Principles of Addictions and the Law (eBook)
372 Seiten
Elsevier Science (Verlag)
978-0-08-092476-2 (ISBN)
*Focused primarily on alcohol and drug addictions
*Case studies and landmark cases are included to illustrate the role of alcohol/drugs in legal decisions (e.g., the Exxon Valdez case)
*Brief overview of legal system and drug courts will be useful to clinicans, lawyers, administrators, and other professionals
The book includes an examination of sources of law important to addiction and its treatment. The foundations for forensic work in professional legal testimony is explored (e.g., legal system, case law precedent, statutes governing addictions, civil and criminal procedures). The science of addiction is featured including the biology of addiction, addiction as a brain disease, responsibility vs. loss of control, development of addictions, and the role of genetics and environment. Drug testing, its uses with forensic populations, what the tests show and do not show, controversies in using tests in the general population also receives extensive treatment. Addiction and mental illness in forensic populations is highlighted for addiction treatment and continuing care. Case studies and landmark cases illustrate the role of alcohol, drug use, and addictions in legal decisions. - Focused primarily on alcohol and drug addictions- Case studies and landmark cases are included to illustrate the role of alcohol/drugs in legal decisions (e.g., the Exxon Valdez case)- Brief overview of legal system and drug courts will be useful to clinicans, lawyers, administrators, and other professionals
Front Cover 1
Principles of Addictions and the Law: Applications in Forensic, Mental Health, and Medical Practice 4
Copyright Page 5
Contents 6
Contributors 16
Preface 18
Chapter 1. The Basic Legal Structure and Organization 22
Introduction: Sources of Law 22
The Judicial Branch 23
Civil Law Versus Criminal Law 24
Criminal Law 25
Defenses to Crimes 25
Civil Law 27
Offenses Related to Addictions 28
Basic Constitutional Rights 30
The Bill of Rights 30
The Legislative Branch 32
Statutes Regulating Addictions 33
Conclusion 37
References 37
Chapter 2. Addictions and the Law 38
Mens Rea and Capacity 39
Definition and Relevance to Addictions 39
Legal Precedent 40
Addictive Disease 40
Intoxication and Addiction 40
Legal Precedent 41
Criminal Law 41
Insanity Defense 41
Legal Precedent 41
Criminal Competence 42
Civil Competence 42
Alcohol and Drug Use and Addiction as Risk Factors in Crime and Criminal Intent 42
Civil Law in Selected Populations 43
Child Abuse and Custody 43
Sexual Offenders 44
Malingering 44
Corrections and Coerced Treatment 45
Goals of Treatment 45
Diversion 45
Prevalence of Alcohol and Drug Disorders during Incarceration 46
Prevalence of Suicide and Alcohol and Drug Disorders during Incarceration 46
Legal Precedent 46
The Death Penalty and Addictions 47
Involuntary Hospitalization 47
Malpractice 47
Competence to Sign into an Institution 48
Informed Consent 48
Injury to a Third Party by Alcoholics and Drug Addicts 49
Adolescents and Juvenile Court and Addictions 50
Prevalence of Alcohol and Drug Use and Disorders in Juvenile Populations 50
Legal Precedents 51
Forensic Pathology and Drug Testing 51
Forensic Pathology 51
Drug Testing 51
Medical Records 51
Rehabilitation Acts 52
Conclusion 52
References 53
Chapter 3. Physician Practice of Addictions in Medical Practice 58
Introduction 58
Clinical Prevalence 59
Prevalence of Alcohol and Drug Dependence in the General Population 59
Prevalence of Multiple Drug Use and Dependence in Treatment 59
Prevalence in the Medical Population 60
Prevalence in Family and Workplace Populations 60
Clinical Diagnosis 60
Risk Assessment by Physicians 61
Physical Examination and Laboratory Testing 61
Clinical Course and Pathophysiology 62
Clinical Comorbidity 62
Treatment of Medical Disorders Associated with Alcohol and Drug Use and Addiction 62
Physician Intervention 62
Requirements of Physicians for Diagnosing and Treating Addictive Disease 63
Abstinence-Based Method 64
Improving Treatment for Alcoholism 65
Why Physicians are Unprepared to Treat Drug- and Alcohol-Related Disorders 66
Recommendations for Improving Education Training 67
Research Studies on Medical Education in the Area of Addictive Medicine 68
Conclusion 70
References 70
Chapter 4. Medical Licensure and Credentialing 76
Introduction 76
Peer Review 78
Immunity 78
Confidentiality 80
Physician Profile Databases 81
Medical Licensing Boards 85
Judicial Oversight 86
Federation of State Medical Boards 88
The Model Policy 88
Compulsory Reporting 88
Examination/Evaluation 89
Grounds for Action 89
