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Gov. Polis Is Considering A Bill To Limit Ketamine Sedations In Police Presence. Here's How It Came Into Being

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Edward Kimmel
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CC BY-SA 2.0
Updated: July 7, 2021 at 12:36 PM MDT
Gov. Jared Polis signed House Bill 1251, prompting the Colorado Department of Public Health and Environment to suspend the waiver system that allows paramedics to administer ketamine to extremely agitated people showing signs of excited delirium. The department said it will modify its program to align with the new law. In a statement, the CDPHE noted changes to ketamine usage, training and reporting and accountability requirements.

A bill crafted partly in response to the death of Elijah McClain that places limits on when paramedics can sedate people with ketamine is on the desk of Gov. Jared Polis for his consideration. Yet House Bill 1251 faces ongoing opposition from police, fire and emergency services groups. Supporters say it will ban paramedics from using the powerful drug in situations where officers wrongfully seek to subdue people.

Bill co-sponsor Rep. Leslie Herod said the bill still allows paramedics to use ketamine to sedate people but clarifies that it is only to be used in “justifiable medical emergencies.” She said it will rein in the drug’s use by medics and ensure that it is “never at the direction of law enforcement.”

“This is a huge step forward in our quest for justice,” Herod said.

She likened ketamine’s use in situations involving police to handcuffs, calling sedations a form of chemical restraint, and considers the bill an extension of the sweeping police accountability measures, Senate Bill 217, passed last year and signed by Polis amid Black Lives Matter demonstrations.

The name of Elijah McClain also rose from the voices of protesters, leading KUNC to investigate why paramedics administered ketamine to him. He was stopped by Aurora police responding to a 911 call that McClain looked “sketchy” on the night of Aug. 24, 2019. McClain was not suspected of a crime and when he told officers that he was going home, an officer grabbed him by his arm, later wrestled him to the ground, put him in a carotid hold that reduces blood flow to the brain, and handcuffed him.

Paramedics with Aurora Fire Rescue then dosed the 23-year-old Black man with ketamine. In the ambulance, he went into cardiac arrest and days later was taken off life support at the hospital.

Officers told paramedics that McClain was resisting them and displayed “incredible strength,” signs of an extremely agitated condition called excited delirium, and a justification that allows medics to sedate a person with ketamine under Colorado guidelines. Experts, including emergency doctor Kevin McVaney of Denver Health, said the condition is potentially life-threatening.

“Excited delirium or agitated delirium is a condition where, due to a mental health problem, drug ingestion, some other physiologic and metabolic things, can make you just lose control and you're resisting, and you don't follow the normal stimulus that would make you stop resisting,” he told KUNC last year. “And so you essentially can exercise yourself to death.”

McVaney is not involved in the McClain case, but oversees medics in Denver who use ketamine to sedate people with the condition. Denver Health is among the organizations opposed to the bill. In committee hearings, McVaney told lawmakers that ketamine sedations in the field save lives by calming people quickly and getting them to the emergency room.

He also testified that though other drugs can be used to sedate people, ketamine is fast-acting and that’s critical in situations where people are out of control. Other emergency doctors have told KUNC the same thing.

But doctors outside emergency medicine have deep concerns about using ketamine in this way. While excited delirium is discussed in a 2009 white paper by the American College of Emergency Physicians, it is not in the American Psychiatric Association’s diagnostic manual of disorders. In December, the APA’s Board of Trustees wrote in a position statement that the criteria for excited delirium “are unclear” and that “the term excited delirium is disproportionately applied to Black men in police custody.”

The American Society of Anesthesiologists issued a statement last year raising concern about ketamine’s use outside of hospitals.

"Ketamine is a potent analgesic, sedative and general anesthetic agent which can elevate blood pressure and heart rate, and can lead to confusion, agitation, delirium, and hallucinations," the statement added. "These effects can end in death when administered in a non-health care setting without appropriately trained medical personnel and necessary equipment."

The related group, Colorado Society of Anesthesiologists, shares the concern and another — the power dynamic that is at play when people are being detained or restrained by police.

Another concern voiced by bill supporters is that people who are dosed with ketamine may not have excited delirium. An independent report to the City of Aurora earlier this year found that Aurora Fire Rescue medics appeared to accept officers’ impression that McClain had the condition “without corroborating that impression through meaningful observation or diagnostic examination.”

