Methadone Treatment in Narcotic Addiction. Chapter 5

Abstract

Initially, the appropriate course of action with respect to many important issues was determined on a case-by-case basis. It was impossible to predict the complexity of situations which had no precedent, and attempts to rely on preconceived Program guidelines would have necessitated fitting artificially each new set of circumstances into a specific category. On the other hand, the need to make impromptu decisions under pressure, in response to existing crises which demanded immediate resolution, clearly had its drawbacks.

In the chapters which follow, the evolution of the NYC MMTP policies and procedures will be discussed with respect to

voluntarism
confidentiality of patient records
dosage levels and duration of treatment
ancillary services

Introduction

In discussing the encouraging results of the first 750 patients treated with methadone maintenance, Dole and his co-workers stressed that "A notable feature of the treatment program has been the absence of compulsion" (42). From the outset, admission criteria stipulated that only voluntary applicants be accepted, and explicitly excluded those for whom methadone treatment had been made a condition of probation or parole (43).

Although the moral, ethical, and pragmatic issues associated with involuntary treatment of addiction are equally relevant to all treatment modalities, the coercive application of methadone maintenance has stimulated the most controversy. Proponents of compulsory treatment were attracted by the relative effectiveness and economy of the early methadone programs; others viewed with alarm the spectre of hundreds of thousands of addicts, mostly black and Puerto Rican, and poor, being forced to remain physically dependent upon narcotic drugs dispensed by government-controlled programs. These fears were not limited to those who rejected the fundamental concept of chemotherapy; one of the most emphatic critics of involuntary treatment with methadone was Dole: "I would object to the imposition of methadone maintenance treatment just as strongly as I have objected in the past to its unavailability when the needs of motivated volunteers could not be met" (44).

As long as thousands of applicants remained on waiting lists for existing treatment programs, involuntary treatment was largely an academic issue. By 1972, however, the expansion of programs in New York City had closed the gap between availability of services and spontaneous demand, and interest in the use of coercion increased. This chapter discusses the rationale for the NYC MMTP's consistent opposition to involuntary treatment.

Semantic Considerations

As with many other controversies in the field of addiction, polarization regarding voluntarism has been compounded by semantic ambiguity. Therefore, a careful consideration of precisely what is meant by "voluntary treatment" is a prerequisite to any meaningful discussion of the principles involved in forcing people to accept therapy against their will.

An act is defined as "voluntary" if it is the result of "...the exercise of one's free choice or will ... whether or not external influences are at work" (45). The difficulty, of course, is in determining what constitutes "free choice." Providing several options does not, per se, necessarily set the stage for voluntary decision-making. To the contrary, coercion requires that the subject choose between two or more courses of action, one of which is somewhat less abhorrent than the others. In the case of compulsory treatment of addiction, the addict always retains the alternative of imprisonment, the sanction associated with not entering a treatment program, and one might theoretically maintain that there are consequently only voluntary patients and others who are punished for not volunteering - but no involuntary patients. An operational definition of voluntarism will serve to avoid such abstract arguments.

Voluntary treatment describes a therapeutic relationship in which the primary responsibility of the clinician is to the patient. In an involuntary treatment setting, the clinician's primary responsibility is to some third party. An obligation to report patient attendance, progress, or termination to an outside individual or agency defines the relationship as involuntary, even if patients are forced to sign, in advance, authorizations for such reports (xxii).

The physical environment and the nature of the treatment which is forced on addicts are totally irrelevant to the debate concerning involuntary treatment. In practice, decisions regarding the specific treatment program the addict must enter are based primarily on the subjective bias of the physician, the judge, the district attorney, and others involved in the commitment process. Whether a facility is behind bars, in a locked residential setting, or in a neighborhood store-front serving ambulatory patients, whether the form of treatment provided is outpatient methadone maintenance, a drug-free encounter group, or a religious community, enforced enrollment raises precisely the same issues. It is impossible, therefore, to advocate selectively compulsory treatment with one modality without simultaneously endorsing the imposition of any and all other treatment approaches.

The Rationale for Involuntary Treatment

When laws designed to protect society are violated, the Constitution requires that punishment be imposed equally, and only after conclusive determination of guilt. There is no provision for deviating from the usual standards of due process because the defendant is a "drug abuser"; or because the punishment is euphemistically labeled "treatment"; or because the setting in which the punishment is applied is a hospital or ambulatory facility instead of a traditional penal institution. Legal decisions upholding the constitutionality of involuntary treatment of addicts, therefore, have been based on the premise that the addict is "sick," and not a criminal; by this logic, the due process safeguards do not apply, since the objective is to serve the medical needs of the individual, rather than the self-interest of the community at large (xxiii).

