Principles of Addictions and the Law

by Miller

• ISBN13: 9780124967366
• ISBN10: 0124967361
• Edition: 1st
• Format: Hardcover
• Copyright: 2010-02-26
• Publisher: Elsevier Science

Summary

The book includes an examination of sources of law important to addiction and its treatment. The foundations for forensic work in professional legal testimony is explored (e.g., legal system, case law precedent, statutes governing addictions, civil and criminal procedures). The science of addiction is featured including the biology of addiction, addiction as a brain disease, responsibility vs. loss of control, development of addictions, and the role of genetics and environment. Drug testing, its uses with forensic populations, what the tests show and do not show, controversies in using tests in the general population also receives extensive treatment. Addiction and mental illness in forensic populations is highlighted for addiction treatment and continuing care. Case studies and landmark cases illustrate the role of alcohol, drug use, and addictions in legal decisions. *Focused primarily on alochol and drug addictions *Case studies and landmark cases are included to illustrate the role of alcohol/drugs in legal decisions (e.g., the Exxon Valdez case) *Brief overview of legal system and drug courts will be useful to clinicans, lawyers, administrators, and other professionals

Table of Contents

Contributors	p. xv
Preface	p. xvii
The Basic Legal Structure and Organization Anna Baumgras	p. 1
Introduction: Sources of Law	p. 1
The Judicial Branch	p. 2
Civil Law Versus Criminal Law	p. 3
Criminal Law	p. 4
Defenses to Crimes	p. 4
Civil Law	p. 6
Offenses Related to Addictions	p. 7
Basic Constitutional Rights	p. 9
The Bill of Rights	p. 9
The Legislative Branch	p. 11
Statutes Regulating Addictions	p. 12
Conclusion	p. 16
References	p. 16
Addictions and the Law Norman	p. 17
Mens Rea and Capacity	p. 18
Definition and Relevance to Addictions	p. 18
Legal Precedent	p. 19
Addictive Disease	p. 19
Intoxication and Addiction	p. 19
Legal Precedent	p. 20
Criminal Law	p. 20
Insanity Defense	p. 20
Legal Precedent	p. 20
Criminal Competence	p. 21
Civil Competence	p. 21
Alcohol and Drug Use and Addiction as Risk Factors in Crime and Criminal Intent	p. 21
Civil Law in Selected Populations	p. 22
Child Abuse and Custody	p. 22
Sexual Offenders	p. 23
Malingering	p. 23
Corrections and Coerced Treatment	p. 24
Goals of Treatment	p. 24
Diversion	p. 24
Prevalence of Alcohol and Drug Disorders during Incarceration	p. 25
Prevalence of Suicide and Alcohol and Drug Disorders during Incarceration	p. 25
Legal Precedent	p. 25
The Death Penalty and Addictions	p. 26
Involuntary Hospitalization	p. 26
Malpractice	p. 26
Competence to Sign into an Institution	p. 27
Informed Consent	p. 27
Injury to a Third Party by Alcoholics and Drug Addicts	p. 28
Adolescents and Juvenile Court and Addictions	p. 29
Prevalence of Alcohol and Drug Use and Disorders in Juvenile Populations	p. 29
Legal Precedents	p. 30
Forensic Pathology and Drug Testing	p. 30
Forensic Pathology	p. 30
Drug Testing	p. 30
Medical Records	p. 30
Rehabilitation Acts	p. 31
Conclusion	p. 31
References	p. 32
Physician Practice of Addictions in Medical Practice	p. 37
Introduction	p. 37
Clinical Prevalence	p. 38
Prevalence of Alcohol and Drug Dependence	p. 38
in the General Population
Prevalence-of Multiple Drug Use and	p. 38
Dependence in Treatment
Prevalence in the Medical Population	p. 39
Prevalence in Family and Workplace Populations	p. 39
Clinical Diagnosis	p. 39
Risk Assessment by Physicians	p. 40
Physical Examination and Laboratory Testing	p. 40
