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An addict is the person
you work with, the person next door, or the person walking
into your office with an array of legal problems. He or she
may also be your father, your sister, or your daughter.
Many people who begin using alcohol
or drugs socially or to escape some problem unwittingly cross
over the line into involuntary drug/alcohol use. They
find themselves struggling with an addiction and consequences
that arise from that addiction.
People whose existence is drug- or alcohol-
driven or whose judgment is clouded by intoxication often
do not exercise law-abiding self-control. The issues
that arise from addiction-driven behavior often end up in
our legal system in a variety of contexts, including criminal,
civil, child welfare, family law, traffic, housing, employment,
and other business related problems.
There is a lack of understanding by
the public and by many lawyers and judges about addiction,
treatment, and recovery. As a lawyer, you are in a
unique position to help your client overcome their addiction. The
best resolution to your case may hinge on identifying addiction
as the underlying problem, assisting your client in obtaining
treatment, and educating judges about addiction, treatment,
and recovery.
To effectively resolve your case, you
must be able to overcome the stigma associated with this
disease. You need to be prepared to explain addiction,
the effectiveness of treatment, and demonstrate to the court
that your client has taken steps to address their substance
use disorder.That is, you must show that your client has
entered or is in the process of entering a treatment program
or is participating in other self-help programs.
This primer is intended to provide you with necessary background
and facts that can be used in all legal contexts. However,
it does not address the legal issues of each area of law.
TABLE OF CONTENTS
Addiction Is A
Medical Disease
Treatment Works
Referring Your Client
for an Evaluation and Treatment
The Evaluation Process
Treatment Modalities
What About the Client
That Relapses?
Difference Between Treatment
and Recovery
New Jersey’s Law
Against Discrimination & The Federal American’s
With Disabilities Act
When is substance
use disorder protected under the Law Against Discrimination?
Protecting Your Clients Privacy
Rights
Remedies
Conclusion
Resources
Addiction
Is A Medical Disease
Although there are social consequences
resulting from addiction, it is a medical problem, not a
social one. Despite scientific research demonstrating
that addiction is a chronic lifelong disease that needs ongoing
care, much like diabetes, hypertension, etc., the public
and many lawyers and judges have not yet embraced this concept. This
causes many in the legal system who come in contact with
it to push for harsh penalties rather than appropriate treatment
and to view a relapse as a treatment failure rather than
the need for ongoing disease management.
Addiction involves multiple factors-biology,
environment, and brain mechanisms. Although the term “addiction
is a disease” has become commonplace, public opinion
polling shows that 40% of New Jerseyans continue to view
it as a moral failing. When you explore the issue more deeply,
even those that say it’s a disease are ambivalent and
would feel differently around someone in recovery.
The public, attorneys, and judges may
think if drugs and alcohol are causing the problems, why
don’t users simply stop? Why don’t they stay
stopped? A task much easier said than done. Recognizing
addiction as a chronic, relapsing, brain disorder can explain
why a person cannot just stop or why a person may relapse.
At some point, changes occur in the brain that can turn drug/alcohol
use into addiction-compulsive drug cravings and usage from
which they cannot just stop. They have an illness
that requires biomedical treatment.
According to neuroscientists…Addiction
is considered a brain disease because it alters the brain
in fundamental, long-lasting ways… Neuro-imaging techniques… have
documented actual changes in the size and shape of nerve
cells in the brains of addicts. Coming down from a drug high
is caused by a decrease in dopamine levels. If you force
brain cells to produce excessive dopamine on a regular basis,
they become stressed and produce less dopamine. Over time,
addicts become depressed and need drugs just to stimulate
dopamine to normal levels. They become trapped in a cycle
of cravings and addiction to avoid withdrawal symptoms and
depression.