The addict, understandably, is not impressed with the rationale that he is being deprived of his liberty for his own good. He generally perceives "treatment" as simply another form of punishment. Proponents of compulsory treatment acknowledge this, and cite it as an argument for, rather than against, depriving the addict of free choice.

C. You say that we are using a euphemism when we call that secured setting a rehabilitation center, while you opt for the label of a jail, prison or correctional facility. Now there is quite a difference between the structured environment of a civil facility and that of a jail or state prison.

N. ...You said earlier that the person who has the most at stake in the decision is the addict who is about to be committed. He is the most concerned about the differences, and yet the addict himself puts these aside and evaluates the options by one criterion: where will I spend the least time? If he could spend two years in one of those very nice rehabilitation treatment facilities, and only one year in one of those disgusting jails, my impression and experience is that 95% will take the one year. So whatever the differences, they are not that impressive to the addict (xxiv).

. C. They might not be impressive to the addict, but he has certain ends in mind which, as enunciated by the legislature, happen to be contrary to the will of society.

N. Freedom is the end in his mind.

C. No, the end in his mind is to be irresponsible (49).

The premise underlying the imposition of "treatment," and the denial of due process, is that drug use (but, significantly, only illicit drug use) is a sickness. Since no universally applicable physical ailment can be attributed to drug abusers, the condition which is purportedly treated is defined as mental (xxv). The conclusions drawn from labeling addicts mentally ill have been summarized as follows: "In recent years, professionals, nonprofessionals, and groups best designated unprofessionals, have taken to viewing drug abuse as a symptom of psychopathology - necessitating verbal and/or chemotherapeutic intervention.... Once we view the drug abuser as being sick, we automatically fall into the trap of assuming and recommending 'treatment' for him" (51). Physicians who operate on the premise that all addicts are psychologically ill are at no loss for specific diagnoses to apply to individual patients. One study of 91 women addicts, for instance, concluded that every one suffered from either "chronic brain syndrome," "psychotic disorder," "psychoneurotic disorder," "personality pattern disorder," "personality trait disorder," or "sociopathic personality disorder" (52). Labels such as these presumably define the "diseases" which involuntary treatment aims to cure.

Success: Potentially More Ominous than Failure

The only condition which the courts have imposed on compulsory treatment is that it be "effective." As stated in a recent New York judicial decision: "The extended period of deprivation of liberty which the [New York State Narcotic Control Act] statute mandates can only be justified as necessary to fulfill the purpose of the program.... If compulsory commitment turns out in fact to be a veneer for an extended jail term and is not a fully-developed, comprehensive and effective scheme, it will have lost its claim to be a project devoted solely to curative ends ... and the constitutional guarantees applicable to criminal proceedings will apply in full measure" (53). Unfortunately, however, evaluation of treatment effectiveness is one of the most controversial and ill-defined aspects of addiction treatment; to the extent that evaluation is carried out at all, it is generally done by those who are responsible for program operations. This is a weak foundation indeed upon which to permit and encourage the "extended period of deprivation of liberty" of tens or hundreds of thousands of individuals.

To dwell on the evidence suggesting that involuntary addiction treatment fails to meet the legally required test of effectiveness would mask the more basic criticism - that "success" is a potentially far worse consequence for the unwilling subject. By definition, the involuntary patient enters the enforced therapeutic relationship rejecting the clinician's objectives. "Cure" and "rehabilitation," therefore, represent goals which the addict has not chosen, and can be achieved only by changing values and attitudes as well as behavior. Acting for society, the all-powerful clinical director is the sole judge of what is healthy and appropriate: He defines the disease and makes the diagnosis; he decides on the therapeutic goals and implements the procedures he hopes will achieve these goals, even though they are openly rejected by the patient; and it is he who measures the effectiveness of treatment (xxvi). "Failure" is attributed to the patient rather than to the program, and it is the patient who pays the price for failing to meet the clinician's expectations, either by continued imposition of unwanted therapy, or by incarceration.