Disciplinary Action against Licensees 89
Impaired Physicians 89
The Impaired Healthcare Professional 90
Identifying the Problem 90
Ethical Responsibility and Legal Risk 90
Confidentiality versus Disclosure 92
Physician Health Program (PHP) 93
References 93
Chapter 5. Privacy within the First Decade of the Twenty-First Century 96
Introduction 96
Codes of Conduct for Privacy 97
Patient Access to Medical Records 97
Electronic Health Records 98
Update from the Privacy Commissioner 99
Practice Audits 100
Conclusion 100
References 101
Chapter 6. Bioethical Decisions, Substance Use and Addiction: The Clinical Context 102
Introduction 102
Substance Use, Addiction and Informed Consent 103
Pregnancy, Substance Use and Addiction 104
The Effects of Substance Use on the Fetus 104
Legal Responses to Maternal Substance Use during Pregnancy 106
Ethical Issues for the Healthcare Provider 107
Liver Transplantation 108
Treating Pain 110
Conclusion 113
References 113
Chapter 7. Domestic Public Health Law 118
Introduction 118
Controlled Substances 119
Harrison Narcotics Act of 1914 119
Federal Bureau of Narcotics and Henry Anslinger 120
Food and Drug Administration (FDA) 123
Food, Drug and Cosmetic Act of 1938 124
Prescription Drug User Fee Act of 1992 (PDUFA) 124
Federal Agency and Policy: Supply and Demand 126
Reducing the Supply of Illegal Drugs in the United States 126
The Other Side of the Coin: Reducing Demand for Drugs in the United States 128
Conclusion 131
References 131
Chapter 8. International Law, Public Health and Addiction 134
What is International Law? 135
International Law in the Field of Addiction 136
Addiction: The Perspective of Drug Control 136
International Organizations and the Infrastructure of Drug Control 140
Addiction: The Perspective of Public Health 142
Why is International Law Relevant to Addiction Practitioners? 145
Physicians and Scientists 146
Lawyers and Judges 147
Social Workers, Community Activists, Policymakers and Sufferers of Addiction 151
Addiction and Human Rights 151
International Advocacy and the Framework Convention on Tobacco Control 152
References 153
Chapter 9. Medical Malpractice 156
Overview of Medical Malpractice Law 156
The Essential Elements 156
The Standard of Care: Duty and Breach 156
Application to Addiction Cases 157
Standard of Care and Breach 157
Causation of Damages 164
Experts 167
Informed Consent 167
Defenses 170
Comparative Negligence 170
Assumption of Risk 173
Statute of Limitations 175
References 177
Chapter 10. Expert Witness in Civil and Criminal Testimony 180
Expert Qualifications 180
Federal Rule of Evidence 702 180
Federal Rule of Evidence 703 181
Role of Experts 182
Duties of Experts 182
Mens Rea and Capacity 183
Expert Role in Criminal Cases 183
Medical Malpractice 184
Expert Role in Medical Malpractice Cases 184
Medical Experts 184
Admissibility of a Medical Expert 186
Damage Experts 186
Conclusion 187
References 187
Chapter 11. Forensic Considerations in Blood Alcohol Evaluation 188
Introduction 188
Alcoholism 188
References 195
Chapter 12. Pharmacological Drug Effects on Brain and Behavior 198
Introduction 198
Influence of Neurobiology and Neurotransmitters 199
Molecular Mechanisms and Neurobiological Consequences of Drug and Alcohol Use 200
Performance-Enhancing Drugs 205
Conclusion 209
References 209
Chapter 13. Forensic Toxicology 214
Introduction 214
Postmortem Forensic Toxicology 215
Human Performance Forensic Toxicology 216
Forensic Urine Drug Testing 216
Standard Operating Procedural Manual 217
Chain of Custody 217
Dual-Testing Philosophy 217
Sample Preparation 218
Liquid–Liquid Extraction 218
Solid–Phase Extraction 219
Detection Techniques 219
Immunoassay 219
Gas Chromatography 220
Liquid Chromatography 220
Mass Spectrometry 220
Method Validation 221
References 222
Chapter 14. Forensic Psychiatry, Substance Use and Mental Illness 224
Introduction 224
Epidemiology 224
Basic Legal Concepts and Statutes 226
Affirmative Defense Statutes 232
Inherent Conflict Between Free Will, Public Safety and the Disease Concept and Substance Addiction 234
Free Will 234
Disease Concept 235
The Conflict between Free Will, Public Safety and the Disease Model 235
Criminal and Civil Competence for the Addicted 237
Competence to Stand Trial 238
Civil Competencies 239
Treatment Issues for this Population in Different Clinical Settings 240
Clinical Assessment in Forensic Settings 240
Treatment in Forensic Settings 240
Civil Commitment 241
Correctional Settings, Diversion and Coerced Treatment, Community Re-entry and Reintegration 242
Conclusion 244
References 244
Chapter 15. Legal Rights of Fetuses and Young Children 250
Introduction 250
