Read the attached article: Bonnie 2002 Responsibility for Addiction Prompts: 1. Why are drugs "scheduled"? Do you think drugs should be "scheduled"? Do you think the penalties for using scheduled drugs are appropriate? Explain. 2. Who should be responsible for drug primary prevention and intervention for drug use? (ex. law enforcement, schools, families, other, etc.) 3. Is addiction a chronic disease? Explain. If addiction can be viewed as a chronic disease, who should be socially and financially responsible for drug addiction treatment? 3:02 PM Wed Jan 24 100% 7k Bonnie 2002 Responsibility for Addiction.pdf Q LD ANALYSIS AND COMMENTARY Responsibility for Addiction Richard J. Bonnie, LLB J Am Acad Psychiatry Law 30:405-13, 2002 Taking as its starting point the characterization of the past decade, have significantly advanced our un- addiction as a "brain disease" by the nation's leader- derstanding of addiction in several respects. First, ship in public health and biomedical science, this neuroscientists have identified the neural circuits article explores the implications of recent develop- activated by using addictive drugs-the brain's com- ments in neuroscience for the concept of responsibil mon pathways of addiction-and have thereby ity. The terrain is divided into three parts: responsi- intensified the search for pharmacological treat- bility for becoming addicted, responsibility for ments. "All these drugs affect the dopamine system, behavior symptomatic of addiction, and responsibil although through different mechanisms. " Second, ity for amelioration of addiction. In general, this pa- imaging techniques have revealed the effects on the per defends the thesis that recent scientific develop- brain of prolonged administration of psychoactive ments have sharpened but not erased traditional drugs. Alan Leshner, former Director of the National understandings in the first two areas, while recent Institute on Drug Abuse (NIDA), has summarized legal developments have exposed new and intriguing the evidence as follows: theories of responsibility for managing or ameliorat- ing addiction that may also have implications for Not only does acute drug use modify brain function in critical ways, but prolonged drug use causes pervasive changes in brain other chronic diseases. function that persist long after the individual stops taking the The subject of addiction has attracted increasing drug. Significant effects of chronic use have been identified for interest over the past decade among moral philoso- many drugs at all levels: molecular, cellular, structural, and phers, " legal theorists, and, most intriguingly, functional. The addicted brain is distinctly different from the economists, and other social scientists. - Among nonaddicted brain, as manifested by changes in brain metabolic the factors explaining this escalating intellectual in- activity, receptor availability, gene expression, and responsive- ness to environmental cues. Some of these long-lasting brain terest in addiction are the crack epidemic that begin changes are idiosyncratic to specific drugs, whereas others are in the mid-1980s and triggered the latest drug war; common to many different drugs [Ref. 12, p 46]. the Surgeon General's 1988 report on nicotine ad- diction; advances in the science of addiction, espe- Third, addiction specialists have demonstrated cially in neuroscience; tobacco litigation predicated why addiction is plausibly perceived as a chronic dis- on the addictive nature of nicotine; and continuing ease similar to other chronic diseases, such as diabetes public debate regarding the premises of national pol- and hypertension, that are also characterized by in- icies toward users of illicit drugs. termittent remissions and relapses. There are The advances in neuroscience serve as my point of several important claims embedded in this overall departure in this article. Remarkable scientific assertion: that the condition should be understood as achievements during the past 25 years, especially in a chronic disease, characterized by occasional relapse, rather than as an acute condition; that the high rate Mr. Bonnie is Professor of Psychiatric Medicine and John S. Battle of relapse is related to the neurobiological changes Professor of Law, University of Virginia Schools of Law and Medicine, that accompany addiction; and that the onset, sever- Charlottesville, VA. Address correspondence to: Richard J. Bonnie, LLB, 580 Massie Road, Charlottesville, VA 22903. E-mail: ity, and management of the condition are affected by rbonnie@virginia.edu interactions of biological and behavioral variables Volume 30, Number 3, 2002 405 10 Dashboard 888 Calendar To Do Notifications Inbox3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Responsibility for Addiction analogous to those that affect the onset, severity, and management of other chronic diseases. Is Addiction a \"Brain Disease\"? The scientific leadership of the addiction field is waging a broad dissemination campaign to bring these advances to professional and public attention, within medicine, among opinion-makers, and in the general public. This campaign has a motto: \"Addic- tion is a Brain Disease.\" The core message is reflected in the following excerpt from Alan Leshner's stan- dard presentation while he was NIDA Director: That addiction is tied to changes in brain structure and function is what makes it, fundamentally, a brain disease. A metaphorical switch in the brain seems to be thrown as a result of prolonged drug use. Initially, drug use is a voluntary behavior, but when thar switch is thrown, the individual moves into the state of addiction, characterized by compulsive drug secking and use [Ref. 12, p 46]. The characterization of addiction as a brain disease has been contested.