Although drug abuse is the behavior which, by being labeled an illness, forms the medicolegal rationale for permitting treatment to be forced on the addict, the scope of the clinician's objectives will almost invariably be broader than simply eliminating the illicit use of drugs. All other forms of behavior which the clinician believes to be pathological, on the basis of his own and society's prejudices, will also be dealt with. Thus, the addict who is a homosexual may well find his sexual preference a focus of the therapeutic effort. The same is true of the involuntarily committed addict who belongs to a bizarre religious sect; or who is a member of a radical political group; or who engages in any other activity which is classified as deviant and therefore viewed as an additional component of the "symptom complex." As a prerequisite to discharge and freedom, the involuntary patient has no choice but to acquiesce to these "rehabilitative" goals.

The Medical Ethics of Treating the Involuntary Addict

Legal experts may argue over the constitutionality of involuntary treatment of addicts. Politicians and the lay public may weigh the effectiveness of such treatment. Economists may enter into heated debates over its absolute and relative cost-benefit. But the clinician who accepts patients rendered powerless to refuse his services assumes the role of persecutor. Rationalizations can not obfuscate the issue: In dealing with an unwilling subject, a doctor is by definition striving to bring about a change in behavior which the patient does not wish; he accepts payment from society in order to work against the perceived self-interest of the patient, and in so doing violates the most basic canons of professional ethics.

There are legal restraints against an internist who, in his professional wisdom, may be tempted to imprison a diabetic who refuses to adhere to a prescribed diet. A surgeon, recognizing the inevitable consequences of ignoring a malignancy, is nevertheless restrained from operating on a cancer patient without informed consent. Similar ethical and legal sanctions, however, do not apply to coercive psychotherapy; this is particularly ironic in view of the wide gap which commonly separates the psychiatrist and the patient. "Evidence is accumulating that psychiatric patients and the professionals who serve them are worlds apart. This is especially true for patients of the lower social classes who constitute the major caseload of many hospital clinics and community mental health centers [and drug addiction programs]. These patients frequently have goals and expectations of treatment that differ from those of the therapists who treat them.... The dropout rates of up to 60% after the first interview have been attributed to these discrepancies" (55). Nowhere are these discrepancies more apparent than in the field of addiction treatment, as the following assessment of a methadone program in Pennsylvania illustrates: "[The patient] wants anything that will help him in his habit - either to overcome it or to help him live with it - but the therapist wants to lay hands on his psyche.... [Patients] considered themselves to be mentally and emotionally sound.... Nevertheless, 95% of the staff at the Program believed themselves to be basically involved in the treatment and rehabilitation of mentally disturbed persons.... As the patient sees it, he is being treated for an ailment that he does not have by a staff member employing techniques which he finds irrelevant or frightening or both" (56) (xxvii).

Involuntary Treatment as an Alternative
to Criminal Justice

"Diversion" of addicts from the criminal justice system to a treatment program has become a common practice throughout the country in recent years (xxviii). This approach, which purports to deal with addict-offenders as "patients" rather than as criminals, has been heralded as an enlightened, humane alternative to an expensive and ineffective prison stay. While the rationale is that the addict's alleged crime was due to his medical affliction, the period of compulsory treatment is determined less on clinical grounds than by the nature of the criminal offense which brought the addict before the court. Generally, addicts convicted of misdemeanors are committed to treatment for shorter periods of time than those convicted of felonies, "...a differential which smacks of penal rather than therapeutic aims" (59).

There are several mechanisms by which the criminal justice system forces addicts into treatment. In some cases, the court may impose a sentence on the convicted addict specifically mandating a term in a treatment facility in lieu of prison; such terms can extend either for an indefinite period of time, depending upon the "progress" perceived by the clinician, or for a minimum duration which frequently exceeds the longest sentence possible for the criminal act itself (60).

The other commonly used diversion technique offers a "choice" to the addict: either stay in prison, or "voluntarily" enter and remain in a specified treatment program. This practice is particularly invidious when applied (as is increasingly the case) to the pretrial addict-prisoner whose alleged offense is compounded by his inability to obtain bail money; frequently, the prosecutor's agreement to release a defendant is reserved for those persons whose charges are relatively minor (i.e., misdemeanors and low-degree, drug-related felonies). The composite, therefore, amounts to primarily poor people, arrested on charges of which they are presumably innocent under the law, and which even upon conviction would carry comparatively short sentences, being "offered the opportunity" to enter a treatment program they may or may not want or need, and which will in any event provide society with the means of observing and controlling their activities for an extended period of time. Ironically, it is in precisely these cases that advocates embrace diversion as an especially humane expedient.

