#civil commitment

For the purposes of this essay, the substances I consider are those usually referred to as drugs. That already casts the net extremely broadly. Drugs are generally distinguished as nonfood substances that alter an organism’s structure or function, a characterization which, though broad enough to capture almost any substance that could be referred to as a drug, is probably too broad to generate any distinctive ethical questions. Even when we descend from the abstract heights of offering a comprehensive account of those substances more mundanely referred to as drugs, we are still confronted with an enormous array of substances, one that remains too large to generate any interesting general ethical questions. Witness to this broad array are the diverse social responses we find— allowing of course that these responses may in some cases be quite controversial and in need of review. Some drug-containing substances are available without restriction and if not used as food then often used with it—tea, coffee, and soft drinks containing caffeine, for example. Another cluster, including tobacco and alcoholic beverages, is publicly available though heavily taxed and formally restricted to adults. A more restricted group includes therapeutic agents available only on prescription (say, OxyContin), though some therapeutic drugs are available virtually without restriction—aspirin, for example. An interestingly problematic group, including certain glues and aerosols, comprises psychoactive substances that are generally available though not intended for ingestion. And finally there are psychoactive substances that are generally outlawed (though forms of some are available on a very restricted basis for therapeutic or palliative purposes)—marijuana, cocaine, heroin, LSD, and so on. The categorization is not comprehensive, but it indicates the diversity of substances that qualify as or contain drugs.

Although any ethical discussion of drug use intervention must restrict itself to or differentiate between this or that drug or group of drugs, it is important to keep in mind the wide range of substances that can be so characterized. In the passion of public debate, it is easy to forget that we are not talking about a simple natural classification, but one that is socially determined, albeit sometimes and to some degree by reference to the properties of substances and the effects they may have under certain conditions. But given the diversity of overlapping properties and the variety of circumstances, the lines we draw will always have a certain controversiality if not arbitrariness about them.

At one level, talk about ‘‘social determination’’ is innocuous: language/conceptualization is a human activity, and even if we sometimes aspire to a somewhat ‘‘photographic’’ scientific representation of the world, we ought not to forget the importance of a camera angle to the representation. In the case of the substances we refer to as drugs, however, we are dealing additionally with representations that are highly politicized, in which different social groups vie for ‘‘ownership’’ of the conditions of a substance’s use. Debates over the legitimately sacramental use of peyote or the therapeutic use of marijuana highlight these struggles for ownership. The same goes for attempted divisions of drugs into ‘‘hard’’ and ‘‘soft’’: however much we attempt to provide a ‘‘scientific’’ justification for such classifications, they also reflect a contest for moral and/or political control.

Governmental Intervention

If we begin the ethical discussion of substance use intervention with certain liberal assumptions, then the ethical onus of justification will be on those who wish to intervene. Let me expand. It is a fairly basic presupposition of morality that we are to conceive of human beingsa as possessing the (rational) capacities of perception, judgment, decision, and incremental learning. It is by virtue of these that individual humans should be permitted to go about their lives as they themselves determine. This does not mean that how they judge and decide is or should not be of concern to others, but it suggests that insofar as it does concern others, any engagement between or among them should initially be that of rational interlocutors. Those others may ‘‘intervene,’’ but their intervention should take the form of presenting the object of intervention with reasons and arguments that that object can take into account in judging and deciding. The object-of-intervention’s judgment and decision making should not be interfered with coercively but addressed rationally. Passion may not be inappropriate, but it is the passion that naturally accompanies certain kinds of rational considerations. Stronger—coercive—forms of intervention are generally appropriate only when a person’s decisions are such as to prevent others from acting on their own reasons. Insofar as the interferer has failed to respect the rational standing of others, he or she might reasonably be restrained, or, at least in the event of some completed interference, be penalized or otherwise be made subject to their determinations.

As stated, these liberal assumptions are likely to garner fairly broad support. They are, however, not universally shared and in a larger discussion would need to be defended against some alternative accounts. There are, for example, certain natural law traditions that posit a human telos which, though rationally inscribed, is characterized by the realiza- tion of specifiable substantive goods. Such views are likely to allow for greater intervention than the liberal one I outlined. In addition, though, even these liberal assumptions are sometimes supplemented by additional considerations that bear on the degree of permissible social intervention. It is one such supplementation that I now wish to make.

This supplementary consideration reminds us that liberalism is itself a range of positions, some of which are in tension with others. The particular version of liberalism that underpins this essay does not conceive of individuals as effective sources of reasons independent of some sustaining social milieu in which they have been nurtured and within which their decision making takes place. The free and equal beings of ethical liberalism are not atomistic individuals tracing their paths in social space, but participants in and dependent on particular social milieux. The practical and conceptual wherewithal for many kinds of judgment and decision making come through the socially coordinated efforts of many, and so, although there may be some constraints on what others may do to one, there may also be some reasonable expectations on the part of others that one will contribute to and help sustain the social conditions of one’s rational freedom. What is more, such activity, expressed through governmental agencies, may subsidize (through taxation) various undertakings that enable people to pursue their interests as ‘‘progressive beings.’’b It was for this reason that when John Stuart Mill enunciated his ‘‘one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion or control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion,’’c he was also quick to qualify it. His basic principle—which, it turns out, was not so singular—or simpled—was that ‘‘the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.... [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’’ The qualification he added was that ‘‘there are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection.’’