\"* At the present time, I think this claim has to be understood more as a political statement than as a scientific proposition. To say that addiction is a brain disease is useful as a rhetorical tool in a debate about public policy; but, scientifi- cally, it is both incomplete and premature. It is in- complete because it fails to communicate the whole story about the behavioral and contextual compo- nents of addiction. (In his standard presentation, Dr. Leshner was always careful to note that addiction is \"not just a brain disease.\") Behavioral components are much more substantial in addiction than in Alz- heimer's disease, Parkinson's disease, or epilepsy or even in schizophrenia. It is premature, because re- search has not connected the observed changes in the brain to behavior. After all, Dr. Leshner found it necessary to speak metaphorically, because we can- not yet speak scientifically. It is still not possible to explain the physiologic and psychological processes that transform the controlled use of drugs into addiction."! Notwithstanding its scientific shortcomings, I em- brace the characterization of addiction as a brain dis- ease because of its value as a political statement. Medicalization of addiction (as a policy choice) will have salutary effects on the lives of people enmeshed in drug use and on society, whether or not this term captures the full complexity of the condition. Addic- tion is amenable to treatment, although outcome evaluations of treatment must take into account the high probability of relapse, and our society should be investing more resources in treatment while reducing its expenditures on incarceration. Moreover, contin- ued investment in research is likely to pay off in therapeutic advances (although there is likely to be no biological \"fix\" for addiction). One prominent rhetorical feature of the campaign needs much more careful scrutiny, howeverthe question of voluntariness. According to two leading clinical researchers on addiction: At some point after continued repetition of voluntary drug- taking, the drug \"user\" loses the voluntary ability to control its use. At that point, the \"drug misuser\" becomes \"drug addicted\" and there is a compulsive, often overwhelming involuntary as- pect to continuing drug use and to relapse after a period of abstinence [Ref. 13, p 237]. Dr. Leshner puts the point this way: We need to face the fact that even if the condition initially comes about because of a voluntary behavior (drug use), an addict's brain is different from a nonaddict's brain, and the addicted individual must be dealt with as if he or she is in a different brain state. We have learned to deal with people in different brain states for schizophrenia and Alzheimer's disease. Recall that as recently as the beginning of this century we were still putting individuals with schizophrenia in prisonlike asy- lums, whereas now we know they require medical treatments. We now need to see the addict as someone whose mind [read: brain]) has been altered fundamentally by drugs [Ref. 12, p 46]. The emphasis on involuntariness bristles with impli- cation for responsibility. Medicalizing addiction and emphasizing its neurobiological underpinnings is meant to negate the common belief that addiction manifests a moral weakness or a flaw of character and thereby to counteract stigmatization and punish- ment. Presumably, people should not be held mor- ally and legally accountable for behavior that is in- voluntary. But we should take a much closer look at these assertions, What is meant by involuntariness in this context? Is an addict's drug use involuntary after the switch is flipped? In what sense? Is relapse invol- untary? In what sense? Do people voluntarily take the risk of becoming an addict when they begin to use drugs? Should this marter? These are very difficult questions, and the answers have a direct bearing on legal issues of responsibility. My goal in this article is to explore ethical and legal concepts of responsibility in these three domains (addiction, relapse, and onset). 406 The Journal of the American Academy of Psychiatry and the Law 10 [ To Do (1) Dashboard Calendar Notifications M Inbox 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Bonnie The Vocabulary of Voluntariness After addressing several important conceptual is- sues about the vocabulary of voluntariness, 1 will cover the law on each of these issues. Addiction What is meant when it is said that drug use be- comes involuntary after \"the switch is flipped\"? Does the disease cause drug use in the way that a brain lesion causes epileptic seizures or loss of cerebral blood flow causes loss of consciousness? This is the language of mechanism, and the language of choice, or voluntariness, has no place in it.\" Clearly, how- ever, something more is involved with addiction than mechanism. Addiction is not justa brain disease. The link between brain and behavior is mediated through consciousness. Thus, when we say that the addict's drug use is \"involuntary\" and symptomatic of dis- ease, we mean something different from what is meant when we say that having a seizure is involun- tary. In terms of responsibility, this is a very impor- tant distinction. Even within the realm of conscious experience, there are situations in which one can properly say that a person has no \"real\" choice (like grasping the edge of a cliff, when the inevitable effects of muscular fatigue will prevail, no matter how hard the victim chooses to resist). Again, this is the language of mech- anism, but this is not what is meant by \"loss of con- trol\" in addiction. Loss of control means that, due to neurobiological processes deep in the brain over which the addict no