Many of your patients with substance use disorders (SUDs) will encounter the legal system. People with SUDs face greatly increased risk of arrest, leading many into repeated legal challenges ending with jail or prison. Yet, most are not violent career criminals, but rather people with low-level offenses whose actions were influenced by addiction.

Drug courts were developed to divert such people away from incarceration and toward addiction treatment. Although data regarding their efficacy are mixed, their numbers have grown substantially over the past three decades (Brown RT, Transl Res 2010;155(6):263–274; www.ojp.gov/feature/drug-courts/overview).

As a provider, you will likely encounter patients involved with drug courts, and you may be asked for treatment recommendations, documentation of adherence, or lab results. Understanding how these courts function will ensure you can work with them effectively and in your patients’ best interests.

What are drug courts?

Drug courts are designed for defendants facing nonviolent drug charges such as possession or petty theft. Their setup doesn’t differ substantially from traditional criminal courts. They consist of a judge, attorneys on both sides, and court personnel. The difference is that drug court judges explicitly consider the role of addiction in the alleged crime and favor sentences of mandatory drug treatment and continued sobriety instead of incarceration (DeVall K et al. Painting the Current Picture: A National Report on Treatment Courts in the United States. National Drug Court Resource Center. May 22, 2023). Currently, there are over 4,000 drug courts in the US. Proponents believe they are a cost-effective means of getting people into treatment and reducing the likelihood of rearrest (www.ndcrc.org/what-are-drug-courts/).

How do drug courts work?

People who test positive for drugs at arrest or have a documented history of SUD may be referred to a drug court by their attorney, a judge, law enforcement, or a prosecutor. Those accused of severe crimes, such as felonies, or those with a history of violent offenses or drug trafficking are usually directed to the standard criminal court system.

One key aspect that sets drug courts apart is the continuity of judicial interaction beyond the first hearing. Participants engage in periodic check-ins, often for six to 12 months. These sessions evaluate the participant’s compliance with court-mandated requirements, which usually include adhering to SUD treatment, maintaining sobriety, avoiding further arrest, and possibly even securing stable housing and employment.

Advantages

Drug courts offer participants the opportunity to avoid incarceration, focusing on recovery over punishment. Ongoing hearings allow for the tailoring of program requirements to suit individual progress. Doing well can lead to decreased supervision and extended intervals between court appearances. Upon successful completion of a recovery program, a participant’s charges may be expunged.

Disadvantages

Critics argue that drug courts can be seen as coercive by dictating treatment, can create burdensome time commitments, and are subject to racial disparities (Nicosia N et al, Am J Public Health 2013;103(6):e77–e84). Insisting on abstinence as a marker of success does not acknowledge the natural course of SUDs, which for many includes a return to use.

Noncompliance with court mandates can lead to imprisonment or getting funneled back into the traditional criminal court system. Furthermore, many drug courts require participants to plead guilty to enter the program, known as a “post-plea” arrangement. This means that if participants falter in fulfilling the court’s conditions, they risk sentencing based on their earlier guilty plea.

In some instances, drug courts can dictate which treatments patients receive. Restrictions may include prohibitions on out-of-state residential programs or certain medications, particularly medications for opioid use disorder (MOUD). In such cases, discuss with your patients the risks of forgoing treatment, be sure they understand the implications of complying with the drug court’s mandates, and allow them to decide their preferred course of action. If a local drug court is going against your medical recommendation, consider reaching out and providing education.

Your role as a provider

Communicating with courts

You may be asked to:

• Outline initial treatment plans, including medication or therapy recommendations
• Update the court on your patient’s attendance, medication adherence, and urine drug screens as the case progresses

See template for an initial letter to a drug court for a patient with opioid use disorder, including language that advocates for MOUD treatment.

Communicating with patients

Maintain transparency regarding your involvement in legal matters. Your patient should know that you are an advocate for their well-being rather than an agent of the court. Should the court request documentation, obtain your patient’s consent, preferably written, before sharing any information. Depending on the setting, a release that complies with 42 CFR Part 2 may be required (www.tinyurl.com/4tvnv8hr). Review the letter with the patient, ensuring they are comfortable with the disclosure of their diagnosis, treatment plan, and progress.

In some instances, you may be unsure how to proceed. If a patient has been only partially adherent to their treatment program, would it be best to provide a letter outlining that partial adherence or to not provide a letter at all? What if a patient wants you to include some pieces of information but omit others? Patients must understand that if you are going to provide information to the court, it must be truthful, even if it could result in court-imposed sanctions.

Be sure to follow the policies and procedures of your business or employer. If in doubt, contact your hospital or clinic’s legal department or your malpractice carrier for guidance. You can also contact your patient’s attorney, with their permission, to discuss the best next steps. Ultimately, respect your patient’s autonomy; if they believe a letter could negatively impact their case, they have the right to withhold consent, and you should honor that decision.

CATR would like to acknowledge valuable feedback from Dr. Paul Bryant.

CARLAT VERDICT

Drug courts represent a shift from traditional criminal courts by emphasizing recovery over incarceration for nonviolent drug offenses. Healthcare professionals play an important role by providing the court with treatment recommendations and updates on participant progress. When communicating with the court, be sure to remain transparent with your patient, advocate for their recovery, and, if in doubt, consult with their defense attorney.