Using drugs repeatedly over time changes
brain structure and function in fundamental ways that can
persist long after the individual stops using them. As stated
by Alan I. Leshner, director of the National Institute on
Drug Abuse at the National Institutes of Health, “long-lasting
brain changes are responsible for the distortions of cognitive
and emotional functioning that characterize addicts, particularly
including the compulsion to use drugs that is the essence
of addiction. It is as if drugs have high-jacked
the brain's natural motivational control circuits, resulting
in drug use becoming the sole, or at least the top, motivational
priority for the individual.”
Leshner believes that “once a
person crosses the line from user to addict, the brain is
so changed that he/she can no longer control their behavior.” Although
drug or alcohol use may start out voluntarily, addiction
is not a voluntary behavior. It is a different state. |
Treatment
Works
Research shows that substance use disorders
are chronic, relapsing medical conditions that can be effectively
treated. Nearly
two decades of treatment research shows that treatment is
effective and results in a clinically significant reduction
in alcohol and drug use and crime, and improves the health
and social functioning, of many clients. Economic studies
consistently find net economic benefits from alcohol and
other drug treatment in terms of reduced crime, reduced incarceration
and victimization costs, and post-treatment reduction in
health care costs.
A major study published in the Journal of the American Medical
Association in 2000 is one of several studies that demonstrate
the effectiveness of treatment for substance use disorders.
The study found that treatments for alcohol/drug use disorders
are just as effective as treatments for other chronic conditions,
such as high blood pressure, asthma, and diabetes.
Evidence of the effectiveness of treatment can also be found
in New Jersey Drug Courts. As of March 2007, 1,249 participants
successfully commenced to the final stage or graduated; 93%
were employed at the time of graduation, 95% of the drug
tests were negative. Significantly
reduced drug use was found even among participants who did
not graduate from the program. A study commissioned
by the National Institute of Justice found that of offenders
who were imprisoned for drug offenses, 43.5% were rearrested
within the first year of their release and 58.6% within the
second year. In New Jersey, within three years of graduating
from Drug Court, the re-arrest rate for graduates was 14%
and the reconviction rate for new indictable offenses was
7%.
Referring
Your Client for an Evaluation and Treatment
Lawyers are in a unique position to
make a difference in the lives of their clients and also
improve the outcome of their case by addressing issues of
addiction and referring clients to appropriate treatment
programs before they go to court. Participation in treatment
can often improve the outcomes of a case, but more importantly,
it can help return some stability to the client’s life.
First and foremost, for any illness,
including a substance use disorder, a treatment decision
must be made by a qualified health professional, not by a
judge, a lawyer, or the legislature. Currently, there are
some statutes that define the type and duration of treatment
based on the crime a person may have committed, rather than
based upon qualified medical advice, using a proven standardized
measurement.
When health professionals do not make
decisions, your client may not get the treatment they need
in terms of intensity or duration. Treatment decisions have
been driven by a combination of not understanding addiction
as a chronic illness and the extreme discrimination faced
by persons seeking treatment for a substance use disorder.
If patients don’t get enough treatment, then their
addiction will continue and any money spent on treatment
may be wasted. They will only end up revolving in and out
of detox, emergency rooms, mental health facilities and physicians’ offices.
Likewise, if patients get more treatment than they really
need, money and time is also wasted.
The
Evaluation Process
The first step in ensuring your client
obtains appropriate treatment is to refer him or her for
a complete evaluation. Once the evaluation is completed,
you will want to have a copy of it available to ensure that
the court’s decision is based on the evaluation.
The evaluator will most likely rely
upon the ASAM-Patient Placement Criteria to determine the
type and duration of treatment, if any, your client needs. The
ASAM-PPC is the most widely used and comprehensive national
instrument for placement, continued stay, and discharge of
individuals with alcohol and other drug problems. The
ASAM- PPC places patients in the appropriate level of care,
thereby avoiding less effective under treatment as well as
expensive over treatment.