longer has control, he or she is experiencing a strong need for or desire for the sub- stance, a desire so great that it is unlikely that he or she will be able to resist it. This is the language of choice and compulsion, not of mechanism and causation.' The addict has the experience of choosing, just as a person under duress (\"push the button or T'll kill you\") has the experience of choosing. Such situations involve a hard choice rather than no choice. Clini- cally, I am addressing what most accurately might be called \"impairments of volition\" rather than involun- tary behavior. This important conceptual distinc- tion is needed to connect scientific and clinical ideas about addiction (and other pathological con- ditions involving so-called compulsions, such as ob- sessive compulsive disorders) to the vocabulary of responsibility. Relapse The nature of relapse is another matter too easily blurred by the brain disease rhetoric. Even after de- toxification and a period of abstinence, addicts have a strong susceptibility to relapse. In fact, 40 to 60 per- cent of patients treated for addiction relapse within a year, and the rate is highest for tobacco addiction. It is said that this tendency to relapse is involuntary, because the person has no control over conditioned responses associated with previous drug-taking. For example, McLellan and colleagues explain: [One neurobiological] explanation for [addicts'] tendency to relapse lies in the integration of the reward circuitry with the motivational, emotional and memory centers that are co-lo- cated within the limbic system. These interconnected regions allow the organism not only to experience the pleasure of re- wards, but also to learn the signals for them and to respond in an anticipatory manner. Repeated pairing of a person (drug-using friend), place (corner bar), thing (paycheck), or even an emo- tional state (anger, depression) with drug use can lead to rapid and entrenched learning or conditioning. Thus, previously drug-dependent individuals who have been abstinent for long periods may encounter a person, place or thing that previously was associated with their drug use, producing significant phys- iologic reactions such as withdrawal-like symptoms and pro- found subjective desire or craving for the drug. These responses can combine to fuel the \"loss of control\" that is considered a hallmark of drug dependence [Ref. 11, p 1691]. Does it make sense to characterize relapse as invol- untary under these circumstances? The physiologi- cally conditioned feelings may be involuntarily aroused, and relapse may be made more likely by this conditioning and the accompanying neurobiological changes; but the addict is not an automaton, re- sponding mindlessly to environmental cues. What is meant is that the addict has a strong predisposition or vulnerability to the use of drugs. Of course, relapse is not inevitable, and its likelihood can be reduced if the addict chooses to avoid the contexts or environments that trigger relapse. Note that in what was just said, I have simulta- neously used the probabilistic vocabulary of causa- tion and the individual-centered language of choice. Clinically speaking, the experience of compulsion is the experience of feeling that one must choose to do something to avoid pain or dysphoria. Similarly, whether a particular individual can avoid relapse is at least partly affected by whether he or she chooses to take precautions, such as to avoid exposure to predis- posing environmental cues. The central claim of this article is that the concepts of disease and choice are compatible, and that the law Volume 30, Number 3, 2002 407 10 [ To Do (1) Dashboard Calendar Notifications M Inbox ) 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Responsibility for Addiction (which is based on our shared moral intuitions) can easily incorporate advances in our understanding of the neural substrates of addiction. These advances amend, but do not displace, the vocabulary of choice. Onset The same point is pertinent to the preaddiction phase of drug use. Although O'Brien and McLellan say that drug use is \"voluntary\" during this phase, they emphasize that the onset of drug use also has many involuntary components: One reason why many physicians and the general public are unsympathetic toward the addict is that addiction is perceived as being self-[in]flicted: \"they brought it on themselves.\" How- ever, there are numerous involuntary components in the addic- tive process, even in the early stages. Although the choice to try a drug for the first time is voluntary, whether the drug is taken can be influenced by external factors such as peer pressure, price, and, in particular, availability. . . . Nonetheless, it is true that, despite ready availability, most people exposed to drugs do not go on to become addicts. Heredity is likely to influence the effects of the initial sampling of the drug, and these effects are in turn likely to be influential in modifying the course of contin- ued use. Individuals for whom the initial psychological re- sponses to the drug are extremely pleasurable may be more likely to repeat the drug-taking and some of them will develop an addiction. Some people seem to have an inherited tolerance to alcohol, even without previous exposure [Ref. 13, p 237]. It is important to note that the concept of volun- tariness is being used in two different senses in this passage. With regard to any specific act of using drugs, \"compulsion\" is the relevant sense, and this is what O'Brien and McLellan'? mean when they say that drug use is voluntary before the addiction switch is flipped, and involuntary afterward. However, when they refer to the involuntary features of the early phases of the addictive