Practicing Medicine Without a License: Medication-Assisted Treatment in the Courts

By Steven W Varney JD 10/28/15

Should courts have the power to decide if prisoners can continue treatment with Suboxone?

Practicing Medicine in Court

In March, Stephanie Watson, a nurse with a prescription opiate addiction, sued the Commonwealth of Kentucky in federal court over its practice of prohibiting opiate addicts from receiving medication-assisted treatment (MAT) while under the supervision of that state’s criminal justice system. Watson’s bond conditions did not allow her to take any prescribed medication(s) to treat her addiction such as Suboxone, methadone or Vivitrol.

The lawsuit, though recently dismissed on procedural grounds, caught the attention of many inside and outside the judicial system, including the White House, whose Office of National Drug Control Policy announced shortly thereafter its plan to prohibit drug courts receiving federal dollars from forcing people receiving MAT to stop taking their medications. Watson’s attorneys argued that such a rule is unconstitutional as it violates the Americans with Disabilities Act (the ADA), the Rehabilitation Act of 1973 (the Rehabilitation Act) and their client’s rights under the Constitution's Equal Protection Clause.

The Kentucky courts' drug-treatment policies, like those in many other states, are largely abstinence-based, despite the ever-evolving medical consensus that substitution treatment, which takes away cravings and reduces the risk of overdose, is the new standard of care. The complaint sums up the legal issue succinctly: "This lawsuit is not very complicated, it is whether or not the Court System has a right to interfere with the doctor/patient relationship and prohibit individuals such as Stephanie Watson from receiving competent medical care."

What Ms. Watson’s lawsuit artfully alleges can be summed up in more colloquial terms: Do the ADA and the U.S. Constitution permit judges and legislators to practice medicine without a license?

Having practiced law in the state and federal courts of Connecticut for nearly 25 years, I can say unequivocally that what the criminal justice system often lacks in fairness to accuseds, it more than doubles up on with abject ignorance when it comes to the science of addiction, from arraignment to incarceration, and at virtually every step in between. Many courts, probation offices and parole agencies in the U.S. routinely prohibit individuals under their supervision from receiving MAT. Even when the medications are prescribed by a physician, those receiving such treatment may be sanctioned with jail time and disqualified from alternative sentencing programs, even if the treatment has been successful in enabling them to abstain from illicit drug use, to work, and sometimes to regain custody of their own children.

"The reality is, most addicts who are in the court system are denied access to Suboxone and methadone, or any other medicine their doctors want them to take," said Ned Pillersdorf, an attorney for Watson. "I find that many lawyers and judges arrogantly think that they know more than doctors. It's unconscionable to me." Just as a judge would not unilaterally decide how a person under medical supervision should treat cancer or heart disease, s/he should not make medical decisions with respect to the appropriate care for addiction treatment.

As a former trial attorney and a person in long-term recovery (since 2006) from alcohol and prescription opiate addiction, I have a somewhat unique view into both worlds, especially the messy one created when they collide. And this is not just about the plight of “hardcore” criminals. In fact, many of the people directly affected are those accused of minor, non-violent crimes, who otherwise would end up with no criminal record whatsoever if allowed to stay on their medication(s) while they complete pre-trial programs.

The vast majority of first-time criminal defendants charged with relatively minor crimes (usually misdeameanors, including DUI and simple possession) are able to take advantage of diversionary programs like drug and alcohol education in order to get their charges dismissed.

States like Connecticut have even gone so far as to enact laws which permit people who have successfully completed diversionary programs to state that they have never been arrested, never mind convicted. These programs not only make sense in terms of fairness, they constitute a key cog in the system that reduces the size of court dockets at the same time it nudges many into treatment, where they belong. But these same folks who are receiving MAT for opioid addiction are frequently forced by courts and other government agencies to stop taking their addiction medication. A judge or probation officer may mandate that an individual stop MAT or wean off of it in a short period of time because of the mistaken belief that the individual is "substituting one addiction for another." Many of these officials do not understand how opioid addiction and MAT work. Moreover, they are unaware this conduct can violate anti-discrimination laws like the ADA.

Approximately 65% of individuals in United States prisons or jails have a substance use disorder, and a substantial number are addicted to opioids. Rates are at least as high in all other phases of the criminal justice system. These numbers roughly correspond to my own experience as a criminal defense lawyer: around 75% of my own clients appeared to have substance use disorders.

As of 2012, nearly seven million adult defendants were on probation or parole, or were incarcerated in jails or prisons, in the United States. The often profound consequences of criminal justice involvement can be an impediment to employment, housing, and education, all necessary for sustained recovery and successful reentry into the community.

In the 21st century, medications are essential tools in the treatment of most chronic illnesses. MAT is no different, only the type of illness it treats separates it from its brethren. MAT, when combined with other behavioral supports, has become the standard of care for the treatment of opiate addiction. The Affordable Care Act has provided an enormous step forward in providing access to MAT, at least in theory. Insurance companies now must cover addiction and other mental illness treatment in parity with the treatment of other diseases.

