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Prisoners and HIV/AIDS - Ralf Jurgens
US Supreme Court Hears ADA Cases - by Bill R.
- Sexual Dysfunction Treatment with Bromocryptine
By Ralf Jürgens
The "new" measures, which are part of CSC's National HIV/AIDS Program, include the introduction of methadone maintenance treatment and "greater efforts to promote widespread HIV/AIDS testing as well as the introduction of an anonymous testing project to be piloted in one designated federal correctional institution."
However, methadone maintenance treatment will be offered initially only to offenders who are already on a methadone treatment program in the community prior to being sentenced, although it has been widely recommended that, where such treatment is a treatment option available to opioid-dependent persons outside prisons these persons should also be allowed to start the treatment in prisons.
In addition, CSC first announced support for an anonymous testing pilot project in a federal prison in March 1994, in its response to the Final Report of the Expert Committee on AIDS and Prisons. Its re-announcement of a commitment made over three-and-a-half years ago is therefore hardly a "new" measure to combat the spread of HIV; it is the long-overdue fulfillment of an old promise and yet another sign of how slow change is within the Correctional Service of Canada.
Once again, CSC has failed to be proactive and has remained paralyzed by concerns that, if it introduced real change - such as pilot projects for distribution of sterile injection equipment and safe tattooing - it could be seen as condoning drug use and tattooing. In the meantime, the number of prisoners living with HIV or AIDS behind bars increases steadily and risk behaviours [sic], particularly the sharing of injection equipment, continue. Most recently, they have led to concerns regarding a potential outbreak of HIV infection in two federal prisons. As representatives of the Legal Network have said: "The government could be held morally and legally responsible. It is clearly negligent. Do we need a commission of inquiry such as the Krever Commission before the prison system will finally do what should have been done years ago? The government could have saved many lives and a lot of money by following the experts' recommendations."
Editor's Note: Clearly, the CSC is not going far enough when it comes to prevention of HIV and hepatitis or making drug treatment available to prisoners. However, Canada is ahead of the United States in these areas—only one prison in the U.S. (Riker's Island) allows [some] inmates to continue to maintain on methadone, and this program is quite limited. Unlike Canada, in the U.S., there are no plans to make methadone maintenance available to more inmates in the foreseeable future.
This is a very important [albeit insufficient] step that Canada is taking and is the right decision for ethical and pragmatic reasons. From the standpoint of the public good, the benefits of providing prisoners with methadone maintenance treatment outweigh the costs. Monetarily, the public benefits of methadone maintenance have been firmly established—a savings of approximately $7 for every $1 spent on treatment. The treatment of medical complications related to illicit opiate abuse—particularly hepatitis and HIV—can be quite expensive, and may be prevented in many cases by methadone maintenance.
Theoretically, all this shouldn't apply to prisons, since they are supposed to be "drug-free." But the fact is that prisons are not free of illicit drugs, and the likelihood of this changing in the near future is slim.
One of the rationales of incarceration, especially for "drug related" offenses, is to rehabilitate "offenders" (this is why the agency that regulates prisons is called the "Department of Corrections"). In fact, one of the main arguments used to justify incarceration of [non-violent] drug addicts is that it is "for their own good" (i.e., to stop their destructive drug use). In this context, withholding the most effective treatment for opiate addiction seems quite hypocritical.
However, there is another reason that inmates should have access to methadone maintenance. We believe that inmates should have the right to health care. Opiate addiction is a medical problem, and methadone maintenance treatment is the most effective medical treatment for opiate addiction to date. Therefore, methadone maintenance should be available to any inmate who wants and needs it, whether he or she was in treatment prior to incarceration or not.
The U.S. justice system apparently still views drug addiction
as a moral problem rather than a medical condition. They need to
follow Canada's lead and begin providing methadone maintenance, as well
as needles and condoms—for the good of inmates and society as well.
ENDNOTES Correctional Service Canada. News Release: Correctional Service Canada. News Release: Correctional Service of Canada to Introduce Methadone Maintenance Treatment. Ottawa: The Service, 1 December 1997.
 Canadian HIV/AIDS Legal Network. Press Release: Correctional Service Failing to Respond to HIV Crisis in Prisons - World AIDS Day Brings Little Good News for Prisoners. Montreal: The Network, 1 December 1997.
 PASAN. Press Release: Prison HIV/AIDS Activists Respond to Correctional Service Canada - Community Group Says CSC's AIDS Announcement Is Not Enough. Toronto: PASAN, 2 December 1997.
 Supra, note 1.
 See, eg, recommendation 5.4 in HIV/AIDS in Prisons: Final Report. Montreal: Canadian HIV/AIDS Legal Network and Canadian AIDS Society, 1996, at 109.
 CSC. HIV/AIDS in Prisons: Final Report of the Expert Committee on AIDS and Prisons. Ottawa: Minister of Supply and Services Canada, 1994. (Cont. p. 3)
Misperceptions and StigmasMany of the barriers to effective use of MMT in the treatment of opiate dependence stem from misperceptions and stigmas attached to opiate dependence, the people who are addicted, those who treat them, and the settings in which services are provided. Opiate-dependent persons are often perceived not as individuals with a disease but as "other" or "different." Factors such as racism play a large role here but so does the popular image of dependence itself. Many people believe that dependence is self-induced or a failure of willpower and that efforts to treat it will inevitably fail. Vigorous and effective leadership is needed to inform the public that dependence is a medical disorder that can be effectively treated with significant benefits for the patient and society.