Impact of Prenatal Drug Exposure on the Developing Fetus 251
Impact of Substance Abuse on Children 252
Need for and Access to Treatment 252
Rights of Fetuses Generally 253
Rights of Fetuses: Civil Child Protective Proceedings 255
Response to Report 256
Courts' Responses to Child Protection Actions on Behalf of Fetuses 257
Courts' Responses to Substance Exposed Neonates 258
Other Civil Remedies 259
Public Health Approaches 260
Criminal Charges 261
Search and Seizure and Consent 262
Charges that Can be Sustained 263
Charges that Cannot be Sustained 265
Access to Substance Abuse Treatment Records 266
Access to Records and HIPAA 268
Conclusion 269
References 270
Chapter 16. Criminal Populations and Substance Abuse 274
Introduction 274
Interventions for Substance Abuse in Correctional Facilities 275
Correctional Treatment Programs 275
Legal Standards for Substance Abuse Treatment in Correctional Facilities 276
Judicial and Statutory Approaches to Substance Abuse 277
Civil Commitment for Substance Use Disorders 277
Drug Courts 278
State and Federal Drug Laws 280
Laws Regulating Drinking and Driving 282
Information Sharing Between the Justice and Treatment Systems 283
International Approaches to Criminal Populations and Substance Abuse 285
Legal Foundations for Treatment Provided in Justice Settings 286
Points of Intervention for Offender Drug Treatment 287
Conclusion 290
References 291
Chapter 17. Legal Authority, Medical Basis and Public Policy for Controlling and Scheduling Controlled Substances 298
Overview of Controlling and Scheduling Drugs and Other Substances 298
Legal Authority to Control Substances: Standards and Schedules 299
Federal Rules and Regulations for Controlled Substances 299
State Statutes and Regulations for Controlled Substances 300
Drug Enforcement Administration and Food and Drug Administration 301
Immediate Precursors 301
Temporary Scheduling to Avoid Imminent Hazards to Public Safety 301
Abuse Potential 302
Evaluation of Drugs and Other Substances 302
Factors Determinative of Control or Removal from Schedules 303
Legislative Intent for Potential for Abuse 304
Levels of Drug Control and Scheduling 305
Medical Basis for Potential of Abuse 308
FDA Role 308
Public Policy for Controlling and Scheduling Substances 309
References 311
Chapter 18. Use of Addictive Medications and Drugs in Athletics 314
Introduction 314
Historical Perspective 317
Overview 320
Factors Influencing Athletes Use of Substances 320
Performance-Enhancing Drugs 321
Anabolic Steroids 321
Central Nervous System Stimulants 326
Erythropoietin and Blood Doping 334
Alcohol 335
References 336
Chapter 19. Class Action to Protect Against Discrimination of Individuals with Alcohol and Drug Addictions 344
Introduction 344
Class Action as a Thesis to Promote Change for Discriminated Members 344
History of Mixed Success in Class Action Litigation for Addictions 345
Unfair and Lethal Discrimination against Classes of Addicted Individuals Evident in Government Policy 346
Discriminatory Policies and Laws against Cigarette Smokers 346
Addiction 347
Addiction is a Disease Defined as a Medical Disorder and by Legal Status 347
Addiction as a Medical Disease 348
Class Actions 348
Class Action Litigation is an Effective Strategy to Protect against Discriminatory Policy and Laws 348
History of Tobacco Cases Demonstrate Powerful and Unethical Forces against Traditional Litigation 349
Form a Discriminated Class of Harmed Individuals with Small Claims to Make Class Tight and Class Action Superior 350
Public Support for a Class Consisting of Alcoholics and Drug Addicts Suffering from a Disease 350
Class Defined 351
Numerosity and Commonality: Prevalent Disorders 352
Define Damages and Fraud Where Individual Issues do not Predominate and Class Action is Superior to Traditional Litigation for a Discriminated Class 353
Core Legal Theories and Causality 353
Specific Areas of Class Action Litigation in Medically-Related Cases 354
Liability for Fraudulent Marketing of Controlled Substances: Litigation against Purdue Pharma 355
Class Certification Upheld 355
Class Certification Denied 356
Medical Monitoring of a Class 356
Class Action is Superior to Other Methods 356
Superiority of Class Action Frequently Determines Success of Litigation 357
Superiority can be a Single Forum 358
Predominance Requirement Depends on Individual Issues for Causes in Addiction 359
Individual Interests in Controlling Individual Suits in Mass Tort Litigation 360
Common Knowledge Theory 360
Conclusions from Class Actions in Addiction 361
Legacies from Tobacco, Opiate Medications and Alcohol 361
The Road Less Traveled 362
References 362
Index 366
A 366
B 366
C 366