This qualification assumes some importance in the debate concerning drug use because, although liberals like Mill are adamant that paternalistic interferences cannot be justified, some socially sustaining interferences may be. Mill is clear that interference with an individual for ‘‘his own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.’’ Nevertheless, because an individual is both a ‘‘progressive’’ being and a ‘‘member of a civilized community’’ there are certain social obligations that he can be required to fulfill.

When it comes to drug use, then, we must look at particular drugs and see the ways in which they impact not only on the individual but, if more widely available, on the broader social milieu. That is, we must consider whether there would be social repercussions to drug availability that ought to mandate some constraints on their access. Mill believed that by and large there were not. One of Mill’s later contemporaries, however, the Oxford philosopher T. H. Green (1836–1882), confronted the issue at length and came to very different practical conclusions. Green was dis- turbed at the way in which liquor shops had sprouted up in British working class neighborhoods, depressing them and sapping their residents of the wherewithal for improving themselves and their condition.e Although I am generally sympathetic to Mill, there is something in Green’s more communitarian version of liberalism that deserves greater recognition.

Green’s liberalism is more communitarian than Mill’s because it focuses not primarily on the freedom of the individual but on a free society,f and it does so by advocating an idea of the common good that functions as a constraint on what is socially allowable. Even so, Green’s notion of the common good, though more idealist or perfectionist than anything in Mill, belongs to the same broad liberal tradition because it aims at the flourishing of individuals as free beings. Whereas Mill is bothered by the ways in which ‘‘society’’ may cripple the development of individuality (the ‘‘tyranny of the majority’’), Green focuses on the importance of a relatively and broadly benign social environment to the enablement of individual flourishing (sustaining the ‘‘power on the part of the citizens as a body to make the most and best of themselves’’).

Green’s views on the availability of alcohol are found in a variety of writings,g though they are developed at greatest length in his 1880 lecture, ‘‘Liberal Legislation and Freedom of Contract,’’ in which he argues for both land reform and constraints on the liquor trade. What he says needs to be read in the light of prevailing social conditions, at least so far as they existed in the poorer urban communities of England.

Although Green starts with the socially qualified assumption that people should be free to make their own choices in life, he explicitly rejects the libertarian conclusion that whatever people agree to in their dealings with others ought therefore to be permitted. He notes with approval recent labor legislation that constrained the contractual arrange- ments into which people might enter—legislation that limited the number of hours that children, young persons, and women could work in factories, and various other measures that affected workplace and residential safety and health for everyone.h Although these constituted constraints on freedom of contract, Green argues that freedom, rightly understood, demands more than lack of constraint. The human freedom we prize is not ‘‘a freedom that can be enjoyed by one man or one set of men at the cost of a loss of freedom to others’’ but rather ‘‘a positive power or capacity of doing or enjoying something worth doing, and that, too, something that we do or enjoy in common with others. We mean by it the power which each man exercises through the help or security given him by his fellow-men, and which he in turn helps to secure for them.’’i

Freedom is not mere license but a valued and valuable capacity for self-improvement.

As already noted, whereas Mill’s fundamental focus is on the free individual and his/her social requisites, Green’s focus is on the free society, and the individual prerequisites for that. ‘‘When we measure the progress of a society by its growth in freedom, we measure it by the increasing development and exercise on the whole of those powers of contributing to social good with which we believe the members of society to be endowed; in short, by the greater power on the part of the citizens as a body to make the most and best of themselves.’’ For Green, the freedom of the ‘‘wandering savage’’ is not to be compared to the freedom of ‘‘the humblest citizen of a law-abiding state.’’ Society is the crucible of a freedom worth having, and freedom of contract ‘‘is valuable only as a means to an end,’’ the end being ‘‘positive’’ freedom: ‘‘every one has an interest in securing to every one else the free use and enjoyment and disposal of his possessions, so long as that freedom on the part of one does not interfere with a like freedom on the part of others, because such freedom contributes to the equal development of the faculties of all which is the highest good for all.’’ The state may have a role in ensuring this, Green believes, though it does not necessarily do so and it does not necessarily do so by centralized means. It would be good were we to achieve the goal of freedom for the self-development of all through the ‘‘spontaneous action of individuals,’’ but ‘‘we must take men as we find them,’’ and ‘‘until such a condition of society is reached, it is the business of the state’’ to take steps to ensure that this interest of all is secured.j ‘‘Left to itself, or to the operation of casual benevolence, a degraded population perpetuates and increases itself.’’

