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THE PHYSICIAN AND THE FEDERAL NARCOTIC LAW
H.J. Anslinger - United States Commissioner of Narcotics.
From: Tulane Law Review, Vol. XX No. 3, March 1946 pp. 309-332
1. Types of Narcotic Drugs Covered.
Narcotic drugs covered by the law are those included within the classification opium, coca leaves, and any compound, salt, derivative or preparation thereof.(1) They include, for instance, all of the alkaloids and salts of opium, whether of the phenanthrene or isoquinoline groups. By an amendment approved July 1, 1944, to the Federal law, isonipecaine, a synthetic substitute for morphine, was added to this classification and is therefore subject to the operation of the Federal narcotic law in the same manner as is morphine for which it is substituted. Isonipecaine is defined as 1-methyl-4-phenyl-piperidine-4-carboxylic acid ethyl ester, or any salt thereof, by whatever trade name designated.(2)
2. International Action.
Modern narcotic drug legislation is the result of the efforts of our government to give full effect to its obligations under the international conventions to which it is a party.(3) The first of these important international agreements is known as the International Opium Convention of 1912.(4) Under this convention the contracting powers assumed the obligation, among others, to enact pharmacy laws or regulations to limit exclusively to medical and legitimate purposes the manufacture, sale and use of morphine, cocaine, and their respective salts unless laws or regulations on the subject were already in existence. The contracting powers were obligated to cooperate with one another to prevent the use of these drugs for any other purpose.
In 1925 the second international convention on the subject of narcotic drugs was signed at Geneva on behalf of a number of World Powers, not including the United States, this agreement being described as the International Opium Convention adopted by the Second Opium Conference, (League of Nations) signed at Geneva February 19, 1925.(5) This Convention sought to make more specific the obligations of the 1912 Convention, notably in the control of international trade in narcotics, and established a Permanent Central Board with certain functions in connection with the supply and international movement of narcotic drugs. Our government did not sign or ratify this convention at the time, because it did not give effect to the principle, advanced by the United States, of direct control of production of the source raw material (the opium poppy and the coca leaf). However, in Article 31 it was provided that the present (1925) Convention replaces, as between the contracting parties, the provisions of Chapters I, III and V of the Convention signed at The Hague on January 23, 1912, which provisions remain in force as between the contracting parties and any States parties to the said Convention which are not parties to the present Convention. The United States fully cooperated with the contracting powers which had ratified the 1925, as well as with those which had merely ratified the 1912, Convention, in international action looking toward control of the narcotic drug traffic. Our government, as a matter of fact, had already adopted legislative measures which gave effect to the provisions of the 1925 Convention, pursuant to the obligations assumed under the 1912 Convention.
A third international agreement, concluded at Geneva July 13, 1931, was the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs.(6) The ratification by the United States of this Convention was deposited at Geneva on April 28, 1932, and was proclaimed by the President July 10, 1933. The outstanding feature of this Convention is that it obligates each High Contracting Party to furnish annual estimates to a Supervisory Body of its requirements for narcotic drugs, based solely on the medical and scientific requirements of the country, and limits manufacture of the drugs to the total requirements thus estimated. The Convention incorporates and therefore in effect adopts certain provisions of the preceding 1925 Convention. It further obligates the High Contracting Parties to take all necessary legislative or other measures in order to give effect within their countries to the provisions of the Convention. Another important and interesting feature of the Convention is the imposition of a special obligation upon each of the High Contracting Parties to create a special administration for the purpose of (a) applying the provisions of the Convention; (b) regulating, supervising and controlling the trade in the drugs; and (c) organizing the campaign against drug addiction, by taking all useful steps to prevent its development and to suppress the illicit traffic.
3. Federal Narcotic Statutes.
The two principal Federal narcotic statutes are the Act of May 26, 1922, known as the Narcotic Drugs Import and Export Act, as amended,(7) and the so-called Harrison Narcotic Law, now incorporated in the Internal Revenue Code.(8) The Narcotic Drugs Import and Export Act authorizes the importation of such quantities only of opium and coca leaves as the Commissioner of Narcotics shall find to be necessary to provide for medical and scientific needs. Importation of any form of narcotic drug, except such limited quantities of crude opium and coca leaves, is prohibited. Exportation of manufactured drugs and preparations is permitted under a rigid system of control designed to assure their use for medical needs only in the country of destination.
The Harrison Narcotic Law as reenacted in the Internal Revenue Code is designed to direct the manufacture and distribution of narcotic drugs through medical channels to consumption use for medical purposes only. This statute and the regulations promulgated thereunder (9) more directly affect the practicing physician and will be the basis of the following discussion.
