Exasperated by a revolving door of partial treatment and ensuing drug-related complications, the same lament can be heard in hospitals all across Canada when it comes to the treatment of patients with severe substance use disorders (SUD): “Why can’t we just use certification under the Mental Health Act?” At first glance, this approach seems a straightforward way of dealing with a frequent and challenging clinical problem. In this article, we will examine medical evidence pertaining to compulsory treatment of addictions, with a focus on the significant ethical challenges such an enforced treatment paradigm presents.
Canadian Mental Health legislation allows physicians to hospitalize patients for involuntary psychiatric treatment when their mental illness presents a risk to their own life or that of others.1 Should patients with severe destructive SUD undergo similarly mandated compulsory treatment under existing Mental Health legislation? Indeed, should Canada adopt specific SUD legislation so clinicians and families can more readily force patients into treatment, as is done in many US states?2
First appearing in 1961 in California,3 compulsory treatment of SUD is on the rise in the United States, in part driven by the opioid epidemic. Many states now allow families and medical professionals to petition the courts for a patient to receive compulsory treatment under civil commitment. In Florida, the state that uses court ordered treatment most frequently, patients can be forced into inpatient or outpatient treatment under the Marchman Act for days, weeks, and up to several months.2 A judge will authorize compulsory treatment for an individual when their SUD causes a loss of control so that they present a danger to themselves or others or, their SUD prevents them from making a capable choice around the necessity of treatment of their addiction. Although compulsory treatment is framed as a last resort, the capacity clarification in Marchman makes this legislation more sweeping than Canadian Mental Health legislation which requires a higher bar of patient risk to be met. Further, despite the upward creep of civil commitment for SUD in the United States,4 there is little evidence that this practice is safe or effective.5 And if patients do not follow through with their court ordered compulsory treatment, they may be subject to a jail term despite not having committed a criminal offence.2
Such a treatment paradigm in Canada seems improbable at the current time. However, compulsory treatment has been legislated in Canada previously. In 1978, the Government of British Columbia (BC) passed Bill 18, the “Heroin Treatment Act,” arguing that compulsory treatment for heroin users was justified for economic reasons.6 This legislation immediately ran into stark opposition, most importantly through a court challenge filed by a woman dependent on methadone. She argued that the police would have the power to remove her from her children and husband, a violation of her civil rights. In October 1979, the Supreme Court of BC ruled the Act unconstitutional.7
Looking forward now forty years, a February 2019 poll of the Canadian public showed that compulsory treatment is overwhelmingly supported compared to supervised injection sites.8 This was true across provincial and political boundaries. Given rapid shifts in other ethically controversial areas, for example, the 2016 Medical Assistance in Dying ruling9 which was also strongly supported by the public,10 a discussion about compulsory treatment in Canada is timely.
In examining the legal, ethical, medical, and societal implications of compulsory treatment for SUD, it becomes clear that this intrusive option, which conflates the treatment of addiction with force and punishment, is not ethically defensible. Although it offers a concrete solution to the growing addiction epidemic, compulsory treatment fails to confront the complex biopsychosocial nature of addiction that necessarily requires multifaceted and long-term medical and social efforts. As summarized by Dr Fabienne Hariga, senior adviser to the United Nations Office on Drugs and Crime, “mandatory treatment settings do not represent a favorable or effective environment for the treatment of drug dependence” and should be replaced by “voluntary, evidence-informed, and rights-based health and social services in the community.”11
As a point of clarification, this article's primary focus is to conduct a bioethical analysis of tensions arising from compulsory treatment of addictions, rather than a systematic evaluation of the medical literature on the subject, which has already been completed by others.5 Further, the main discussion revolves around adults that present either in the community or to hospital with severe addictions, rather than individuals who have committed a criminal offence and who are being evaluated through the Canadian drug courts. This concentrates our attention on the majority of Canadians who use drugs: only 1 in 5 people attending services for addiction are mandated into treatment because of legal decisions.12 In addition, evaluation reports on Canadian provincial drug court programs are often small, lack a comparison group, have high attrition rates, and focus more on outcomes related to criminal reoffense, rather than addiction relapse,13 making their findings difficult to generalize.
