who lack the competence to make such determinations, or who may be acting for reasons that are not in the best interests of the individual who is the subject of such a petition.

In short, the compulsory treatment paradigm proposed in this legislation is highly susceptible to error and abuse, both as to diagnosis and treatment, and as to constitutional protections of privacy and due process.

If enacted, this legislation will inevitably generate controversy and litigation regarding the actions of health care providers and administrators.

It is now five years since the legislature enacted fundamental reform of New York’s drug-sentencing laws. The intent of that landmark legislation was to replace the state’s mandatory sentencing scheme for addressing drug problems with a public health approach.

Notwithstanding the announcement, in law, that the state will address addiction as a public health problem, public officials have yet to develop and fund best practice models for treatment and rehabilitation.

The news media has characterized the recent surge in heroin use as an “epidemic.” For those who have witnessed a family member struggle with addiction, the call for aggressive intervention is understandable.

But this is not the first time that New York has seen a dramatic rise in the abuse of opiates, nor is it the first time that involuntary commitment was proposed as a solution.

In 1966, the New York State passed the Narcotics Control Act, which called for civil commitment of drug users. James Inciardi, a leading addiction researcher, dubbed the experiment an abject failure, citing the “too hastily structured treatment and control system as a response to the hysteria surrounding the growing epidemics of heroin use.”

Lawmakers should heed the lessons learned from failed efforts to address drug use with an over reliance upon enhanced police powers. Young people struggling with addiction, and their families, deserve better.

A wiser course, and a more effective one, would be to invest in well-designed and well-resourced evidence-based medical interventions.

We urge lawmakers to reject this legislation.

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