(a) Qualification Prerequisite.
A physician who intends to practice medicine and to administer or dispense narcotic drugs in the course of such practice must apply for registration under the Harrison Law with the Collector of Internal Revenue of the district in which he proposes to practice, and must pay the appropriate occupational tax for the fiscal year applicable. Before being entitled to such registration, however, he must be lawfully entitled under the laws of the State or Territory or district wherein he intends to practice, to distribute, dispense, give away or administer narcotic drugs to patients upon whom he, in the course of his professional practice, is in attendance.(10) In the case of a medical practitioner, this requirement usually means that the applicant is a physician who holds an unrevoked and unrestricted license to practice medicine in the particular State, Territory or district. To be entitled to registration, however, in the case of any type of practitioner of the healing art, it must appear that he is entitled under the State laws to distribute, administer or dispense narcotic drugs to patients upon whom he, in the course of his professional practice, is in attendance. "The right to register and pay tax under the Federal statute depends on the right to dispense under the State laws."(11)
(b) Inventory Required.
Every person making application for registry or re-registry as a physician shall, as of December 31st preceding the date of his application, or any date between December 31st and the date of applying for such registry or re-registry, prepare under oath or affirmation, in duplicate, an inventory of all narcotic drugs and preparations on hand at the time of making such inventory. The inventory shall be prepared on Form 713, copies of which may be obtained from Collectors of Internal Revenue upon request. The original inventory shall be forwarded to the Collector with the application for registration, and the duplicate shall be kept on file by the maker for a period of two years.
(c) Special Tax Stamp.
Upon approval of the application for registration the Collector of Internal Revenue will assign a registry number to the applicant and will issue him a special tax stamp in Class IV as a practitioner. This special tax stamp must be kept posted conspicuously on the premises covered by the registration, i.e., the physician's office.
(d) Change of Location of Office.
A physician registrant who changes the location of his, office shall, within thirty days, execute a new return on Form 678-A, marking it "Revise Registry." The return shall set forth the date of change and the new name or address. The return shall be forwarded with the special tax stamp to the Collector who issued the stamp for recording the change. If the removal is to another State, Territory or district, the physician must, of course, be qualified in the new location to administer, dispense or distribute narcotic drugs to patients, which usually means, of course, that he must also be licensed to practice medicine in the new location.
5. Dispensing and Prescribing -- in General.
(a) Direct Dispensing or Administration.
A physician may obtain narcotic drugs for direct dispensing or administration to patients only on official order forms. He may not obtain narcotic drugs on a so-called prescription for general office use. Official order forms are obtainable from the Collector of Internal Revenue in a book of ten originals and duplicates for ten cents. The form is to be prepared in duplicate and signed by the physician, the original copy being forwarded to a qualified manufacturer or wholesaler, and the duplicate retained by the physician for a period of two years subject to inspection by a duly authorized Federal or State narcotic officer. The order form may be prepared in typewriting, ink or indelible pencil, but not by the use of an ordinary lead pencil.
A physician may issue for a bona fide patient, for medical purposes only, a prescription for narcotic drugs which may be filled by a qualified retail dealer (druggist).
(a) Formal Requirements.
A prescription for narcotic drugs shall be dated as of and signed on the date when issued and shall bear the full name and address of the patient and the name, address, and registry number of the practitioner. A physician may sign a prescription in the same manner as he would sign a check or legal document, as, for instance, J. H. Smith, John H. Smith, or John Henry Smith. Prescriptions should be written with ink or indelible pencil or typewriter; if typewritten, they shall be signed by the practitioner. The refilling of a prescription for taxable narcotic drugs is prohibited.
(b) Misuse of Prescription Form as an Order Form,
A physician must not use his prescription form to obtain narcotic drugs for general office practice. Narcotic drugs desired for general office practice are obtainable on official order form, as above described, from a qualified manufacturer or wholesale dealer. An order for narcotic drugs for general office practice, written on a prescription blank, is not a lawful prescription within the meaning of the law and can have no effect to validate the sale which is illegal.
(e) Fictitious Names.
When the names of fictitious patients are discovered on narcotic drug prescriptions filed with a druggist it is usually a clear indication of wilful catering to drug addiction, whether or not the so-called prescriptions are also discovered to be forged. Sometimes the physician will insert a fictitious patient's name, however, because he wishes to conceal from the druggist the fact that the real patient is consuming drugs, notwithstanding that the real patient is claimed to have a bona fide medical need therefor. The law does not permit the use of a fictitious patient's name upon a prescription.
(d) Telephone Orders.