Superficially, diversion seems to offer advantages to all the parties involved. Those who work in the criminal justice system are plagued by the knowledge that prisons do not as a rule "correct" anybody, and yet simply releasing criminals without punishment is not feasible. With addict- defendants, there is a third alternative: to force them, under threat of imprisonment, to enter a treatment facility with the assurance that the clinical staff will promptly report absconders. This option addresses the problem of ineffective and overcrowded jails; the judge and prosecutor are reasonably secure in the belief that the treatment facility staff will closely monitor the addict's behavior; the addict has been permitted to escape, at least temporarily, prison confinement for a more subtle punishment; and the treatment center frequently welcomes the added "business" and often believes that it will be more successful in dealing with a captive population. The means of achieving these alleged benefits, however, lead to other disturbing problems:

The judge and the prosecutor engage in inequitable justice by providing different punishment to different people charged with the identical offense, merely because one happens to be an addict and is deemed "treatable." In addition, they fail in their role as protectors of society by imposing as the primary condition of continued release from custody attendance at a treatment facility, based on the naive assumption that such enrollment, in and of itself, is beneficial to the individual and to the community. Finally, they are often left with the task of deciding which type of treatment program should be imposed, a decision for which they are rarely qualified.

The addict-defendant is obliged to accept treatment which he generally does not want for an illness which he more often than not believes to be nonexistent. Further, the addict who has not yet been tried and convicted forfeits the opportunity to prove his innocence by accepting treatment in lieu of prosecution.

The clinic staff, in agreeing to share the responsibilities of the criminal justice system, is faced with the conflict inherent in trying to meet a commitment to both the patient and the community. Clinical judgment must inevitably be compromised since medical decisions (for instance, to terminate treatment) are made with the knowledge that criminal sanctions will be imposed on the patient as a result.

Consequences of Abandoning Involuntary Treatment

None of the arguments against involuntary treatment of addiction detracts from the necessity of continuing to provide voluntary services. Nor do the arguments against coercive diversion from the criminal justice system to addiction treatment programs imply the need for the continued ineffective and inhumane incarceration of addicts. The number and type of people imprisoned merely reflect the philosophy and practices of enforcement agencies. Rounding up drug users and imposing long jail terms for charges of possession of "dangerous drugs and paraphernalia" is no more rational or productive than sentencing such individuals to therapy. In addition, criticism of compulsory treatment in no way undermines the concept that the criminal justice system must retain alternatives to incarceration, such as parole and probation; these and other means of circumventing the futile and self-defeating practice of imprisonment, however, should not be used to impose "treatment" on individuals against their will.

If compulsory treatment as a form of punishment were to be eliminated, the addict-defendant would be unable to plead illness as a justification for crime, or as a rationale for avoiding the usual penalties imposed on nonaddicts for similar offenses. Equal severity of the law is no less important a principle than the corollary equal protection (xxix).

In contemplating the impact of eliminating involuntary treatment of addicts, it is important to consider the insignificant role it has played in two countries where addiction seems to have been contained.

England, though reputedly dealing with addiction as a medical rather than criminal problem, does not compel anyone to enter treatment. Nor is the addict offered a "choice" of therapy in lieu of pretrial detention, or as a condition of release from jail after conviction.

In the case of Japan, the 1963 Narcotics Control Law did provide for compulsory hospitalization. At the same time, however, this statute ushered in a massive enforcement effort against narcotics importation and trafficking, which was launched by a police department with a reputation for efficiency and absolute incorruptibility. These and other factors in the ensuing 6 years resulted in a decline in the estimated number of heroin addicts from 40,000 to a few hundred (62) (xxx). The role of involuntary hospitalization in this achievement was negligible: during the 6-year period, only 593 people were forced to accept treatment. It is also noteworthy that Japan never permits treatment to be substituted for prosecution or incarceration.

The NYC MMTP Position

The arguments outlined in this chapter were offered by the NYC MMTP in defense of its position on voluntarism. Although few advocates of compulsory treatment were persuaded to change their views, fortuitous circumstance permitted the Program's original orientation to prevail without significant compromise.

Civil commitment of addicts in New York has always been a function of the New York State Narcotic Addiction Control Commission; the inability of the Commission to maintain the census in its own facilities at or near capacity precluded any pressure on local programs to share in this role. Rather, the difficulty faced by the NYC MMTP was generated at the City level by the implementation in 1972 of a federally funded "court diversion project" by the Addiction Services Agency. The A.S.A. viewed NYC MMTP's large network of clinics as a logical resource for the referral of addict-defendants. Since such clients were not voluntary, I argued that they could not be accepted. A high-level meeting was arranged to resolve the impasse, and despite my strong opposition, I was directed to accept referrals arranged by the new A.S.A. program from the criminal justice system.

