Can I Use Suboxone if I am in Drug Court?

Last Updated on July 20, 2018

For many, Medication Assisted Treatment (MAT-often called “Suboxone Therapy”) is a viable option to address their opioid use disorder.  While MAT is not for everyone, the success of this type of therapy is unmatched in the recovery field.

Drug Courts

The question that comes up for many opioid addicted clients is whether they have a right to use Suboxone and other medication therapies while they are in a Drug Court program? The answer is a qualified “yes”. If a Drug Court receives federal funding, they are required to allow Medication Assisted Treatment, and they are actually required to justify why they will not allow it on an individual case level.

Types of Drug Courts

There are many different types of Drug Courts.  They Include:

• Adult
• Juvenile
• Family
• Veterans
• DWI
• Tribal
• Co-occurring
• Re-Entry
• Federal District
• Federal Veterans
• Campus

Not all Drug Courts Address Opioid use Disorders

Some Drug Courts only address alcohol related offenses, while others only work with specific defendant populations.  If you are a defendant, it is vitally important to understand the potential limitations of your area’s Drug Court. That said, if you are suffering from an Opioid Use Disorder, and your offense and any previous criminal history does not involve a violent crime, then you should know that there are certain rights that you have in Drug Court.

National Association of Drug Court Professionals (NADCP)

In 2011, the NADCP Board of Directors issued a unanimous resolution requiring Drug Courts to adopt these “best practice standards” in order to maintain the best possible outcome:

• Keep an open mind and learn the facts about MAT
• Obtain expert medical consultation on MAT when available
• Make a fact-sensitive inquiry in each case to determine whether MAT is medically indicated or medically necessary for the participant
• Explain the court’s rationale for permitting or disallowing the use of MAT

Adult Drug Court Discretionary Grant Program

Legal Requirements are different from Best Practice Standards in that they are derived from constitutional or other legal principles that govern what actions can or cannot be taken in a court of law.

Beginning in 2015, Drug Courts receiving Bureau of Justice Assistance or SAMHSA funding must attest in writing that they will:

• Not deny otherwise eligible candidates access to a Drug Court Program simply because of their use of an FDA approved medication for the treatment of a substance use disorder.
• Not require participants to discontinue such medications as a condition of graduating from the program.

This marks a stark departure from previous policies.

Drug Courts May Deny Access to Suboxone or Other MAT Drugs If:

• The participant has been misusing or abusing the medication
• Diverting the medication for unauthorized purposes

Even if the Drug Court does not historically allow participants to use MAT while in the program, if they are going to deny the participant access to MAT:

• It cannot be arbitrary
• Must be reasonably related to the goals of protecting public safety, rehabilitating the participant and reducing possible future criminality

The Best Practice Standards state that unless there is opposing medical evidence to suggest that a prescription may be unnecessary or contraindicated, there will only rarely be a reasonable basis for a Drug Court to deny a lawful prescription when these criteria are met:

• Participant is receiving MAT from a qualified and specially licensed physician
• Physician has personally examined the participant and diagnosed them as having a substance use disorder
• Physician determines that MAT is appropriate to treat the disorder
• Physician will continue to medically manage the case going forward

Challenges to Suboxone Therapy in Drug Courts

Blanket Prohibitions:

Because of the NADCP’s Board of Directors’ resolution, under no circumstance may a Drug Court enact a blanket denial of access to MAT while participating in Drug Court.  This resolution requires that requests for MAT be considered on a case by case basis.

Sometimes in Drug Courts that do not receive federal funding, use of MAT may be challenged by the prosecution.  When this happens:

• Prosecution may challenge the medical necessity claiming that it is contraindicated
• Medical experts will be brought into court to testify on whether MAT is necessary
• A participant’s physician may have to come to court to testify on behalf of their patient.  Doctor’s do not generally like this, as they are not used to having their medical decisions challenged by those who are not physicians, and it usually takes time away from their practice.

Some have claimed that Drug Court participants may have a fundamental right, or statutory right under the American’s with Disabilities Act, to receive MAT.  If this legal assertion is correct, then Drug Courts would be required to show a compelling state interest or other substantial reason to deny a person MAT.

What about the Legal System Outside Drug Courts?

Community Level Correctional Control, that is prosecution or supervision outside of a Drug Court, can vary widely in acceptance of MAT.

Restrictions must follow the Rational Basis Test:

• Conditions may not be unduly broad or arbitrary
• Conditions must be reasonably related to the person’s crime, likelihood of rehabilitation or risk of future criminality

Types of Restrictions and Monitoring of Suboxone Patients in Drug Courts:

There are several types of monitoring that participants in Drug Court can expect when using MAT.  While not every participant will be required to undergo all of these, below is an overview:

• Observed Administration where the medication is taken under the direct observation of the court personnel.
• Adherence Monitoring including drug testing and/or occasional blood or plasma samples.
• Random Callbacks to the treatment program or court for pill counts.
• Medication Event Monitoring System where a container is equipped with a microprocessor that records the date, time and number of pills that were removed each time a container is opened.
• Preapprovals from the Drug Court for any new, potentially addictive or intoxicating medication from a physician.
• Routine Checking of Prescriptions Drug Monitoring Programs.  These are electronic databases that contain information on all controlled substances prescribed within the state and other states that share information.
• Abuse-Deterrence Formulations like Naloxone in the drugs used in MAT.

Summary

Drug Courts are now required to work with participants and their doctors when Medication Assisted Treatment such as Suboxone, Zubsolv, Vivitrol or other combination are being prescribed by a specially licensed doctor.  Only in rare cases would justification be sufficient to deny participant’s use of MAT.

Author

Adam C. DeVaney, LLMSW