The following are places you may look
to obtain an evaluation for your client:
County
Alcoholism and Drug Abuse Offices
Treatment
Assessment Services for the Courts (TASC)
Intoxicated
Drivers Resource Centers (IDRC)
Once the evaluation is complete, you
will want to refer your client to a treatment program before
they go to court. An evaluation coupled with your client
being in treatment or scheduled to enter a particular treatment
program goes a long way in ensuring the court follows the
recommended treatment and agrees with your position.
Treatment
Modalities
A variety of approaches are used in
treatment programs to help clients deal with cravings, possibly
avoid relapse, and learn to manage their condition. Treatment
may entail many interventions and attempts at abstinence
and can occur in a variety of settings, in different forms,
and for different periods of time. Addiction treatment
must address the needs of a wide range of individuals of
all ages, receiving treatment at different points in the
progression, and experiencing different levels of physical,
mental or social impairment as a result of the disease. Therefore,
no one size fits all.
As with other brain diseases such as
schizophrenia and depression, the data shows that the best
addiction treatment approaches attend to the whole individual,
combining the use of:
- Medication Assisted Treatment (when
needed)
- Cognitive/behavioral therapies
- Psychosocial (motivational)
- Community reinforcement
- 12 step self support groups
- Engagement
Attention to necessary social services
and rehabilitation. Treatment then takes place within a
care continuum that includes:
- Active treatment, including stabilization,
early recovery treatment, and management of co-morbidities
(such as mental illness)
- Continuing engagement as part of
a longer-term chronic care plan.
Some of the more common treatment settings
are:
- Long-term inpatient
- Short-term inpatient
- Partial hospitalization
- Intensive outpatient
- Outpatient
- Brief Intervention
There are two websites that list treatment
programs available in New Jersey:
NCADD-NJ Treatment Locator
Department
of Human Services Division of Addiction Services
Medication Assisted Treatment is probably
the most stigmatized and controversial of the treatment modalities. For
appropriate patients, however, there is solid evidence that
pharmacotherapy provided by trained clinicians in combination
with psychosocial therapy is effective.
Opioid addiction is a medical disorder
that can be treated effectively with medications when they
are administered under conditions consistent with their pharmacological
efficacy and when treatment includes necessary supportive
services such as psychosocial counseling, treatment for co-occurring
disorders, medical services and vocational rehabilitation.
Some people need formal treatment to
recover, while others are able to recover using self-help
groups. Courts are more apt to accept treatment as
the means to recovery as there is no professional to assess
and monitor one’s progress in a self-help group. Many
judges do not understand how the self-help group works and
how it fosters abstinence and long-term recovery.
If your client is engaged in a self-help
program, it is important that they document their attendance
at meetings. It is also important that someone be prepared
to explain how the program works and how people remain abstinent,
grow and recover by using the program. Although anonymity
is a core principle in these programs, if your client is
truly involved in such a program they can usually find a
sponsor or someone with longer-term sobriety and clean time
to come to court with them and attest to their active involvement
and growth in recovery.
There will likely be a waiting list
for treatment, so participation in self-help groups during
that time can help the person remain abstinent and show their
motivation for sustaining long term recovery. |
What
About the Client That Relapses?
It is important to remember, addiction’s effects on
the brain last long after the person abstains from use. The
brain does heal, but it takes time. Through classical
conditioning, environmental cues are paired with the initial
drug use experiences. Exposure to those cues automatically
triggers cravings that can lead to relapse. Relapse
does not mean a treatment failure; it merely means that your
client needs ongoing care.
Scientific research conducted over the
past ten years by NIDA, NIAAA and SAMHSA has
concluded that a substance use disorder is a chronic disease
with similarities to asthma, hypertension and diabetes and
requires ongoing disease management. Without an understanding
of the chronic nature of this disease, our court system will
continue under the misconception that stabilization and symptom
reduction amounts to treatment through which a person is “cured,” and
a relapse means the person has failed.
