Ronald Bailey | June 27, 2007
For more than a decade reason has done considerable reporting on the drug warriors' campaign against pain doctors. In 1997, Jacob Sullum reported the story of David Covillion in "No Relief in Sight". Doctors spooked by Federal drug warriors refused to treat Covillion. He was so desperate that he eventually sought out Jack Kevorkian's help to end his life. Incredibly, it was Kevorkian who referred Covillion to Dr. William Hurwitz who agreed to treat him. But as Sullum reported Virginia pulled Hurwitz's license because he allegedly overprescribed pain meds.
In 2004, Sullum reported in "Trust Busters" that Hurwitz was eventually convicted by federal prosecutors on bogus charges of being "a major and deadly drug dealer."
In June, 2006, reason contributor Maia Szalavitz's article "The Doctor Wasn't Cruel Enough," told the relatively happy story in which one physician, Dr. Paul Heberle was found not guilty of drug running. During his prosecution, Dr. Heberle couldn't treat his patients. Unfortunately, one didn't wait for the verdict--she could no longer endure her pain, so she committed suicide.
In August, 2006, in "The Accidental Drug Trafficker," Jacob Sullum reported that a Federal Appeals Court had overturned Dr. Hurwitz's conviction. While Hurwitz's case was wending its way through the courts, two of his patients committed suicide. Despite Hurwitz's victory, Jacob Sullum argues in "Good Cop. Bad Doctor," that his travails with the drug warriors effectlively spread fear throughout the medical community such that most doctors are afraid to adequately treat pain.
Now the International Analgesia Research Society has published an op/ed in its professional journal arguing:
Pain management as a human right is a moral imperative that will help medicine return to its humanist roots. Acknowledging this right is a crucial step in reversing the public health crisis of under-treated pain... Ironically, despite widespread support for improved pain control, United States physicians are experiencing pressures that may drive them to under-treat pain.
The excellent reason articles cited above outline some of the "pressures." I am generally against the notion of positive human rights--that is "rights" that require that people must involuntarily provide some material benefit to other people. However, the article that accompanies the op/ed in the journal Anesthesia and Analgesia makes a lot of sense when it notes:
Reasons for deficiencies in pain management include cultural, societal, religious, and political attitudes, including acceptance of torture. The biomedical model of disease, focused on pathophysiology rather than quality of life, reinforces entrenched attitudes that marginalize pain management as a priority. Strategies currently applied for improvement include framing pain management as an ethical issue; promoting pain management as a legal right, providing constitutional guarantees and statutory regulations that span negligence law, criminal law, and elder abuse; defining pain management as a fundamental human right, categorizing failure to provide pain management as professional misconduct, and issuing guidelines and standards of practice by professional bodies.
A good first step would be for states and Congress to pass legislation that allows professional medical societies to set standards and guidelines for using pain meds rather than let the DEA make those decisions. Whether or not adequate pain management is a human right, it is certainly right for doctors to relieve the suffering of their patients.
Addendum: Just to be clear: Of course, you should be allowed to put whatever substance you want in your body and to enjoy and/or suffer the consequences thereof.
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I am generally against the notion of positive human
rights--that is "rights" that require that people must
involuntarily provide some material benefit to other
people.
I am entirely against such a notion. I don't think we need
to mandate pain sufferers be provided with meds against the wishes
of the providers. It will be enough to allow providers to do
so.
Strategies currently applied for improvement include framing
pain management as an ethical issue; promoting pain management as a
legal right, providing constitutional guarantees and statutory
regulations that span negligence law, criminal law, and elder
abuse; defining pain management as a fundamental human right,
categorizing failure to provide pain management as professional
misconduct, and issuing guidelines and standards of practice by
professional bodies.
There is nothing in this statement that need be taken as
recommending a positive right.
On the rights issue, it simply requests that there be no
interference in the right of patients to seek or doctors to provide
pain management. That is plain government protection of a
preexisting individual right and entirely consistent with
nonpositive human rights.
As for the rest, it lays out a recommendation for professional
standards. Again, it is not a declaration of positively provided
positive rights.