The furnishing of narcotic drugs pursuant to telephone advice of practitioners is prohibited, whether prescriptions covering such orders are subsequently received or not, except that in an emergency a druggist may deliver narcotic drugs through his employee or responsible agent pursuant to a telephone order, provided the employee or agent is supplied with a properly prepared prescription before delivery is made, which prescription shall be turned over to the druggist and filed by him as required by law.
(e) Safeguarding Blanks for Narcotic Drugs.
A physician's prescription blanks should be most carefully safeguarded and never left where persons who may be drug addicts will have opportunity to take them, and to prepare and have filled forged narcotic prescriptions. A physician's official order forms should be likewise safeguarded, and great care should be exercised by the physician in keeping his stock of narcotic drugs secure from robbery or pilfering. The medicine case of morphine tablets should never be left in an unattended automobile.
7. Professional Practice in Prescribing or Dispensing Narcotic Drugs.
(a) Constitutionality of the Harrison Narcotic Law.
The constitutionality of the Harrison Narcotic Law was first challenged before the United States Supreme Court in 1919 by Dr. C.T. Doremus of Texas. Dr. Doremus had been indicted under section 2 of the Act (now section 2554 of Title 26 of the United States Code). The Supreme Court sustained the constitutionality of section 2 as having reasonable relation to the raising of revenue, and stated that the Act "may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue.(12)
In 1927, the constitutional validity of section 1 of the Act (now section 2553 of Title 26 of the United States Code) was questioned by a defendant, not a physician, who had been convicted of purchasing narcotic drugs not in or from the original tax stamped packages. The Supreme Court affirmed the constitutionality of the challenged section.(13)
In 1928, a defendant who was not a physician again challenged the constitutional validity of section 2 of the Act, notwithstanding the previous Doremus decision, and the Supreme Court reaffirmed the constitutionality of this section.(14)
(b) Professional Practice as Applied to Drug Addiction.
In a leading case decided March 3, 1919, the Supreme Court enunciated an important principle in connection with the meaning of the words "professional practice" as used in section 2 of the Harrison Act.(15) In this case Webb was a practicing physician and Goldbaum a retail druggist in Memphis. It was Webb's regular custom and practice to prescribe morphine for habitual users upon their application to him therefor. He furnished these prescriptions not after consideration of the applicant's individual case and in such quantities and with such direction as, in his judgment, would tend to cure the habit, or as might be necessary or helpful in an attempt to break the habit, but with such consideration and in such quaritities as the applicant desired for the sake of continuing his accustomed use. Goldbaum was familiar with such practice and habitually filled such prescriptions. Within a period of eleven months Goldbaum purchased from wholesalers in Memphis thirty times as much morphine as was bought by the average retail druggist doing a larger general business, and he sold narcotic drugs in 6,500 instances. It was also shown that during the same period Webb had issued and Goldbaum had filled over 4,000 such narcotic prescriptions, and that a certain user of the drugs had applied to Webb for morphine and was given at one time ten so-called prescriptions for one gram each, which prescriptions were filled at one time by Goldbaum although each was made out in a separate fictitious name. The United States Circuit Court of Appeals, upon this statement of fact, propounded the following question to the United States Supreme Court:
"If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician's prescription under exception (b) of section 2 (of the Harrison Act) ?"
To this question the Supreme Court answered, "To call such an order for the use of morphine a physician's prescription would be so plain a perversion of meaning that no discussion of the subject is required. That question should be answered in the negative."
The Supreme Court emphasized this rule in a later case involving the prescribing of narcotics by a practitioner for an addict by holding in part as follows:
"Manifestly the phrases 'to a patient' and 'in the course of his professional practice only' are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the Act, strictly within the appropriate bounds of a physician's professional practice, and not to extend it to include a sale to a dealer or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. A 'prescription' issued for either of the latter purposes protects neither the physician who issues it nor the dealer who knowingly accepts and fills it."(16)
In the Dr. Morris Behrman case (17) decided by the Supreme Court in 1922, the defendant was charged with unlawfully selling to an addict by means of three so-called prescriptions, 150 grains of heroin, 360 grains of morphine, and 210 grains of cocaine, with the intent that the addict would use the same by self-administration in divided doses over a period of several days. The indictment did not in terms challenge the good faith of the physician and did not contain the allegation that the prescriptions were not issued in the course of professional practice only. A demurrer to the indictment was sustained in the district court and the case was appealed to the United States Supreme Court. The Supreme Court pointed out that the quantities of narcotics named in the indictment were charged to have been entrusted to a person known by the physician to be an addict, without restraint upon him in its administration or disposition by anything more than his own weakened and perverted will. Such so-called prescriptions, said the court, could only result in the gratification of a diseased appetite for these pernicious drugs, or result in an unlawful parting with them to others, in violation of the Act as heretofore interpreted in this court, within the principles laid down in the Webb and Jin Fuey Moy cases. Notwithstanding the omissions in the indictment, therefore, the court held that the acts charged constituted offenses within the terms and meaning of the Act, and the judgment of the district court to the contrary was reversed.