Likewise, this article does not address SUD in youth, where the ethical discussion diverges somewhat when considering patient autonomy, given the issue of emerging capacity in mature minors,14 and the complex patient–family–provider relationship resulting from the often financially and physically dependent status of the child.
CANADIAN LANDSCAPE: MENTAL HEALTH LEGISLATION AND SUD
The expanding and detrimental consequences of the addiction epidemic in Canada cannot be understated. Approximately 10 Canadians die each day of a drug overdose, and one-fifth of Canadians meet criteria for a SUD in their lifetime.15 Youth aged 15 to 24 are the most impacted, and many patients have a dual diagnosis of a SUD and a mental health disorder, such as depression or anxiety.16 SUDs cost the Canadian economy $38 billion per year through direct costs on the criminal justice and healthcare systems, and through indirect costs stemming from loss of productivity and premature death.17
Certification under the Mental Health Act (MHA) act has not become standard of care for Canadian patients with severe SUDs, even in cases of chronic severe self-harm refractory to conventional treatment. But why not? SUD are officially considered a mental health disorder in the Diagnostic and Statistical Manual of Mental Health Disorders (DSM),18 and therefore patients with serious SUD who pose a threat to self or others could arguably be held under the MHA. The reasons why Canada has chosen not to routinely treat patients with SUD under the MHA are complex, but likely relate to the lack of specific legislation around compulsory treatment of SUD, and the medical community's evolving understanding of the nature of addictions and its treatment.
SUD: A LEGAL OFFENCE OR A MEDICAL PROBLEM?
The DSM 5 defines a SUD as a maladaptive substance use pattern that leads to significant distress for at least 12 months. Patients must exhibit evidence of harm (social, economic) and/or physical dependence (withdrawal, craving).18 The DMS 5, based on recommendations from a working group of experts, eliminated the term “Substance Abuse” as pejorative and diagnostically imprecise. The historical “Abuse” conception of SUD marries criminal deviance with addictive pathology. The DSM 5 proposes instead the “dependence syndrome model” as a psychiatric disorder, rather than a moral failing.19
Interest in the epidemiological and neurobehavioral aspects of SUDs has markedly increased in the last several decades, sparking an evolution in the medical and social understanding of addiction. There is increasing recognition that addictive pathologies have a strong neurobiological and genetic underpinning20 and are not the result of “weakness of character.” Sophisticated animal models and neuroimaging techniques show that addictive drugs generate reward by altering normal brain chemistry in some people more than others. These drugs highjack the brain's dopamine system to concentrate dopamine in the nucleus accumbens, a key reward circuit in the brain.21 Voluntary recreational drug use shifts to compulsive drug seeking that is no longer associated primarily with fun or relaxation. This shift is reflected by architectural changes in brain circuitry.22 Further, when people become dependent on drugs, their neurohormonal stress system is up tuned. The painful hormonal stress response caused by drug withdrawal necessitates that an addicted individual seek drugs to relieve suffering, long after any dopamine driven high is diminished.23
This medical model of addiction has done much to clarify why people with SUD cannot stop using drugs despite disastrous personal consequences. However, we should resist the temptation to frame addiction solely in the realm of science, assuming that future technological advances are the key to “fixing” the problem. Our modern tendency to scientific reductionism misses the fact that an individual's SUD is substantially impacted by her social context and environment. Family relationships, levels of stress, history of trauma, and mental health problems all modulate the risk of addiction.24 Members at all level of society suffer from SUD, although markers of low socioeconomic status continue to cluster together: poverty, homelessness, mental illness, and SUD.25,26
In answer to these observations, the study of addiction has become multidisciplinary and incorporates environmental, social, psychological, and spiritual considerations alongside medical exploration. The biopsychosocial model of addictions explains suffering and illness by multifactorial means, and requires any potential treatment option to address all relevant contributors.27 In addition, SUD is best framed under a chronic illness paradigm. Many addicted individuals spend long years battling maladaptive patterns of use and experience periods of remission and relapse. Successful treatment is predicated on multiple factors including medical adherence, emotional state, and social and environmental milieu. Programs that focus on short-term treatment are essentially providing drug detoxification, but their long-term efficacy will be limited.28
ETHICAL ANALYSIS: THE QUESTION OF AUTONOMY
The principle of personal autonomy holds absolute primacy in Western Bioethics. In research and clinical settings across North America, anyone who suggests that patient autonomy should rank second to another principle will have an uphill legal and ethical battle to fight.29 A person has the right to refuse care which may be enormously beneficial, even if this refusal potentially endangers his or her own life, and even the lives of others, as is seen in vaccine refusal on the grounds of personal or religious objection.30 Here lies the most central ethical concern with compulsory treatment for addictions. Why must patients with SUD as a group submit to treatment under duress when nearly all other groups are free to accept and reject care as they will? Under the Marchman Act, patients with SUD can be committed at a lower bar than even patients with severe mental illness, because Marchman does not require proof that they are a risk to themselves or others, only that their SUD affects their capacity to agree to treatment.2
Some have suggested that although compulsory treatment restricts patient autonomy in the short term, in the longer term it allows patients to gain freedom from the perpetual haze of drug seeking, use, and withdrawal.31 Art Caplan, a proponent of this “infringing on autonomy to create autonomy” model, argues that those with SUD have already lost their autonomy to severe addiction. If forced treatment is effective in curing their addiction, short-term compulsory treatment is a small price to pay to restore their autonomy over a lifetime.