process, O'Brien and McLellan emphasize that certain factors increase the probability that a particular person will be exposed to drugs, will continue to use them, and will become addicted to them. Now they are using the word \"in- voluntary\" in the \"causation\" sense. Note, however, that the vocabulary of causation is not incompatible with the vocabulary of choice in this context. For example, people who are aware of their vulnerability might choose to behave in a way that reduces the risk of addiction or, conversely, might knowingly take that risk. Addiction and Legal Responsibility With these preliminary observations in mind, I will explore legal concepts of responsibility that track the clinical chronology of addiction: the preaddictive phase, period(s) of active addiction, and the period of remission. Responsibility for Becoming Addicted I begin with whether people are responsible for becoming addicted. As noted, everyone agrees that people choose (voluntarily) to initiate the use of ad- dictive drugs. The question of ethical and legal inter- est is whether people who voluntarily choose to use addictive drugs are responsible for the consequences of their actions, including addiction. Should it be said, for example, that people who become addicted have only themselves to blame and that they have no legitimate claim on the society to insulate them from the consequences of their own folly? Assuming that, once addicted, the person has a brain diseasean irreversible pathological processunder what cir- cumstances does the person bear responsibility for becoming addicted? This question has direct rele- vance for some of the key policy goals of the public campaign now being waged by the scientific leader- ship of the addiction field: access to addiction treat- ment and nondiscriminatory access to health care and public economic assistance. Whether drug users are responsible for becoming addicted connects to a broader question of ethics. When are people responsible for their own disability or disease? Many cases of conscious risk-taking can lead to injury or disease, including riding a motorcy- cle 100 mph without helmet or engaging in promis- cuous, unprotected sexual behavior, not to mention smoking and using other addictive drugs. However, as O'Brien and McLellan'? point out, many people have the genetic good fortune to be essentially im- mune from these conditions, because the effects of tobacco or the hormonal surge associated with risk- taking are aversive to them, whereas others are bio- logically predisposed to sensation-seeking or to ad- diction. Again, we have the mixed vocabulary of predisposition and choice. Judgments of responsibility are not made in the abstract, however; they are contextual. Fundamen- tally, the underlying issue in any given context is whether the distributive principle is \"need\" or \"fault.\" A person with an injury or disease is ordi- narily no less entitled to rescue, treatment, or con- tinuing support by virtue of having contributed to the onset or severity of the disabling condition. The distributive principle in this context is need, not 408 The Journal of the American Academy of Psychiatry and the Law 10 [ To Do (1) Dashboard Calendar Notifications M Inbox 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Bonnie fault. However, addicts do not now have equal access to health care and disability benefits: Addiction treat- ment is often not covered under health insurance plans or is subject to benefit restrictions not applica- ble to other covered conditions. Addictive disorders are not in themselves a basis for disability benefits under the Supplementary Security Income (SSI) and Supplementary Security Disability Income (SSDI) programs; and addicts have a diminished priority in access to scarce medical resources (e.g., liver trans- plants). Whether these disadvantages are rooted in judgments of personal responsibility is more ambig- uous, because some of these restrictions might be explained or justified on grounds of effectiveness and cost. However, to the extent that they are rooted in controversial judgments of responsibility,' the \"brain disease\" formulation probably strengthens the claim of access. When the policy issue of concern is compensation for the losses associated with addiction, the distribu- tive principle is fault, and the general rule is personal responsibility based on an informed-choice para- digm. Whatever their vulnerability, and however strong the environmental influences, people know- ingly take the risk of becoming addicted when they use drugs with addictive properties that are well known. Smokers know abourt the risks of addiction, and drinkers of alcohol know about the risks of alco- holism.' Undercover drug purchasers know about the risks of using the goods they are buying and are not entitled to compensation under a workers' com- pensation program when those risks materialize.'\" Physicians who become addicted to opiates diverted from the hospital pharmacy are responsible for their condition and cannort shift the blame to the hospital's negligence in allowing access.' The law reflects a fairly strong commitment to the rule of personal responsibility for becoming addicted when one knowingly uses addictive substances; and medical use of drugs whose addictive properties are unknown can give rise to manufacturer liability (Crocker v. Winthrop Laboratories is illustrative of a series of suits brought successfully in the 1970s against the manufacturer of Talwin, a pain reliever that its users did not know was addictive.)."