Yet, you will still find people who support these witch hunts. Why? Look where their paycheck originates. As evil as it is, we, the taxpayers, pay drug warriors to hunt down people crippled by pain and persecute those who would dare to help them. This is about the drug warriors protecting their fiefdom. They want an increased budget for the coming fiscal year, so they've got to charge somebody. Any politician that supports this kind of malicious prosecution is stupid, evil, cowardly, or some combination thereof. It's for the children, my ass!
I am generally against the notion of positive human
rights--that is "rights" that require that people must
involuntarily provide some material benefit to other
people.
I agree. I would phrase it as "Humans have the right to rid
themselves of pain through any available means, without
encumbrance." This doesn't require doctors to provide them with
pain drugs (if they don't, that particular means isn't available),
but it does forbid anyone from forbidding pain drugs to them (that
would be an encumbrance).
This goes back to our bizare idea that drug addiction is a disease and the worst thing that can happen to someone. We have been so brainwashed by the evils of drug addiction that people actually think that someone who is dying anyway is better off dying in pain rather than be pain free but an "addict". It is just fucking crazy.
Prescribing as much pain medication as necessary only sends the
wrong message to our children who will be that much more likely to
get hooked on drugs when they, too, someday become racked with
excruciating pain. Why, oh why does Reason hate the
American children?
Besides, if these so-called patients aren't willing to cruise the
'hood and score some H like the rest of us, it only goes to show
they must not really be in all that much pain!
I am generally against the notion of positive human
rights--that is "rights" that require that people must
involuntarily provide some material benefit to other
people.
But what human right does that not encompass? Doesn't your freedom
to own property, for example, require non-owners to provide money
for police, courts, etc. to protect that right?
Freedom of pain control is a negative right. These people are perfectly willing to pay for their (dirt cheap, generic the lot of em) opioids, they are being denied the option to do so
Doesn't your freedom to own property, for example, require
non-owners to provide money for police, courts, etc. to protect
that right?
No.
Besides, if these so-called patients aren't willing to
cruise the 'hood and score some H like the rest of us, it only goes
to show they must not really be in all that much pain!
D.A. Ridgely: I realize it's sarcasm, still -
I'll wager many do, thus contributing to our enemies in Afghanistan
(according to the prohibition crowd). Doesn't make much sense, does
it?
MikeP,
Dan T. is correct. Without a legal system in place to enforce the
owner's right to prevent others from using his or her property,
private property is a meaningless concept.
MikeP: are you sure? How does all that stuff get paid for,
then?
I suppose what you're getting at is that a property owner should be
able to protect his own property without third party
interference.
But then property ownership is no longer a "right" unless you can
muster more force than the guy who is trying to take your stuff
(or, as he might say, exercise his right to take your stuff).
People are fond of saying that rights are "natural" or "god-given",
but there's not. They're a human invention, and when we
collectively decide that individuals have certain rights we are
deciding that we owe them something, even if it's just a
modification in our own behavior.
When my oldest son, who was 10 at the time, had his tonsils out,
he resisted taking his pain meds.
"I don't want to end up like Elvis," he explained.
I blame it on D.A.R.E.
Without a legal system in place to enforce the owner's right
to prevent others from using his or her property, private property
is a meaningless concept.
It may be a right that cannot be defended, but the inability to
exercise a right does not remove the fact that it is a right.
People in Cuba have the right to own property and to be free to do
any job they wish for any price they wish and to speak freely
against the government. Don't they?
And once again, pharmacogenetics may provide an answer...
someday... in my wildest dreams, viewed through rosy lenses.
Variations in at least two genes can tell you an awful lot about
how a patient will metabolize opiates and how well they will
respond to them, even their likelihood to become resistant and
required greater and greater doses.
Imagine if Dr. Hurwitz could have been armed with, "because patient
X has the ABC genotype, she requires a shit-ton of oxycontin to
achieve effective pain relief. She is DEPENDENT, which is not
ADDICTED, so back the fuck off."
Or, you know, something to that effect.
Yes, it's in the pipeline and no, it won't be helping anyone get
out of jail anytime soon.
People are fond of saying that rights are "natural" or
"god-given", but there's not. They're a human invention, and when
we collectively decide that individuals have certain rights we are
deciding that we owe them something, even if it's just a
modification in our own behavior.
I would contend that a right without a normative basis independent
of the existence of government is an utterly useless concept.
Steve S.,
You better keep him away from peanut butter and banana sandwiches
also.