This is not a strong perfectionist goal: ‘‘it is the business of the state not indeed directly to promote moral goodness, for that, from the very nature of moral goodness, it cannot do, but to maintain the conditions without which the free exercise of the human faculties is impossible.’’ And in his Prolegomena to Ethics he wrote that ‘‘no one can convey a good character to another. Everyone must make his own character for himself. All that one man can do to make another better is to remove obstacles, and supply conditions favorable to the formation of a good character.’’k Thus, although Green did not accept the arguments of those who saw the presence of temptation as character building,l he was also critical of ‘‘paternal government’’ that did ‘‘its best to make [morality] impossible by narrowing the room for the self-imposition of duties and for the play of disinterested motives.’’m

Against such a background Green reviews existing liquor licensing laws, laws which, he says, prevent ‘‘the drink shops from coming unpleasantly near the houses of well-to-do people, and ... crowd them upon the quarters occupied by the poorer classes, who have practically no power of keeping the nuisance from them.’’n Although he thinks that something ought to be done to curb them, Green draws back from suggesting a particular solution—more stringent licensing rules vs. the relocation of such shops, for example. The issue, he thinks, is one of creating social conditions that enable people to make the best of themselves, and this is not necessarily a matter of banning the sale of alcohol altogether (even though Green became a prohibitionist), but of diminishing the convenience of purchasing alcohol in neighborhoods that have been ravaged by it. Green is careful to indicate that the precise measures to be taken need to have regard to what people will tolerate: ‘‘to attempt a restraining law in advance of the social sentiment necessary to give real effect to it, is always a mistake.’’

Although one might—as many attempt to do—drive a broad wedge between Mill and Green, I suspect that they are closer in liberal spirit and social concern than is often acknowledged. To some extent their arguments differ because they are responding to different social dangers. For Mill it is the tyranny of the majority and authoritarian government; for Green it is the exploitative potential of inegalitarian capitalism, the need to ‘‘hinder hindrances’’ to self-development. Neither Mill nor Green advocate complete freedom of contract: both are opposed to a freedom that would allow people to sell themselves into slavery—though Mill’s gnomic remarks on the subject leave it unclear as to whether he and Green share similar grounds for their opposition.o And both recognize that what might seem to be or might begin as self-regarding behavior— alcohol consumption—may deleteriously affect others, and thus at some point justify governmental interference. Mill’s focus, interestingly, is probably more individually intrusive than Green’s. For whereas Green is (initially) concerned to regulate the number of liquor shops in working- class areas, Mill is willing to countenance direct interference with the individual whose drinking deprives his family of the support that they have a right to expect of him.p Though certainly not coincident, the two positions are not completely exclusive. In the long run, a modified Greenianq rather than Millian position has often prevailed with respect to alcohol: not prohibition, as Green ultimately favored, but significantly more stringent legal provisions relating to the sale and consumption of alcohol than those for other beverages.

Although Green and Mill cannot be completely reconciled, they seem to be most at odds over empirical considerations—whether the proliferation of drink shops is as individually and socially destructive as Green takes it to be. Whereas Green views the ready availability and aggressive retailing of alcohol in certain areas as having serious social consequences, Mill believes the effects of alcohol to be (for the most part) privately contained. As Green puts it (though without naming names): ‘‘It used to be the fashion to look on drunkenness as a vice which was the concern only of the person who fell into it, so long as it did not lead him to commit an assault on his neighbors. No thoughtful man any longer looks on it in this way.’’r And whereas Mill did not focus on the possibly addictive and voluntariness-diminishing effects of alcohol, many of those in the Greenian camp did. In the debates over legislation, Mill and Green thus found themselves on opposing sides.s

The point here is not to conflate Green and Mill—as I said, they cannot be completely reconciled—or even to argue for one against the other. My point is rather to suggest that there are subtleties to such debates that are not easily resolved by simple appeals to either Mill or Green. As with the tension between individual and community, of which this is yet another permutation, one wants to say not either/or but both/and.

Obviously the foregoing has broader implications for drug use intervention. First, in cases in which the use of a drug begins to have a significant impact on social life, there may be some reason for constraining its use. Green’s concern is not with the use of state power to interfere with the choices of individuals per se, but with the use of state power to intervene in cases in which a cumulatively detrimental social effect has been brought about as a result of easy access to a substance to which a certain class of persons will be especially vulnerable. It is not drunkenness per se that Green targets but the ready availability of alcohol that results in drunkenness as a social problem. The same might be said of other drugs— not that people should be prevented from taking them, but that their availability should—so far as possible—not be such that their cumulative effect is socially detrimental.

There is, however, a further extension of Green’s argument that might seem more troubling. It arises from what might be seen as the cumulative social effect of a variety of acts. Suppose that the existing social costs of alcohol are significant but not capable of being diminished without considerable social opposition. Suppose further that there is some other psychoactive substance to which a portion of the population wants access but which, like alcohol, would tend to be used excessively and detrimentally. Even if the second substance is not as socially disruptive as alcohol, prudent social policy might lead us to be more restrictive of its use than of the use of alcohol. It is not enough to compare it in the abstract with alcohol; what must also be assessed is the cumulative effect of their joint availability, given that the use of alcohol is already socially entrenched.t That may involve consideration not only of the total social impact of the availability of two problematic substances but also any added effects of their joint ingestion. Social policy decisions do not operate in a vacuum or with a blank slate but need to take socio-historical factors into account. One effect of that may be restrictive decisions that, taken alone, would have been invidious.

I do not put this forward as an argument for the social status quo on drug use—for example, the acceptance of alcohol and tobacco and exclusion of marijuana and heroin—but simply as a general argument for seeing drugs (and other social practices that, if unconstrained, might be sufficiently deleterious socially to warrant intervention) historically and cumulatively and not merely discretely and comparatively. If, as a result, social policy favors invidious responses (say, by more severely restricting the use of a substance that is less harmful than one that is in entrenched common use), there is also reason for an incremental corrective social policy that will diminish the seeming hypocrisy of regulation.