\" There is but one possible deviation from this rulethe pros- pect of an industry's having liability for addicting adolescents to tobacco and alcohol. This would be the exception that reaffirms the rule by marketing alcohol and tobacco to children and adolescents, who are unable to appreciate the consequences of their behavior (especially the grip of addiction), the man- ufacturers could be held liable for causing their addiction. Responsibility for Behavior Symptomatic of Addiction According to the standard vocabulary, the hall- mark of addiction is loss of control over drug use. I have no doubt that prolonged use of drugs is accom- panied by many changes in brain function that are correlated with the experience of loss of control, but what are the implications of this phenomenon for personal responsibility, whether moral or legal? Are addicts responsible for using drugs after the switch has been flipped? If not, are they responsible for other conduct prerequisite to drug use (e.g,, theft) or con- sequent to use (e.g., public drunkenness)? Does the brain disease formulation have a bearing on these questions? The area of law most clearly relevant to responsi- bility for addictive behavior is the criminal law. The response of the law to addiction cannot be fully un- derstood without understanding a few general prin- ciples of criminal responsibility: 1. Every person over a certain age is thought to have the capability to obey the commands of the law. This is a key postulate of the rule of lawthat the law is generally and equally applicable to everyone. Lack of responsibility must be regarded as a begrudging exception to the general rule. 2. A very narrow exception has traditionally been recognized for persons with severe mental illnesses who do not have the capacity to understand or ap- preciate the moral significance of their conduct. 3. Some states have expanded this exception to cover cases of severe volitional impairment, but this move has been highly controversial, particularly when it is not limited to situations involving psy- chotic decompensation. That is, the criminal law has been highly resistant to excusing offenders who have impulse disorders, paraphilias, or other conditions that allegedly impair volition. 4. Setting aside the insanity defense, the criminal law has also been resistant to excusing people who claim to have committed offenses because their will was overborne by strong emotions or pressures. The best illustration is the defense of duress. A narrow defense has been recognized for the extraordinary circumstances in which a person is threatened with Volume 30, Number 3, 2002 409 (1) Dashboard Calendar [ To Do Notifications M Inbox 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Responsibility for Addiction imminent death or serious bodily harm but not other kinds of threats, including financial or social ruin (even though these threats would render the threat- ening party guilty of extortion if he or she were seek- ing the victim's money rather than his assistance in committing a crime). Given this strong general resistance to volitional grounds of excuse, it should come as no surprise that addiction has not been recognized as a defense in prosecutions for using drugs, for being drunk, or for other conduct symptomatic of loss of control. Yet, at the same time, many judges probably share the moral intuition that addiction should be an occasion for compassion and mitigation, even if it does not qual- ify as an excuse. Moreover, aside from the issue of responsibility, the wisdom of using criminal prose- cution as a means of dealing with problems of addic- tion has been controversial for more than a century, with fluctuating cycles of support for criminalization and decriminalization. This long-standing ambivalence was reflected in two cases decided by the U.S. Supreme Court in the 1960s in which the Court was asked to use constitu- tional rulings to push the states in the direction of decriminalization. In Robinson v. California, the Court held that convicting a person for being an addict punishes a person for having a disease and therefore amounts to cruel and unusual punishment banned by the Eighth Amendment. Yet, as legal commentators pointed out immediately, the deci- sion seemed to imply that an addict could not be punished for the symptoms of the disease, including using drugs or possessing them for this purpose. Thus, the Court's ruling in Robinson raised the pos- sibility that the Constitution forecloses criminaliza- tion of drug offenses committed by addicts. However, six years later, the Court receded from this position in Powell v. Texas.\"' Powell, an alco- holic, was convicted of public drunkenness. He ar- gued that Rebinson stands for a broad principle of excuse: an addict cannot be punished for conduct symptomatic of disease (a condition he is powerless to change). The Court declined to embrace this prin- ciple and read Robinson narrowly. According to the prevailing view in Powell, although an addict, like Robinson, cannot be punished for the status of being an addict, he or she can be punished for conduct, such as possession or use. Similarly, Powell could not be punished for being an alcoholic, but he could be punished for appearing in public while drunk. In the course of its opinion, the Court mentioned two reasons for refusing to take the law down the path of excuse. First, the prevailing justices pointed out, tools are unavailable to measure volitional im- pairment and thereby to differentiate between of- fenders who were \"compelled\" by their addictions to use drugs and others who could have chosen not to violate the law. Second, the Court was concerned about the implications of such a ruling for the fabric of legal rules governing criminal responsibility: If an addict cannot be punished for using drugs, what about conduct symptomatic of all other volitional disorders (now called impulse disorders in DSM-IV) such as