Ethical Issues in Substance Use Intervention

Abstract

This essay offers an overview of some of the ethical questions raised by governmental and medical interventions into drug use. With respect to the former, it begins with the liberal assumption that constraints on free action are to be justified by reference to its deleterious impact on others, but then qualifies that assumption by noting the social requisites of free action. With respect to medical interventions, it focuses on the codes that have been developed for treatment providers and their clients, and explores the ethical underpinnings of several of their central provisions—informed consent, privacy, confidentiality, nondiscrimination, professionalism, and accountability.

• Accountability
• Civil commitment
• Common good
• Confidentiality
• Consent
• Discrimination
• Freedom
• Governmental intervention
• Medical intervention
• Privacy
• Professionalism

Notes

^aFor the purposes of the argument I confine myself to human beings who possess the capacities we typically associate with mature members of the species. What are sometimes referred to as marginal cases raise additional considerations. See, for example, Dombrowski (1997).

^bMill (1977). It was such a consideration that lay behind Mill's support for the subsidization of the arts. See Mill (1965).

^cMill, On Liberty.

^dSee especially, Feinberg (1984).

^eGreen (1888). In this essay, Green also discussed existing land law.

^fIs a free society constituted simply by a collection of free individuals, or does a free society have conditions that affect what it is to be a free individual? Mill is closer to the first view and Green to the second.

^gFor a good review, see Nicholson (1986).

^hHe is equally supportive of legislation that makes it compulsory for parents to send their children to school.

ⁱCf. Ritchie's trenchant criticism of Herbert Spencer's Social Darwinism: “In this country, no one is hindered by law from reading all the works of Mr. Herbert Spencer. This is negative liberty. But if a man cannot read at all, or if he can read but has not any money to spare for the purpose of buying so many volumes, or if he has no access to any public library, or if the managers of any library to which he has access refuse to permit such works on their shelves, or, if having access to them, he has no leisure in which to read them, or if he has not had such an education as enables him to understand what he reads, he cannot be said to get much good out of the fact that the law of the land does not prohibit him from reading Mr. Spencer's works” Ritchie (1894).

^jGreen's argument is very similar to those sometimes used in defense of affirmative action and compulsory education. To better the situations of those with a history of social oppression, it is not enough to remove formal constraints on them. Something positive must be done to improve their chances of making something of themselves.

^kGreen (1883). That said, it needs to be acknowledged that Green believed that the full realization of human capabilities would have a moral cast to it. Thus he writes that “the only good that is really common to all who may pursue it, is that which consists in the universal will to be good—in the settled disposition on each man's part to make the most and best of humanity in his own person and in the persons of others.” (sect. 244, p. 288). This is closely connected to his idealism, the view that the self-realization of one is possible only if the self-realization of all is attained (sect. 370, pp. 456–457); in other words, self-interest and the interests of others are intertwined.

^lNicholson. Green and State Action: Liquor Legislation.

^mWorks, 1886.

ⁿThere is little doubt that Green saw the issue as one of class. He strongly identified with working-class progress, and saw both the proliferation of drink shops in working-class areas and the lack of interest by conservatives in doing anything about it as a reflection of upper-class hegemony.

^oSee Kleinig (1983).

^pMill, however, makes it clear that, when what has the initial character of self-regarding conduct becomes other-regarding, interference with it is justifiable only insofar as it is other-regarding.

^qAlthough Green became a total abstainer and his sympathies were eventually with prohibition, he always kept an eye on what was politically—democratically—feasible. His older brother's life was destroyed by alcoholism, and this affected him emotionally; nevertheless, his focus is always on the cumulative social effect of drunkenness. The self- and other-regarding distinction is firmer for Mill than it is for Green.

^rGreen, Liberal Legislation and Freedom of Contract.

^sSee Mill's letter to Dawson Burns (1972); See also Green's speech at a meeting in Oxford, 1874; For further discussion on Mill and Green, see Nicholson. “Green and State Action: Liquor Legislation.”

^tGeorge Sher (2003) has recently put forward a similar argument. Important to making such an argument will be securing a threshold of liberty so that the cumulative effect of constraint does not become oppressive.

^uThe criminalization of drug use is discussed at length elsewhere, and I do not propose to consider it further here. Of particular significance is Douglas Husak, (1992). For a discussion that reflects his position, see his essay, “The Moral Relevance of Addiction,” in this issue.

^vWe might note the increasing use made of “drug (treatment) courts,” along with the problems of equitable access and waiver of rights that they raise. See Harrison and Scarpitti (2002); also Nolan (2002).

^wSee Stephen Morse's essay, “Medicine and Morals, Craving and Compulsion,” in this issue, which questions the deresponsibilitization of addiction.

^xHowever, for further discussion, see the essays in this issue by David Wasserman and Tziporah Kasachkoff, respectively, “Addiction and Disability: Moral and Policy Issues” and “Drug Addiction and Responsibility for the Health Care of Drug Addicts.”

^yThough civil commitment need not be and often is not initiated by governmental agents.

^zThis may contribute to the “burnout” among treatment staff that some have identified. See Lacoursiere (2001).

^aaSee, in particular, Kahneman et al. (1982); also Sutherland (1994); Stich (1985); Kahneman (1994); and Samuels, et al. (in press).

^abGroups such as Narcotics Anonymous and Alcoholics Anonymous.

