Editor’s note: This post is part of a Health Affairs Blog Symposium on Health Law stemming from 4th Annual Health Law Year in P/Review conference hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Holly Fernandez Lynch wrote an introductory post in January 2016 and you can access a full list of symposium pieces here or by clicking on the “The Health Law Year in P/Review” tag at the bottom of any symposium post. You can also watch the video of the presentation on which this post is based.
It’s well known that the U.S. is in the midst of a prescription opioid overdose and abuse epidemic. Adverse outcomes from prescription opioid abuse have dramatically escalated over the past decade and a half, with fatal prescription opioid overdoses roughly quadrupling and emergency department visits involving prescription drugs (mostly opioids) more than doubling.
Outrageous statistics—such as that opioids were involved in almost 29,000 drug overdose deaths in 2014, or that 46 people die from a prescription opioid overdose every day—have less “shock” value now than they did several years ago. Moreover, the opioid crisis has become personal: many (including presidential candidates) have experienced a close friend or family member struggle with addiction.
What is evolving is our perception of opioid addiction as a disease, our understanding of the etiology (or causes) of that disease, and our recognition that opioid abuse is best addressed as a public health issue rather than a criminal justice one. In contrast to the crack cocaine epidemic of the 1980s, in which the overwhelming criminalization of black, urban drug users reflected societal views of addiction as a controllable vice, opioid addicts are increasingly viewed with empathy and in need of treatment.
Many policy responses to the crisis are starting to reflect this new wisdom; however, there are still some policy “hold-outs” that continue to embrace the impulse to fight the opioid epidemic by imposing criminal sanctions on those who are addicted. While it may be natural to turn to the criminal code, doing so will ultimately prove ineffectual and should be resisted.
A Disease Of Complex Origins
Thanks to advances in neurobiology over the past several decades, opioid addiction is now understood to be a brain disease that arises from chronic exposure to opioids. Repeated exposure in persons who are vulnerable (due to genetic, environmental, or developmental factors) causes the brain to adapt in ways that can induce compulsive drug use and loss of control over drug-related behaviors. Opioid addiction can occur both in individuals who use opioids medically and in those who engage in prescription opioid abuse, defined as the use of an opioid medication without a prescription, in a way other than as prescribed, or for the experience or feelings elicited. In short, addiction that once would have been considered “moral weakness” is now understood to have a biological basis.
We also know that over-prescribing (particularly for chronic pain) is a major driver fueling prescription opioid addiction. The overall sale of opioid analgesic painkillers, which increased nearly four-fold between 1999 through 2010, parallels observed increases in opioid-related overdose deaths, emergency department visits, and treatment admissions.
In 2012 alone, providers issued 259 million opioid prescriptions — enough for every adult to have their own bottle of pills. A heightened focus on pain management beginning in the 1990s liberalized opioid prescribing, but this shift spurred tremendous growth in prescription drug abuse and addiction. Today, over 85 percent of abused prescription drugs, including opioids, are sourced directly or indirectly from prescribers.
We are less clear about the relationship between prescription opioid and heroin abuse. There is some evidence that prescription opioid addicts may have switched to cheaper, deadlier heroin when they could no longer easily tamper with Oxycontin after its reformulation. However, a more recent review suggests that the escalation of heroin-related overdose deaths predated policy efforts to curb prescription opioid abuse — albeit a subset of prescription opioid abusers may transition to heroin use.
Certain risk factors have been identified as rendering people particularly susceptible to prescription opioid overdose. According to the Centers for Disease Control and Prevention, those at higher risk include those consuming high daily dosages of opioids, those taking medication for chronic pain, those living in rural areas or having low income, those with substance abuse or mental illness, and “doctor-shoppers” (or persons obtaining overlapping prescriptions from multiple providers and pharmacies). But the fact that the prescription opioid and related heroin epidemics appear to be responsible for unprecedented increases in mortality among white, middle-aged populations has undoubtedly contributed to the de-criminalization of addiction behavior—in contrast to how we responded to crack cocaine.
Wise Policy Responses
Given what we now know about opioid addiction, policy responses that focus on controlling drug supply and getting addicts into treatment are prudent. Targeting the original source of drugs, or prescribing, is preferable to penalizing downstream effects — many of which seem out of individuals’ control.
These include: prescriber education and guidelines (although broader medical consensus here is long overdue); prescription drug monitoring programs that are used to inform prescribing decisions; “pill mill” crackdowns; and certain insurer or pharmacy-benefit manager mechanisms that monitor opioid prescribing and use (e.g., unsolicited reports sent to prescribers). Unintended consequences of these prescriber-targeted policies must be carefully monitored, however, to ensure that adequate pain management is not compromised for those with a medical need.
Other policies levers that seek to limit the volume or lethality of opioid supply also conform to our wisdom about opioid addiction and its causes. For example, drug take-back or safe disposal programs can reduce the excess supply of drugs that can be accessed second-hand. Targeting drug companies, which in the past understated the addictive properties of opioids when used to manage chronic diseases, is also a potentially fruitful tactic. Indeed, certain federal policies—such as the Food and Drug Administration’s Risk Evaluation and Mitigation Strategy for extended release/long acting opioids—do just that. Purdue Pharma, the maker of Oxycontin, also voluntarily reformulated its drug in 2010 to make it more tamper-resistant.
Just as critically, policies that enhance the availability and quality of opioid addiction treatment are fundamental to facilitating recovery for addicts. An Obama administration proposal, the Affordable Care Act, and mental health parity laws all seek to expand access to addiction treatment, such as medication assisted therapy. The Gloucester, MA, police department and many others across the country have adopted policies of helping addicts into treatment rather than arresting them. Finally, providing access to opioid overdose reversal drugs to those at risk for overdoses and their inner circles is critical to saving lives.
Unwise Criminal Policy Responses
Although the effectiveness of most of the above-mentioned “wise” policies has yet to be proven, they at least recognize the prescription opioid epidemic as a public health priority rather than a criminal justice matter. Still, there are some opioid addiction policy responses that are ill-conceived in that they focus on criminalizing or punishing the behavior of opioid addicts, rather than preventing or treating it.
For instance, a majority of states allow law enforcement officials to access information in their state’s prescription drug monitoring program to identify and prosecute potential drug abusers. Doctor shopping laws (that typically echo federal drug control laws) make it a crime to intentionally obtain drugs by fraud or deceit. Tennessee, among other states, has criminalized the use of drugs by pregnant women. Moreover, there is inadequate treatment provided both within prisons and upon release of prisoners with opioid or other addiction disorders.
Criminal laws regulate social conduct and protect the security of individuals and the survival of populations by punishing those who commit offenses. Punishment can be justified under a number of theories—retribution, deterrence, rehabilitation, and incapacitation among them—that hinge on the moral culpability of those who violate criminal laws.
The problem with criminalizing opioid addiction is that little moral culpability attaches to individuals who got an opioid prescription (or accessed one second-hand) and had a predisposition to compulsively use these drugs. Locking up opioid addicts seems to achieve little (other than to overcrowd our prisons) and fails to comport with the purposes underlying criminal punishment. These individuals are not “deserving” of punishment because they likely cannot control their addiction behaviors, nor are they typically violent or rational criminals who must be incapacitated or prevented from committing future harm.
Moreover, addicts are rarely “rehabilitated” by receiving addiction treatment when imprisoned—or even when released—as would be key to them becoming fully functioning members of society. To be successful fighting the opioid epidemic, we should fight the urge to punish—as happened in years past and persists to some degree today—and instead focus on innovative new health approaches to prevent and treat addiction.
from Health Affairs Blog http://ift.tt/223AnNY
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