(Page 2 of 2)
But compared to federal prosecutors, who have taken these cases with relish, and even compared accused doctors to the Taliban, state prosecutors seem to be at least somewhat more concerned about the effects of the anti-drug crusade on pain care.
In 2005, the National Association of Attorneys General sent a concerned letter to the DEA and a response to a call for comments signed by the attorney generals of 29 states, the District of Columbia and two territories. The response said, in part, that the AG’s “are concerned that recent DEA actions send mixed messages to the medical community and are likely to discourage appropriate prescribing for the management of pain. Those actions also put the DEA at odds with advances in state policies regarding prescription pain medication.”
The DEA’s only attempt at helping doctors figure out what the police and federal prosecutors see as “appropriate prescribing” and what they call “drug dealing” had been a 2004 FAQ, which was created over years of collaboration between medical experts and law enforcement. It was withdrawn after Hurwitz planned to use it in his defense. Though a “clarification” was published in the Federal Register, re-enforcing the primacy of law enforcement concerns over medical judgment.
Reynolds and PRN would like to see the federal role eliminated entirely through legislation. “Public opinion affects state officials but it does not affect the DEA,” she says. “We’re working with the subcommittee on crime to put together legislation that would shore up the medical exemption to the Controlled Substances Act and restore the supremacy of the states.”
The U.S. Supreme Court, in its decision of the assisted suicide case, Gonzalez v. Oregon ruled that federal prosecutors do not have the power to choose to criminalize entire areas of medical practice. In the majority opinion, Justice Kennedy wrote, “This power to criminalize…would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside 'the course of professional practice,' and therefore a criminal violation.”
The DEA and the Justice Department have nonetheless continued to make federal criminal cases out of what previously would have been at worst incidents of medical malpractice and have in many cases simply been instances of doctors using treatments drug cops don't understand. And they have considerably hampered advances in pain treatment in the process.
Maia Szalavitz is author of Help At Any Cost: How the Troubled-Teen Industry Cons Parents and Hurts Kids (Riverhead, 2006) and a senior fellow at stats.org. Her latest book, co-written with Dr. Bruce D. Perry is The Boy Who Was Raised as a Dog and Other Stories from a Child Psychiatrist's Notebook. (Basic Books, 2007).