But if we are to insist that the immediate autonomy of patients with SUD comes secondary to other considerations, such as their future health, avoidance of drug-related harms and overdose, we must be able to compellingly demonstrate these purported benefits with medical research data. In short, to justify such intrusive measures, we need to prove without a doubt that they are safe and effective, just like we must prove the safety and efficacy of any new medication, medical device, or medical therapy. Without this evidence, we should not force incapable people who use drugs into treatment simply because our laws give us permission to.
When judging whether it is ethical for an intrusive measure to be imposed against a patient's will, we can weigh the intrusion against the following standards.32 Firstly and most importantly, the measure must be effective. Secondly, it must be the least intrusive measure that can achieve the desired outcome. Thirdly, the measure must not create more harm than it seeks to prevent. Fourth, the measure should be fair and non-discriminatory toward patients with SUD and other patients.
COMPULSORY TREATMENT OF SUD: LACKING IN EVIDENCE
Admittedly this is a difficult area in which to conduct rigorous randomized controlled trials. But most states fail to even publish basic statistics on what types of therapy patients have tried before compulsory treatment, the specific reasons why they are committed (i.e., risk of harm to self, others, or loss of capacity), rates of recidivism and repeat civil commitment, subsequent criminal offence and drug-related complications, like overdose. A 2016 systematic review of 9 studies studying compulsory treatment in correctional facilities, inpatient settings, and community-based programs did not find evidence supporting improved outcomes, with some studies suggesting harm.5 Given the dearth of high-quality evidence that compulsory treatment is a superior treatment option, it is astounding that is use exists and continues to expand particularly when there are effective alternatives.
VOLUNTARY TREATMENT PROGRAMS FOR SUD: LESS INTRUSIVITY FOR MORE BENEFIT
There is an expanding body of literature that suggests voluntary inpatient and outpatient programs for SUD can be effective, alongside the use of judiciously prescribed medication.33 In addition, because SUD is a chronic disease, its successful treatment often requires continual long-term community care rather than episodic bouts of treatment.34 Voluntary treatment options are far less intrusive than compulsory treatment because they require positive consent from the patient with SUD, and seek to improve self-efficacy and coping skills within the scope of the person's day to day life in the community.
Numerous high quality placebo-controlled trials have demonstrated the efficacy of methadone or buprenorphine35,36 in patients with opioid use disorder, and the use of naltrexone or acamprosate37,38 in patients with alcohol use disorder. In particular, the long-term use of methadone in patients with opioid use disorder has been proven to reduce rates of opioid use and HIV risk behaviours compared to placebo.39 All patients with a significant opioid or alcohol use disorder should have a skilled medical assessment to determine if they can benefit from medication assisted treatment.40
In addition to peer support and 12-step fellowship programs, evidence supports the use of behavioural therapies in the treatment of SUD.41 Behavioural therapy is available for all SUDs, and can be paired with medication assisted treatment when applicable. With these evidence-based treatment approaches, successful outcomes are as likely for SUD as for other chronic diseases like asthma and diabetes.42
HARMS OF COMPULSORY TREATMENT FOR SUD
Another major concern with compulsory treatment is that the psychological and sometimes physical force it requires could result in harmful consequences for an already marginalized group of individuals. For example, in 2016 the Massachusetts Department of Public Health found that people who undergo compulsory treatment have twice the risk of subsequent overdose death than those who enter treatment voluntarily.43 Clearly, compulsory programs by their nature treat individuals with the most severe SUD who are at high risk for overdose. When people leave compulsory treatment and return to drug use, they are at a paradoxically elevated risk of overdose death.44 This overdose risk has been attributed to a loss of drug tolerance and erroneous judgments about appropriate opioid dosing when resuming drug use.