But the vast majority of jails and prisons still fail to offer MAT for ongoing maintenance treatment.

So why are government agencies denying access to MAT? Some have expressed concerns about the “dangers” of abuse of these medications (especially buprenorphine), cost and/or diversion. Others adhere to the archaic notion of "substituting one addiction for another." These excuses are all, in my humble opinion, nonsensical. Other agencies may deny access to MAT due to a policy prohibiting the medical use of all controlled substances. Many correctional facilities do not offer screening, detoxification, or treatment for any form of addiction. MAT may even be completely unavailable in some jurisdictions, a situation exacerbated by the feds’ 100-patient limit for Suboxone prescribers (Health and Human Services Secretary Sylvia Burwell recently announced that the cap will soon be raised). As a direct result of being denied access to MAT, many opioid users relapse and experience the gamut of negative consequences associated with addiction, including return to criminal activity, illness, overdose, infectious diseases, and even death.

At the same time, other states and professional associations are stepping up. In August, Governor Chris Christie of New Jersey signed into law a bill which specifically permits successful completion of drug court for those who are utilizing medication-assisted treatment. And in New York, a similar bill was just signed by Governor Andrew Cuomo, which mandates that judges in New York drug courts (there are more than 140) may no longer order defendants in recovery to stop taking doctor-prescribed medications as part of their treatment. And the National Association of Drug Court Professionals has passed a resolution urging drug courts to integrate MAT into their programs.

According to federal law, those who receive or need MAT for opiate addiction are "individuals with a disability," and all criminal justice agencies and courts are subject to anti-discrimination laws. Moreover, many individuals could show that they would be "eligible" for parole, probation, alternative sentencing, or prison health care but for their participation in MAT. Criminal justice agencies could only defeat this by showing through objective evidence that individuals in MAT posed a "significant risk" to the health or safety of others. I am aware of no credible objective evidence that MAT patients pose a significant risk to the community. To the contrary, I would argue MAT increases public safety. In correctional facilities, diversion and other safety concerns can be minimized through appropriate strategies already in place with respect to other drugs.

Many courts have held that failure to provide incarcerated individuals with appropriate medical treatment for their withdrawal symptoms from opiate addiction could violate the United States Constitution's Eighth Amendment prohibition on cruel and unusual punishment or the Fourteenth Amendment Due Process Clause. The law is not as clear that the failure to provide ongoing MAT violates the Constitution when individuals are provided medically supervised detoxification. But there is potential liability here, as well.

A study conducted in California found that inmates who participated in an in-prison treatment program and completed an aftercare program had the lowest three-year recidivism rates—31.3%—compared to those who did not receive treatment and only received some aftercare (78.8%).

Some good news to report is that the Federal Bureau of Prisons is expanding access to evidence-based treatment for substance use disorders. In 2013, the bureau implemented 18 new residential treatment programs to reach more than 1,500 additional inmates, including two Spanish-language treatment programs in Texas and Florida.

My experience with the criminal justice system and my own substance misuse has convinced me that for opiate addicts, the experience of gut-wrenching physical symptoms and mind-bending anxiety, and their paralyzing effects, constitute the leading cause of relapse. If one has not experienced first-hand the phenomenon of being “dope-sick,” it is difficult to understand the power of the fear that takes hold when opiates are suddenly not available. Regular opiate users live in constant fear of withdrawal, and as tolerance builds and the euphoric effects ebb into distant memory, they continue using opiates simply to retain some sense of “normal” and to keep withdrawal at bay for as long as possible.

Another common misconception about opiate withdrawal is that it only happens to extremely heavy users of prescription painkillers or to heroin addicts when they run out of money to “score” more drugs. Ask anyone who has been given morphine, oxycodone (Percocet) or even hydrocodone (Vicodin) for a lengthy period of time how they felt when they stopped. Now extrapolate for longer time, much higher dosage, and steadily increasing tolerance, and you can start to see the bigger picture.

Another important fact to throw into the hopper here is that jails and prisons are the largest providers of mental health and addiction “services” (or lack thereof) in the U.S. At one time, the county jails in Los Angeles and Chicago were crudely referred to as the largest mental hospitals in the nation. They may still be.

Finally, I must share that in my own case, had Suboxone not been made available to me during and after inpatient and outpatient treatment, I have serious doubts that I would be alive, never mind sitting at my laptop writing an article on some of the finer points of addiction and recovery. In hindsight, it seems the same pharmaceutical industry I relied upon to engage my active addiction also helped save my life. Imagine that.

Steve Varney, J.D. is a legal consultant, father, and former Connecticut trial lawyer in long-term recovery. He is a public policy advocate and speaker on addiction and recovery-related topics, where his focus is on opioid use disorder and criminal justice reform.

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Steven W. Varney, J.D. is a legal consultant and former Connecticut trial lawyer in long-term recovery. You can find him on Linkedin and Twitter.