Increasing Availability of Effective ServicesUnfortunately, MMT programs are not readily available to all who could and wish to benefit from them. We as a society must make a commitment to offering effective treatment for opiate dependence to all who need it. Accomplishing that goal will require:
Making treatment as cost-effective as possible without sacrificing quality.
Increasing the availability and variety of treatment services.
Including and ensuring wider participation by physicians trained in substance abuse who will oversee the medical care.
"Providing additional funding for opiate dependence treatments
and coordinating these services with other necessary social services and
Training Physicians and Other Health Care ProfessionalsOne barrier to availability of MMT is the shortage of physicians and other health care professionals prepared to provide treatment for opiate dependence. Practitioners of all primary care medical specialties (including general practice, internal medicine, family practice, obstetrics and gynecology, geriatrics, pediatrics, and adolescent medicine) should be taught the principles of diagnosing and treating patients with opiate dependence. Nurses, social workers, psychologists, physician assistants, and other health care professionals should also be trained in these areas. The greater the number of trained physicians and other health care professionals, the greater the supply not only of professionals who can competently treat the opiate dependent but also of members of the community who are equipped to provide leadership and public education on these issues.
Reducing Unnecessary RegulationsOf critical importance in improving MMT of opiate dependence is the recognition that, as in every other area of medicine, treatment must be tailored to the needs of the individual patient. Current Federal regulations make this difficult if not impossible. By prescribing MMT procedures in minute detail, FDA's regulations limit the flexibility and responsiveness of the programs, require unproductive paperwork, and impose administrative and oversight costs greater than those necessary for many patients. Yet these regulations seem to have little if any effect on quality of MMT care.
We know of no other area where the Federal Government intrudes so deeply and coercively into the practice of medicine. For example, although providing a therapeutic dose is central to effective treatment and the therapeutic dose is now known to be higher than had previously been understood, FDA's regulations discourage such higher doses. However well intended the FDA's treatment regulations were when written in 1972, they are no longer helpful. We recommend that these regulations be eliminated. Alternative means, such as accreditation for improving quality of MMT programs should be instituted. The U.S. Department of Health and Human Services can more effectively, less coercively, and much less expensively discharge its statutory obligation to provide treatment guidance to MMT programs, physicians, and staff by means of publications, seminars, web sites, continuing medical education, and the like.
We also believe current laws and regulations should be revised to eliminate the extra level of regulation on methadone compared with other Schedule II narcotics. Currently, methadone can be dispensed only from facilities that obtain an extra license and comply with extensive extra regulatory requirements. These extra requirements are unnecessary for a medication that is not often diverted to individuals for recreational or casual use but rather to individuals with opiate dependence who lack access to MMT programs.
If extra levels of regulation were eliminated, many more physicians and pharmacies could prescribe and dispense methadone, making treatment available in many more locations than is now the case. Not every physician will choose to treat opiate-dependent persons, and not every methadone-treated person will prefer to receive services from an individual physician rather than to receive MMT in a clinic setting. But if some additional physicians and groups treat a few patients each, aggregate access to MMT would be expanded.
We also believe that State and local regulations and enforcement efforts should be coordinated. We see little reason for separate State and Federal inspections of MMT programs. State and Federal regulators should coordinate their efforts, agree about which programs each will inspect to avoid duplication, and target "poor performers" for the most intensive scrutiny while reducing scrutiny for MMT programs that consistently perform well. The States should address the problem of slow approval (at the State level) of FDA-approved medications. LAAM, for example, has not yet been approved by many States. States should harmonize their requirements with those of the Federal Government.
We would expect these changes in the current regulatory system
to reduce unnecessary costs both to MMT programs and to enforcement agencies
at all levels. The saving could be used to treat more patients.
The judge believed that there were clear medical reasons for the prescription of methadone to this particular prisoner and ordered the doctor to start providing him with methadone immediately. If anyone has a similar experience in another country, we would be interested to hear about it (fax: + 31 20 5555 775).
Editor's Note: While the treatment of methadone patients in Dutch prisons is far from optimal, it appears that prisoners have recourse in the justice system. Unfortunately, in the United States, the existence of "clear medical reasons" for methadone prescription is not sufficient to win a lawsuit or receive medication.
Here is a "letter to the editor" in No. 10 of the same newsletter, describing the [all too common] mistreatment of a methadone patient in an American prison:
In Newsletter no. 9 (News from the field) you published the story of a Dutch prisoner who was refused methadone. We have had a similar experience, which we would like to share with the readers of the Newsletter.
In September 1994, Janet M. was put into the disciplinary unit of the infamous Taycheedah Women's Prison (American State of Wisconsin). Her crime? Methadone treatment.
