30/60/90 Plan: Is It Legal?

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OPINION

THE SOAPBOX

Stand up. Speak up. It’s your turn.


Next week we’ll all be heading to the polls to cast our votes for Mayor, Alderman, and other city positions. Bob O’Sullivan is one candidate running for Alderman in Manchester’s Ward 2, and he’s proposed an edgy concept: when you overdose on opiates and are revived with naloxone (a drug that temporarily halts an overdose, popularly known as Narcan) you should go to jail. The proposal adds lengthier jail sentences with each subsequent overdose. While the “30/60/90 Plan” may seem appealing in a city overwhelmed by an epidemic, there are major problems with O’Sullivan’s idea. Before you cast your vote, it’s vital that you consider the legal and moral implications of this proposal. It won’t be the first time that a politician made impossible promises right before election time.

The 30/60/90 Plan isn’t Legal

“Home Rule” is the concept of local governmental control – and New Hampshire doesn’t have it. In our state, governance begins at the state level. State laws dictate which rules the individual cities and towns can pass. If the state doesn’t allow a city or town to pass an ordinance, they can’t do it. This is why the City of Manchester can set the cost of a parking ticket, but not the length of a prison sentence.

As a result of this governmental structure, O’Sullivan, if elected Alderman, factually cannot do what he proposes to do. Under his plan, when a person overdoses for the first time, they would “go into protective custody for 30 days through the Drug Court.” The problem: under state law, protective custody can’t last 30 days; also, the Drug Court doesn’t handle protective custody.

State law 172:15 dictates that, in the case of intoxication, protective custody can never exceed 24 hours. The only way that O’Sullivan can change this is by writing and passing state legislation – as a state legislator. If elected city Alderman, he will be powerless to create this program.

State law also dictates that if a minor is taken into protective custody, it can only last until their parents arrive. O’Sullivan’s concept does not speak to how minors should be handled, a gaping hole in his proposal.

Further, the Drug Courts can’t even be used for such a purpose. O’Sullivan wants the overdosing person in protective custody “through the Drug Court,” which is something that a person can only be admitted into if they are arrested and charged with a crime. Protective custody is not an arrest. Hence, O’Sullivan would have to change state law to enable those in protective custody to be admitted into Drug Court even though they haven’t been arrested. He’d also have to change the laws to extend protective custody laws from one day to 30 days.

I’m not saying his proposal can’t happen – it can. Through legislation, nearly anything is possible. However, these kinds of changes would require a major overhaul of several different state laws. If he started lobbying the Statehouse tomorrow, he wouldn’t see anything pass until 2019 at the earliest. Basically, if elected Alderman, he can’t make this happen, much less during his first term – but it’s his entire platform.

But wait, there’s more! Whenever any unconscious person arrives at the ER, and the cause of the unconsciousness is unknown, that person is given naloxone. To my knowledge, this has been standard medical procedure for decades. Each of these instances would need to be tracked by staff members. After the naloxone is administered, staff would have to determine whether the cause of unconsciousness was illicit drug use or something that isn’t drug-related, such as diabetic shock. This information would need to be tracked. Otherwise, thousands upon thousands of people would be forced into a drug treatment program simply because they were given naloxone by a medical professional.

Experts would also need to differentiate an accidental opiate overdose – for example, if an elderly person confuses some medications – from an overdose that results from illicit drug use. If this differentiation does not occur, we’ll end up putting Grandma in a 30-day jail treatment program right after she almost dies from a medication mistake.

So a registry would be necessary to track every naloxone use, someone would need to clean up that data to keep Grandma out of jail, and police would need access to that registry in order to avoid bringing the wrong people to jail. Such a registry would be a violation of federal HIPAA privacy laws, which would put the City of Manchester at odds with the U.S. government, and risk the license of every medical professional involved.

Basically, O’Sullivan’s plan is completely, utterly impossible from a legal standpoint, because he’s running for city Alderman. And if his idea did somehow come to fruition, it would create total chaos.

The 30/60/90 Plan Might Cause More Deaths

So we’ve concluded that O’Sullivan, if elected Alderman, doesn’t have the legal ability to create the 30/60/90 Plan. However, if he could convince the state legislature to implement his plan on his behalf, would it even save lives?

Government policy is incredibly complex. Think of it like computer programming – if you haphazardly start changing the code with one goal in mind, you’ll probably break seven other things along the way. Lawmaking is like computer programming, but you’re programming human behavior. One seemingly good idea could create a whole host of unintended consequences. It’s essential that lawmakers engage in thoughtful consideration of every new proposal and review verifiable research before taking action.

O’Sullivan holds a more simplistic mindset, though – declaring that “revive and release has proven to increase the number of overdose deaths,” citing some random statistics to bolster his theoretical cause-and-effect. What he overlooks is that overdose rates in Manchester are dependent upon many factors we are powerless to control, such as Mexico’s economy, medication laws in China, and DEA border operations. It is nearly impossible to determine which policy – out of all the moving parts in the War on Drugs – directly causes any given outcome. His conclusion about “revive and release” is likely false.

Further, overdose deaths are actually going down! Prior to 2015, about 10 percent of overdoses consistently resulted in death. Then a state law (RSA 318-B:28-b) was passed giving immunity from arrest in the case of an overdose. The state also passed legislation that allows citizens to carry naloxone. The rate of death has been dropping rapidly ever since. By January of this year, the rate of death had dropped to only two percent.

O’Sullivan claims that death rates are increasing, when they are not; he also claims that this is the result of one specific “revive and release” policy, ignoring the tangled ball of yarn that is the overlapping (and often conflicting) mess of state, federal, and foreign drug policies.