J sub D:
I'd probably take that wager, though maybe not if you included
friends and family members scoring for the patients in question.
One problem, of course, is that the corner dealer doesn't honor
things like insurance co-payments or Medicare. Another is that
patients at the 9-10 pain scale level without serious meds tend not
to be employed or to be all that good at boosting stereos for the
price of the fix.
General note: Okay, natural rights theorists and those who want to
talk about moral as opposed to legal rights over there, those who
are talking about property as a function of a legal system over on
the other side. Talk amongst yourselves. Thanks.
I would contend that a right without a normative basis
independent of the existence of government is an utterly useless
concept.
Without some sort of governing body, there simply are no rights
aside from your right to do whatever others can't prevent you from
doing. I suppose if you want to consider "rights" to be a mystical
or religious concept, that's fine, but that doesn't go far in the
real world without the collective agreement that they will be
enforced.
I'd probably take that wager, though maybe not if you
included friends and family members scoring for the patients in
question. One problem, of course, is that the corner dealer doesn't
honor things like insurance co-payments or Medicare. Another is
that patients at the 9-10 pain scale level without serious meds
tend not to be employed or to be all that good at boosting stereos
for the price of the fix.
Good points about the difficulties facing those poor souls when it
comes to self-medication. Quality control is another life
threatening thing to worry about.
BTW, some dealers deliver for a nominal surchage, or so I've
heard.
If denying pain meds results in a little suffering and a few suicides, we may still be better off as a society if on balance less pain patients end up as addicts. Remember, sometimes a small minority of people must suffer for the greater good of society. It is societies right to determine who must suffer. Everyone always gets what they deserve, that is the way it is. Suffering is good for the soul, it is what God wants. It is immoral to relieve pain.
Dan T.,
How 'bout those Cubans?
At least they probably get to exercise their right to pain
medication...
You forgot to mention that Cubans get their pain medication AT GUNPOINT!
John, my beloved paternal grandmother died in 1992 after about
two years' illness. At one point the doctor at her nursing home
refused to renew her Darvon prescription because, "she appears to
be developing an addiction." My parents both lost it, culminating
in my 6'5" father explaining, in his loudest voice, that "it
doesn't fucking bloody goddamn matter if an 87 year old woman gets
addicted. It does matter that she not be in pain." (That was the
second time I had ever heard him cuss. I was 28.) That moment marks
my switch from ardent DARE-class drug warrior to proponent of
legalization. I'm not such a nice person that I won't wish similar
experiences on every other drug warrior out there.
Steve S, at least they gave your son something. My older son broke
his upper arm earlier this year, and the ER gave me a sample
package of Vicodin with instructions to cut 'em in half for him.
They said there wasn't anything else they could prescribe.
"Without some sort of governing body, there simply are no rights
aside from your right to do whatever others can't prevent you from
doing. I suppose if you want to consider "rights" to be a mystical
or religious concept, that's fine, but that doesn't go far in the
real world without the collective agreement that they will be
enforced"
Well, no. Rights are a moral concept, as far as I am concerned.
They specifically refer to something I am morally entitled to use
violence to secure if I am denied it.
The state can either acknowledge these rights, and join me in my
violence or threat of violence against those who would deny me my
rights. Or it can refuse to acknowledge them, in which case the
state itself becomes an appropriate and moral target of my
violence.
Am I morally entitled to kill someone who would seek to imprison or
harm me for speaking? Yes. Can I delegate this right to a state?
Yes.
Am I morally entitled to kill someone if they won't give me free
pain medication? No. Can the state do this for me? Since I don't
have this right to delegate to the state in the first place,
no.
Dan T, what you say is true, but the same goes for the right to
live or the right to be free from violence. Both of those also
require a police force to maintain.
However, the only infrastructure required to have right to live
free of violence is a law-enforcement/criminal justice system. This
is true of any non-economic right. You don't need anyone to provide
them, just someone to protect against a third party taking them
away.
The difference with economic rights such as the right to health
care or the right to food or the right to opioid pain medication,
which we more normally term 'entitlements' is that you have to have
someone to provide them, not just someone to protect against their
infringement by others.
Specifically, the police can be given a mandate to protect your
property, but they don't have to give you the property in the first
place, just keep somebody else from stealing it or using it without
your permission. An entitlement to opiates requires not only those
police to keep your neighbor from stealing your opiates, but some
sort of provisioning system to produce and distribute those opiates
in the first place.
