PAINKILLER LAW: What “Legitimate Medical Purpose” Defense, If Law Enforcement Thinks the Drug Is Illegitimate?

It’s telling that the DEA‘s characterization of prescription drug abuse as “Good Medicine, Bad Behavior” is now the title of an exhibit at the DEA Museum in Arlington, VA. Telling because while the DEA still pays lip service to the notion that opioids are legitimate medicine, I get the sense that the agency doesn’t believe that anymore. I’ve listened to DEA speakers recently on the subject and I can palpably sense their resentment at having to distinguish doctors from drug cartels and pain patients from street hypes. The truth is that the DEA’s Office of Diversion Control and many prosecutors around the country view prescription painkillers as junk being pedaled by dealers dressed up as healers.

Just as I have heard prosecutors tell medical marijuana patients with anxiety disorder to “go take a yoga class,” I am more and more getting the sense that law enforcement today generally looks down on pain patients, distrusts pain management doctors, and sees patient deaths as stronger and stronger proof that prescription painkillers are illegitimate as medicine. If the medicine were legitimate, the thinking goes, people who use it wouldn’t be dropping like flies. Let’s face it: That’s not a bad argument. But it’s not the law, and so whether they like it or not, police and prosecutors have to refrain from delegitimizing and criminalizing what is still under most circumstances a lawful and ethical part of medical practice.

In criminal cases arising out of a doctor’s prescription writing, the notion of prescribing for a “legitimate medical purpose” is key. The theory is that if there is no legitimate medical purpose for the prescription, or the dose, or the refill, or the early refill and so on, the doctor is just a narco-trafficker. Again, I understand the theory, and believe that in some cases, it has some application. But what concerns me is that the folks with badges, guns and charging authority are only human, and they are as vulnerable to bias as any of us. When the DEA as an agency is susceptible to an internal, cultural belief that prescription drugs are just a legal form of heroin, this belief informs investigations, shapes police reports and creates a prism through which prosecutors new to this area of law view a case. The legal theory of prescribing “without a legitimate medical purpose” is improperly infused with and tainted by an executive branch mindset that the medications are highly suspect in the first place. The “proof” of lack of legitimate medical purpose is all the more easy to get to, in the mind of a prosecutor, if opioids are murder weapons disguised as medicine. So any physician prescribing opioids is already walking a thin line, in the eyes of a cop or the government’s advocate, and has to work that much more desperately to extricate himself or herself from the quicksand of a criminal investigation.

It’s a dangerous world out there for any medical provider writing prescriptions for potentially addictive drugs. It shouldn’t be this dangerous, but it is. The FDA understands that pain patients need reasonable access to medication; the White House Drug Czar’s office goes out of its way to avoid stigmatizing people who’ve developed a chemical dependency. But the DEA has the guns, and the nation’s prosecutors wield vast power in the courtroom. Doctors, risk managers and healthcare enterprises need to protect themselves and their patients, as the battle lines are being drawn.

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