Opioid Overdoses: Prosecution Risk and the Need for Naloxone

Steven H. Linder, MD; Kathryn K. Hodge, MD; Evan M. Baker, PharmD; Lisa C. Huang, MLS


July 26, 2017

There were more than 47,000 fatal drug overdoses in the United States during 2014, with roughly two thirds of those deaths linked to opioids.[1] Synthetic opioids, such as fentanyl, are involved in the mortality rates.

Nonpharmaceutical fentanyls (NPFs) are potent opioid receptor agonists that cause a toxidrome characterized by profound central nervous system and respiratory depression. Naloxone, when administered quickly and properly, is a medication that can reverse potentially lethal opioid overdoses.

Respiratory depression caused by illicitly manufactured NPFs can be treated with naloxone, although multiple doses of naloxone are needed to counteract the much greater potency of NPFs. Hospital emergency centers are finding that it may take six times the customary naloxone dose to reverse otherwise lethal NPF-induced respiratory depression.

Prehospital use of naloxone by professional 911 call responders for opioid overdoses is increasing. In addition, opioid overdose education and naloxone distribution (OEND) programs have been developed to instruct opioid users, their friends, and providers in how to use naloxone and to improve access to this drug.

The American Medical Association endorses providing naloxone to patients at risk for overdose. In 2013, California passed legislation to encourage healthcare professionals to offer naloxone to opioid users. Prescribing naloxone to patients receiving long-term opioids is also recommended in the Centers for Disease Control and Prevention opioid prescribing guidelines.

Individuals at risk of witnessing an opioid-related overdose are to be counseled on essential steps in an opioid overdose response, as well as how to administer naloxone. The education should stress calling 911 immediately to provide emergency medical services (EMS) with the overdose location. This is especially important when dealing with NPF toxidromes, because repeated doses of naloxone over several hours may be needed.[2]

Compartment syndrome can be a sequelae of drug overdose after periods of inactivity, or "down time." This leads to life-threatening muscle necrosis that requires additional EMS assessment.[3]

Among the medical community, awareness of the option to prescribe naloxone remains low. Although medical providers may be willing to prescribe naloxone, communicating effective overdose management can be a major barrier.[4]

Providers have been hesitant to prescribe naloxone for a variety of factors. Green and colleagues[5] performed a qualitative analysis to identify reasons for reluctance by providers to prescribe naloxone for high-risk patients. There were concerns that providing patients with a "safety net" would encourage continued opioid abuse.

Provider OEND training is needed to increase naloxone distribution.[6] Pharmacists involved in OEND should also be trained to give proper instruction.

The Need for Naloxone

Failure to call 911 for illicit drug overdoses limits use of naloxone by professional first responders. Most persons are not alone when they overdose. Among heroin users, research indicates fear of police action as one of the most common barriers to notifying 911 during overdoses.[7] Overdose witnesses may be too frightened of going to jail to summon EMS.

Several states have passed legislation to increase access to naloxone and remove barriers that keep a bystander (or "Good Samaritan") from seeking emergency assistance for the overdose victim. These Good Samaritan laws seek to encourage calling 911 when someone overdoses on controlled or illicit substances. In general, the laws include provisions that shield overdose victims and those who request medical aid from criminal prosecution for drug possession. These laws often require a caller to have a reasonable belief that someone is experiencing an overdose emergency and is reporting that emergency in good faith.

The scope of what offenses and violations are covered by immunity provisions varies by state.[8] Some states have opted for more restricted immunity, whereas others, such as Vermont, provide protection from a more expansive list of controlled substance offenses.

The Figure shows the US states (and the District of Columbia) that had laws allowing prescription and administration of naloxone and/or providing criminal protection for bystanders who seek emergency assistance in 2014.[9] Several states have enacted new legislation since then.

Figure. State naloxone and Good Samaritan legislation. Image courtesy of the Office of National Drug Control Policy

Friends, family members, and caregivers receiving naloxone should be made aware of the Good Samaritan law in states in which this may apply, to encourage people to seek medical attention in the event of an overdose. However, these laws have been accused of promoting drug abuse and hindering public safety efforts.