In addition, the Massachusetts model stands out as particularly alarming because it treats many of its civilly committed patients in prison. Fortunately, it appears that the Massachusetts law may change so that correctional facilities will no longer be used for compulsory civil treatment. The use of prisons has already ended for female patients after a 2016 lawsuit,45 and a class action suit has recently been launched by male patients, citing gender discrimination.46 The suit observes that treatment in prison is a “perversely oppressive environment that is punitive, humiliating and detrimental to treatment.” Many patients report being kept in solitary confinement and being forced to wear prison issue uniforms.
Unlike compulsory treatment in hospitals or rehab centres, prisons provide little to no access to evidenced-based medical therapy or counselling. The practice of using US prisons for addiction treatment, possibly historically and culturally motivated by a belief that SUDs should be treated criminally rather than medically, is little better than formal incarceration. But even hospitals, many of which offer full spectrum addiction care, can be experienced as “risk environments” for persons with SUD. Structural power dynamics operate between the person with SUD and the treating team at personal and organizational levels, producing psychological harm for patients with addiction.47
Literature already suggests that patients with SUD view their physicians with suspicion due to real and perceived episodes of discrimination.48 If the patient sets up a narrative with the clinician in the role of “jailor” and the patient as “prisoner,” psychosocial transformation will be that much more difficult. Lastly, we should recognize that people with severe SUD have positive sources of support within their outpatient community, in addition to negative triggers and stress. Family, friends (including peers with SUD) and other community-based resources can be very real and meaningful protective factors that prevent an individual's deeper slide into more severe SUD.49,50 These supports will either be cut off or limited if a person is admitted involuntarily to inpatient treatment.
The accentuation of patient vulnerability in formal care settings works against the long-term term goal of self-efficacy. This may be especially true in Canada, where many patients struggling with severe SUD are aboriginal Canadians. Due to Canada's dark history with residential schools, many Canadian aboriginals have already experienced institutionally sanctioned physical, emotional, and sexual abuse. Forcing inpatient treatment can resurrect very real and damaging feelings of fear, shame, and judgement that are counterproductive to the goals of addiction treatment.51
STIGMA AND UNMET NEEDS: BRINGING JUSTICE TO THE TREATMENT OF SUD
Compulsory treatment of SUD is discriminatory in several ways. Most obviously, it singles out patients with addiction to drugs and alcohol while ignoring other groups of patients whose addictions are non-substance related. Addictions to shopping, eating, gambling, sex, Internet gaming, and exercising are included in the DSM 5 because they represent a failure of behavioural control leading to significant negative personal consequences.18 However, only patients with SUD are targeted and forced into court ordered compulsory treatment. These actions, played out through legislation and in the courts, send a very strong message that SUD stands alone as the criminal pariah among addictive disorders. Our legalistic treatment of those with SUD continues to reinforce damaging stigma that addiction is an “earned illness,” where a person is deserving of punishment and negative repercussions.52
And what about patients who do not have a caring family willing to pursue compulsory treatment through the courts? The homeless, the unrepresented and the estranged stand to lose the most when resources are funneled into fueling the engine of compulsory treatment. Marginalized patients require plentiful low-barrier access to community-based addiction treatment, especially those supported by peer-counsellors.50 They need housing and food.53 They need treatment for their mental illness.54 Expanding use of laws like the Marchman Act draw attention and resources away from patients who have the most unmet needs and is unjust.