pyromania and kleptomania? Also, constitu- tionalizing an excuse for volitional impairment would require all the states to recognize a defense for what was then called an \"irresistible impulse\" under laws governing the insanity defense. The Court did not want to unsettle the law of criminal responsibility. These concerns are still pertinent today. The ad- vances in neuroscience that have begun to elucidate the neural substrates of addiction reinforce the argu- ment for an excuse based on compulsion, but they have not yet begun to answer these operational ques- tions. Science has not yet connected the dots between brain and behavior, between synaptic changes and the experience of craving and compulsion. We still have no validated behavioral models of craving. The effect of Robinson and Powell was to ratify the traditional reluctance of courts and legislatures to excuse addictive behavior. It is important to empha- size, however, that these decisions are not incompat- ible with the characterization of addiction as a \"dis- ease,\" or even as a \"brain disease.\" What they stand for is the proposition that, even if addiction is a dis- case, the Constitution does not preclude punishment of addicts for their unlawful conduct. Symptoms ac- tually caused by disease are not punishable, but con- duct said to be compelled does not have to be ex- cused. Compulsion may diminish responsibility, but it does not erase it. Quite apart from the question of excuse, the wis- dom of criminalization may be questioned. In my opinion, it is sensible to forgo punishment in favor of treating addicted offenders, not only for consump- tion-related offenses but also for other criminal con- duct that may be linked to their addiction. However, I do not favor repealing criminal sanctions. The strongest justificationif not the sole onefor re- 410 The Journal of the American Academy of Psychiatry and the Law 10 [ To Do (1) Dashboard Calendar Notifications M Inbox 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Bonnie taining criminal sanctions against drug use is that they provide therapeutic leverage for engaging peo- ple in treatment and facilitating compliance. Indeed, despite their emphasis on destigmatization, I suspect that Drs. Leshner, O'Brien, and McLellan and other proponents of a medical approach would resist de- criminalization of addictive behavior for the same reason. Responsibility for Relapse To incarcerate a severely addicted person for using drugs before detoxification and short-term with- drawal is inhumane and unwise, but whar about re- voking a defendant's pretrial release for failing a pe- riodic urine screen? Or revoking an offender's probation for failing to remain dry or clean after agrecing to do so or after signing a so-called last- chance agreement (LCA)? Is requiring abstinence as a condition of probation for an addict reasonable? Courts have held that it is, at least when the offend- er's drug use was connected to the offense.\"\" Using probation as a tool for keeping the addict engaged in treatment and for prolonging the period of absti- nence seems ethically permissible because it is in- tended to help the addict achieve personal responsi- bility for managing his or her condition. To put it another way, it eschews punishment for addiction while holding the offender responsible for relapse. In this section, I explore the notion of responsibility for relapse, first as an axiom of clinical practice and then as a basis for a legal principle. As was mentioned earlier, one of the major chal- lenges faced by addiction treatment researchers is to relate the positive effects of treatment to the changes in the brain caused by chronic drug addictionthat is, to begin the task of connecting the dots between brain and behavior. A recent study by Gottschalk and colleagues responds to this challenge in an intrigu- ing way. They point out that one of the known ef- fects of chronic cocaine administration is multiple focal decreases in cerebral blood flow. Hypothesizing that abstinence would be associated with increases in cerebral blood flow, that these increases would be a good measure of improvement in cognitive function, and thar such increases would be correlated with re- sponsiveness to cognitive behavior therapy (CBT), they presented several case reports highlighting this relationship. For our purposes, the most important feature of this preliminary study is that responsive- ness to CBT is defined as improvement in the pa- tient's capacity to learn new behavior and readiness for behavioral change (cognitive flexibility)a con- cept that is more or less equivalent to a capacity (will- ingness) to assume personal responsibility for man- aging one's addiction. From a clinical standpoint, then, we are trying to help people in recovery take responsibility for their situations, and, if we mean it, this also implies that they should accept responsibility when they fail. Aside from its purely moral connotations, the lan- guage of responsibility plays an integral part in all clinical encounters in chronic disease management, including treatment of asthma, diabetes, addiction, and many psychiatric disorders. Physicians and other therapists implicitly balance compassion for patients whose self-defeating behavior is driven by patholog- ical processes with an effort to help them improve their capacity to exercise self-control. Indeed, assess- ment of capacity for taking responsibility has been characterized by Halleck as \"an inherent part of med- ical practice\" (Ref. 24, p 338). Shaping incentives for self-control and disincentives for self-destructive or noncompliant behavior are often important ele- ments of therapy. In the context of addiction, the clinician must balance an understanding of the difficulty of achiev- ing and sustaining abstinence with some form of therapeutic pressure or leverage to reduce the risk of relapse. Contingency management can provide pos- itive reinforcers for compliance with the treatment contract,?