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Methadone Today
Volume IV, Issue VI (June 1999)
Order Newsletter in print: 
Prisoners and HIV/AIDS - Ralf Jurgens
Consequences of Opiate Agonist Use and Legal,
Regulatory, Financial, and Programmatic Barriers?
Methadone in Prison
US Supreme Court Hears ADA Cases - by Bill
R.
Doctor's Column
- Sexual Dysfunction Treatment with Bromocryptine
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Prisoners and HIV/AIDS
Reprinted from Canadian HIV/AIDS Policy & Law Newsletter,
Vol. 3, No. 4/Vol. 4 No. 1. For more information about the Newsletter,
contact Éric Nolet at enolet@aidslaw.ca or visit the Network's website
at www.aidslaw.ca.
By Ralf Jürgens
On 1 December 1997, the Correctional Service of Canada (CSC) announced
"new" measures to combat the spread of HIV and other infectious diseases
in federal penitentiaries.[1] According to representative of the
Canadian HIV/AIDS Legal Network and the Prisoners with HIV/AIDS Support
Action Network, the measures are "woefully inadequate"[2] and fall "far
short of the recommendations made by CSC's own Expert Committee on AIDS
in Prisons in 1994."[3]
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."[4]
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.[5]
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.[6] 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."[7]
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
[1] 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.
[2] 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.
[3] 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.
[4] Supra, note 1.
[5] 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.
[6] 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)
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Consequences of Opiate Agonist Use and Legal,
Regulatory, Financial, and Programmatic Barriers?
[From page 18-21 of NIH Consensus Statement, volume 15 Number
6: November 17-19, 1997]
Misperceptions and Stigmas
Many 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 Services
Unfortunately, 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
medical care.
Training Physicians and Other Health Care Professionals
One 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 Regulations
Of 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.
In the end, an infusion of additional funding will be needed—funding
sufficient to provide access to treatment for all who require treatment.
We strongly recommend that legislators and regulators recognize that providing
MMT is both cost-effective and compassionate and that it constitutes a
health benefit that should be a component of public and private health
care.
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Methadone in Prison
In 25% of Dutch prisons, methadone is not prescribed. In the
majority of the remaining 75%, the provision of methadone is based on low
doses (less than 45 mg) and a rapid detoxification (two to three weeks).
One prisoner who used to be on a maintenance dose "outside" was refused
methadone by the prison doctor. He sued the doctor and won the case.
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.
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U.S. Supreme Court Hears ADA Cases
by Bill R.
While it gets repeated ad nauseam that the Americans with Disabilities
Act protects methadone maintenance patients who refrain from using illicit
drugs (and do not come to work drunk) from discrimination in employment
and other areas of life and the EEOC agrees with that interpretation, the
question is rather hypothetical, as at the end of the day the fact is any
law only means what judges decide it means.
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.
At the end of April, the US Supreme Court heard argument in three
important cases concerning the ADA and who it was designed to protect.
The decisions are expected in July.
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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