D 368
E 368
F 368
G 369
H 369
I 369
J 370
K 370
L 370
M 370
N 371
O 371
P 371
R 372
S 372
T 373
U 373
W 373
Z 373
Preface
Drug and alcohol addictions and the law are historically well acquainted in the American legal system. The pervasive presence of legal consequences from alcohol and drug disorders is evidence in medical-legal populations. The identification and treatment of addictive diseases are increasingly important in forensic practice, particularly in cases pertaining to criminal conduct, malpractice, employment, disability, child custody, and correctional psychiatry.
Courts make legal decisions that have direct bearing on the fate of those with addictive disorders. The legislative branches of federal and state governments create significant and far-reaching laws that affect large numbers of addicted individuals. The constitutional amendments, particularly the 14th Amendment, provide due process and equal protection of the law for individuals with drug and alcohol addictions. Governmental administrative agencies create policies, rules, codes, and regulations to execute legislative statutes that govern the deterrence, treatment, prosecution, and diversion of offenders with addictive diseases.
Alcohol and drug addiction occupy a paradoxical place within medicine and the law. On the one hand, addiction is considered a disabling illness. As early as 1925 the United States Supreme Court stated that addicts “are diseased and proper subjects for … treatment.” On the other hand, addiction is considered willful misconduct. Although court decisions, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990 have provided protection for addiction treatment and rehabilitation, other court decisions and laws have provided punishment for those with alcohol and drug addiction who commit crimes.
Addiction to drugs and alcohol is a mental illness that can reduce the capacity of the individual to resist the use of these substances and hence avoid the resulting adverse consequences. The addictive drive can compel the individual to relapse to the adverse effects of alcohol and drugs despite the initially intact capacity to form intent in the legal sense in the abstinent state. Once the compulsive use of drugs and alcohol is initiated, the capacity to form intent is further compromised by the intoxicating effects of these substances acting directly on the brain.
Addiction is a disease that is defined by a preoccupation with acquiring alcohol and drugs, compulsively using them, and patterns of relapse to alcohol and drugs. Preoccupation is demonstrated by a high priority for the use of alcohol and drugs in an individual’s life. Compulsivity is demonstrated by continued use despite recurring adverse consequences, including legal consequences. Addicted individuals often relapse, returning to drug use despite adverse consequences.
Legal decisions have acknowledged that addiction to drugs and alcohol is not willful misconduct in a legal sense. Court cases have emphasized that being a drug addict or an alcoholic is a status and not a crime.
Principles of Addictions and the Law is a book for mental health professionals, health practitioners, and legal professionals wanting to better understand how the science of addiction may be relevant to the law, and how laws and legal practices pertain to clients with addiction problems. Information in this book will assist psychologists and physicians with understanding the process and statutes that may apply to their client/patient, as well as information to improve their knowledge in serving as an expert witness. Information in this book will similarly assist legal professionals in understanding statutes and case law pertaining to addiction.
The book begins with an overview of how addictions are treated within the law, and moves on to privacy of medical records, bioethical decisions that relate to substance abuse and addiction, drug testing – what it can and can’t show, forensic toxicology, epidemiology, co-morbidity, the general biology of addiction, and then the effects of substance abuse and addiction on special populations.
As an introduction to some of the material covered later in the book, it may be useful to know legal precedents relating to addiction and the law. In Robinson v California, the U.S. Supreme Court ruled that the California law against being a drug addict was unconstitutional. The Court said that the law could not make “status” a crime, and the treatment and punishment represented different goals. In Powell v State of Texas, the U.S. Supreme Court ruled that public drunkenness was a crime, but that being an alcoholic (status) was not.
