Can Fentanyl Be Used for an Involuntary Intoxication Defense?

A strange occurrence at a Massachusetts hospital

Articles by Forensic Magazine and New England Journal of Medicine (NEJM)

Between 2012 to 2016, fourteen patients showed up at a Massachusetts hospital with a strange problem.  All 14 patients had developed amnesia and cognitive problems with orientation and attention.  In addition, they all had a strange lack of blood supply to the hippocampi in their brains.  These patients had histories of substance abuse, or levels of drugs in their system – including cocaine, benzodiazepines and even marijuana, but especially opioids.  It was unclear whether there was a common chemical or psychoactive trigger connecting all these patients.

What part of the brain is responsible for memory?

The hippocampus assists with the storage of long term memories which includes all past knowledge and experiences.  It is also responsible for the memory of the location of objects or people. We would not even be able to remember where our house is located without the work of the hippocampus. The hippocampus also plays an important role in spatial processing and navigation. In Alzheimer’s disease (and other forms of dementia), the hippocampus is one of the first regions of the brain to suffer damage.  Short-term memory loss and disorientation are among the early symptoms.

However, a new investigation by some physicians in Boston determined that fentanyl may have been the silent factor in that strange and rare syndrome seen in Massachusetts. Those original 14 cases had toxicology screens, but the screens did not include testing for fentanyl. Four additional patients presented with the same symptoms of amnesia and disorientation. This time fentanyl was included in the toxicology screen.  All four tested positive for fentanyl. Two of those four patients had fentanyl as the only drug detected. Fentanyl was the one drug common to all four, some of whom had been doing other drugs. The physicians concluded that the presence of fentanyl in the four additional patients strengthened an association of fentanyl with this syndrome of amnesia and disorientation.

Why does this matter for criminal attorneys?

Fentanyl is a common drug administered in the hospital, prescribed by physicians, and is accessible without a prescription. Known reactions include seizures, delirium, and confusion; but amnesia is not listed as a known side effect in the full prescribing information submitted to the FDA. Therefore, involuntary intoxication may be raised by the defense team. While it is not widely accepted as of yet, the letter published in the NEJM draws widespread attention to the issue and we will likely see more case studiescommentary and, eventually, research emerge.