The sentence was severe: "cold-turkey withdrawal' from the dose of 120 mg., which she had taken daily for 14 years. The prison doctor refused to see her for over a week.
Janet has incurred the wrath of a probation officer who held the familiar negative view of methadone treatment by resisting his orders to discontinue her long-standing maintenance treatment. She was placed on probation for a minor offence. The officer was supported by state officials despite her husband's tireless attempts to save her from the medieval tortures she endured and then, afterwards, to obtain justice.
While in the "Hole" at the prison, Janet heard accounts from sympathetic workers of another woman who had been held chained to a table for a week, to quell her rantings which the guards apparently found rather irritating. The Department has denied requests to intervene.
We are now committed activists to obtain and safeguard civil rights for addicts. We would like to hear of similar instances and communicate with other activists worldwide.
Editor's Note: From talking to Michigan Department of Corrections staff [to inquire about their policies regarding methadone maintenance], it's apparent that they don't view methadone maintenance as a treatment at all—most of the ones I talked to didn't even know what methadone maintenance treatment was and/or had no idea what the policy is or who makes the policy (i.e., the individual prisons, the prison doctors, or the Department of Corrections). Of those that I talked to that had some idea of what I was talking about, the immediate response was usually something along the lines of, "No, inmates aren't allowed to take [mind-altering] drugs [or ‘narcotics']." While the individuals that I talked to obviously do not make policies, their attitudes and beliefs are indicative of how the Department of Corrections handles such matters and what training [or lack thereof] staff receive regarding drug treatment and medical issues generally.
It seems a lot of Federal Judges just don't see the ADA as protecting
anyone unless they are "disabled" in a "traditional sense" (e.g., wheel
chair bound), or the device utilized to allow the "disabled" person to
function itself causes problems.
The ADA states in pertinent parts: "The term ‘disability' means.... a physical or mental impairment that substantially limits one or more of the major life activities of.... ‘an individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."
The first is a Kansas case in the 10th Circuit entitled Murphy v. UPS. The plaintiff had lifelong hypertension controlled by medication and worked as a mechanic for UPS. During a UPS physical, his blood pressure surpassed their "limit" and two weeks later, he was fired for "hypertension." He sued under the ADA and lost. On appeal it was held that a person is not disabled (at least on these facts) if medication can control the purportedly disabling condition. The employee has appealed to the Supreme Court.
It should be noted that while Mr. Murphy was not fired for taking medication prescribed to control a purported disability, but (oddly) for what the medication was supposed to control.
If Murphy sets precedent, it might have an impact on the rights under the ADA of MMT patients, although as his high blood pressure on the day in question is analogous to a relapse, and no person fired for illicit use of drugs is protected by the ADA whether or not he is an MMT patient. Murphy may stand as more of a "sign post" pointing judges (and the EEOC) in a particular direction in cases involving an alleged violation of the ADA by a patient rather than serve as controlling precedent. A lot will depend on how the decision is worded. In another case, twins who wear glasses and who were commuter airline pilots in Denver are suing United Airlines (Sutton v. United) because it refused to hire them because they had impaired, albeit correctable vision.
During oral argument of the case, one of the justices waved his own eyeglasses around and asked, perhaps rhetorically, whether he was disabled for wearing them.
On the surface it would appear that both these cases involved prohibited discrimination. This gesture by the Justice arguably speaks volumes about the true nature of the real argument in all of the cases: are we to be a society in which any imperfection creates a "protected" class. The reluctance of the courts below to find either Mr. Murphy or the twin pilots "disabled" was in all likelihood pragmatically, if not exactly legally, rooted in the fact that innumerable people wear glasses and have high blood pressure, and it arguably "cheapens" the law (and more importantly could clog the justice system) if the ADA is applied to every human flaw.
In the third case, Albertson's (a Grocery Chain) managed to have an ADA claim brought in Portland by a one-eyed trucker it had fired after it had employed him for several years while ignorant of the condition which was discovered in connection with an examination for another injury (Albertson's v. Kirkenburg).
Mr. Kirkenburg got a waiver from the DOT (which like all Federal Agencies is itself exempt from the ADA) allowing him to drive big rigs, but Albertson's refused to rehire him and he sued. A judge initially threw out his case, ruling as a matter of law not only was he not disabled but that he wasn't able to properly drive a truck.
The Ninth Circuit Court of Appeals disagreed with the Trial Judge but did not indicate that the claim had merit, simply that it could not be decided as a matter of law, and thus it remanded the case for trial. Albertsons appealed to the Supreme Court and review was granted.
Mr. Kirkenburg's lawyers maintain that Albertsons has the burden of proof that his problem poses a direct threat to the safety of others in order to prevail if the case is tried.
It should be noted that employers win 84% of the ADA cases which go to verdict or other ultimate disposition.
Editor's Note: The ADA is important for the protection
of methadone patients' rights. Discrimination against methadone maintenance
patients is fairly common; the ADA is designed to redress such discrimination—that
is, on the basis of a disability [drug addiction]—requiring employers and
other entities to provide "reasonable accommodations" if necessary for
performance. The ADA has also been used to strike down unreasonable
restrictions on the locating of methadone clinics.
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