McClain’s family, who have filed a wrongful death lawsuit, said that he did not have excited delirium, pointing to body camera footage, including McClain telling first responders his name.

McClain’s sedation led KUNC to ask last year: how often does this happen? Data requested from the Colorado Department of Public Health and Environment revealed that in a two-and-a-half-year period, paramedics statewide sedated people 902 times for excited delirium or extreme agitation.

Experts consider excited delirium to be a rare condition. KUNC turned to one, Dr. Mark Debard, a retired emergency physician from Ohio who helped define excited delirium and ways to treat it about a decade ago, for clarification. He referenced a study on the frequency of excited delirium in communities and then did some math.

“I came up with the number 57 as the number of expected cases, statistically speaking for Colorado in those two and a half years,” Debard said.

In other words, paramedics around the state sedated people 15 times more often than he would expect.

Two other cases where people were restrained had several similarities to Elijah McClain’s story. Elijah McKnight and Jeremiah Axtell were sedated after they were handcuffed by officers in Arapahoe County and Lakewood, respectively. Both deny that they had excited delirium before they were sedated with ketamine, and video reviewed by experts and KUNC for prior stories appears to back up their assertions.

Both men testified in favor of the bill during hearings and both have filed lawsuits alleging wrongful sedation.

“I woke up in the ICU,” McKnight told KUNC of his incident in 2019. “Several doctors told me they saved my life and that I was, like, pretty much dead.”

“I woke up in a chair, sitting up, in a room,” Axtell said of his incident in 2020, adding he has struggled psychologically.

Officials in both jurisdictions have repeatedly declined to comment, citing ongoing litigation.

Ketamine sedations around the state included complications about 17% of the time. The most common complication was hypoxia, a potentially life-threatening lack of oxygen.

These issues and others led Herod and Rep. Yadira Caraveo, a pediatrician, to co-sponsor the bill.

In April, Herod told the House Judiciary Committee that multiple videos show officers pushing to use ketamine on people they’ve restrained.

“We have seen time and time again that that direction is happening,” Herod told lawmakers. “And we have heard I have heard privately from folks who practice in the field that they do not feel like they have the ability to tell a law enforcement officer, ‘No.’”

Groups for first responders, including the County Sheriffs of Colorado, testified against the current bill. Arapahoe County Sheriff Tyler Brown said police, paramedics and doctors have been training for years to identify severely agitated people and sedate them quickly with ketamine to get them to care.

“In my testimony to the House committee that was hearing the bill is that if we're not trained in it, we shouldn't be demanding that it be administered,” Brown told KUNC. “But we need to be able to share the information with the professionals so that they can have all of that laid out in front of them to help in their determination.”

He said regardless of the bill, officers should not direct paramedics to use ketamine, but that they need to be able to talk with medics about what’s going on with people who are in an emergent crisis because police are often the first on the scene.

The Colorado Association of Chiefs of Police and the Colorado Fraternal Order of Police are also among groups that opposed the bill and on Thursday issued a joint statement with county sheriffs.

“House Bill 1251 is unprecedented and potentially dangerous legislation that will chill critical communication among first responders and hurt patient care,” the statement said. “If signed into law, House Bill 1251 may prevent or hinder law enforcement from providing all necessary information to EMS for fear that sharing such information may later be perceived as “directing” EMS’ actions, and result in criminal charges against the officer.”

Supporters said the bill contains a provision that officers “may provide critical medical information or any other pertinent information about the individual or the scene of the emergency that may assist the EMS provider's assessment of the need to administer ketamine.”

Another provision in the bill requires officers to intervene and stop their fellow officers if they witness one attempting to influence a paramedic to unduly use ketamine on a person. If they fail to do so, it is considered a misdemeanor crime.

The bill also would require EMS providers who feel officers wrongly influenced them to use ketamine to confidentially report such incidents to the Colorado Peace Officer Standards and Training Board. If there is a determination of wrongdoing, an officer can lose their certification.

The bill also requires that if people are going to be sedated, that EMS personnel either weigh them or that two trained personnel agree on an estimation of a person’s weight. The independent report in Aurora found that Elijah McClain had been given a dose that grossly overestimated his weight.

Polis, through his office, said he appreciates the work of the bill sponsors on this “important legislation,” but would not indicate whether he will sign it. The governor’s office said he will review it once it reaches his desk.

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