Although some addicts do gain full control
over their drug or alcohol use after a single treatment episode,
some have relapses. Dr. David Lewis from Brown University
and Dr. Thomas McLellan from the University of Pennsylvania
are two of the leading figures in providing the research
and disseminating the findings. Their work demonstrates that
people treated for addictive diseases have a higher compliance
rate than those treated for other chronic diseases, such
as asthma, hypertension and diabetes. In
fact, a study done by McLellan demonstrates that relapse
rates for substance use disorders (60%) are less prevalent
than those for hyperertension (70%) and asthma (70%), and
only slightly higher than those for diabetes (50%). If
you are successful in educating judges about the chronic
nature of this disease, then relapse will not be viewed as
a failure.
Difference
Between Treatment and Recovery
The distinction between treatment and recovery is important.
For many people, treatment is a path toward recovery. Treatment
focuses on symptom reduction and may include dealing with
cravings, breaking through denial, addressing pathology and
deficits, learning coping strategies, and providing an introduction
to self-help groups.
“Recovery from alcohol and drug
problems is a process of change through which an individual
achieves abstinence and improved health, wellness, and quality
of life.” It
is a highly personal process, one that continues through
one’s lifetime and affects all aspects of an individual’s
life: social, vocational, spiritual and certainly family
and friends.
Public opinion research shows that the
public does not understand what it means to be in recovery. People
polled believed that the term “in recovery” means
they are trying to stop using alcohol and other drugs and
the term “I’m a recovering addict” reinforces
the idea that the person is still struggling with active
addiction.
New Jersey’s
Law Against Discrimination & The Federal Americans
With Disabilities Act
Discrimination against people in treatment and in recovery
from a substance use disorders is not only wrong but also
is often illegal. Our society grapples with finding
an acceptable interpretation that recognizes addiction as
an illness without denying an element of personal responsibility. Thus,
although the Law Against Discrimination (LAD) and
the Americans with Disabilities Act (ADA) provide some protection
for people addicted to alcohol and drugs, there are many
conditions and restrictions placed on these disabilities. The
LAD and ADA provide limited protection from discrimination
for recovering alcoholics and drug addicts.
When
is a person with a substance use disorder protected under
the Law Against Discrimination? The New Jersey
Law Against Discrimination (LAD) makes it unlawful to treat
people differently based on a mental or physical disability
or perceived disability. Whether a person has
a disability is decided on an individualized, case-by-case
basis. Under the Law Against Discrimination “disability
means… a psychological, physiological or neurological
conditions which prevents the normal exercise of any bodily
or mental functions or is demonstrable, medically or psychologically,
by accepted clinical or laboratory diagnostic techniques.”
Alcoholism that meets these conditions
is considered a disability. Drug
addiction that meets these conditions may be a protected
disability only under certain conditions.
People who currently engage
in illegal drug use are not protected. However, illegal
drug use is a protected disability when the person:
- Is no longer using illegal drugs;
- Has successfully completed a supervised
drug rehabilitation program and is no longer engaging in
the illegal use of drugs, or has otherwise been rehabilitated
successfully and is no longer engaging in such use; or
- Is participating in a supervised
rehabilitation program and is no longer engaging in such
use.
The ADA, and by incorporation, the LAD,
prohibit the denial of health services or services provided
in connection with drug rehabilitation to an individual on
the basis of the current illegal use of drugs if the individual
is otherwise entitled to such services.
Although persons with alcohol dependence
are more broadly covered than those with addictions to illegal
drugs, neither receives blanket protection. Neither
a person with alcoholism or drug addiction is protected if
they pose a direct threat to the safety of others or to themselves,
nor is misconduct that may be related to their substance
use disorder necessarily protected. Disabled persons
seeking protection under the LAD/ADA are held to the same
performance standards as nondisabled persons. Employers are
also permitted to ensure that a work place is free from alcohol
and drugs. Drug tests are permitted prior to employment
and during employment.