A second inference to be drawn is that intervention need not take the form of direct or punitive prohibition, but may consist only in the imposition of certain costs that are likely to affect its use. There are many ways of affecting the consumption of substances that have socially deleterious effects. Criminalization is a particularly radical form of social intervention, since it not only attaches costs but also penalties to that which is prohibited and stigmatizes the offender. A great deal of the current debate focuses on criminalizing interventions into drug use (along with drug possession and trafficking).u But alternative forms of regulation may often—perhaps usually—be preferable. Substances may be taxed or made available only on prescription or limited to certain venues. Moreover, although the state, as the primary social repository of coercive power, may be ultimately responsible for the regulations we have, it also has the power to delegate that responsibility to others.

For the remainder of this essay, however, I wish to review some ethical issues prompted by a different form of drug use intervention— various treatment regimes designed to wean people from certain forms of drug dependence. First, however, it might be helpful to connect this discussion with the earlier one.

There is sometimes a very close relationship between governmental and medical intervention. More than one such relationship can be found.

Sometimes it is between criminalization and treatment. Those who have violated criminal prohibitions against drug use may be offered treatment programs as an alternative to imprisonment.v One might wonder why. If drug use is deserving of punishment, why should entering a treatment program be seen as an appropriate alternative? If treatment for drug use is seen as an appropriate response, why should its use be thought deserving of punishment? A partial explanation is probably that compelled and closely supervised treatment no less than imprisonment is seen as a penalty, though one that is appropriate only to those who see their ‘‘criminal dependence’’ as something to be dealt with. The background assumption is that even if a person is addicted to some prohibited drug— and thus has a compromised capacity to stop using it—he or she nevertheless retains the power to seek treatment for the addiction. The failure to do so is seen as deserving of penalty. Whether this is a correct account of addiction is not something I address here.w

But the increasing use being made of drug (treatment) courts also gestures at a recognition that drug use—and dependence—is not to be construed on the model of other illegalities: it is in some sense a political gesture to those who have considered that drug use ought not to be penalized in the same way as other social offenses even if—under certain circumstances—some kind of response is called for.

Nor shall I address a further ethical issue, that which concerns the eligibility for treatment by those who have acquired some form of drug dependence. It is sometimes argued that those for whom drugs have become a problem have, in the words of the Victorian maxim, ‘‘made their own beds and must now lie in them.’’ I shall assume that this issue has been resolved to the extent that those in question have access to some appropriate form of treatment, and that what are now to be considered are the ethical questions raised by various treatment regimes.x This is not to say that the design and operation of socially accepted facilities for the treatment of people’s drug problems have always paid much attention to what is ethically acceptable. Given the proliferation of alternative programs and their high failure rates, there is some reason to believe that many such programs have not been either well-conceived or well-run.

A second type of relationship between governmental and medical intervention occurs when people are civilly committed to some treatment regime by virtue of their dependence.y In civil commitment, those whose capacities are deemed to be so compromised that they constitute a danger to themselves and/or others are preventively detained, usually with a view to their treatment. There are several ethical issues here to which I will simply allude without further discussion. First of all, it cannot be presumed that because a person constitutes a danger to himself or others he is unable to take responsibility for the choices he makes. The capacity to take responsibility for one’s choices needs to be independently established. Even though it may seem odd that a person would willingly choose a course likely to be detrimental to himself, we should not see such irrational choice as inherently responsibility-defeating. After all, those who engage in extreme sports—though foolish at one level—do so as the result of a formally respectable cost-benefit analysis. The excitement they get from exposing themselves to extreme danger may not be for everyone, but we have no reason to use its oddity to presume incapacity. It may well be that one of the reasons why drug user treatment programs are not more effective than they are is that they fail to establish a preferable alternative for users.z Second, the judgment that a person constitutes a sufficiently significant danger to himself or others such that some intervention is justified is often highly speculative. We are not good predictors of dangerousness, and at least with respect to dangerousness to self, should be very reluctant to intervene. Even with respect to dangerousness to others, we need to have some confidence that we are frequently enough on target in our predictions to provide ethical cover for cases in which those who pose no danger to others are improperly detained. Rationality may be our distinctive capacity, but, as Kahneman and Tversky have shown, it is not one in which we excel.aa

Third, even if it is clear that a person is incapable of avoiding behavior that is dangerous to his well-being, we should not presume that he would choose to avoid such behavior if he could. The person may wish to continue in a state of dependence because, even with its dangers, it does not leave him worse off than he would be were he not dependent. Those who are dependent on certain drugs may not be capable of overcoming that dependence without assistance, but they are not thereby lacking the ability to judge whether their lives would be better were they no longer drug dependent, and it may be that the issues that originally contributed to their dependence would remain as intractable as they were before.