A 2017 study sought to examine the effect of Good Samaritan laws on opioid-related deaths, using data from the National Vital Statistics System multiple-cause-of-death mortality files for 1999-2014. The estimated effect of Good Samaritan laws on reductions in opioid-related deaths was not statistically significant. However, Good Samaritan laws did not increase the recreational use of prescription painkillers.[10]

In September 2016, Ohio joined 37 states and the District of Columbia with 911 Good Samaritan laws when Governor John Kasich signed House Bill 110 into law.[11] The law grants immunity to callers and to the person overdosing on opioids from arrest or penalization for a minor drug possession offense.

However, critics say that Ohio's law contains two provisions that discourage people from calling for help:

  • Immunity is only good twice and is not available for people on parole; and Medical professionals can share with law enforcement the name and address of the person who overdosed, for further investigation and follow-up.

The law also requires the person who overdosed to receive a referral for treatment within 30 days of receiving medical assistance in order to receive immunity.

Policing the heroin epidemic in Ohio has been affected by law enforcement frustration with HB 110. Prosecutors in southwest Ohio say that providing immunity to people seeking medical assistance for a drug overdose creates challenges for their offices.[12] Difficulties in keeping track of who has overdosed before have been cited in cases where naloxone-revived individuals refuse EMS transport for further evaluation.

"The tracking that's taking place right now? [It's] through the coroner's office, where someone overdosed and died," said Chief Kevin Nietert of the South Euclid Police, as he expressed dissatisfaction with the current system.[13] Allowing opioid overdose victims to immediately return to their prior environment could risk a repeat, possibly fatal, overdose.

Some cities are now citing the person whom police revive from an overdose, even though they may be protected by Good Samaritan laws. In Fayette County, between Columbus and Cincinnati, police are citing persons they revived by naloxone with a misdemeanor, typically punishable by jail time and a fine. The police record could improve the ability to track overdose calls.

The effects of Good Samaritan law on reductions in opioid-related deaths have not been shown to be statistically significant, but they have not yet been fully evaluated. The lack of consensus on Good Samaritan laws creates a conflict between the need for community witnesses of an opioid overdose to call 911 and the fear of criminal arrest. Prescribing providers surveyed about OEND concerns did not mention awareness of naloxone responders being in jeopardy for arrest.[14] More community discussion on providing amnesty to overdose witnesses is needed to prevent breakdown of OEND programs.

Communities suffer from opioid overdoses leading to violent deaths, and policing actions can directly affect the provision of public health services. There have been calls for cooperation between the various disciplines that respond to violent deaths.[15] Most health professionals have limited knowledge about the rationale for partnership between the health sector and police, which blocks collaboration. The current system of reporting opioid overdose provides incomplete and out of date information. Improvement in community reporting of opioid overdoses is sorely needed.[16]

Physician, pharmacists, and other healthcare professionals who prescribe naloxone must understand the legal risks in use by lay responders, particularly when illicit opioids are involved. These may vary by state Good Samaritan laws. Providers of OEND should stress the importance of calling 911 whenever naloxone is needed. The risk for arrest of the person for whom naloxone was prescribed must be balanced with the lifesaving work by EMS.

Naloxone prescribers need to receive education on Good Samaritan laws related to responses to overdose.

The CDC promotes social media as a means of reducing the complexity of opioid overdose prevention guidelines by providing easy-to-understand messages. Social media platforms, such as Twitter, can be used for general outreach and can offer instruction on overdose response. Professional first responder tweets that mention naloxone use problems, including concerns about Good Samaritan laws and potential solutions, can help guide EMS administrators and healthcare professionals toward an overdose reversal protocol.

Twitter can help connect and coordinate public health agencies and help relieve EMS systems stressed by coping with NPF toxidromes. A Twitter profile, BROOCH (Basic Response to Opioid Overdose by Community Help) (@BroochOpioidEMS), promotes data sharing leading to timely dialogue in management of opioid overdose for first responders.

Public health agency partnerships with law enforcement ensure a well-balanced field response to opioid overdoses that meets community approval.


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