\" but failure to earn the reinforcers does not necessarily lead to a strong attribution of responsibil- ity. However, addiction treatment specialists also of- ten rely on threats of negative consequences, includ- ing family discord, suspension of professional privileges, or revocation of probation, to deter relapse. The explicit use of threatened sanctions for their clinical utility inevitably exposes the issue of respon- sibility. Clinicians share a common-sense moral in- tuition that people should not be punished (or be deprived of something to which they are otherwise entitled), unless they can properly be said to be re- sponsible for their choices. If they lack substantial control over their behavior (under the hard-choice paradigm), compassion and assistance, rather than punishment, are indicated. However, at a suitable stage in the clinical course of treatment, blame for failure is not only useful as a clinical stratagem but is also a fair professional response. Defining the line Volume 30, Number 3, 2002 411 (1) Dashboard Calendar [ To Do Notifications M Inbox 3:02PM Wed Jan 24 olobn I Bonnie 2002 Responsibility for Addiction.pdf Responsibility for Addiction between compassionate understanding and personal accountability is a complex, morally textured clinical task. According to one addiction specialist with whom 1 discussed this problem, it is necessary to excuse occasional \"slip-ups\" by patients who remain engaged in the therapeutic process (because, after all, occasional \"slip-ups\" are expected); however, impos- ing treatment sanctions (e.g., license suspension, or probation revocation) on a patient who has dropped out of the treatment program or has been persistently noncompliant is both fair and efficacious (because it preserves the deterrent value of the threat). Do, or should, attributions of responsibility in the clinical setting have any bearing on moral or legal responsibility? I will explore this question in the con- text of modern disability law, specifically the em- ployment provisions of the Americans with Disabil- ities Act (ADA).* The ADA embodies the distinction between disease and conduct that, as we have seen, defines the boundaries of responsibility under the penal law. Specifically, an employer is per- mitted to establish generally applicable rules of con- duct (if they are justified by business necessity) and to hold all employees accountable for violations, even when the violation may be attributable to the em- ployee's disabilityfor example, threats against co- workers that might be symptomatic of a severe psy- chiatric disorder. Although addiction counts as a disability under the ADA and an employer may not discriminate against an otherwise qualified person on grounds of disability, rules of conduct basically trump the non- discrimination requirement of the ADA in this con- text. Use of an illegal drug, even off the job, is itself a lawful basis for exclusion or termination of employ- ment, even without any documented effect on per- formance. Employers are permitted to prescribe ran- dom drug tests and to fire people who are \"currently engaging in the illegal use of drugs\" regardless of whether their drug use is symptomatic of addiction. Even though use of alcohol off the job is not illegal and does not ordinarily implicate any rule of conduct for employees, most employers have sound business reasons to ban intoxication on the job or even to ban use of alcohol at the workplace and would be permit- ted to enforce such rules against everyone, including alcoholic employees. What an employer cannot do is discriminate, on the basis of disability, against a person who has com- pleted or is participating in an addiction rehabilita- tion program. Enrolling in treatment provides a safe harbor for addicted employees as long as they comply with the conditions of treatment.*\" This may require employers to accommodate the demands of treat- ment. The effect of the ADA, then, is to promote self-identification by addicts, grant a safe harbor for treatment, and use continued employment as a lever to promote therapeutic compliance. By creating the safe harbor, the law invites addicted employees to take responsibility for ameliorating their addictions. Negotiations regarding the conditions of treatment occur within the shadow of the ADA, but once the conditions are set, the employee bears the risk of noncompliance. This process is illustrated in the case of William Mararri, a steelworker whose alcoholism was accom- modated by allowing him to enter into an LCA after he twice violated bans against workplace intoxica- tion. The LCA required him to submit urine samples on request for five years and specified that a positive result at any level would be sufficient cause for ter- mination, as would reporting for work after having consumed alcohol. After he was fired for failing a urine screen, Mararri sued under the ADA. The Sixth Circuit Court of Appeals held that firing Mararri for failing a urine test administered pursuant to a valid LCA did notviolate the ADA, even though it was not a company-wide policy.