Clinical Course and Pathophysiology	p. 41
Clinical Comorbidity	p. 41
Treatment of Medical Disorders Associated with Alcohol and Drug Use and Addiction	p. 41
Physician Intervention	p. 41
Requirements of Physicians for Diagnosing and Treating Addictive Disease	p. 42
Abstinence-Based Method	p. 43
Improving Treatment for Alcoholism	p. 44
Why Physicians are Unprepared to Treat	p. 45
Drug-and Alcohol-Related Disorders
Recommendations for Improving Education Training	p. 46
Research Studies on Medical Education in the Area of Addictive Medicine	p. 47
Conclusion	p. 49
References	p. 49
Medical Licensure and Credentialing	p. 55
Introduction	p. 55
Peer Review	p. 57
Immunity	p. 57
Confidentiality	p. 59
Physician Profile Databases	p. 60
Medical Licensing Boards	p. 64
Judicial Oversight	p. 65
Federation of State Medical Boards	p. 67
The Model Policy	p. 67
Compulsory Reporting	p. 67
Examination/Evaluation	p. 68
Grounds for Action	p. 68
Disciplinary Action against Licensees	p. 68
Impaired Physicians	p. 68
The Impaired Healthcare Professional	p. 69
Identifying the Problem	p. 69
Ethical Responsibility and Legal Risk	p. 69
Confidentiality versus Disclosure	p. 71
Physician Health Program (PHP)	p. 72
References	p. 72
Privacy within the First Decade of the Twenty-First Century	p. 75
Introduction	p. 75
Codes of Conduct for Privacy	p. 76
Patient Access to Medical Records	p. 76
Electronic Health Records	p. 77
Update from the Privacy Commissioner	p. 78
Practice Audits	p. 79
Conclusion	p. 79
References	p. 80
Bioethical Decisions, Substance Use and Addiction: The Clinical Context	p. 81
Introduction	p. 81
Substance Use, Addiction and Informed Consent	p. 82
Pregnancy, Substance Use and Addiction	p. 83
The Effects of Substance Use on the Fetus	p. 83
Legal Responses to Maternal Substance Use during Pregnancy	p. 85
Ethical Issues for the Healthcare Provider	p. 86
Liver Transplantation	p. 87
Treating Pain	p. 89
Conclusion	p. 92
References	p. 92
Domestic Public Health Law	p. 97
Introduction	p. 97
Controlled Substances	p. 98
Harrison Narcotics Act of 1914	p. 98
Federal Bureau of Narcotics and Henry Anslinger	p. 99
Food and Drug Administration (FDA)	p. 102
Food, Drug and Cosmetic Act of 1938	p. 103
Prescription Drug User Fee Act of 1992 (PDUFA)	p. 103
Federal Agency and Policy: Supply and Demand	p. 105
Reducing the Supply of Illegal Drugs in the United States	p. 105
The Other Side of the Coin: Reducing Demand for Drugs in the United States	p. 107
Conclusion	p. 110
References	p. 110
International Law, Public Health and Addiction	p. 113
What is International Law?	p. 114
International Law in the Field of Addiction	p. 115
Addiction: The Perspective of Drug Control	p. 115
International Organizations and the Infrastructure of Drug Control	p. 119
Addiction: The Perspective of Public Health	p. 121
Why is International Law Relevant to Addiction Practitioners?	p. 124
Physicians and Scientists	p. 125
Lawyers and Judges	p. 126
Social Workers, Community Activists, Policymakers and Sufferers of Addiction	p. 130
Addiction and Human Rights	p. 130
International Advocacy and the Framework Convention on Tobacco Control	p. 131
References	p. 132
Medical Malpractice	p. 135
Overview of Medical Malpractice Law	p. 135
The Essential Elements	p. 135
The Standard of Care: Duty and Breach	p. 135
Application to Addiction Cases	p. 136
Standard of Care and Breach	p. 136
Causation of Damages	p. 143
Experts	p. 146
Informed Consent	p. 146
Defenses	p. 149
Comparative Negligence	p. 149
Assumption of Risk	p. 152
Statute of Limitations	p. 154
References	p. 156
Expert Witness in Civil and Criminal Testimony	p. 159
