Pain Relief Network
September 8, 2004
To Supporters of SB 1782:
As the only organization which openly opposes the passage of Senate Bill 1782, let us share with you the reasoning that informs our position.
While we recognize that this legislation was developed with the best of intentions, it represents a giant leap backwards in terms of getting pain care to the people of California. Following a spate of overzealous and inflammatory physician prosecutions, SB 1782 further engages law enforcement in the regulation of medical practice, rewarding them with more powers of oversight of physicians. This effort will only further chill prescribing.
Because the protocols mandated by this bill will reflect the ideas found in the recently distributed 'FAQ document' promulgated by DEA, the end result can only be a worsening of the pain crisis. The central failure of the 'FAQ document' is that it accepts, as a basic assumption, the intrusion of the 'principle of balance' into the physician's office, i.e., balancing law enforcement's concerns with medicine's. This 'balance' requires that each physician police his practice for criminal activity on the part of his patients, a demand which, apart from being impossible to meet, absolutely conflicts with medicine's primary ethical obligation requiring physicians to set the interests of their patients ahead of all others' interests.
The Geneva Conventions preserve the humane treatment of persons during armed conflict by requiring that physicians behave ethically, and that they shall not be "compelled to carry out tasks that are not compatible with their humanitarian mission...nor be compelled to refrain from acts
required by medical ethics."*
Certainly no less ought to be expected from our physicians and government here at home, during a time of at least domestic peace. Yet 'the principle of balance' mixes and confuses the very different roles properly played by medicine and law enforcement, and has already done so with deadly consequences for patients in pain. For California to codify its requirements into 'protocols' enforced in the context of criminal law would constitute the gravest sort of legal and humanitarian error.
The Federal Controlled Substances Act (CSA) does not require that physicians police their patients -- at least, the United States Congress did not intend such a thing when it was drafted. Moreover, when the Congress enacted the CSA, it intended that the law would not affect the practice of medicine, and would instead exempt physicians from its provisions, as long as physicians prescribed "in the course of their professional practices."
The idea behind the CSA was to go after those rare physicians who prescribed drugs in a wholesale fashion, charging by the prescription, in exchange for sexual favors, on the street corner, or what have you. It was never intended to regulate the day-in and day-out practice of medicine.
SB 1782, in contrast, openly seeks to incorporate non-medical imperatives into the standard of care, and to enforce physician's duty to be good police officers, this, in opposition to medicine's primary ethical imperative. Never before has any state sought to impose unethical medicine upon its citizens and never before has criminal law been invited in to police any part of medical practice.
California appears to be leading the way with regulations and police actions that render pain care unavailable to its most vulnerable citizens. In 2000, the year following Dr. Frank Fisher's arrest, DEA data ranked California dead last out of 51 states for per capita Oxycontin prescribing. We have no reason to believe that this situation has improved.
Clearly, law enforcement's ill-informed ideas about the overall safety of opioid pain medications are driving this legislative effort. As the California District Attorney Association's Executive Director Dave LaBahn was quoted saying in the AMA News recently "If someone is prescribing medications and killing people, we want law enforcement to be able to aggressively get in there and stop it."
The current threat of such review at the medical board level is chilling in its own right, but at least that process is located in the correct regulatory venue. Physicians will not be able to tolerate police and prosecutors reviewing their medical care whenever an ill person dies while receiving pain treatment, even if members of academic medicine are present when it happens. They will, instead, simply abandon their dying patients even more readily than they currently do.
The vast majority of physicians are unwilling to write prescriptions for pain medications because they can see or at least suspect that their colleagues are being prosecuted nationwide for practicing ethical, evidence-based pain medicine. Further mandating and legitimizing criminal sanctions, should a doctor be found to be deficient as a law enforcement officer will only serve to drive away those few physicians who still provide ongoing pain care.
Fear of prosecution and massive political pressure has caused academic pain medicine to confuse coercion with compliance; the slightest discrepancy between the way a patient takes his medication and the manner in which it was prescribed is characterized as 'drug abuse' in the 'FAQ document,' a single such incident of 'abuse' is sanctionable by removal of all pain care. Patients are treated as presumptive criminals by the few doctors who are still willing to prescribe. Patients are required, for instance, to allow DEA and other law enforcement agencies to view their private medical records in order to continue receiving ongoing opioid pain care.
Patients in pain dare not tell their doctors the truth about any increased pain or they risk losing what little care they do get. If a patient ever expresses a need for more medications, that request is considered an 'aberrant drug related behavior.' It doesn't matter that the DEA's 'FAQ document' says that a patient's requests for more medication "may reveal other potential explanations, including the possible effects of unrelieved pain", the cold hard truth is that such candor "could lead to...the decision to taper and discontinue treatment."
From the patient's point of view, the prospect of losing care is reason enough to control the risk and so they do not ask for the medications they need in order to lead a productive life. Jobs are lost, homes foreclosed, children taken away, and the person in pain, essentially medically abandoned inside of medical practice, struggles with the urge to end the pain through suicide. Since our government does not record suicides resulting from untreated pain, we cannot know how many of these unfortunate people eventually succumb. In this way, the current approach to pain treatment and its adherence to 'aberrant drug related behaviors' guarantees the systematic undertreatment of chronic pain. SB 1782 threatens to codify this ethical breakdown in the medical treatment of pain, which could only further institutionalize this nightmarish trap for patients.
This cannot be what California is looking to accomplish. It would be a travesty to further distance the prescribing of pain medication from the ethical practice of medicine by relocating this most central aspect of medical care within the purview of criminal law. This error will be vociferously challenged by patients should the governor sign SB 1782.
For far too long, medical organizations have formulated approaches (such as this one) with little or no input from the affected patients, and also without regard for the requirements of ethical medicine. As we are the people most directly affected by the undertreatment of pain and by the breakdown in ethical medicine as it concerns pain treatment, we believe that no solution will be successful until our needs and rights to ethical medical care are regarded as paramount.
In order to promote effective pain care, it has become abundantly clear that we must do our policing of drugs entirely outside of the physician-patient relationship. This is the only manner in which a meaningful balance between the needs of law enforcement and the needs of our most vulnerable citizens could ever be achieved.
Patients have a right to medical care that does not systematically abuse us. We are entitled to a climate free from coercion where patients have autonomy and dignity. We are entitled to medical care that does not approach us with suspicion. We are entitled to be treated as citizens equal to and not separate from any other Californians. Patients in pain ought to be free to buy cutting-edge, evidence based medical care and to be free of government measures which impose police duties upon their physicians, and only their physicians.
Until we as a society find a way to provide patients with ethical care, and to protect that care from criminalization through the intrusion of this misplaced 'principle of balance,' we will see the worsening of what is an already outrageous situation.
We urge you to withdraw your support for SB 1782.
Please feel free to call me if you or anyone in your organization would like to work with us on a different approach to this problem.
Family Member of a Chronic Pain Patient
"Standing up for patients in pain and the doctors who treat
*Human Rights Protocol Additional to the Geneva Conventions. Part 3,