PROJECT: COMMUNICATE AND COOPERATE
AAPS 3-POINT PLAN TO STOP THE "DRUG WAR ON PHYSICIANS" & REDUCE Rx DRUG ABUSE
REPORTING. Physicians and pharmacies report potential "drug-seeking" patients to law enforcement, yet are never advised by law enforcement which patients it believes are "drug seekers" trying to take advantage of physicians or pharmacies. Currently, communication is only flowing in one direction. Law enforcement should set up a notification process to advise physicians of suspicious behavior by patients (using more than one pharmacy or more than one physician for prescriptions, contact with known dealers or addicts, etc.).
REVIEW BOARD. Physicians are willing to work with law enforcement officials and the Department of Justice to review potential cases before charges are filed. The DOJ should establish a procedure to assess a physician's practices by a review board of medical professionals, rather than relying upon their own laymen's judgments.
MUTUAL TRAINING. Attitudes toward, and the treatment of pain are rapidly changing. What was unacceptable a few years ago is now considered appropriate, both in medicine and in public opinion. For example, investigators frequently look at the volume and duration of drug use as the primary trigger for an indictment. This is no longer appropriate, as accepted treatment has changed, and leads to indictments of pain specialists simply due to the volume of their prescriptions. And finally, in the art of medicine, investigators must be able to distinguish between a difference of opinion in what is proper treatment, and specific criminal intent.
SUGGESTED LEGAL REFORMS
To protect physicians against unwarranted prosecution, to protect patients' access to medications, and to encourage physicians to make chronic pain management available in their practices, AAPS recommends the following legal reforms:
1. TRAINING. Investigators should be trained in pain management standards and rapidly changing approaches to pain management to be able to discern between drug diversion and the extremes of legitimate medical necessity.
2. EVIDENCE STANDARD. Establish a high evidentiary standard for prosecutions under drug kingpin laws: no hearsay evidence, no partial tape recordings of encounters with physicians, no government experts who have not examined the patients, no testimony by nonlawyers about legal obligations. The prosecution must not be allowed to shift the burden of proof of criminal intent. The prosecution must prove specific intent to violate narcotics laws, not just general intent to prescribe.
3. ELIMINATE BOUNTY INCENTIVES. All forfeited assets must be turned over entirely to the U.S. Treasury; no bounties for getting convictions.
4. PROFESSIONAL INTEGRITY. An independent office must be established to investigate allegations of intimidation of witnesses, knowing use of false testimony, or concealment of exculpatory evidence with severe sanctions against agents or officers of the court found to be engaging in such tactics.
5. JURY EDUCATION. Jury instructions must make it clear that the standard of proof for conviction is beyond a reasonable doubt and that an essential element must be that the physician knowingly prescribed controlled substances for reasons he knew to be inappropriate.
6. TRACKING. The Department of Justice does not track the number of cases it investigates or prosecutes for drug prescribing, nor do most state medical boards. Officials claim the numbers are low, but cannot back that up with data of the number of physicians investigated, delicensed, prosecuted, fined, and jailed because of an error or disagreement with established authorities and a doctor who is attempting to provide pain relief.
7. ELIMINATE DUAL PROCESS. Frequently, physicians are tag-teamed by an administrative investigation by a state medical board or a DEA administrative action as well as a criminal investigation. In the course of the board or administrative action, they are forced to give up their constitutional rights and divulge information that could harm them in the other, or threatened with a second action if they don't plea bargain the first.
8. CORRECT PAST ERRORS. To persuade physicians of the genuineness of reforms, a mechanism is also needed to correct past errors. Physicians who have been convicted need to have the right to file a motion for a new trial under the higher evidentiary standard, and this motion must be granted if there is reasonable doubt that the higher standard could be met.