Expert Qualifications	p. 159
Federal Rule of Evidence 702	p. 159
Federal Rule of Evidence 703	p. 160
Role of Experts	p. 161
Duties of Experts	p. 161
Mens Rea and Capacity	p. 162
Expert Role in Criminal Cases	p. 162
Medical Malpractice	p. 163
Expert Role in Medical Malpractice Cases	p. 163
Medical Experts	p. 163
Admissibility of a Medical Expert	p. 165
Damage Experts	p. 165
Conclusion	p. 166
References	p. 166
Forensic Considerations in Blood Alcohol Evaluation	p. 167
Introduction	p. 167
Alcoholism	p. 167
References	p. 174
Pharmacological Drug Effects on Brain and Behavior	p. 177
Introduction	p. 177
Influence of Neurobiology and Neurotransmitters	p. 178
Molecular Mechanisms and Neurobiological Consequences of Drug and Alcohol Use	p. 179
Performance-Enhancing Drugs	p. 184
Conclusion	p. 188
References	p. 188
Forensic Toxicology	p. 193
Introduction	p. 193
Postmortem Forensic Toxicology	p. 194
Human Performance Forensic Toxicology	p. 195
Forensic Urine Drug Testing	p. 195
Standard Operating Procedural Manual	p. 196
Chain of Custody	p. 196
Dual-Testing Philosophy	p. 196
Sample Preparation	p. 197
Liquid-Liquid Extraction	p. 197
Solid-Phase Extraction	p. 198
Detection Techniques	p. 198
Immunoassay	p. 198
Gas Chromatography	p. 199
Liquid Chromatography	p. 199
Mass Spectrometry	p. 199
Method Validation	p. 200
References	p. 201
Forensic Psychiatry, Substance Use and Mental Illness	p. 203
Introduction	p. 203
Epidemiology	p. 203
Basic Legal Concepts and Statutes	p. 205
Affirmative Defense Statutes	p. 211
Inherent Conflict Between Free Will, Public Safety and the Disease Concept and Substance Addiction	p. 213
Free Will	p. 213
Disease Concept	p. 214
The Conflict between Free Will, Public Safety and the Disease Model	p. 214
Criminal and Civil Competence for the Addicted	p. 216
Competence to Stand Trial	p. 217
Civil Competencies	p. 218
Treatment Issues for this Population in Different Clinical Settings	p. 219
Clinical Assessment in Forensic Settings	p. 219
Treatment in Forensic Settings	p. 219
Civil Commitment	p. 220
Correctional Settings, Diversion and Coerced Treatment, Community Reentry and Reintegration	p. 221
Conclusion	p. 223
References	p. 223
Legal Rights of Fetuses and Young Children	p. 229
Introduction	p. 229
Impact of Prenatal Drug Exposure on the	p. 230
Developing Fetus
Impact of Substance Abuse on Children	p. 231
Need for and Access to Treatment	p. 231
Rights of Fetuses Generally	p. 232
Rights of Fetuses: Civil Child Protective Proceedings	p. 234
Response to Report	p. 235
Courts' Responses to Child Protection Actions on Behalf of Fetuses	p. 236
Courts' Responses to Substance Exposed Neonates	p. 237
Other Civil Remedies	p. 238
Public Health Approaches	p. 239
Criminal Charges	p. 240
Search and Seizure and Consent	p. 241
Charges that Can be Sustained	p. 242
Charges that Cannot be Sustained	p. 244
Access to Substance Abuse Treatment Records	p. 245
Access to Records and HIPAA	p. 247
Conclusion	p. 248
References	p. 249
Criminal Populations and Substance Abuse	p. 253
Introduction	p. 253
Interventions for Substance Abuse in Correctional Facilities	p. 254
Correctional Treatment Programs	p. 254
Legal Standards for Substance Abuse Treatment in Correctional Facilities	p. 255
Judicial and Statutory Approaches to	p. 256
Civil Commitment for Substance Use Substance Abuse Disorders	p. 256
Drug Courts	p. 257
State and Federal Drug Laws	p. 259
Laws Regulating Drinking and Driving	p. 261
Information Sharing Between the Justice and Treatment Systems	p. 262
International Approaches to Criminal Populations and Substance Abuse	p. 264