The government doesn't have to do anything for me to have the right
to speak. I can speak all I want because I produce my own speech.
The government's only role is to prevent people gagging me against
my will (including itself). You can't 'run out of speech' and thus
deny somebody their right to speak (disregarding 'channels' of
speech, such as TV/Radio etc - I'm talking specifically of actual
vocal speech).
Consider a hypothetical - two people, called pronumber and High
Libertate, both have identical severe chronic pain derived from
identical leg injuries. I have one dose of morphine, in a single
pill. Because of a severe storm and flooding, I've got the only
dose of morphine that can get to them. If they both have a 'right'
to morphine, and I choose to give the morphine to pronumber, I'm
infringing on High Libertate's right to healthcare by providing it
to pronumber. It's a catch 22. No government amount of law
enforcement can change the fact that there isn't enough morphine to
go around.
That's the difference between a 'right' and an 'entitlement'.
Indeed, ultimately you could say that you have a 'right' to keep
your property, but you are only 'entitled' to government protection
thereof. And if there happens to be more crime than the criminal
justice system can handle, tough titties. People get only as much
protection as is available, and no more.
So speech is a right, but law enforcement and medical care can only
ever be entitlements.
Am I morally entitled to kill someone who would seek to
imprison or harm me for speaking? Yes. Can I delegate this right to
a state? Yes.
Am I morally entitled to kill someone if they won't give me free
pain medication? No. Can the state do this for me? Since I don't
have this right to delegate to the state in the first place,
no.
Seems kind of subjective, though, doesn't it? Why one and not the
other?
And let's face it, if you were in serious pain and somebody had
some medication but refused to give (or sell) it to you, you might
very well change your mind about your right to take it with
force.
Note, the difference between 'rights' and 'entitlements' is
pretty basic economic/political theory. There's nothing inherently
libertarian about making this distinction.
However, in public parlance, people use the term 'right'
interchangeably with 'entitlement'. When someone says that you have
a 'right' to Social Security, they could more accurately say that
you are 'entitled' to social security. At the same time, they might
say that you are 'entitled' to free speech, but really you only
have the 'right' to excercise free speech. The government is under
no obligation to provide you the medium for speech, it just doesn't
have the power to punish you for what you say. (fire in a theatre
exceptions apply).
lunchstealer - good post, your point is well taken regarding
speech.
As for property, however, I'm still not sure your logic works.
After all, property is not something you produce yourself - it
ultimately comes from the natural world. And if you want to declare
a piece of property "yours", then you are also saying that the
property is not mine. In other words, your right to that property
means denying me the right to it.
So for you to have the right to a piece of property, it
necessitates the rest of us not only agreeing to let you have it,
but also agreeing to use force to make sure others also
comply.
I think therefore that property rights have more in common with
such entitlements as health care or food than true rights such as
speech or religion.
lunchstealer's logic works perfectly for property.
In particular...
So for you to have the right to a piece of property, it
necessitates the rest of us not only agreeing to let you have it,
but also agreeing to use force to make sure others also
comply.
...lunchstealer introduced the vocabulary that is in play in your
example. The government grants you a title to the
property. That piece of paper says the government will defend your
right to that property as described on the title.
The right and the title are different. The state obligates itself
only to defend the title. No one is financially obligated to defend
the right: They are only morally obligated not to violate it.
Seems kind of subjective, though, doesn't it? Why one and
not the other?
It's only subjective if all morality is subjective.
If that's the case, we do end up with the sort of Hobbesian outcome
you described above. But that also wouldn't actually matter,
because if all morality is subjective there's nothing wrong with
that. I don't even need collective agreement in that circumstance
between the bias in favor of collective agreement is itself a moral
judgment which would also become a mere subjectivity.
Dan T.
First, thanks for the many great posts today. I hope the new Dan
stays here.
Regarding positive and negative rights.
Let's set aside the question of how I got my house for awhile. But
a negative right means that I own my house and no one can take if
from me (enforcement of that right is a separate topic). A positive
right would be that if I was homeless I could expect someone to
provide a house for me regardless of whether they want to or not
(again enforcement of that right is a separate topic).