In Foucha v Louisiana, the U.S. Supreme Court ruled that Foucha was not suffering from a mental illness, and that due process required that he could be held only as long as he was both mentally ill and dangerous. He had committed his crime while in a drug-induced psychosis. In the abstinent state, he was not considered mentally ill, although he probably did suffer from a drug addiction.
Addiction is highly correlated with violence and criminal behavior. According to the MacArthur study, substance abuse tripled the rate of violence among individuals in the community who were not patients and increased the rate of violence among discharged patients by up to five times. Patients discharged from psychiatric hospitals who had symptoms of alcohol or drug use were as violent as their neighbors who were not patients. In a study of self-reported violence among 10,000 individuals within a community, alcohol and drug abuse or dependence accounted for more than half of the incidences of violence among those individuals who had psychiatric diagnoses. According to another study, substance abuse is a much greater risk factor for violence than is mental illness. Alcohol or drug dependence is the leading psychiatric diagnoses in studies of completed suicides, and is a leading risk factor in those who attempt and complete suicide.
Alcohol and drug addiction are highly prevalent in criminal acts. All drugs, including alcohol, are associated with crime. At least 35% of convicted offenders were under the influence of alcohol at the time of their offense. An additional significant proportion of offenders were using other drugs at the time of their offense. More than 50% of murderers were using alcohol, drugs, or both at the time of their crime. Alcohol, cocaine, amphetamine and derivatives, phencyclidine hydrochloride, and heroin drugs are particularly linked to violent behavior toward others.
In other studies, violence due to alcohol and drugs was attributed to crimes to gain access to these substances and to resolve disputes over them, as well as to the effects of these substances on the individual’s mind and behavior. Drugs diminish control, impair insight and judgment, induce grandiosity and paranoia, disinhibit, and provoke and stimulate uncontrollable behaviors. Alcohol intoxication was responsible for most violent crimes, including murders, assaults, sexual assaults and family violence. Sixty-two percent of violence offenders were drinking at the time of their crime. Among individuals with psychotic disorders, those with substance-related co-morbidity and a history of violent behavior are more likely to be hospitalized repeatedly and least likely to comply with medications after discharge.
Alcohol and drug disorders are highly prevalent in incarcerated populations. Lockups contain large numbers of individuals with alcohol and drug intoxication withdrawal. The suicide rate is higher in lockups than in jails or prisons. Eighty-two percent of all jail inmates said they had used an illegal drug, and 25% stated they had received treatment for a mental or emotional disorder. Sixty-one percent of the men and 70% of the women in jail had a lifetime prevalence of substance use disorder. Sixty-two percent of prison inmates reported regular drug use of a drug at sometime in their lives. Half of all prison inmates in 1991 had used cocaine in some form. More than 80% of the women in prison had a lifetime prevalence of a substance use disorder. According to the National Institute of Mental Health Epidemiologic Catchment Area program study, 72% of prison inmates had a lifetime prevalence of substance abuse.
There is legal precedent in how to appropriately treat this population. The 8th Amendment prohibits cruel and unusual punishments. It applies to those who are convicted of a crime, but not to the pretrial detainees. Convicted prisoners, therefore have a constitutional right to medical care. In Estelle v Gamble, the U.S. Supreme Court set the “deliberate indifference” to serious medical need as the standard that constitutes “unnecessary and wonton infliction of pain” proscribed by the 8th Amendment.
In Ruiz v Estelle, prisoners brought forth a class action suit regarding conditions of confinement. Six essential elements from the district court...
| Erscheint lt. Verlag | 30.1.2010 |
|---|---|
| Sprache | englisch |
| Themenwelt | Geisteswissenschaften ► Psychologie ► Allgemeine Psychologie |
| Geisteswissenschaften ► Psychologie ► Entwicklungspsychologie | |
| Geisteswissenschaften ► Psychologie ► Klinische Psychologie | |
| Medizin / Pharmazie ► Gesundheitswesen | |
| Medizin / Pharmazie ► Medizinische Fachgebiete ► Neurologie | |
| Medizin / Pharmazie ► Medizinische Fachgebiete ► Psychiatrie / Psychotherapie | |
| Studium ► 2. Studienabschnitt (Klinik) ► Rechtsmedizin | |
| Recht / Steuern ► Strafrecht ► Kriminologie | |
| Sozialwissenschaften ► Soziologie | |
| ISBN-10 | 0-08-092476-X / 008092476X |
| ISBN-13 | 978-0-08-092476-2 / 9780080924762 |
| Haben Sie eine Frage zum Produkt? |
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