Once you are able to show that a client
with a substance use disorder has a disability, reasonable
accommodations must be made to address the disability, so
long as it does not create an undue hardship. New Jersey
courts have interpreted reasonable accommodation to mean
providing where feasible one opportunity for rehabilitation. Other
reasonable accommodations may include time off to attend
counseling appointments, or a change in job responsibilities.
The definitions of “current drug
use”, “direct threat” and “undue
hardship” have been the subject of much litigation. Current
drug use is defined to mean, “the illegal use of drugs
occurred recently enough to justify an employer’s reasonable
belief that involvement with drugs is an ongoing problem.” It
is not limited to the day of use or recent weeks or days. Direct
threat has been interpreted to mean that there is a reasonable
certainty that such handicap would probably cause injury. Both
are determined on a case-by-case basis. |
Protecting
Your Clients Privacy Rights
The regulations that protect the confidentiality
of persons in alcohol or drug abuse treatment can be found
in title 42, part 2, of the Code of Federal Regulations and
in the HIPAA privacy rule.
People will more likely seek and succeed
in treatment if it is confidential. Thus,
the general rule is that drug or alcohol abuse programs may
not disclose, directly or indirectly, any information regarding
former, current, or would-be patients. This includes
the client’s identity, records, protected health information, or
testimony about a patient's treatment.
Despite this rule, most requests for
information can be accommodated by one or another exception
to the rule. A program may disclose information about your
client if your client authorizes it by signing a valid consent
form, by
a court order following specific procedures, if
your client commits a crime on program premises or against
program personnel, or if there is a medical emergency, or
if there is child abuse or neglect. The two most common exceptions
are when a client signs a consent form and when a court orders
disclosure of confidential information.
Before your client goes into treatment,
review what it means to sign the release, what is required
in a valid consent form, and when, if, and under what conditions
a court may order the release of confidential information. When
a client is involved in the legal system, they often feel
pressured to sign consent forms, are required to sign them,
or do not understand what they are signing. |
Remedies
There are government agencies set up
to investigate complaints that involve violations against
the Law Against Discrimination and the Fair Housing Act.
The New Jersey Division on Civil Rights
enforces the Law Against Discrimination. You can file an
administrative complaint with the Division within 180 days
of the date of the alleged violation. If the complaint
involves housing, you can also file a complaint with the
US Department of Housing and Urban Development. If
the complaint involves an owner-occupied two-family home,
you can go to a fair housing organization in your county.
If the complaint involves the Americans with Disability Act,
you may file a charge with the Equal Employment Opportunities
Commission.
In the alternative, you can go directly
to the New Jersey Superior Court within two years of the
alleged violation and sue the person who discriminated against
your client.
Conclusion
Representing a client with a substance
use disorder can be complicated. It will be successful
if you are able to educate other attorneys and judges about
addiction, treatment and recovery. Your client will
benefit from your understanding of these issues, and perhaps
get the help they need to recover. Furthermore, it
will help to untangle the legal issues that arose from their
disease. Such understanding will ultimately improve your
case and its outcome.
RESOURCES
Addiction Is a Medical Disease
Addiction
Is a Brain Disease
The
Science of Addiction
Treatment Works
McLellan, A.T. et al., JAMA, Vol 284(13),
October 4, 2000
The Evaluation Process
County
Alcoholism and Drug Abuse Offices
Treatment
Assessment Services for the Courts (TASC)
Intoxicated
Drivers Resource Centers (IDRC)
Treatment Modalities
NCADD-NJ Treatment Locator
Department
of Human Services Division of Addiction Services
Protection Under the LAD
and ADA
Accommodation
and Compliance Series: Employees with Drug Addiction
42
USC Ch. IV Sec 12210
Protecting Your Clients Privacy Rights
Treatment
Improvement Exchange Chapter
The Confidentiality
of Alcohol and Drug Abuse Patient Records Regulation and
the HIPAA Privacy Rule
Remedies
New
Jersey Department of Law and Public Safety, Division
on Civil Rights,
The U.S. Department of Housing and Urban Development, |