Regarding enforcement, as a free individual, it is my
responsibility to enforce my own rights. If I don't think I can do
that by myself, I can join other like minded individuals and we can
band together to protect each other. Or I can buy protection
services either directly through another private party or
indirectly through a government service.
Regarding acquisition of property, the obvious solution is to buy
from some other individual that wants to sell it. Or, I can go off
exploring and try to find some property that no other individual is
clamining ownership of and then claim it as my own -- not that
there is any realistic expectation in the 21st century that I could
find unclaimed property.
Acqusition of property and enforcement of my claims to that
property are practical issues that don't really change my natural
right to actually own something.
Regarding enforcement, as a free individual, it is my
responsibility to enforce my own rights.
So here's where we differ, I think. In my way of thinking, if you
have to enforce your own rights, they're not really rights anymore.
Or at the very least, your rights are defined as "whatever you can
take" or "whatever somebody cannot force you to stop doing".
In my opinion, rights are established by your society. We
collectively agree that individuals have the right to X,Y, and Z
and we also collectively agree that individuals have the duty to
respect and help enforce those rights.
You might say that your rights are what society owes you, and your
duties are what you owe society. I guess we're back to the social
contract theory, which I know many here don't really believe
in.
That having been said, I do recognize the difference that Mr.
Bailey refered to as to "postive" rights vs. natural ones. But I'll
continue to maintain that a society could very well agree that a
certainly level of health care was indeed a right and that the
members of that society did in fact have a duty to help provide it.
Obviously, the libertarian is going to disagree with this.
So here's where we differ, I think. In my way of thinking,
if you have to enforce your own rights, they're not really rights
anymore. Or at the very least, your rights are defined as "whatever
you can take" or "whatever somebody cannot force you to stop
doing".
You have rights regardless of whether or not you can enforce them.
A cynic might say "what good are they if you can't enforce them",
but you have them none the less.
In my opinion, rights are established by your society. We
collectively agree that individuals have the right to X,Y, and Z
and we also collectively agree that individuals have the duty to
respect and help enforce those rights.
This is the point. If your rights are whatever society gives you,
then those rights can be taken from you when society changes its
collective mind. That is a really, really fundamental issue. The
idea of natural rights is that you have them and no one else can
legitimately take them from you.
If collective society grants me my rights to own property, then
collective society can also strip me of those rights. Therefore, if
some super-majority of the American population says that home
ownership is immoral, then they can come take my house and I have
no recourse.
If property rights are a natural right, then I have both the right
and the responsiblity to rebel if collective society attempts to
strip me of those rights.
Again, this is a fundamental philosophical issue.
This is the point. If your rights are whatever society gives
you, then those rights can be taken from you when society changes
its collective mind. That is a really, really fundamental issue.
The idea of natural rights is that you have them and no one else
can legitimately take them from you.
True, and I think that society can in fact strip you of those
rights...and yes, you can rebel against that.
The more I think about it, it really is just a matter of power,
isn't it? Perhaps might does make right.
But I'll continue to maintain that a society could very well
agree that a certainly level of health care was indeed a right and
that the members of that society did in fact have a duty to help
provide it.
Society could collectively decide that we are each "entitled" to
some minimum level of health care and that we are each morally
obligated to support that and that the most efficient means of
doing so would be through government provided services.
It may seem to be a mere issue of semantics, but there is a real
difference between rights and entitlements. The creator gives us
rights and society grants us entitlements. As you have stated
repeatedly in the past, I can opt out of society if I don't like
the outcome ;-)
Again, you have to separate the right to have something -
property or life - from the entitlement to someone else's labor to
defend it. Your right to live and your right to property are
meaningful from a moral standpoint even in the absence of
police.
To use another hypothetical pairing, suppose that Dan W. and Dave
T. are alone on a desert island. Imagine that Dan W. is going on
and on about how he needs to educate Dave T. about how horrible it
is to have a gun that might go off if gently bumped. Dave T. is
tired of Dan W.'s chatter, and they are the only people around. No
one will be able to punish Dave T. if he should chose to use that
gun that could go off if gently bumped to kill Dan W. He could get
away scott free.