(c) The Linder Case.
The effect of the decision of the Supreme Court in the Dr. C. 0. Linder case(18) has been misunderstood by some physicians, who evidently regarded the decision as authority to cater to drug addiction as such notwithstanding previous decisions of the court which declared this activity not within the course of professional practice of a physician. Dr. C. 0. Linder was charged with the unlawful sale to an addict of one tablet of morphine and three tablets of cocaine for self administration in divided doses over a period of time. Here, as in the Behrman case, the indictment did not specifically challenge the good faith of the physician, or negative that the sale was in the course of professional practice only. The quantity of drugs sold was, of course, far less than the quantity prescribed by Dr. Behrman. Dr. Linder was convicted but when his case reached the Supreme Court the judgment of conviction was reversed.
In the course of the opinion there was discussion that direct control of medical practice in the States is beyond the power of the Federal Government, and that incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. But the court had first significantly noted that the indictment "does not question the doctor's good faith nor the wisdom or propriety of his action according to medical standards," and that "it does not allege that he dispensed the drugs otherwise than to a patient in the course of his professional practice or for other than medical purposes." In concluding the opinion, therefore, the court stated:
"We find no facts alleged in the indictment sufficient to show that petitioner had done anything falling within definite inhibitions or sufficient materially to imperil orderly collection of revenue from sale. * * * The unfortunate condition of the recipient certainly created no reasonable probability that she would sell or otherwise dispose of the few tablets entrusted to her; and we cannot say that by so dispensing them the doctor necessarily transcended the limits of that professional conduct with which Congress never intended to interfere."
All that the Linder case holds, therefore, is that in the absence of an allegation in the indictment negativing good faith and professional practice, the court cannot supply the omission by holding as a matter of law that the sale of four tablets of narcotics necessarily transcends the limits of professional practice. The court could so hold in the Behrman case because the quantities were so large as to preclude any possibility that they were prescribed professionally.
It follows, therefore, that where the indictment challenges the good faith and professional practice of a physician who prescribes or directly sells narcotic drugs for the purpose of merely gratifying and perpetuating narcotic drug addiction as such and if convicted of such an offense, the judgment of conviction will stand and a number of United States Circuit Courts of Appeal have so held in cases involving convictions of physicians which reached these intermediate appellate courts after the Linder case was decided, and in which the Linder decision was urged as exculpating the convicted physician.(19)
(d) The A. W. Boyd Case.
One year after its decision in the Linder case, the Supreme Court rendered its decision in the case of Dr. A. W. Boyd(20), in which the physician had been convicted on six counts of an indictment charging unlawful sales by means of prescriptions issued.not in good faith and not in the course of his professional practice. These prescriptions were issued for from 30 to 48 grains each to two named drug addicts. It was established that the physician purchased and distributed over 15,000 grains of morphine during a period from May lst to September 30th, and that he issued prescriptions on much the same scale during that period. The court pointed out that the disputed question was whether the defendant'issued the prescriptions in good faith in the course of his professional practice. The Government's evidence tended strongly to show that the prescriptions were for quantities many times in excess of what, according to any fair medical standards, reasonably could be put into the possession of confirmed addicts, even when treating them for the addiction or endeavoring to relieve them from suffering incident to it. Much of the defendant's evidence tended to show that he issued the prescriptions in good faith in the course of professionally treating the recipients for their addiction and endeavoring to relieve them from its incidents, but the court noted that some of the evidence submitted in behalf of the defendant was pronouncedly corroborative of that for the Government. The court, in sustaining the judgment of conviction, quoted with implied approval the charge to the jury which had been made at the request of the defendant's counsel, as follows:
"I am requested to say to you, gentlemen, that in determining whether or not the defendant in prescribing morphine to his patients was honestly seeking to cure them of the morphine habit while applying his curative remedies, it is not necessary for the jury to believe that the defendant's treatment would cure the morphine habit, but it is sufficient if defendant honestly believed his remedy was a cure for this disease.
"I instruct you that if this is true, regardless of whether the course of treatment given by this defendant is a cure, the question is, was he honestly and in good faith in the course of his professional practice and in an effort to cure disease issuing these prescriptions .
This charge certainly was as fair as the defendant could have wished, but the jury, under all the evidence submitted, could hardly have done otherwise than convict.
