Task Force report : narcotics and drug abuse annotations and consultants' papers.

United States. Task Force on Narcotics and Drug Abuse.

Date:: [1967]

Catalogue details

Licence: Public Domain Mark

Credit: Task Force report : narcotics and drug abuse annotations and consultants' papers. Source: Wellcome Collection.

110/172 (page 100)

a model State act should contain stricter limitations at this time. These should await a demonstrated need. It is recognized, however, that individual States with peculiarly difficult problems involving the abuse of pre- scriptions may desire stricter legislation. It is hoped that such legislation will not, except perhaps as a last resort, require all dangerous drug prescriptions to be in writing. Elimination of oral prescriptions may seriously hamper the practitioner in prescribing in an emergency. While a requirement that the pharmacist must telephone the physician to confirm the prescription would not end all possibilities of abuse incidental to oral prescriptions, it would seem preferable. DISCRETION OF PRACTITIONERS The purpose of this recommendation is to insure that medical discretion relating to the prescription, adminis- tration, and dispensation of controlled drugs is explicitly protected by the act. The practitioner’s discretion involves both discretion short of supplying maintenance doses to addicts or ha- bitual users of “depressant or stimulant drugs” and dis- cretion to prescribe, administer and dispense maintenance doses to addicts and habitual users. There is probably complete agreement that discretion which does not in- volve supplying maintenance doses to addicts or habitual users should be protected. Discretion to supply mainte- nance doses to addicts or habitual users, particularly when ultimate withdrawal is not contemplated, is more controversial. While supplying maintenance doses of a narcotic to narcotic addict patients by physicians has been a subject of great controversy,?*! and while supplying maintenance doses of either a narcotic or a “depressant or stimulant drug” to all comers and without any determination based on the clinical picture presented by the particular patient is to be condemned, it is strongly believed that whether a particular addict or habitual user of a “depressant or stimulant drug” is to be maintained on a drug presents a medical question involving the clinical picture presented by the particular patient. The criminal law should not step in unless the practitioner has not made an honest judgment based on the clinical picture presented by the particular patient that maintenance is advisable for that patient; an individualized determination honestly made should not subject the practitioner to criminal liability. 221 See, e.g., AMA Department of Mental Health, Narcotics Addiction: Official Actions of the American Medical Association, passim (1963) (hereinafter ‘““AMA: Narcotics Addiction”). In addition, the extent to which a practitioner may lawfully use maintenance doses of a narcotic in the treatment of a narcotic addict patient is by no means clear. See note 223 infra. 222 In the case of narcotics addiction the American Medical Association in a code of ethical medical practice has sanctioned the use of maintenance doses for addicts for prolonged periods in certain limited situations—chiefly those involving aged and infirm addicts who might not survive withdrawal and bona fide research activities. The AMA also sanctions the administration of substitute narcotics for a period of up to 2 weeks to relieve withdrawal symptoms pending the patient’s admission to a hospital, and narcotics may be administered in a hospital to relieve withdrawal symptoms. Narcotics may also be given to patients with chronic painful diseases for prolonged periods. ‘‘The use of narcotic drugs in medical practice and the medical management of narcotic addicts: a statement of the American Medical Association’s Council on Mental Health and the National Academy of Sciences—National Research Council” (June 1963), in AMA: Nar- cotics Addiction 51-61. a A treasury regulation currently in force and reflecting the language of a question certified to the Supreme Court in a case decided in 1922 (Webb v. United States, 249 U.S. 96) provides: A prescription, in order to be effective in legalizing the possession of unstamped narcotic drugs and eliminating the use of order forms, must be issued for legitimate medical purposes * * *, An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with nar- cotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of sec. 4705(c) (2), and the person filling such an order, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to narcotic drugs. 26 CFR, § 151.392. Language in later opinions suggests that this language and the language in the opinion on which it is based is too broad. The defendant in Webb, a physician, This recommendation is not designed to state a govern- mental policy that addicts or habitual users of “depressant or stimulant drugs” are to be maintained. Rather, it is designed to provide a framework in which whether a particular addict or habitual user is to be maintained can be decided as a question of professional medical judgment. The author is not a physician and does not venture to guess when maintenance is medically warranted. It may be medically warranted only in a small number of cases or in a considerable number of cases.?22 Under what circumstances maintenance is warranted should be left to the medical profession rather than either to law enforce- ment agencies or, to the extent that it is possible to do so, to the courts. While it is believed that guidelines as to the circum- stances when maintenance is appropriate should appro- priately be evolved by the medical professional rather than by law enforcement agencies and that the medical profession should be encouraged to evolve such guide- lines, it is not believed that criminal liability should de- pend on the prevailing view in the medical profession at a given time. ‘To make it so depend might discourage honestly held minority views that in the course of ‘time might or might not prevail. If the particular practi- tioner’s view suggests to members of his profession that he is incompetent it is believed that the appropriate rem- edy is action by State or professional disciplinary bodies rather than resort to the criminal law. Such action should, of course, also be taken against prescription ped- dlers and practitioners who do not act in good faith. While fear of disciplinary action may also discourage minority views, it is. believed that this is unavoidable. Moreover, it should be recognized that even in a criminal prosecution based on the practitioner’s subjective belief the trier of fact may actually infer lack of good faith from the fact that the practitioner’s treatment was not viewed as medically justified by expert medical opinion. Of course, under such a test the trier of fact would be free to ignore that opinion if it in fact believed that the defendant actually believed his treatment was ad- visable for the particular patient. It is believed that a statutory provision expressly pro- tecting the discretion of practitioners is necessary, be- cause there is some confusion as to what extent a prac- titioner may lawfully supply maintenance doses of nar- cotics to a narcotic addict patient,??* and this confusion suggests the possibility that medical discretion relating did ‘‘not’’ issue the prescription involved ‘‘after consideration of the applicant's individual case’’ but apparently sold prescriptions to all comers at 50 cents apiece. Webb v. United States, 249 U.S. at 98. During the period covered by the indict- ment he had apparently sold over 4,000 prescriptions, sometimes using fictitious names on them. Id., at 99. The question certified in Webb was: If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such an order a physician’s prescription under [a provision which excepted from the application of the Harrison Act dispositions by a dealer to a consumer under and in pursuance of a written prescription by a registered practitioner]? Webb v. United States, supra, 249 U.S. at 99. The Supreme Court, four justices dissenting, answered: * * * to call such an order for the use of morphine a physician’s prescription would be so plain a perversion of meaning that no discussion of the subject is required. Id., at 99-100. This broad answer was qualified by the Supreme Court in a series of cases decided between 1922 and 1926. First, in a dictum in United States v. Behrman, 258 U.S. 280 (1922), in which the Court actually upheld an indictment against a physician which did not allege bad faith, it stated that “it may be admitted that to prescribe a single dose or eyen a number of doses may not bring a physician within the penalties of the act * * *, Undoubtedly doses may be varied to suit different cases, as deter- mined by the judgment of the physician.’? 258 U.S. at 288, 289. In 1925 in Linder y. United States, 268 U.S. 5, in dismissing an indictment which did not charge bad faith and which did ‘‘not question * * * the wjsdom or the propriety of the [physician’s] action according to medical standards,” (268 U.S. at 17), the Court stated ‘‘What constitutes bona fide medical practice Footnote continued on following page.