Medical Intervention

Treatment for substance mis/use remains a highly problematic and controversial issue. This is partly for reasons already touched upon— judgments about substance misuse are deeply intersected by various contentious moral, social, and political judgments. How we legitimately respond to drug use and even drug dependence will depend in some measure on the particular moral and social judgments we make and the political climate in which we must make them. But it is also connected with two other factors of importance. One, a factual issue, concerns the effectiveness of various treatments for drug users (or at least misusers). And the other concerns their costs, not merely monetary of course, but for those concerned and the society that must in some sense support such programs. Those costs will also need to be assessed against the significant possibility that those who begin to use drugs will eventually stop using them as part of some process of ‘‘natural recovery.’’ For a good number of those who are treated, drug use might be seen as a ‘‘phase,’’ albeit one that could have significant costs for the person and others while that person is going through it. Drug misuse might also be seen as a problem whose control or treatment is as effectively dealt with via informal strategies as by those of a more ‘‘medicalized’’ kind.ab

Were relatively simple, effective, and individualized treatments for substance misuse available, as there are, say, for broken limbs, that would certainly simplify matters. But drug use and dependence is not amenable to simple solutions. In part that is because it is in itself a complex matter, a function—in many cases at least, not only of chemical factors, and factors relating to individual conditions, but also complex social ones. Those social factors may encompass not only economics and class but also age, religion, ethnicity, and more individualized factors such as friendships, familial relations, employment circumstances, and so on.ac Much will depend on the dispositions of the candidate for treatment and the social conditions that will exist subsequent to treatment.

And second, because drug user treatments have been only modestly successful, efforts to improve their efficacy have often been problematic. They have sometimes—either in themselves or through the ways in which they have been administered—had disproportionate costs for their clientele.ad

Some ethical questions concerning treatment, then, will be the same as those that must be faced by medical researchers who wish to introduce or at least experiment with novel therapies. There will need to be a review process that considers risks, benefits, and alternatives, one that ensures that those treated are appropriately informed concern- ing the course of treatment; care will need to be observed lest unfairly discriminatory practices are initiated; untoward eventualities will need to be accommodated; and so on. Other questions will be similar to those that need to be addressed with other treatment regimes, such as securing informed consent and assuring confidentiality. In addition, there will need to be some discussion and determination of how to handle those who fail to conform to the treatment regime (by testing, for example, with dirty urine). Are they to be excluded from further treatment in favor of others (assuming that such treatment programs constitute a scarce resource), or is the problem of dependence such that a certain level of deviance should be anticipated and accommodated?

Codes

Nowadays, much therapeutic intervention for substance misuse is addressed by professional codes of ethics or patients’ bills of rights. Many who treat those with problems related to substance use belong to professional organizations that expect their members to observe certain ethical standards, primarily in relation to their clients and those close to them, but also with respect to fellow professionals, the law, third party payers, and sundry others.ae Representative of such documents are the Ethical Standards of the National Association of Alcoholism and Drug Abuse Counselors,af the American Counseling Association’s Principles for the Provision of Mental Health and Substance Abuse Treatment Services: A Bill of Rights,ag and the American Psychological Association’s Mental Health Patient’s Bill of Rights.ah However, they constitute only a small proportion of such statements as state and local agencies come to their own terms with the ethical challenges that confront them.ai Even if those who treat do not belong to formal associations, there is an increasing willingness on the part of courts to hold them to standards that are embedded in such associational documents.

For the most part, associational codes are worthy front-end statements. They specify conduct and expectations appropriate to the various parties involved in the therapeutic relationship—clients, professionals, third party payers, and so forth. Collectively, such documents attempt to cover the whole spectrum of contacts, from outreach to initial interview through the treatment regime to posttreatment associations. At each juncture of the ‘‘treatment’’ process, ethical questions arise and need to be confronted by the parties involved.

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.

Like all such documents, however, they run the risks of ossification, legalism, heteronomy, and minimalism.aj Briefly, ossification involves a hardening of ethical judgment. Even if we believe that there is a right and wrong thing to do (as we may believe there to be a scientific fact of the matter), we need to beware of the temptation of thinking that our present formulation of that judgment is ‘‘final.’’ Ethical judgment is a dynamic, ongoing activity, and one of the dangers inherent in codes is loss of a sense of that dynamism. Legalism occurs when a code of conduct is treated as though it were a set of quasi-legal rules, in which the emphasis comes to be on the ‘‘letter’’ to the neglect of their ‘‘spirit,’’ and in which, connectedly, the focus comes to be on behavior to the neglect of attitude, on conformity to the neglect of disposition. Heteronomy results when people allow a code to substitute for their own reflective judgment on the issues at stake. It may be right to do what the code requires, but it is not right to do it just because the code requires it. What is done ought to be done for the reasons that make it appropriate to codify it, not because it is codified. And minimalism occurs when people treat the code of ethics as exhaustive of their ethical obligations to others. Codes generally specify minimum requirements, and not all or the whole extent of the ethical obligations that hold between the various relevant parties in treatments for substance use. Indeed, to the extent that codes are rule- driven rather than value-driven, they tend to concentrate on behaviors that have proven particularly problematic.

One of the reasons for the susceptibility of codes to the dangers I have noted is that, despite occasional hints in preambles, they have been severed from their ethical roots. They focus on ethical outcomes rather than ethical values and their underpinnings. They speak of the need for informed consent, confidentiality, and so on, without indicating or articulating the deeper sources of such expectations in notions of human dignity, respect, justice, and so on. And so I offer here some of that articulation for the various responsibilities and rights that are enunciated.

