Opiophobia and Opioignorance Is Interfering with "Human Right" to Pain Control

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.

Comments

[Nancy Reegan]

Just say no to pain.

[Warren]

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.

[MikeP]

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.

[J sub D]

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!

[jb]

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).

[John]

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.

[D.A. Ridgely]

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!

[Dan T.]

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?

[Jack]

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

[MikeP]

Doesn't your freedom to own property, for example, require non-owners to provide money for police, courts, etc. to protect that right?

No.

[J sub D]

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?

[crimethink]

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.

[Dan T.]

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.

[Steve S.]

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.

[MikeP]

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?

[Bronwyn]

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.

[MikeP]

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.

[Sal Paradise]

Steve S.,

You better keep him away from peanut butter and banana sandwiches also.

[D.A. Ridgely]

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.

[Dan T.]

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.

[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.

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.

[Fred]

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.

[MikeP]

Dan T.,

How 'bout those Cubans?

At least they probably get to exercise their right to pain medication...

[Sal Paradise]

You forgot to mention that Cubans get their pain medication AT GUNPOINT!

[Karen]

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.

[Fluffy]

"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.

[lunchstealer]

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.

[Dan T.]

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.

[lunchstealer]

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).

[Dan T.]

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.

[MikeP]

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.

[Fluffy]

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.

[Fluffy]

That last sentence should read, "...because the bias...etc."

[carrick]

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.

[Dan T.]

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.

[Dan T.]

edit: "certain level"

[carrick]

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.

[Dan T.]

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.

[carrick]

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 😉

[lunchstealer]

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.

[MattXIV]

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.

[J sub D]

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? 😉

[davek]

J sub D;

All of them

[Siobhan Reynolds]

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

[Sean C]

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.

[Legend]

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!