Legal Foundations for Treatment Provided in Justice Settings	p. 265
Points of Intervention for Offender Drug Treatment	p. 266
Conclusion	p. 269
References	p. 270
Legal Authority, Medical Basis and Public Policy for Controlling Scheduling Controlled Substances	p. 277
Overview of Controlling and Scheduling Drugs and Other Substances	p. 277
Legal Authority to Control Substances: Standards and Schedules	p. 278
Federal Rules and Regulations for Controlled Substances	p. 278
State Statutes and Regulations for Controlled Substances	p. 279
Drug Enforcement Administration and Food and Drug Administration	p. 280
Immediate Precursors	p. 280
Temporary Scheduling to Avoid Imminent Hazards to Public Safety	p. 280
Abuse Potential	p. 281
Evaluation of Drugs and Other Substances	p. 281
Factors Determinative of Control or Removal from Schedules	p. 282
Legislative Intent for Potential for Abuse	p. 283
Levels of Drug Control and Scheduling	p. 284
Medical Basis for Potential of Abuse	p. 287
FDA Role	p. 287
Public Policy for Controlling and Scheduling Substances	p. 288
References	p. 290
Use of Addictive Medications and Drugs in Athletics	p. 293
Introduction	p. 293
Historical Perspective	p. 296
Overview	p. 299
Factors Influencing Athletes Use of	p. 299
Substances
Performance-Enhancing Drugs	p. 300
Anabolic Steroids	p. 300
Central Nervous System Stimulants	p. 305
Erythropoietin and Blood Doping	p. 313
Alcohol	p. 314
References	p. 315
Class Action to Protect Against Discrimination of Individuals with Alcohol and Drug Addictions	p. 323
Introduction	p. 323
Class Action as a Thesis to Promote Change for Discriminated Members	p. 323
History of Mixed Success in Class Action Litigation for Addictions	p. 324
Unfair and Lethal Discrimination against Classes of Addicted Individuals Evident in Government Policy	p. 325
Discriminatory Policies and Laws against Cigarette Smokers	p. 325
Addiction	p. 326
Addiction is a Disease Defined as a Medical Disorder and by Legal Status	p. 326
Addiction as a Medical Disease	p. 327
Class Actions	p. 327
Class Action Litigation is an Effective Strategy to Protect against Discriminatory Policy and Laws	p. 327
History of Tobacco Cases Demonstrate Powerful and Unethical Forces against
Traditional Litigation	p. 328
Form a Discriminated Class of Harmed Individuals with Small Claims to Make Class
Tight and Class Action Superior	p. 329
Public Support for a Class Consisting of Alcoholics and Drug Addicts Suffering from a Disease	p. 329
Class Defined	p. 330
Numerosity and Commonality: Prevalent Disorders	p. 331
Define Damages and Fraud Where Individual Issues do not Predominate and Class Action is Superior to Traditional Litigation for a Discriminated Class	p. 332
Core Legal Theories and Causality	p. 332
Specific Areas of Class Action Litigation	p. 333
Liability for Fraudulent Marketing of in Medically-Related Cases Controlled Substances: Litigation against Purdue Pharma	p. 334
Class Certification Upheld	p. 334
Class Certification Denied	p. 335
Medical Monitoring of a Class	p. 335
Class Action is Superior to Other Methods	p. 335
Superiority of Class Action Frequently Determines Success of Litigation	p. 336
Superiority can be a Single Forum	p. 337
Predominance Requirement Depends on Individual Issues for Causes in Addiction	p. 338
Individual Interests in Controlling Individual Suits in Mass Tort Litigation	p. 339
Common Knowledge Theory	p. 339
Conclusions from Class Actions in Addiction	p. 340
Legacies from Tobacco, Opiate Medications and Alcohol	p. 340
The Road Less Traveled	p. 341
References	p. 341
Index	p. 345
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