Informed Consent

Focusing first on the patient, client, or individual on whose behalf intervention occurs, the most fundamental requirement for intervention is informed consent. It was not always considered so. In a past era of therapeutic interventions, it was felt that health care professionals knew best and were justified in intervening paternalistically. Indeed, it was thought that the patient owed deference. Perhaps there was a modicum of truth in the underlying presumption. At least in an earlier era such professionals generally had training and knowledge with respect to the specific presenting symptoms that was far in excess of the training and knowledge of their patients.

But even then and increasingly obviously, this was and is only part of the story. Individual physicians often do not know as much as they claim, and it is better that the choice of treatment is not left exclusively in their hands (at least not without a second or third opinion). There is art as well as science in much medical judgment. Another consideration is the fact that health care professionals often have research as well as treatment agendas, and there have been (as there were in the Tuskagee experi- mentsak) major failures by such professionals to give priority to the health needs of their patients. Patients have been used. A third is the recognition that health care professionals sometimes have the rather limited agenda of addressing physical symptoms or illnesses rather than patients presenting with particular symptoms or illnesses. As a consequence, various issues likely to be of importance to patients’ therapeutic decisions—such as their religious beliefs, family and economic situation—have been left out of account or given a weighting that failed to accord with the patients’ own priorities. A fourth is the growing recognition that as the objects of therapeutic intervention, patients have a basic right to the final say with respect to their treatment, even if in a physician’s judgment their decision is not the best one. There is now an additional factor: with the dispersal of up-to-date research information on the Internet, many patients are as well informed as their health care professionals, at least with respect to the kinds of treatment best suited to the specificities of their cases. So, for example, even if a physician is familiar with the literature on chemotherapy for breast cancer treatment, their patient may have a better idea of how that chemotherapy research bears on the situation of a postmenopausal woman with a 1.5cm tumor, ductal carcinoma in situ (DCIS), and no nodal involvement. Understandably, physicians need to keep abreast of a wide-ranging literature that encompasses a diversity of patients and treatments.

The patient, on the other hand, will be concerned with the way in which that literature bears on the specificities of her particular case.

Most fundamentally, the requirement of informed consent acknowl- edges that individuals in need of treatment are more than dysfunctional organisms. They are agents and not mere patients, decision makers who, by virtue of their standing as rational beings, have significant claim to be the final arbiters of what is done to them. They are sources of reasons of their own, not merely repositories for the reasons of others. They possess, as it is sometimes said, a certain dignity by virtue of their human standing and capacities, and it is by virtue of this dignity that they deserve respect and possess rights with respect to how others may treat them. Their consent acknowledges the fact that decisions about the treatment they undergo are ultimately theirs. Whatever the deficits of substance users, they are fundamentally persons who are able to take stock of their situation and make judgments about what is being proposed to them. This is not to deny that they may be impaired in certain ways; but though such impairments may require special consideration, they do not generally undermine the respect that is their due.

When people consent to treatment, they alter the normative relations in which others stand with respect to what they may do to them. They exercise a normative resource they possess so as to provide others with an otherwise unavailable normative resource. In consenting to treatment, people waive their claim not to suffer the interventions of others. For such consent to be valid, however, various conditions need to be satisfied.

The requirement that consent be informed is an intensifying or explicative requirement, because the genuineness of consent—what transforms mere assent into consent—is compromised if information that ought to have been made available to a deciding individual is withheld.al In a therapeutic context, informed consent has come to require the fulfilment of at least the following conditions: that individuals be told about their prognosis, the therapeutic benefits and risks of the treatment, be informed of alternative treatments, have this information conveyed in language that is understandable, be given time to reflect on the information given, be encouraged to ask questions and have them answered by competent personnel, understand the financial implications of treatment, including any constraints or requirements that are imposed by any third party payer, be informed about how any personal information will be used, be assured of a right to withdraw without penalty from treatment, and, if desired, be told how any complaints are to be made. Usually there is also a requirement that the information and consent be in writing.

It might also be appropriate for the person to inquire as to the performance of the treatment provider—whether the statistical prognosis has been replicated in the provider’s own practice.am To what extent should it be the responsibility of the person to be treated to ask appropriate questions and seek appropriate information, and to what extent should it be the responsibility of the treater to make known information that may have a bearing on the decision? This is a difficult ethical question. Caveat emptor is too strong a requirement. Yet, despite the vulnerability of the patient, it may be inappropriate that all the burden be placed on the therapist. It may be too much to expect the therapist to volunteer that he is relatively inexperienced (after all, inexperience will at some point be the situation of every health provider, competent or incompetent). That is not to say that it would be inappropriate for the patient to raise the question, especially if one has doubts about what is being proposed.an

What is true of therapeutic interventions generally holds also for substance user interventions. Those with problems of drug dependence ought—unless it can be established otherwise—to be presumed capable of understanding and consenting to treatment regimes. It is therefore incumbent on those who wish to intervene therapeutically to provide sufficient relevant information (of both a general and specific kind) in a manner that enables the individual in question to make a choice for himself.

No doubt there are consequential benefits to such a requirement. A willing, cooperative patient is much more likely to benefit from the intervention, especially in drug cases in which social factors are likely to play a significant part in recovery. Nevertheless, it is the deontological recognition of an individual’s entitlement to respect from others that provides the central rationale for the consent requirement.