(e) The Peter Young Case.(21)
Dr. Peter Young had been convicted on eight counts of an indictment charging sales of quantities of certain conditionally exempt narcotic preparations(22) without having kept a record of the sales. Actually the total quantities of these narcotic preparations sold by the physician were large but unfortunately, from the standpoint of a proper presentation of the merits of the case, the indictment did not question the good faith or professional propriety of the unlawful sales charged. When this case reached the Supreme Court, it was necessarily considered on the theory that the physician dispensed or administered preparations to patients whom he personally attended, and the question of whether the dispensing or administration was in the course of professional practice was not before the court. Thus considered, the court reversed the judgment of conviction holding that physicians administering the preparations to patients whom they personally attended were not required to keep records of the preparations so administered.
(f) The Professional Practice Rule in Intermediate Appellate Courts.
Subsequent to the decision of the Supreme Court in the A. W. Boyd case, the several circuit courts of appeals have applied the principle enunciated in that case in rendering decisions appealed to them by physicians who have been convicted under the Harrison Narcotic Law.(23) In the DuVall case the Circuit Court of Appeals for the Ninth Circuit quoted with approval the following instruction to the jury which applies and interprets the principle:
"If the prescriptions were issued in good faith and according to fair medical standards, in the curing of disease, and not merely to satisfy the cravings of the said persons for such drugs, then they may be said to have been issued in the course of the defendant's professional practice only; but if the prescriptions were not issued in good faith, but were issued to enable such person to obtain morphine sulphate to satisfy his appetite and cravings for such drugs only, and not in the treatment of his patient, then the issuance of such prescriptions would not be in good faith nor in the course of the defendant's professional practice as a physician, and the sale and dispensing upon such prescriptions would not be lawful."
8. Ambulatory Treatment for Drug Addiction.
(a) Legal and Medical Views.
The ambulatory treatment for the cure of drug addiction has always been disapproved by the United States Bureau of Narcotics because its observation and experience have shown that the object of the treatment is practically never achieved. The average drug addict who purports to undergo this treatment will invariably seek other sources of supply as his dosage is reduced. It will be recalled that the Supreme Court in the Behrman(24) case called attention to the danger of entrusting quantities of narcotic drugs to a known addict "without restraint upon him in its administration or disposition by anything more than his own weakened and perverted will." The Supreme Court in the Behrman case at least impliedly disapproved the procedure which is applied in pursuing the so-called ambulatory treatment for the cure of drug addiction, and in 1924 in a case involving the conviction of Dr. Addison D. Hobart(25) the Circuit Court of Appeals for the Sixth Circuit construed the Behrman decision as condemning the ambulatory treatment as unlawful, as follows:
"The case of United States v. Behrman, 258 U. S. 280, destroys the theory of the defense upon the present trial. Since that decision, there is no possibility that conduct such as Hobart admitted, could be lawful. The patient was not under restraint. Hobart furnished to him at frequent intervals and for self-administration, large quantities of morphine, though in quantities diminishing from one time to another; but the patient was at liberty to apply to other doctors and get as many other similar prescriptions as he could. In the case cited, the Supreme Court declared that this conduct by a physician was ipso facto violation of the law * * *."
Scientific medical opinion appears to be in harmony with the opinion of the court that disapproved the ambulatory treatment for cure of drug addiction. In 1924, the Reference Committee on Legislation and Public Relations recommended that the House of Delegates of the American Medical Association approve Recommendation No. 8 of the Committee on Narcotic Drugs of the Council on Health and Public Instruction.(26) The report of the Reference Committee was adopted as presented. Recommendation No. 8 of the Report of the Committee on Narcotic Drugs of the Council on Health and Public Instruction submitted by the Council to the House of Delegates at the Boston session, 1921, is as follows:
"8. Your committee desires to place on record its firm conviction that any method of treatment for narcotic drug addiction, whether private, institutioiial, official or governmental, which permits the addicted person to dose himself with the habit-forming narcotic drugs placed in his hands for self-administration, is an unsatisfactory treatment of addiction, begets deception, extends the abuse of habit-forming narcotic drugs, and causes an increase in crime. Therefore, your committee recommends that the American Medical Association urge both federal and state governments to exert their full powers and authority to put an end to all manner of such so-called ambulatory methods of treatment of narcotic drug addiction, whether practiced by the private physician or by the so-called 'narcotic clinic' dispensary.
"In the opinion of your committee, the only proper and scientific method of treating narcotic drug addiction is under such conditions of control of both the addict and the drug, that any administration of a habit-forming narcotic drug must be by, or under the direct personal authority of the physician, with no chance of any distribution of the drug of addiction to others, or opportunity for the same person to procure any of the drug from any source other than from the physician directly responsible for the addict's treatment."