^acSee further, Buscema (1998).

^adFor a discussion of their effectiveness, see Adrian (2001).

^aeThe ethical obligations do not just go one way. Clients have obligations to treatment professionals, third party payers have obligations to clients, and so on. I shall deliberately speak interchangeably of “clients” and “patients.” Each indicates something of importance: the former reminds us of the dignity and need to recognize full participation of those who are treated; the latter reminds us of their vulnerability and the exploitable inequalities that are usually present in the relationship.

^af<http://naadac.org/documents/display.php?DocumentID=11> (8/3/03).

^aghttp://www.counseling.org/site/PageServer?pagename=resources_billrights> (8/3/03).

^ah<http://www.apa.org/pubinfo/rights/rights.html> (3/20/02).

^aiConsider, for example, the following: Connecticut Certification Board (1/16/03); Iowa Board of Substance Abuse Certification (8/3/03); Louisiana State Board of Certification (5/12/03); Substance Abuse and Mental Health Services (1/16/03); New Mexico Abuse Counselors (5/19/03); The North Carolina Substance Abuse Professional Certification Board (1/16/03); Missouri Substance Abuse Counselors' Certification Board, Inc. (8/3/03); Alcohol and Substance Abuse Counselors (1/16/03).

^ajFor a more extensive discussion, see Kleinig (1996).

^akThis study, which continued from 1932 to 1970, and was carried out under the auspices of the US Department of Public Health, tracked the effects of syphilis on a large group of black males who believed that they were receiving treatment for their condition. Their consent to the risks associated with their involvement was never obtained, and at least 40 of them died, most probably from lack of treatment that they could otherwise have obtained. For a fuller account and critique, see Department of Health, Education and Welfare (1973).

^alSome informational failures go to the substance of what is assented to and undermine consent altogether; other failures attach to collateral aspects of what is assented to so that even though the consent may have been fraudulently obtained, we still allow that genuine consent was given. For a discussion of the complexities of this distinction, see Feinberg (1986).

^amRelated to this will be the requirement—reflected in a number of ethical codes—that therapists or counselors not misrepresent their credentials, giving patients the impression that they are more qualified than they are.

^anI have discussed the balance between caveat emptor and the duty to disclose in Kleinig (1984).

^aoThere are, however, problematic cases: (i) Coercive offers, in which a benefit is offered under terms that a person has reason to expect on less costly terms than he is asked to consent to. (ii) Exploitative offers, in which some vulnerability is used as a basis for extracting an agreement that the person would otherwise not be willing to give. (iii) Unequal bargaining power, in which a person has little choice but to accept the terms that are offered. (iv) Extortion in which a threat is used to exact assent.

^apSee, for example, Iowa Board of Substance Abuse Certification (8/3/03); New Mexico Abuse Counselors (5/19/03); The North Carolina Substance Abuse Professional Certification Board, Inc. (1/16/03); Louisiana State Board of Certification for Board Certified Substance Abuse Counselors (5/12/03); Alcohol and Substance Abuse Councelors (1/16/03).

^aqSee, for example, the American Psychological Association's, Code of Ethics, §4.07. A new code went into effect 6/1/03 (see §10.08) (5/20/03).

^arThis is an important “if.” Although there are cases in which long-term damage has been caused, and other cases in which some temporary deficit has been involved, there is little doubt that the magnitude and irreversibility of the problems have been exaggerated by those with particular political agendas. In addition, of course, there is a question of the fetus's status. Here, however, we are not talking about abortion but about the bearing and subsequent life of a child who might be impaired.

^asI cannot argue, for example, that it is no business of others to know that I am carrying a dangerous and infectious disease, at least if its transmission can be effected by means of casual contact. Thus the Iowa Board's Code of Ethics (III.D) states: “Alcohol and Drug counselors reveal information received in confidence only when there is a clear and imminent danger to the client or other persons, and then only to appropriate workers, public authorities and threatened parties.” The situation becomes more complicated in cases in which transmission will occur under more narrowly specified circumstances. See Kleinig and Lindner (1989); Consider also Tarasoff (1974).

^atSee Tziporah Kasachkoff, “Drug Addiction and Responsibility for the Health Care of Drug Addicts.”

Additional information

Notes on contributors

John Kleinig

John Kleinig, Ph.D, is Director of the Institute for Criminal Justice Ethics and Professor of Philosophy in the Department of Law and Police Science, John Jay College of Criminal Justice and in the Ph.D. Programs in Philosophy and Criminal Justice, Graduate School and University Center, City University of New York. He also holds the Charles Sturt University Chair of Policing Ethics in the Centre for Applied Philosophy and Public Ethics (Canberra, Australia). Educated in Australia, he taught philosophy at Macquarie University (Sydney) before coming to John Jay College in . His philosophical interests are in the areas of ethics and social philosophy, with a focus on professional and practical ethics, particularly in the fields of education, bioethics, law, and criminal justice. He is the author of Punishment and Desert (Martinus Nijhoff, 1973), Philosophical Issues in Education (Croom Helm/St Martin's Press, 1972), Paternalism (Rowman and Allanheld/Manchester University Press, ), Ethical Issues in Psychosurgery (Allen and Unwin, ), Valuing Life (Princeton University Press, ), and The Ethics of Policing (Cambridge University Press, ). He is a member of the Editorial Board of Substance Use and Misuse.