“State Imposed Brain Intervention: The Case of Pharmacotherapy for Drug Abuse”
“The compelled use of pharmacotherapy would raise a number of constitutional and other legal issues. Inasmuch as the U.S. government had adopted an illness metaphor and expressly analogized the use/abuse of drugs to cancer, the potential for constitutional violations is underscored.”
[Are any constitutional violations associated with cancer treatment? If not, what is the association Boire is after here?]
“Inasmuch as substantial damage has already been done to the U.S. Constitution in order to fight the war on drugs, all signs foreshadow a continued narrowing of our rights, justified as an unavoidable side-effect of waging war on the “cancer” of drug use/abuse.”
“Among the rights implicated by compulsory use of pharmacotherapy drugs is the right to provide informed consent before receiving medical treatment, the constitutional protections against cruel and unusual punishment, bodily integrity, and privacy, and the right to freedom of thought.”
Three Likely Targets for Compulsory Pharmacotherapy: (a) prisoners, (b) probationers, and (c) public benefit recipients.
Coercion vs. Informed Consent
Informed consent = df “Informed consent means the knowing consent of an individual of his legally authorized representatives, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion.” (U.S. Department of Health and Human Services)
Mental Illness and Infancy are Exceptions to Informed Consent. But is Coerced Pharmacotherapy?
Prison Populations and Pharmacotherapy:
“People serving time in prison—especially for drug offenses—would appear to be prime candidates for coercive pharmacotherapy. Prisoners are politically weak [just how weak are they?] and generally regarded unsympathetically by the general populace.”
Even prisoners are entitled to informed consent! How can this be squared with coercive pharmacotherapy?
Two exceptions: (a) serious mental illness, and (b) future dangerousness to self or others
Boire assumes throughout that addiction to drugs is not a serious mental disorder and hence it doesn’t qualify as an exception to the patient’s right to informed consent. Do you agree?
Question: What about using pharmacotherapy as an enticement to treatment? Would a quid quo pro set up be morally and legally acceptable so long as the prisoner understood his rights, the side effects, etc.?
Probationers and Pharmacotherapy:
Several states already require probationers to occasionally receive birth control implants and injections (e.g., Norplant and Depo-Provera) and drugs such as Antabuse (which causes extreme sickness if alcohol is consumed). Boire complains about this because he believes that it is inherently coercive to use medical treatment as a condition of early release. He also claims that the implementation of these programs often fail to respect the probationers right to informed consent. On his view, people shouldn’t be forced to “barter his or her natural neuro- and biochemistry in exchange for freedom.” But why not? I can imagine all sorts of cases involving other dangerous but curable diseases where we would quarantine until safe, etc. Why not think some extreme cases of addiction and alchoholism fall under this category?
Public Assistance Recipients and Pharmacotherapy:
The underlying issue here is the same as before—namely, public assistance is conditioned on pharmacotherapy. According to Boire, just as the rights of probationers and prisoners were being violated in the earlier two cases, so the rights of public assistance recipients are being similarly violated. On the one hand, the state’s actions are coercive. On the other hand, the state’s action violates the aid recipients right to informed consent. But can’t we imagine designing this is a way that addresses at least the informed consent issue? Couldn’t we just devise of a plan that was open and transparent enough to empower the prisoner, probabationer, aid recipient, etc.? Why follow Boire in assuming, without a lot of argumentation, that informed consent will be an issue at all? We already have strict laws when it comes to civil commitment, the insanity defense, etc., why not think we will pass similarly strict laws in the context of state imposed/suggested pharmacotherapy?
The Charge of Barbarism:
“Compelling a prisoner, parolee, or probationer, to take a pharmacotherapy drug, assuming the person is not mentally incompetent or dangerous, is akin to torture or barbarism. It treats the person as a means, rather than an end, and ought to be considered cruel and unusual punishment.”
Test Case: MAOA Revisited. Would it be barbarous to insist that male offenders with MAOA-L and a history of childhood abuse take SSRIs if reliable studies have repeatedly shown that the offenders will be much less impulsively violent?
Cruel and Unusual Punishment?
“History has a way of showing that the forced “treatments” of today will tomorrow be seen as cruel, unusual, and barbaric punishment.”
Freedom of Thought:
“Simply put, controlling what chemicals can or cannot reach a person’s brain synapses directly affects how that person thinks. As a result, compelling a person to use a pharmacotherapy drug not only implicates the person’s traditional rights to bodily integrity and informed consent, it also implicates the fundamental right to freedom of thought.”
Does testing for drug use in probation cases violate this right to freedom of thought?
“Inasmuch as one’s thoughts and thought processes are the very core of one’s individuality and the root of both freedom and responsibility, permitting the state to forcibly pierce a person’s body to insert a pharmacotherapy drug that is designed to patrol or police that person’s body for the purpose of controlling possible brain states grants the state the ultimate power over the individual.”
But we already wield this power of the civilly committed, no? What’s the difference?