In addition to the knowledge requirement of informed consent, there are other, interlocking, requirements. First, there is a competence requirement. The person must not suffer from certain kinds of mental impairments—impairments that effectively undermine the person’s capacity for making an autonomous decision. And second, there must be an absence of coercion. Signifying consent as a result of coercion is no consent at all.ao

Noncoerced consent may not be enough. A person may be competent enough to make a decision about the course of therapy, but be susceptible to unfair (rather than coercive) exploitation of vulnerabilities. A number of codes explicitly exclude sexual contact between therapist and client.ap This might at first seem a puzzling restriction on free relationships between adults who, in the way that adults do, could sometimes be expected to develop mutual attraction. But such exclusions, even if problematically absolute, recognize the vulnerability that underlies the therapeutic relationship, and thus the potential for exploitation of a human dynamic that even in other contexts is easily corrupted. For policy reasons, it is almost certainly better that intimate relationships be firmly excluded than that they be exposed to exploitable discretionary judgments. In some codes that do not absolutely rule out intimate relationships (say, after the therapeutic relationship has formally ceased) a burden is still placed on the therapist to ensure that no exploitation will occur.aq

Are there situations in which consent need not be sought? The sorts of cases that most readily come to mind are those in which, if the person is not treated, harm will be done to others. In the case of drug user treatment, this circumstance has most often been canvassed in the case of pregnant drug users. If it can be argued—as it often is—that certain forms of long-term harm are likely to be done in cases involving drug use, then it might be argued—on liberal grounds—that intervention for the sake of the fetus/child is justified.ar In the United States this issue has been obfuscated by efforts to criminalize pregnant drug users, a strategy that is not usually well-suited to the situations of either mother or child, but also tends to work discriminatorily to affect mostly those without the resources to handle their problem privately—that is, those who are poor, uneducated, and members of minority communities (conditions that often go together).

Privacy and Confidentiality

The same general ethical considerations that require informed consent on the part of those treated for drug mis/use also inform the recognition of privacy and need for confidentiality. Privacy is best thought of as a claim to control certain kinds of personal information. Its roots lie in the liberal conception of a human being as the possessor of certain capacities for thinking and feeling, and for progressive flourishing through the exercise of such capacities—what Mill spoke of as the capacity for individuality. The development and expression of indivi- duality can be hampered in a number of ways. We generally think of a coercive invasion by others as the paradigmatic constraint. But we are not simply bodies in space vulnerable to physical interventions. Our status as persons signals a mode of being that can be interfered with just as dramatically—and perhaps even more insidiously—by invasions of privacy as by any crudely physical intervention. Important to our sense of self is the capacity to define the terms of our relations with others. In informational matters concerning our lives—particularly matters that are important to us—our moral autonomy is jeopardized if we do not have significant control over the terms under which that information is revealed to others. The way in which we relate to others comes to be determined by them rather than by us. It is not so much a matter of certain personal information being used against us—though that may be an additional consideration—as of our capacity to control our own behavior and the quality of our relationships with others. The mere voyeur may constitute no social threat; he impinges, rather, on our ability to be ourselves.

In certain circumstances, of course, the claim to control personal information is qualified by the effect that it may have on the legitimate claims or needs of others. Even though they derive from values of central significance, privacy and confidentiality are not absolutes. Where their observance places others at risk, a balancing process must be initiated. Thus, if an embittered drug user who has contracted AIDS through needle sharing threatens to infect others, it might be wondered whether professional confidentialities should be observed.as

For various other social purposes there may also be legitimate disclosure requirements. In these cases, however, disclosure will be limited by those social purposes, and any wider dissemination of information will constitute a breach. In circumstances in which we may legitimately be expected or required to reveal personal information about ourselves to others or in which we choose to make certain information selectively available, those others will have certain obligations of confidentiality with respect to us—unless of course we waive that right and consent to their making such information more widely available. In furtherance of confidentiality, therapeutic codes of ethics often place limits on the disclosure—or risk of disclosure—of personal information gained during the therapeutic process. Thus, there may be constraints on leaving phone messages, sending emails, or storing information on nonsecured computers.

The problems that a person has with drug use are, to a significant extent, matters of private concern, and so those who provide treatment are not at liberty to make that information available to others—at least not in a way that is attributable. This applies not merely to gossip, which may be ethically problematic for other reasons, but also in teaching and research contexts. The advancement of knowledge through teaching and research does not generally require attributable information, and even though such advancement is socially valuable, it does not normally take precedence over the claims of privacy. A person who comes to a physician or therapist does not thereby consent to having his or her particularized information being made available to others. This is a common problem in teaching hospitals, where ‘‘trainees’’ often accompany physicians on their rounds. It is one thing for the patient’s data to be included in some general compendium of treatment data; it is quite another for others to be present when a physician examines a particular patient.

Nondiscrimination

In a society that formally frowns on certain kinds of drug mis/use, there is an ever-present likelihood that treatment services will be distributed in ways that reflect social judgments. Where the group of people visibly in need of such treatment is also distinguished on economic and/or racial grounds, there is an even greater likelihood that dis- crimination will occur. It will occur initially in the general allocation of resources to drug user treatment programs and additionally in decisions about who will be eligible for treatment. One of the sad ironies of many programs is that they make no provision for pregnant women or single mothers with drug problems, even though this failure is likely to perpetuate problems onto the next generation.

