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Hypodermic Needle Exchange Program Does Not Require Town Approval According to New Massachusetts High Court Decision.


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6/16/2017
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Clean Needles Program in HyannisTown Approval Not Required says Supreme Judicial Court

Yesterday, June 14, 2017, the Supreme Judicial Court of Massachusetts decided a long standing dispute between a private organization operating a clean needle exchange program and the Town of Barnstable (Hyannis).

AIDS Support Group of Cape Cod Inc. set up a clean needle exchange program in Hyannis without Town approval. Subsequently the Town issued a “cease and desist” order to shut down the exchange. Both parties went to court in November, 2015.

Prior to a new law issued in 2006, possession of hypodermic needles was a criminal offense absent a valid prescription. In 2006, the Commonwealth of Massachusetts changed the law concerning hypodermic needles, with the intent to “decriminalize” possession but not sale.

Clean needle exchange programs are designed to decrease the risk of acquiring HIV or hepatitis C among the group of citizens who are addicted to drugs and actively using hypodermic needles.

Following that 2006 decriminalization, in 2009 a private group began offering a free needle access program (“needle exchange”) in Hyannis without first seeking approval from the Town of Barnstable or its Board of Health.

Because the decriminalization law established that the Department of Public Health must seek Town approval to establish a needle exchange program, Barnstable determined that the legislative intent was to allow for decriminalized distribution of needles subject to local approval. The lawsuit seeks to determine whether needle exchange conducted by an entity besides the Department of Public Health can be established without local approval.

The highest court of Massachusetts has now decided that despite requiring local approval for the state agency (Commonwealth of Massachusetts Department of Public Health) to locate a needle exchange program, the legislature never intended to subject non- governmental entities seeking to establish a needle exchange program to local approval.

Here is one way to look at this. I could be wrong. This is surmise, at best.  Since decriminalization of possession of hypodermic needles in 2006, there has been a shocking and steady year over year increase in deaths to Massachusetts citizens resulting from opioid pain killer drugs and from fentanyl laced heroin overdoses. While in 2006 the Massachusetts “overdose” death occurrence was 615 deaths, in 2016 that death toll from overdoses was almost 2000 (1979) deaths.  That death toll is over 5 persons a day in Massachusetts during 2016.  Heroin adulterated with fentanyl is known to be driving the sheer number and the recent increase in overdose deaths. Although I think a clean needle can be used to inject heroin laced with fentanyl, nevertheless, perhaps the specter of this ongoing death march helped the court view the statutory ambiguity as to whether local approval would be required from the perspective of the private entity, and generally on the side of greater availability of clean needles. Anyway, from the perspective of reducing deaths from overdose, the clean needle does not have a residue of fentanyl left over from prior use. So greater availablity of clean needles (by not requiring Town approval) should be safer for those already addicted, and currently using.

See: AIDS Support Group of Cape Cod, Inc v. Town of Barnstable

http://law.justia.com/cases/massachusetts/supreme-court/2017/sjc-12224.html

 



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John L. Keefe
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Founding Attorney of Keefe Disability Law

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