Preventing (preventable) opioid overdose deaths: How legal reforms in North America can promote life-saving interventions

For anyone who has ever witnessed a drug overdose, the experience can be jarring. Although symptoms vary widely depending on the type (or types) of drug ingested, the affected person may begin to experience chest pain, difficulty breathing, vomiting, severe headaches and an inability to respond to stimuli. Opioid overdoses specifically will typically result in opioid induced respiratory depression leading to hypoxia. Hypoxia, in turn, can cause death. In 2017, many of the 72,000 people who fatally overdosed in the United States died in this way. In addition to heroin, synthetic opioids were involved in almost half of these deaths.

The tragic nature of the current rates of drug overdose in the United States is painted even darker by two important facts. First, opioid overdose deaths are preventable, thanks to overdose reversal drugs like naloxone. Second, most of these deaths occur in the presence of others. So how can a potentially fatal but easily reversible health condition, witnessed by others, still account for up to 72,000 deaths just last year?

The key to understanding this phenomenon lies in contextualising drug overdose occurrences in the reality of their social and political frameworks. Notably, it is important to view drug use in the framework of the global drug control regime that has governed it since the mid 20th century, and which [more often than not] prescribes various forms of penal punishment for persons who use drugs. This prohibition framework has a profound effect on how witnesses respond when they see someone displaying signs of drug overdose.

One way to acknowledge how policies that criminalise drug use affect bystander responses to drug overdose is to compare drug overdose to other health conditions that are not criminalised. To be clear, no other potentially-fatal health condition requires witnesses to weigh various and complicated social and legal risks before deciding whether to seek help. When a person with diabetes exhibits symptoms of hypoglycaemia, bystanders must only ask who has the closest phone to dial 911. No ‘sugar-policies’ exist to criminalise or punish the patient, nor to antagonise the “good Samaritan” who sought help. But international drug policies, implemented conservatively in the US, turn this most human behaviour on its head.

So, what kinds of risks does someone face when they decide to call for help during an overdose? Primarily legal risks, which result from the fact that even being close to illicit drugs can result in a conviction, regardless of whether the charged person was using drugs. In its implementation of Prohibition, US law prefers using proxy crimes like possession or possession with intent to distribute, rather than drug use itself. These proxy crimes are arbitrarily assigned based on how much the drug weighs and how close a person is to it. Although prosecutors must also show that a person was able and intended to exercise control over the contraband, a garden-variety of circumstantial evidence has been found sufficient to meet this standard (holding a large amount of cash or being physically close to drug paraphernalia to list just two examples).

Potential “good Samaritans” who have been previously involved with the criminal justice system are exposed to supplementary serious legal risks. Being on probation and alerting authorities that you are at the site of an overdose, for instance, can result in a Judge finding a violation of probation, even if drug charges never end up in a conviction.

But having no criminal record does not shield those calling for help. Motivated prosecutors in the US, armed with legal tools such as the ‘felony-murder doctrine’ or willing to prosecute a ‘drug-induced homicide’ case, can charge people involved in overdose situations aggressively. It is in this environment that suddenly the idea of pouring water on someone, feeding them bread or simply holding them upright can seem more attractive than inviting the police to your home.

Given how broadly drug crimes can be charged, it is not surprising that in eight key cities surveyed, bystanders to drug overdose deaths stated that fear of police and a belief that the victim could be revived without outside interference were a key reason for bystanders not seeking medical attention. Drug policy regimes that criminalise drug-related behaviours force witnesses of overdose to re-calibrate their otherwise typical responses in a way that suddenly shifts the weight of risks from those focused on what can happen without medical attention to what can happen if legal repercussions are sought.

The result is that the calculus in favour of administering self-help and not contacting state services for assistance can appear more favourable. If there is enough evidence that the victim will able to survive without medical assistance, and there is the reality that the victim and those around them may be arrested or face legal consequences, then suddenly it becomes seemingly logical to hesitate before or even resist the idea of contacting authorities for help. Drug policies that criminalise drug-use related behaviour impair normal life-saving intervention seeking norms by bystanders and good Samaritans.

As opioid use in North America has grown into a public health emergency, some legal reforms have placed the problem of not reporting overdoses at the forefront of preventing more deaths. Medical Amnesty Laws are one such reform. These laws seek to alleviate the legal risks that face good Samaritans by offering various levels of immunity for those who call for help in the event of an overdose. The policy first emerged in the US in the context of underage drinking at colleges. Medical Amnesty policies have since been modified and reframed as state laws extending their protections from students to citizens more generally.

Jeremy Sharp, a harm reduction outreach worker in North Carolina, was successful in using grassroots strategies to have medical amnesty policies adopted both at his University and at the state level. Sharp was motivated to get medical amnesty laws passed when he lost his best friend due to a fatal overdose in 2013. Although his friend celebrated his 21st birthday with others, nobody called police when he began to experience overdose symptoms. By the time a family member learned of the situation and contacted police, he had been dead for over an hour and a half.

Sharp worked with various grassroots organizations and other activists to have the Georgia legislature adopt what he termed the “gold standard” of medical amnesty laws in the country in 2014. The law grants limited prosecutorial immunity to people who seek help and stick around following an overdose. Immunity flows for violations of probation, parole or conditions of pre-trial release or violations of restraining or protection orders, underage consumption of alcohol and misdemeanour possession of minor amounts of cannabis and other drugs. The law also protects persons from being prosecuted for possessing drug paraphernalia and protects those who administer naloxone following an overdose.

Currently thirty-two states have some form of medical amnesty available, as does Washington D.C. Several other states have a medical amnesty bill in some phase of the legislative process. Sharpe states that since the Georgia medical amnesty law was adopted, there have been 1,547 reported naloxone reversals from community members and police officers.

Early evidence from other states is also positive. In Washington, which passed a Medical Amnesty law in 2010, 88 percent of drug users surveyed said they are now more likely to summon emergency authorities during an overdose because of the medical amnesty law. And while passing the law was an uphill battle, Sharp stresses that a public education campaign was also critical to inform the public (and law enforcement) that these laws existed and would be implemented to protect people.

But adopting medical amnesty laws in the US has been far from ideal. State by state adoption of medical amnesty laws has been painfully slow. Many states do not offer any immunity for bystanders and there is no federal law that protects witnesses of drug overdoses from prosecution.

This lack of progress is mirrored by the limited uptake and scale-up of harm-reduction interventions that are known to limit drug-related mortality, including opioid agonist treatment (OAT) and heroin-assisted therapy. Other exciting and promising “innovations”, such as overdose prevention sites, which have been credited with improving clients’ health and life outcomes for decades, have been similarly neglected or sabotaged. Even naloxone remains largely unavailable, as most states limit possession of it to medical doctors and emergency responders.

Opioid overdose is preventable. And most overdoses occur in the presence of others. The United States and other countries must adopt policies to empower witnesses of drug overdose to take lifesaving measures so that people remain alive. As drug prohibition invites people to not seek help in these medical emergencies, removing criminal penalties for drug use-related behaviours would go a long way toward encouraging lifesaving interventions by overdose bystanders. Without an urgent and necessary reframing of fatal opioid overdoses as a public health issue, instead of a law enforcement one, preventable overdose deaths will continue to occur.

This blog post is published on the occasion of the International Overdose Awareness Day, a global campaign commemorated on 31 August to raise awareness of overdose, reduce the stigma of a drug-related death and stimulate discussion about evidence-based overdose prevention and drug policy.