In this situation, does Dan W. have the right to remain alive, even
though there is no one else there to defend it? Libertarians would
argue that he does. That Dave T. would be violating Dan W.'s RIGHT
to live free of violence. However, due to the fact that there's no
one else there, Dan W. is not ENTITLED to protection from a
criminal justice system, because no such criminal justice system
exists to protect him. He's on his own, but Dave T. would still be
violating his rights to freedom from violence should he shoot Dan
W.
Dan T.,
To claim the existence of a right (positive or negative) is to make
a statement about what should be and beliefs about them stem from a
person's moral sentiments. Rejecting the idea of
objectively-descernable "natural" rights isn't the same as
rejecting the existence of rights anymore than that saying beauty
is subjective is the same as saying there is no such thing as
beauty. To reject any right that isn't enforceable is to say that
the "should be" is the same as the "is", which is a rejection not
only of natural rights theory, but of the very idea of
morality.
MattXIV, lunchstealer, carrick, Dan T. et al - I couldn't follow all of your brilliant arguments so just tell me the result. How many angels can dance on the head of a pin? ;-)
The concept of a positive right is interesting and good PR for
the issue. However, I agree that our liberty interest as
articulated by the court in Lawrence vs. Texas would cover this
problem were we able to get this issue to court. The issue isn't
that we lack legal arguments, the issue is that we lack funding.
Drug policy has been entirely focused on marijuana as it's key to
unlock the drug war dungeon that it underestimated the importance
of this issue.
We have criminalized opioids because we fear and abhor them and we
fear and abhor them because we criminalize them. We absolutely do
not want states setting guidelines for prescribing; efforts at this
have never resulted in better pain treatment-quite the opposite.
They have resulted in more cudgels for prosecutors to hit doctors
with. Law enforcement is all over medicine as it concerns the
treatment of pain and has turned our doctors into our
torturers.
So please don't make medical societies our parents either. We, the
people, would like our civil liberties please, and would like the
support of liberty loving people everywhere as we work to get them
back.
Siobhan Reynolds
Pain Relief Network
Interesting in this discussion of "rights" is the absence of
anyone discussing where doctors get the positive right to dictate
people's choices to them via the prescription pad. It's not just
about getting law enforcement off of doctor's backs, it's about
getting doctors off our backs, too. Having to pay to be some
malignant narcissist's punching bag isn't exactly my idea of
"liberty," particularly as I can obtain abuse off the streets for
free.
By requiring patients to get a permission slip before they can
purchase what they need to relieve their torture, doctors can not
only charge monopoly rents but can exploit patients in a hundred
other ways as well. They are hardly the innocent victims of a
vendetta, but active players in the hell people with chronic pain
have to endure in this system.This system was, after all, set up to
benefit doctors by robbing people of the ability to treat
themselves, and it is only now that the monster they created has
turned around to bite a few of them in the ass that they are
scurrying like frightened rabbits to distance themselves from
it.
Then there are the drug companies, who get monopoly rents for
opiate medications that drive the costs through the roof, whereas
in any truly "free" market a month's worth of the most powerful
opiates would cost less than a bottle of aspirin.
Doctors should be free to recommend or not recommend any particular
treatment, and we should be free to tell them where to stick it
when we disagree with their recommendations.
It's complicated...but I think that adults should have the right
to put any substance they want into their bodies. Is it best to
have your pain treated under a doctor's care? Of course! But,
sometimes it's not feasible! With both the decriminalization of
drugs, and the DEA off the backs of doctors...wouldn't more people
in need of pain relief be taking the safest, sanest, route?
Doctors, like anyone else, shouldn't be forced into anything.
Before 1914, all drugs available now, with the exception of some
synthetics, were available without prescription. And the country
wasn't falling apart. In fact,the official 'War on Drugs' began in
1971-that's a lot of years after drugs began to be 'controlled'. It
wasn't the drugs-it was the LAWS-that made the drug trade, outside
of tightly controlled, arbitrary, doctor's prescriptions, a
dangerous thing.
So, what do we get? More laws! No, I'm not saying that any
12-year-old should be able to buy whatever drug he wants. But it's
the parent's job, largely, to lead-by example, family rules-just
like with any other potentially dangerous activity. And, who would
be more likely to sell drugs to kids? A dealer who is already
breaking the law, or a pharmacist who could lose his license-or
even just his reputation? We've let the government play 'nanny' to
children of all ages for far too long!
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