On rare occasions, patients with SUD should be held involuntarily when they are so severely impacted by their SUD that their behaviour presents a demonstrable, imminent and substantial risk to self or others. Admittedly, assessing the threshold of risk to self and others can be complex and subjective, but it serves as a safeguard that puts patients with severe addictions onto the same footing as patients with severe mental health disorders requiring certification. In these cases, Canada's current Mental Health legislation is sufficient. Given the frequent coexistence of mental health disorders and SUD,16 one may argue that concomitant psychiatric processes are at work, including mood disorders and drug induced psychosis, which could necessitate involuntary psychiatric treatment. In this specific situation, acute intrusive measures are defensible in order to try to preserve life, but the goal of treatment is to stabilize coexisting psychiatric disease and not necessarily treat addiction. In these contexts, some but not all patients will choose to pursue voluntary treatment for their SUD, following the resolution of the acute crisis. However, on the whole, there is insufficient evidence that intrusive compulsory addiction treatment is efficacious enough to justify its routine use, particularly when other evidence based, less intrusive and socially attentive treatment modalities exist.
Addiction is a chronic relapsing illness associated with underlying demonstrable brain pathology from which recovery is a process. At best, involuntary commitment achieves detoxification and possibly a start on medical therapy, counselling, and social support if the patient displays some ongoing willingness to participate in their own rehabilitation. But when a patient is forced into treatment, their treating team must struggle to encourage change that the patient does not want. In the United States, patients may be coerced to complete their court ordered term in treatment to avoid serving jail time for being found in contempt of court. But there is no evidence that compulsory treatment can transform an unwilling patient into a successfully dedicated one by dint of force. Contrary to surveys showing strong Canadian public support,8 compulsory treatment should not become a routine treatment for people with SUD in Canada.
In some situations, compulsory commitment is a veneer for incarceration without a legitimate medical plan. Such programs resemble and promote the traditional purposes of criminal punishment, such as deterrence and retribution.55 The social roots of this approach speak to misunderstandings about the pathological nature of addiction and the assumption that all people who use drugs are criminals that deserve to be punished. Such stigma and bias can be hard to shed despite medical advancements and public education. In part, this is because simplistic understandings about addiction offer attractively simplistic notions about treatment, such as compulsory civil commitment. As Abraham Maslow said in 1966, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In the case of SUD, the law alone lacks the subtlety to comprehensively embrace the complexity of treating addiction.
The ethically just treatment of addiction is as multilayered and nuanced as the nature of addiction itself. Adding to the challenge is an ongoing need to conduct high-quality research that can inform medical treatment and legal policy. These challenges must be faced directly and with humility. In 2016, Canada made a fresh start on this path with its “Canadian Drugs and Substances Strategy” that focuses on improving drug policy and community resources to address the unmet social and medical needs of people with SUD.56 This strategy includes expanding clinician expertise in the medical treatment of addiction, and focusing on populations with unmet needs, including homeless and aboriginal Canadians. Policies that crimp the reach of Big Pharma corporations who have fuelled the opioid epidemic with aggressive marketing approaches will also be critical.57 Admittedly, large variations in the level of service provision continue to exist in some provinces, particularly in rural settings, widening the justice gap for some patients.58 Timely access to accredited addictions care should be available to all Canadians.
Although compulsory treatment does not appear generally efficacious or ethically sound in the ways it has been implemented and studied up until this point, it is worth considering whether there are unstudied situations where the converse is true: where compulsory treatment is the treatment of choice. Beyond the extreme emergent cases, perhaps there are specific patient populations that could derive as yet undiscovered benefit. Rigorous research using compassionate and comprehensive addiction care would be required to conclude that such intrusive measures are indeed justifiable. Rather than embarking on this research directly with civilly committed individuals using the Mental Health Act, starting with the already established Canadian drug court system may be most appropriate given the opportunities for improvement identified by several existing reviews.13,59
Canada has not added routine compulsory treatment of SUD to its action plan, and should avoid legislative action that increases the legal power to force people with SUD into civil commitment. The use of current Mental Health legislation should continue to focus on patients with mental illness who present a serious risk to their own life and that of others, rather than inappropriately sweeping in all patients with severe SUD and impaired capacity. We must recognize that addiction is a complex biopsychosocial problem that will never be vanquished by legal measures that are solely imposed on those with substance use disorder.
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