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Palliative or Repressive? Conservative-Sponsored Legislation Impacts on Pain, Suicide and Drug Policy Debates

6/18/99 A bill introduced yesterday (6/17) by Oklahoma Senator Don Nickles, Representatives Henry Hyde, Republican chairman of the Judiciary Committee and Bart Stupak (D-MI), will reign in the DEA's drug war against pain control -- or will expand and worsen it -- pain treatment advocates aren't yet sure.

The "Pain Relief Promotion Act of 1999," according to information provided by Nickles' office, is designed to:

  • Reaffirm doctors' ability to use controlled substances to aggressively manage patients' pain and discomfort (especially among terminally ill patients) and reject their deliberate use to kill patients.
  • Provide doctors and health professional with the most reliable, state-of-the-art practices on relieving pain.
  • Provide research grants and establish a program for palliative care focusing on the treatment of pain and end-of-life symptoms.
  • Educate local, state and federal law officers to better accommodate the legitimate use of controlled substances for pain relief.
  • Clarify existing law to retain a uniform standard over controlled substances. In those states which do not legalize assisted suicide, the application of the Controlled Substances Act is not changed.

Advocates of aggressive pain management are particularly encouraged by language stating that "aggressive pain management is a legitimate use of drugs regulated by the Controlled Substances Act, even in cases where such use may increase the risk of death," and by the focus on educating physicians and law enforcement on appropriateness of aggressive use of narcotics for cases of severe, chronic pain. Doctors are beset by an overly-restrictive regulatory climate in which those who treat pain aggressively face investigation by state medical boards and drug enforcers. Patients requiring large doses of narcotics for adequate pain relief face being regarded as addicts -- or undercover drug agents -- and denied treatment by doctors who fear loss of license or even criminal prosecution. (See www.drcnet.org/guide10-96/pain.html for examples, and www.stopthedrugwar.org/pain.html for an overview of this serious problem.)

Drug agents and doctors alike often neglect to account for the fact that patients taking narcotics for pain often require increasing doses over time, due to the effect of tolerance, and that such increases are regarded by leading pain specialists as appropriate, even necessary. Karen Davie, president of the National Hospice Organization, a supporter of the bill, wrote to Sen. Nickles, "increased educational efforts about the nature and practice of palliative care are important components of your initiative," and "it is unfortunate that we continue to see individuals living and dying in unnecessary pain when the clinical and medical resources exist but widespread education is lacking."

The bill's sponsors, however, were focused on a different issue than anti-drug diversion enforcement. Nickles and Hyde, in the wake of a 1997 Oregon state ballot initiative legalizing physician assisted suicide, filed the "Lethal Drug Abuse Prevention Act," authorizing the DEA to revoke or suspend the federal prescription license of a physician who "intentionally dispensed or distributed a controlled substance with a purpose of causing or assisting in causing" suicide. A coalition of over 50 medical and patient groups successfully opposed the bill, on the basis that further DEA scrutiny and evaluation of medical decisions would even further discourage physicians from being willing to treat pain. Supporting their position is a study which found that undertreatment of pain worsened amongst the terminally ill in Oregon in late 1997, following a DEA threat to revoke licenses of Oregon doctors who use controlled substances to hasten death (www.drcnet.org/wol/063.html#deapain), a threat that was quickly disavowed by US Attorney General Janet Reno. The new act seeks again to restrict physician-assisted suicide, but in a way that gains the support, rather than the opposition, of the medical and patient communities.

Though the sponsors' fact sheet states that a goal of the Pain Relief Promotion Act is "to ensure that current [law enforcement] surveillance is not having an adverse effect on legitimate use of these drugs in palliative care," supporters of the Act are reluctant to state definitively that such adverse effects have presented a problem in the past. Jon Keyserling, director of public policy at the National Hospice Organization, told the Week Online, "I'm not aware of specific investigations that have been undertaken, but I'm sure that law enforcement officials would like to be armed with knowledge of good pain management techniques, so that their resources are best utilized in going after legitimate issues, rather than not being aware of what are state-of-the-art pain management techniques."

It is also possible that the sponsors themselves are unaware of the drug war/pain undertreatment nexus. Brooke Simmons, a spokesman for Sen. Nickles, told the Week Online that the dynamic of diversion of controlled substances to the black market or prescriptions to non-medical users were "not a focus in crafting this legislation." When asked whether there is currently a problem of drug enforcers sometimes seeing diversion where it isn't, and this having an inhibiting effect on physicians' willingness to treat pain, Simmons answered, "I would have to take your word on that, because this bill doesn't specifically address that issue, other than making certain that law enforcement officials understand the proper uses of controlled substances. But to the extent that such a problem may sometimes exist, I would guess that the education efforts this bill would make possible would also sensitive the law enforcement community to that issue. It might be an unintended benefit for all parties involved. However, to the best of my knowledge, that was not the driving force behind the legislation."

Skip Baker, president of the American Society for Action on Pain, has more certainty regarding the nature of the problem: "If law enforcement would have stayed out of the practice of medicine in the first place, they wouldn't have had to have written this bill, because actually, the Controlled Substances Act provides for patients at it is. And yet, because the DEA went overboard and went out of bounds, out of their own jurisdiction, and began to harass doctors and shut doctors down who were just treating pain, it created this absolute crisis that brought about the need for this bill. So, it's kind of tragic that they've had to write this bill up to control the police, because that's basically what it's going to do. This is a bill to control out of control drug cops, that's basically what it amounts to, so it's quite amazing. It's just like, they came up with this bill to deal with the forfeiture law, and to reign in the cops from being so overbearing with that law."

Still, Baker is excited at the prospects the bill may offer for change: "These two politicians have really woken up, it's incredible. It may be a new day for pain patients."

Other advocates are less optimistic. Josh Kardon, chief of staff for Sen. Ron Wyden (D-OR), told the Associated Press that the bill would "train and deputize a doctors' police," and that Wyden would filibuster any attempt to overturn Oregon's law. Wyden opposed the assisted suicide initiative, but has defended his state's right to pass it. Wyden is also an advocate of better pain control, and filed S. 941, the Conquering Pain Act of 1999, last May.

Nickles told the Associated Press that his bill isn't unfair to Oregonians, adding that if a state were to pass a law legalizing heroin, federal law would still make the substance illegal in all states. "You need consistency, you need uniformity." Nickles didn't discuss possible inconsistencies between Republicans' call for state control on other policy issues (where Republicans don't like current federal policy), vs. strict federal control on drug policy (where they do).

DRCNet will offer further coverage and analysis of this complex bill and issue in future issues of The Week Online. The Nickles/Hyde/Stupak bill did not yet have a number as of press time; check thomas.loc.gov for legislative updates. Please note that DRCNet is devoted to drug policy reform, and takes no position on physician assisted suicide. Visit the American Society for Action on Pain online at www.actiononpain.org. Visit the National Hospice Organization at www.nho.org.

"The price
of freedom is
constant vigilance."
Thomas Jefferson

-- END --

StoptheDrugWar.org: the Drug Reform Coordination Network, P.O. Box 18402, Washington, DC 20036, (202) 293-8340 (voice), (202) 293-8344 (fax), e-mail drcnet@drcnet.org.



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