Such discrimination cannot normally be justified. The principle of respect for persons is also a principle of equal respect. Although certain public social resources may be distributed on grounds of achievement, effort, or some other legitimate consideration, what are seen as basic needs ought not to be differentially distributed except on grounds of differential need. To some extent, albeit still inadequately, this has been acknowledged if not fully recognized in cases in which straightforward physical needs are at stake. But in the case of drug use there is often an implicit judgment that those who need treatment must take responsibility for their own plight and are to be considered undeserving of social resources. What tends to be forgotten is not only that many physical ailments are the product of bad or careless choices but that many psycho- social ailments have their roots in factors over which people have had relatively little control. Even if they have had control, there may be strong reasons for giving them access to public therapeutic resources.at

Economic and racial discrimination constitute only two of the many forms of illegitimate discrimination that might occur, and so, to varying degrees, different codes indicate that other forms—based, say, on religion, gender, marital status, sexual orientation, national origin, or mental and physical handicaps—are equally to be eschewed. The point is not to disallow any differentiations but to exclude those forms of discrimination that are irrelevant to the therapeutic task.

Professionalism

The trust placed in counselors and therapists makes it appropriate that counselors be committed to professionalism. By professionalism I understand a dedication by such people to providing therapeutic services to the best of their ability along with a further commitment to self-improvement. Competence is not simply a technical expectation but a moral demand. It includes technical skill of course, along with the kind of cultural competence that enables a therapist or counselor to empathize with the social and cultural background of the client. It also includes a constant upgrading of understanding, an appreciation that therapeutic understanding evolves and that what was adequate when credentials were obtained may no longer be so. At bottom, ensuring that one’s skills and understanding are regularly updated is an expression of the respect that one has for patients.

Another aspect of the same expectation is that therapists not exceed the bounds of their competence. Being as competent as one can be includes a recognition of the bounds of one’s competence, whether the limits be limits of what can be professionally achieved or have been created by some contingency in the therapist that impairs his or her performance. It involves, in addition, a recognition that if one is not able to secure a benefit for the patient, the therapist ought not to persist.

Accountability

Those who deliver treatment resources for drug use, whether as part of some publicly funded program or even, to some degree, as part of a private program, need to be held accountable for their actions. Those vested with the authority to distribute social resources are ultimately accountable to the larger society that secures those resources or from which they have been taken, and so there must be ways in which members of that larger social group can be assured that what they ensure is properly used. Even though the level of public accountability will be lower in the case of private agencies, it does not vanish altogether. Such resources are not gained or kept in a vacuum but by virtue of there being stable preexisting social structures that set people on their way and secure them in their activity.

At its heart, accountability should be a personal concomitant of therapeutic professionalism. Ideally, treatment providers will, out of a commitment to the internal expectations of the therapeutic role, hold themselves to account for the quality of the service provided. It is because such internal constraints do not always function effectively that various external mechanisms, such as record-keeping, are needed and may be mandated via a code of ethics.

One’s accountability extends beyond one’s own conduct to responsibility for the ‘‘profession’’—the mentoring of those in training and concern for the professional conduct of peers. Where a therapist becomes aware that a fellow professional is performing in a sub-par manner, there is some responsibility to try to remedy the situation—initially no doubt in a direct manner, but in certain serious or chronic cases through the offices of a professional association or even enforcement authorities.

Concluding Remarks

In this discussion of medical intervention, I have focused primarily on relations between treatment providers and the clients/patients. But these of course do not exhaust the ethically salient relationships in substance use intervention. There are relationships among the providers themselves, between third party payers and patients and third party payers and providers. Sexual harassment policies may be relevant to relations between providers, along with policies relating to dual treatment, respect for colleagues, and appropriate scholarly conduct in the case of published research materials. In relations between third party payers and patients, there may be individual and policy determinations of considerable ethical significance. What a third party payer will or will not compensate for (and to what extent), both as a matter of individual judgment as well as policy, is not just a matter of economics but also of fairness. Such ‘‘bottom line’’ considerations might also intrude to distort or interfere with treatment decisions. There are, in addition, many other relationships that may bear on whether and how treatment is conducted: between research institutes that need to test new therapies, suppliers of services to treatment institutions, legislators who regulate the provision of care and monitoring, and so on. Wherever relationships exist that impact on the interests of those involved in intervention, either as providers of treatment or as its potential beneficiaries, ethical issues will be involved.

Glossary

Communitarian: someone who holds the view that human flourish- ing requires ‘‘immersion’’ in a human community.

Libertarian: someone who limits the role of the state to protection against ‘‘force, fraud, and theft.’’

Other-regarding: affecting the interests of others.

Perfectionism: as a political theory, the view that the state is justified in taking steps to ensure that certain individual excellences are secured.

Self-regarding: affecting the interests only of the individual.

Telos: purpose, end.

Footnotes

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—democrati- cally—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).

af<http://naadac.org/documents/display.php?DocumentID1⁄411> (8/3/03).

aghttp://www.counseling.org/site/PageServer?pagename1⁄4resources_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, patients the impression  they are more qualified than they are.

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, x4.07. A new code went into effect 6/1/03 (see x10.08) (5/20/03).

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).