But the overdose death rate is decreasing in NH, and this appears to be the result of promising users that they will not go to jail when they call for medical assistance. If implemented, the 30-60-90 Plan might interrupt this downward trend – and increase the death rate instead. If users are afraid that they’ll go to jail for 30, 60, or even 90 days, they’re probably not going to call 911 when someone is dying. Consequence: more dead bodies.

The 30/60/90 Plan Interferes with Medical Policy

Here’s a news flash: All medical issues are revive and release. On O’Sullivan’s website, he writes that “revive and release is simply not working.” What he overlooks is that “revive and release” is the policy for every medical issue imaginable. If you have been smoking cigarettes for 45 years and have suffered multiple strokes, resulting in multiple ER visits, but you have no desire to quit, the hospital must release you.

If you are assaulted by your husband, beaten within an inch of your life, and you want to go home to him, “revive and release” is the modus operandi of the hospital. Hospitals can never act as police or guardians; your right to dictate your own medical treatment – or lack thereof – is an essential aspect of their industry.

Additionally, O’Sullivan’s statements totally misrepresent the medical effect of naloxone. He says, “once they are revived they can get medical help or refuse it. Either way they are then released.” O’Sullivan’s description suggests that, once revived by naloxone, a person can just get up and go to the movies instead of going to the hospital. I wonder if he’s ever been witness to one of these ordeals?

Hospitalization is a required step in a drug overdose. To survive an overdose, a person may need repeated naloxone administrations over the course of many hours. The consumer-grade naloxone nasal spray only suspends overdose for 20 minutes, maybe an hour, depending on the amount used, the person’s size, and other factors. When that small dose of naloxone wears off, the overdose returns in full effect and can last several hours. Emergency medical personnel must intervene, or else the patient will die.

Further, the effect of naloxone is traumatic. Patients sometimes wake up from the overdose feeling terrified and might be combative; these patients often begin vomiting because naloxone causes immediate withdrawal effects in addicts.

During the overdose, the patient is unconscious and stops breathing. Death is only minutes away. When the naloxone is in effect, the patient regains temporary consciousness and is in extreme pain. After one dose wears off, unconsciousness returns and breathing stops again. If there is a person who was given one dose of naloxone, who then got up and walked away, they probably weren’t overdosing in the first place. With an actual overdose, an extended hospital stay is inevitable, and this “revive and release” soundbite is a gross misrepresentation of how overdoses are handled by medical professionals.

Let’s Scrap the 30/60/90 Plan

Life is complicated. Rarely will we find a cure-all for some problem. This is why I firmly believe that access to treatment is the only way that our state can move beyond this opioid epidemic and begin to heal. O’Sullivan gets points for knowing what addicts need (and for caring), but his proposal forces people into treatment. As a recovering alcoholic, he should recall that recovery only happens when the addict is ready.

Studies show that forcing people into treatment is about as effective as never putting them into treatment at all, which means that O’Sullivan’s plan is the equivalent of setting money on fire. Further, if jail or prison time had any effect on addiction rates, we wouldn’t have a problem at all: upwards of 90 percent of our existing prisoners are addicts, yet we’re making little progress.

Desperate people want fast solutions, so I won’t be popular for saying that the best we can do is keep people alive until they’re ready to seek treatment. This happens through the 911 immunity law and expanded access to naloxone. This happens with outreach programs and support groups. We also need to ensure that once treatment is desired, it’s readily available. This is the role that Safe Stations play, but improvement needs to be made so that more licensed facilities will open shop in our state. Currently, our limited treatment facilities are overrun and have no space for new patients. We also need to expand the treatment programs available to existing prisoners and increase supports after a recovering addict is released from prison.

Most importantly, the state legislature needs to stop raiding the alcohol fund. While the opioid epidemic is certainly a burden on the taxpayer, the legislature isn’t making any effort to relieve that burden. Did you know that a percentage of every single bottle of alcohol sold in New Hampshire is supposed to fund treatment programs? But every year, our legislature raids that fund and uses that drug treatment money on totally unrelated things. The opioid epidemic causes many problems, and the solutions will be complex, but O’Sullivan’s plan is Sudafed for cancer.


Beg to differ? Agree to disagree? Send your submission to robidouxnews@gmail.com, subject line: The Soapbox.


 

Amanda Bouldin lives in Manchester with her husband Andrew, daughter Sophia, and chihuahua Jack. She has served as State Representative since 2014 and is the President of Shire Sharing, a nonprofit organization that provides Thanksgiving meals to needy families in the Granite State.

  • Bob O’Sullivan submitted the following response to Amanda Bouldin’s Soapbox piece:
    “Hi Amanda: Thanks for your input on my plan. I wish you would have called me to discuss this to get a full understanding and intent of my plan.
    I have said from the start that I would not be able to enact this plan at the city level and would need action from at the state level. I know this plan is not perfect and I welcome input to formulate a solution that will help save lives.
    My plan is treatment-based to help addicts become sober and live productive lives.
    This is personal for me as I have been sober for 10 years. I understand addiction.
    We need to change the discussion because what is being done now for this national crisis is not working.
    The people in Ward 2 that I have talked with do in fact support this. I have spoken with three families that live in my ward that have a son or daughter addicted to opioids and they said they would welcome this as a solution to help save the life of their loved one.
    I spent eight hours at the Manchester Fire Department and did see the first responders at work.
    These addicts need a community intervention and the residents of Manchester want their city back.
    I invite you to give me a call to discuss how to make my plan better. We should work together on this instead of just throwing stones from afar for political reasons.
    Again thanks for taking time to bring additional focus on this crisis that is taking lives of our loved ones.
    Bob O’Suillivan