(b) Recognized (Institutional) Treatment.
The most practicable plan of applying the only proper and scientific method of treating narcotic drug addiction under the conditions laid down by the Committee on Narcotic Drugs of the Council on Health and Public Instruction, is to establish an institution properly staffed and equipped for the purpose.. By the Act of Congress approved January 19, 1929,(27) provision was made for, and there were later constructed and put into operation, two institutions located at Lexington, Kentucky and Fort Worth, Texas, respectively, for the treatment and rehabilitation of narcotic drug addicts, under the supervision of the United States Public Health Service. The facilities of these two institutions, available primarily for prisoner-addicts, are also made available for voluntary applicants, even if they are unable to pay a nominal sum representing part of the cost of the treatment. A large number of drug addicts, including some physicians, have received treatment and rehabilitation in these institutions.
9. Federal Investigative Procedure.
(a) Primary Purpose.
The primary purpose of Federal investigative procedure, as far as the physician is concerned, is to prevent diversion of narcotic drugs from medical channels to abusive use. Thus it becomes necessary to investigate, and to resort to legal procedure to penalize that physician who wilfully prescribes or directly sells narcotic drugs merely for the gratification and perpetuation of narcotic drug addiction.
(b) Prerequisite to Investigation of a Physician.
No investigation of a criminal violation on the part of a physician is permitted to be made by an officer of the Bureau of Narcotics unless such investigation is based on well-founded suspicion, strong circumstances, or trustworthy and reliable information that such violation is being committed. Furthermore, no field officer of the Bureau of Narcotics is permitted to initiate any such investigation as above described except upon written instructions from his superior officer, the District Supervisor of the District.
(e) Rule Established by Federal Courts.
A defense quite frequently sought to be interposed by a physician indicted for unlawful sales of narcotic drugs is that he was illegally entrapped by the officers into committing the offenses charged against him. The United States Circuit Courts of Appeals have consistently rejected such claims on the part of defendant physicians, holding in effect that it does not constitute illegal entrapment for the officer to afford an opportunity for the physician to sell narcotic drugs if the sale was the defendant's free voluntary act.(28) The rule which was applied by the United States Circuit Court of Appeals for the Eighth Circuit in the case of W. V. Smith v. United States is even more liberal than the procedure outlined by the Bureau limiting its field officers in making investigations of violations on the part of physicians. The Circuit Court of Appeals in the W. V. Smith case quoted with approval the following charge to the jury in that case:
"It is no enticement to ask a physician to write an illegal prescription, if you suspect that he might do it, and you want to find out if he does it, nor to ask a druggist to sell narcotics illicitly, because both of them know better, and if they are going to obey the law, why they won't do that in response to any form of petition or inducement, and it is perfectly within the rights of investigating officers to determine, by means that have been here disclosed, whether a party, or parties, are engaged in violation of the law, and if they are, to take steps accordingly, so that I wish to disabuse your minds of all this confusion that this, in itself, was such an unwarrantable offense on the part of Federal officers that it relieves this offense charged, if you find any offense was committed, of its character as such offense."
10. Uniform State Narcotic Law.
The National Conference of Commissioners on Uniform State Laws after several years' study completed in 1932 the final draft of a Uniform Drug Act which it thereupon recommended for enactment in all the States. This Act has been adopted, in some cases with a few changes, by 42 States, by Congress for the District of Columbia, and by the Territories of Alaska, Hawaii, and Puerto Rico. The States of California and Pennsylvania, which have not adopted the Uniform State Narcotic Law, nevertheless have in effect other State narcotic legislation which the Bureau of Narcotics considers of comparable effectiveness. The States of Massachusetts, New Hampshire, Kansas, and Washington have not adopted the Uniform State Narcotic Law but have in effect State narcotic legislation which the Bureau of Narcotics does not consider comparable in effectiveness to the Uniform Law.
The Uniform State Narcotic law provides a comprehensive plan for intrastate control of the narcotic drug traffic, and is designed generally to restrict narcotic drugs to medical channels from the manufacturer or distributor within the State to the consumer for bona fide medical purposes. The Act differs from the Federal law in some respects. For instance, it requires manufacturers of and wholesale dealers in narcotic drugs to obtain a license from the appropriate State agency and prescribes certain qualifications for these licensees, and it directly and specifically penalizes the forgery or alteration of a narcotic prescription. In so far as the professional use of narcotic drugs is concerned, however, the statutory standard is practically the same as that provided by theFederal narcotic law. Thus, under the Uniform Act, a physician in good faith and in the course of his professional practice only is permitted to prescribe, administer and dispense narcotic drugs, or may cause the same to be administered by a nurse or interne under his direction and supervision.
