David Borden, Executive Director, [email protected], 2/4/05
Criticism has now come from within law enforcement as well. Late last month, a letter from the National Association of Attorneys General, a group representing the states' top law enforcement officials -- signed by 30 of them, more than half -- took the DEA to task. Addressed to DEA chief Karen Tandy, the 30 state attorneys general on the letter expressed "surprise" at DEA's withdrawal of the FAQ, and concern that this action would have a chilling effect on the treatment of pain. And they asked Tandy for a meeting next month when they will all be in town for the annual state attorneys general conference.
When a majority of state attorneys general want to meet the head of the DEA in person to tell her she's wrong, it's big. If Tandy didn't already realize she'd screwed up, she probably does now. I have long considered the DEA a rogue agency that should be abolished and not mourned, but frankly even I was shocked they would do something like this. Even worse, some observers believe DEA pulled the FAQ to gain an advantage in their successful attempt to convict Virginia pain doctor William Hurwitz.
I shouldn't have been shocked -- I knew better. The unfortunate reality is that morality and ethics in the criminal justice have been terribly degraded -- in significant part by the war on drugs, as police leaders like former San Jose police chief Joseph McNamara have discussed -- so inappropriate prosecutorial interventions and "out of control" agency actions like the FAQ's abrupt withdrawal are not surprising but should be expected. One of the unethical aspects of the pain wars is that civil matters such as accusations of substandard doctoring are now being treated as criminal matters and hence game for criminal prosecutors. That is not what the law says should happen.
But no one has stepped up to the plate to stop them -- not even the AGs who signed this letter. California's Bill Lockyer, for example, allowed prosecutors working under his authority to continue their persecution of Frank Fisher, another pain doctor, even though the charges against him were as spurious as could be -- even the malpractice claims against Fisher have now been withdrawn. Perhaps this letter will be a first step toward more responsible oversight of their minions on the AGs' part. Time will tell.
I hope the FAQ is restored and that doctors will then be more willing to prescribe pain medication in adequate quantities to the patients who need it. I fear that nothing short of the removal of law enforcement from regulation of medicine, excepting perhaps only the most serious and unambiguous circumstances, will suffice to a sufficient degree to serve patients' needs. And I fear that even medical boards comprised of doctors will themselves be a troubled mechanism with regard to pain treatment, as they have tended in the past continuing to the present. At least the medical boards can only strip a doctor's license, and that is less brutal than sending the doctor to prison; and the boards seem more likely to lend weight to what their fellow doctors in pain control have to say. But it may be that only an end to prohibition itself will enable pain control to advance to the level that it can and must attain. Time will tell on these counts as well.
In the meantime, it's good, if unfamiliar, to see state attorneys general take a step like this -- late as it may be and notwithstanding how many more steps are urgently needed. I don't know who made it happen, but if you happen to be reading this editorial, good work, keep it coming. Time will tell where it leads.