A New Issue in Competency?

In August 2016, Huntington experienced an overwhelming number of opioid overdoses – 27 in five hours with one death. The first responders attending to victims on the scene reported administering multiple Naloxone doses to revive those who had overdosed, and noted the lack of response to the life-saving medication from the victims. Later reports indicated that the overdose victims had all ingested either a mix of heroin and Fentanyl or a powerful opioid analog, Carfentanil. The commonality in these overdose victims does not solely exist with the shared drug used, but also with the overdose effects. All victims who overdosed were revived using Naloxone. This indicates that victims had some period of time they were unconscious, likely with a decreased Central Nervous System response, slowed heart rate, and decreased oxygen rate (common side effects of opiate use and overdose). The longer a person is in an overdosed state, the greater likelihood of hypoxic (oxygen-deprived) brain damage.

Reports from front-line doctors in the United States and Canada discuss the effects of Fentanyl overdoses on the brain. Doctors concur that Fentanyl is so powerful that overdose victims are more likely to suffer from acute brain damage. “The longer an overdose victim remains unconscious, the longer oxygen is cut from vital parts of the brain, which may cause irreparable damage. After four minutes without oxygen, damage in the brain begins to occur” (https://www.thefix.com/fentanyl-causing-brain-damage-overdose-survivors-doctors-and-paramedics-report). The doctors report that Naloxone intervention is not enough: rescue breathing and CPR must be administered until other life-saving measures can begin to prevent brain damage in these overdose victims. If it takes five or ten minutes for first responders to arrive, brain damage may already have taken hold. One doctor from Canada estimates that upwards of 90% of his overdose patients have acute brain damage with symptoms ranging from memory loss to complete brain dysfunction.

The effects of these new reports are not lost on the criminal justice system. Death penalty investigators and mitigation specialists have long investigated the occurrence of brain injury (typically in the form of traumatic brain injury) in defendants. Brain injury can account for increased impulsivity, mood swings, decreased judgment, memory limitations, difficulty with abstract reasoning, and increased risk of suggestibility. Defendants with brain injuries may not have the ability to appreciate the seriousness of their situation and may not be able to comprehend their Miranda Rights, let alone appreciate the significance or ramifications of waiving their rights. The effects of a brain injury can effect everything from Miranda Rights to confessions to the ability to work meaningfully with an attorney. The presence of brain injury symptoms in defendants has been the basis for competency and criminal responsibility evaluations and mitigation at sentencing.

Now, the issue of brain injury in persons with past overdoses is expanding its reach to non-capital cases by exploring the presence of hypoxic brain injury. Interviewing defendants about their past opiate use and consequences of that use is worthwhile, not just for treatment purposes but to determine the potential for brain damage. West Virginia is at the intersection of opioid overdoses and potential brain injury. As Fentanyl and its analogs flood West Virginia communities, and the overdose rates remain number one nationwide, there is no doubt that acute brain injury is occurring in our criminal defendant population. While several formal medical procedures (neurocognitive testing, CT scan) exist to diagnose brain injury, the first step is to identify if the client is or has been at risk. Observing client behaviors for problems with attention span, memory deficits, difficulty with abstract reasoning or foreseeing consequences and asking about Fentanyl use and associated overdoses is a quick set of interview questions to help determine if further assessment and evaluation is needed. It is important to remember that overdose alone does not predict brain damage; the overdose must be marked by a period of unconsciousness before revival or medical intervention occurred.

The existence of this new anecdotal data about overdose victims and brain damage will likely lead to more formalized testing and research in the scientific community before it officially trickles down to the criminal justice arena. In the interim, the fact of it makes sense, especially in the context of criminal defendants who are overwhelmingly at risk for opioid overdoses based on the severity of their use. A series of quick questions posed to your client can help determine if issues that are more significant underlie your client’s ability to assist in his or her own defense.




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