At precisely the time the court diversion project began, however, waiting lists for methadone treatment in New York City started to decline. Within a matter of months many other program directors were anxiously seeking referrals from any source in order to maintain their census, and after accepting less than 100 clients, the NYC MMTP received no further referrals from the A.S.A. Project staff. The de facto resolution of this problem, however, is obviously impermanent. Renewed demands will inevitably be made "...for a crackdown on violent crime by interning hard-core addicts in treatment camps - if that's what they need" (63), and for more subtle but equally undesirable variations on the theme of compulsory treatment.

The analogy is frequently made between drug addiction and contagious disease. In that context, it should be noted that even where a readily defined illness, with a recognized etiology, exists (which is not the case with addiction), and even where that illness can be universally cured by appropriate treatment (which also is not the case with addiction), elimination of the problem from a community generally requires far broader measures. Thus, tuberculosis was brought under control not by the introduction of chemotherapeutic agents, but by a substantial improvement in living conditions; in areas where that improvement has not occurred, the disease persists despite the availability of medication. Venereal disease is widespread throughout the world, even though each individual patient can be readily diagnosed and cured.

It must be recognized that addiction is a social problem which will never be eliminated by measures which are imposed on the addicts themselves. Until this is understood, our effectiveness in dealing with drug abuse will remain severely limited. In the meantime, there is an obligation to continue providing the optimal treatment services to those who voluntarily seek help.

Notes

xxii. Federal regulations governing confidentiality of addiction treatment program records endorse the concept of requiring open-ended consent to disclosure as a prerequisite to "diversion" from the criminal justice system (see page 35). The paradox of labeling consent "voluntary" in these cases is highlighted by the fact that these clients are forbidden to change their mind: "An individual whose release from confinement, probation, or parole is conditioned upon his participation in a treatment program may not revoke consent [for future release of information]... until there has been a formal and effective termination or revocation of such release from confinement, probation, or parole" (46).

xxiii. Although altruism forms the basis for the basis for the legal rationalization, it is nevertheless clear that societal self-interest is the major factor in the involuntary treatment of addicts: "Danger to self has never by itself been made grounds for commitment or compulsory treatment. If it were, participants in every hazardous occupation or sport would be liable to commitment, and Charles Lindberg could have been permanently institutionalized for his intention to fly the Atlantic. Similarly, no law provides for compulsory treatment of cancer or heart disease or any other noncontagious physiological ailment.... If addiction is truly a 'disease,' what could possibly justify its unique legal status in relation to civil commitment and compulsory treatment?" (47).

xxiv. The same conclusion was reached by other critics, who observed that addicts "...would prefer to spend six, nine or twelve months in jail, where there is no rehabilitation, rather than risk commitment [to the State Narcotic Addiction Control Commission] for three years" (48).

xxv. According to the American Medical Association Council of Mental Health, "There is a general agreement among all students of addiction that addicts have personality aberrations and that these psychiatric conditions preceded and played an important role in the genesis of addiction, its maintenance, and the high relapse rate after treatment..." (50).

xxvi. As the following candid statement reveals, addict-patients are considered "successful" when they are finally willing to accept whatever grim reality others consider appropriate: "From the addict's point of view, he properly perceives that the therapist is, in fact, trying to engage him in a conventional life, which will often mean low pay and prestige, continued insecurity, and poor access to the goals of our affluent society. This conformity, which society demands of the addict, is neither respected or valued when it is achieved" (54).

xxvii. The authors conclude that patients "lack the cultural background necessary to understand the nature of - or need for - psychiatric treatment" (57).

xxviii. "Increasingly, the major source of funds and the aegis for the expansion of treatment programs throughout the United States are programs closely integrated with the Criminal Justice System in various court diversion schemes. These come primarily from the U.S. Department of Justice, and there primary focus is clear: expand treatment in order to contribute to the reduction of crime" (58).

xxix. The inconsistency and illogic of current policy in this regard are clear: "No existing law makes it a condition of commitment that a relation between the addiction and the crime charged be shown. The addict is not even required to establish that his addiction existed at the time of the alleged crime. Thus an addict may be relieved of his obligation to answer a criminal charge even though his addiction was entirely unrelated to that charge" (61).

xxx. Not to be overlooked is the fact that during this same period of time Japan experienced the most extraordinary economic growth in world history.