\" Mararri's company had chosen to accommodate his alcoholism when it might have lawfully discharged him from the outset for being intoxicated on the job. In other cases, however, the LCA might itself be a reason- able accommodation of employees with a history of relapse. Either way, once the LCA is signed, the em- ployee's job is hostage to his or her compliance with its terms. Some disability rights advocates might regard this arrangement as unduly paternalistic, arguing that employers should not have the authority to prescribe conditions of treatment. However, whether or not this approach is ethically appropriate, it seems to represent the prevailing understanding of the ADA. It also casts the characterization of addiction as a chronic relapsing disorder in a somewhat different light: it emphasizes responsibility rather than excuse, and it also raises ques- tions about the generalizability of the principle embed- ded in the addiction cases. Is this a special rule for ad- dicted employees or does it represent a more general principle of disability employment discrimination law? 412 The Journal of the American Academy of Psychiatry and the Law 10 [ To Do (1) Dashboard Calendar Notifications M Inbox 3:02 PM Wed Jan 24 100% Bonnie 2002 Responsibility for Addiction.pdf Q 2 0 Bonnie Several recent cases involving diabetes," bipolar 2. Wallace R: Addiction as a defect of the will: some philosophical disorder, " and asthma" strongly suggest that a more reflections. Journal of Law and Philosophy 18:621-54, 1999 3. Corrado M: Addiction and causation. San Diego Law Rev 37: general principle is emerging. These cases suggest 913-57, 2000 that people have a responsibility to ameliorate and 4. Corrado M: Addiction and responsibility. Journal of Law and manage their own disabilities. This means seeking Philosophy 19:1-3, 2000 treatment when the disorder is identified and com- 5. Morse S: Hooked on hype: addiction and responsibility. Journal of Law and Philosophy 19:3-49, 2000 plying with medical direction, including taking pre- 6. Becker GS: Habits, addictions, and traditions. Kyklos 45:327- scribed medication. An employer has an obligation 46, 1992 under the ADA to accommodate such an employee 7. Becker GS, Murphy K: A theory of rational addiction. J Polit only to the extent that the residual impairments lie Econ 96:675-700, 1988 8. Elster J: Strong Feelings. Cambridge, MA: MIT Press, 1999 outside the employee's control. Only then is it fair to 9. Skog O: Hyperbolic discounting, willpower and addiction, in shift the costs of accommodation to the employer. Addiction. Edited by Elster J. New York: Russell Sage, 1999 pp 151-685 Summary 10. Elster J, Skog O (editors): Getting Hooked: Rationality and Ad- diction. New York: Cambridge University Press, 1999 In summary, to characterize addiction as a disease 11. Mclellan A, Lewis D, O'Brien C, Kleber H: Drug dependence, a is not necessarily morally incompatible with saying chronic medical illness: implications for treatment, insurance and that addicts are responsible for yielding to it. This is outcomes evaluation. JAMA 284:1689-95, 2000 12. Leshner A: Addiction is a brain disease and it matters. Science admittedly a demanding approach to responsibility, 278:45-7, 1997 but our criminal law has always set the bar pretty 13. O'Brien C, Mclellan A: Myths about the treatment of addiction. high. Holding addicts responsible is also strongly Lancet 347:237-40, 1996 14. Satel S, Goodwin F. Is Addiction a Brain Disease? Washington supported on utilitarian grounds because the threat DC: Ethics and Public Policy Center, Program on Medical Sci- of sanctions provides leverage to press them into ence and Society, 1998 treatment and to keep them engaged while therapeu- 15. Glannon W: Responsibility, alcoholism, and liver transplanta- tic efforts are undertaken. Such a stern approach may tion. J Med Philos 23:31-49, 1998 16. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991) be thought to be both unfair and unduly paternalis- 17. DiGloria v. Chief of Police of Methuen, 395 N.E.2d 1297 (Mass. tic. However, focusing on relapse suggests a more Ct. App. 1979) gentle, less jarring way of thinking about the addict's 18. Campo v. St. Lukes Hospital, 755 A.2d 20 (Pa. Super. Ct. 2000) responsibility: After the period of detoxification and 19. Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex. 1974) 20. Robinson v. California, 370 U.S. 660 (1962) acute treatment, the addict is responsible for taking 21. Powell v. Texas, 392 U.S. 514 (1968) steps to manage the addiction. 22. U.S. v. Miller, 549 F.2d 105 (9th Cir. 1975) In this connection, the similarity between addic- 23. Gottschalk C, Beauvais J, Hart R, Kosten T: Cognitive function tion and other chronic diseases, which lies at the and cerebral perfusion during cocaine abstinence. Am J Psychiatry 158:540-5, 2001 heart of the brain disease claim, becomes particularly 24. Halleck S: Which patients are responsible for their illnesses? Am J pertinent. Yes, addiction is best understood as a Psychother 42:338-53, 1998 chronic relapsing disorder. This helps to establish 25. Petry N, Petrakis I, Trevisan L, et al: Contingency management realistic expectations for the benefits of treatment, interventions: from research to practice. Am J Psychiatry 158: 694-702, 2001 but it also emphasizes the important role of behavior 26. Americans with Disabilities Act, Pub L No. 101-336, 104 Stat. in disease management and points in the direction of 327, 42 U.S.C. SS 12101-12213 (1990) a theory of responsibility for managing one's own 27. Hall v. Jewish Hospital of Cincinnati, 2000 WL 707073 (Ohio illness. Ct. App. 2000) 28. Mararri v. WCI Steel, Inc., 130 F.3d 1189 (6th Cir. 1997) 29. Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. References 1995) 1. Watson G: Disordered appetites: addiction, compulsion and de- 30. Keoghan v. Delta Airlines, 113 F.3d 1246 (10th Cir. 1997) pendence, in Addiction. Edited by Elster J. New York: Russell 31. Tangires v. The Johns Hopkins Hospital, 79 F. Supp.2d 587 (D. Sage, 1999, pp 3-28 Md.), aff d 230 F.3d 1354 (4th Cir. 2000) Volume 30, Number 3, 2002 413 10 Dashboard 888 Calendar To Do Notifications Inbox