11. Cooperation with the States.
Under section 8 of the Act of June 14, 1930(29) the Secretary of the Treasury is directed to cooperate with the several States in the suppression of the abuse of narcotic drugs in their respective jurisdictions and to this end he is authorized (1) to cooperate in the drafting of such legislation as may be needed and (2) to arrange for the exchange of information concerning the use and abuse of narcotic drugs in said States and for cooperation in the institution and prosecution of cases in the courts of the United States and before licensing boards and courts of the several States. The Secretary of the Treasury has authorized the Commissioner of Narcotics to furnish to State Licensing Boards such information in the possession of the Bureau of Narcotics as the Commissioner may deem appropriate to the enforcement of any State law or regulation or municipal ordinance relating to the granting, withholding, suspension, or revocation of State licenses or permits.(30) The Commissioner is also authorized to direct the attendance, as a witness, in hearings held by such boards or agencies, of any officer, agent, or employee of the Bureau of Narcotics, and the production of pertinent records or copies thereof. Pursuant to this authority, the Commissioner reports to the several State Medical Licensing Boards a statement of the facts in the cases of practitioners convicted of offenses against the narcotic laws or who are shown to be narcotic drug addicts. If the State Licensing Board decides to institute action under its Medical Practice Act looking toward suspension or revocation of the practitioner's license and desires the attendance of the Federal investigating officer as a witness at the hearing, the Commissioner arranges the attendance of such officer at the hearing and the production of such pertinent records as may be necessary.
Dr. Morris Fishbein in his introductions(31) to a series of articles printed in the Journal of the American Medical Association in 1931 on the Indispensable Use of Narcotic Drugs has presented to the medical profession some excellent suggestions dealing with the general professional use of narcotic drugs. If all physicians would accept and conscientiously follow these suggestions, which are quoted below, irregularities in prescribing and dispensing narcotic drugs by physicians would be reduced to a minimum.
"The problem of narcotic addiction merits the attention of physicians for many reasons. The control by statute of the prescribing of alcohol, and the definite limitations of the amount prescribed, indicates that the medical profession must do everything possible to minimize the prescribing of narcotics in order to make unnecessary further restrictive measures. Physicians should give more serious consideration to the materia medica, pharmacology and therapeutics of narcotics.
"Physicians may, by the exercise of more thought in practicing, do much to avoid censure in relation to narcotic addiction. They may substitute, whenever possible, non-habit-forming drugs in the place of morphine or other opium alkaloids. When narcotics are indispensable, however, as shown in this series of articles, no more should be administered than is necessary to achieve the desired end. Patients requiring daily administration should be seen often by the doctor and the amount of drugs ordered or supplied should not exceed that required by the patient until seen again. Independence of administration on the part of nurses should be strictly limited to prescription and any change in treatment should be in writing."
[As printed, this note appeared on the first page (p309) of the article]
This is an article from the National Symposium. series dealing with "Scientific Proof and Relations of Law and Medicine" (2nd series). The Symposium contains fifty or more studies prepared by legal and medical scholars on problems of joint interest to the two professions. The papers will be published in the pages of participating legal and medical journals during the spring and summer of 1946. The intent of the effort is to muster up legal and scientific learning relevant to various type problems which need illumination from both sources for their proper solution. The scientific writers have undetaken, under editorial direction, to prepare their studies in a basic style comprehensible to lawyers, without, however, any sacrifice of scientific authority.
The new Symposium is a continuation of the first series, published by leading law reviews and medical journals in the spring of 1943. As before, the general editor of the Symposium is Hubert Winston Smith, A. B., M. B. A., LL. B., M. D. (at the time of the first Symposium, Professor Smith was Research Associate on the faculties of Harvard Law School and Harvard Medical School), who holds an appointment, under the Distinguished Professorship fund of the University of Illinois, as Professor of Legal Medicine affiliated with the College of Law and with the College of Medicine. Readers interested in procuring a master index containing citations to the studies published in both the first and second series of "Scientific Proof and Relations of Law and Medicine," may do so by remitting cost price (20c) in coin or stamps to Professor Smith, College of Law, University of Illinois, Urbana, Illinois; he expects that copies so reserved will be ready for mailing between May 15 and June 1, 1946.
[As printed, footnotes appeared at the bottom of each page]
(1)Act of December 17, 1914, c. 1, * 1, 38 Stat. at L 785 as amended by Act of February 26, 1926, c. 27, *703, 44 Stat. at L. 97, 2 6 U. S. C. * 2550.
(2) Act of July 1, 1944, c. 377, * 7, 58 Stat. at L. 721,- 26 U. S. C. A. * 3228 (e).
(3) Foreign Relations of the United States (1914) 931.
(4)38 Stat. at L. 1912, 1930.
(5)81 League of Nations Treafy Series (No. 1845) 319.
(6) 48 Stat. at L. 1543.
(7)Act of May 26, 1922, c. 202, 42 Stat. at L. 596, 21 U. S. C. A. ** 171-185.
(8)Act of February 10, 1939, c. 2, **2550-2565, 3220-3228, 53 Stat. at L. 269, 382, 26 U. S. C. A. **2550-2565, 3220-3228.
(9)26 Code of Federal Regulations (1939) **151.1-151.205, pp. 1158-1205; 26 Code of Federal Regulations Cum. Supp. (1944) **151.4-151.185, pp. 7158-7162.
(10) Act of February 10, 1939, c. 2, *3220(d), 53 Stat. at L 382, 26 U.S.C.A. *3220(d).
(11)Perry v. Larson, 104 F. (2d) 728 (C. C. A. 5th 1939) ; Burke v. Kansas State Osteopathic Association, Inc., 111 F. (2d) 250 (C. C. A. 10th 1940) ; Georgia Ass'n of Osteopathic Physicians and Surgeons, Inc. v. Allen, 112 F. (2d) 52 (C. C. A. 5th 1940); Kavanagh v. Fowler, 146 F. (2d) 961 (C. C. A. 6th 1945) ; Waldo v. Poe, 14 F. (2d) 749P (D. C. Wash. 1926); Bruer v. Woodworth, 22 F. (2d) 577 (D. C. Mich. 1927).
(12) United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493 (1919).
(13) Alston v. United States, 274 U. S. 289, 47 Sup. Ct. 634, 71 Ed. 1052 (1927).
(14) Nigro v. United States, 276 U. S. 332, 48 Sup. Ct. 388, 72 L. Ed. 400 (1928).
(15) Webb v. United States, 249 U. S. 96, 39 Sup. Ct. 217, 63 L. Ed. 497 (1919).
(16) Jin Fuey Moy v. United States, 254 U. S. 189, 41 Sup. Ct. 98, 65 L. Ed. 214 (1920).
(17) United States v. Behrman, 258 U. S. 280, 42 Sup Ct. 303, 66 L. Ed.619 (1922).
(18) Linder v. United States, 268 U. S. 5, 45 Sup. Ct. 446, 69 L. Ed. 819 (1926).
(19)Boehm v. United States, 21 F. (2d) 283 (C. C. A. 8th 1927); Nelms v. United States, 22 F. (2d) 79 (C. C. A. 9th 1927); Freeman v. United States, 86 F. (2d) 243 (C. C. A. 5th 1936); Hawldas v. United States, 90 F. (2d) 551 (C. C. A. 5th 19-97).
(20)Boyd v. United States, 271 U. S. 104, 46 Sup. Ct. 442, 70 L. Ed. 857 (1926).
(21)Young V. United States, 315 U. S. 257, 62 Sup. Ct. 510, 86 L. Ed. 834 (1942).
(22)Act of February 10, 1939, c. 2, *2551 (a), 53 Stat. at L. 270, 26 U. S. C. *2551 (a).
(23)DuVall v. United States, 82 F. (2d) 382 (C. C. A. 9th 1936); United States v. Lindenfield, 142 F. (2d) 829 (C. C. A. 2d 1944); United States v. Aladallah, 149 F. (2d) 219 (C. C. A. 2d 1945).
(24)Supra note 17.
(25)Hobart v. United States, 299 Fed. 784 (C. C. A. 6th 1924).
(26)82 Jour. Am. Med. Assn. 1967 (1924).
(27)Act of January 19, 1929, c. 82, 45 Stat. at L. 1085-1089, Act of June 23, 1936, c. 725, * 1, 49 Stat. at L. 1840, Act of March 28, 1938, c. 55, * 1, 52 Stat. at L. 134, 21 U. S. C. A. **221-237.
(28)Smith v. United States, 284 Fed. 673 (C. C. A. 8th 1923) ; Ratigan v. United States, 88 F. (2d) 919 (C. C. A. 9th 1937); Mitchell v. United States, 143 F. (2d) 953 (C. C. A. 10th 1944) United States v. Abdallah, supra note 23; cf. Newman v. United States, 299 Fed. 128 (C. C. A. 4th 1924).
(29)Act of June 14, 1930, c. 488, *8, 46 Stat. at L. 58,, 21 U. S. C. A. *198.
(30)2l Code of Federal Regulations (1939) **201.8-201.12, pp. 1063-1064
(31)96 Jour. Am. Med. Assn. 856 (1931).
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