Responsibility for Addiction among Physicians with Addictive Disorders fsphp annual Meeting, Ft. Worth, Texas, April 25, 2012

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Responsibility for Addiction among Physicians with Addictive Disorders FSPHP Annual Meeting, Ft. Worth, Texas, April 25, 2012

Michael H. Gendel MD

Medical Director Emeritus

Colorado Physician Health Program


  • The relationship between neuroscience of behavior and volition and the responsibility persons have for their addictive illness and behavior related to it

  • The differences in language regarding responsibility: neuroscience/neuroscientists, the law, 12-step concepts, and those who treat addiction – and resulting confusion

Areas of Law to be Considered

  • Criminal law

  • Civil/disability law

  • Regulatory law

“Brain Disease”

  • Current emphasis on addiction as a brain disease

  • Alan Leshner: “That addiction is tied to changes in brain structure and function is what makes it, fundamentally, a brain disease. A metaphorical switch in the brain seems to be thrown as a result of prolonged drug use. Initially, drug use is a voluntary behavior, but when that switch is thrown, the individual moves into the state of addiction, characterized by compulsive drugs seeking and use.” [Science 278:45-7, 1997]

“Brain Disease”

  • O’Brian and McLellan: At some point after continued repetition of voluntary drug-taking, the drug ‘user’ loses the voluntary ability to control its use. At that point, the ‘drug misuser’ becomes ‘drug addicted’ and there is a compulsive, often overwhelming involuntary aspect to continuing drug use and to relapse after a period of abstinence [Lancet 347:237, 1996]

Volition - Voluntariness

  • Notice the choice of words. Drug use begins as “voluntary” but after the addictive process is initiated drug use becomes something else – Compulsive? Involuntary?

  • What is the difference between a behavior that is voluntary versus compulsive?

  • What does “voluntariness” have to do with responsibility?

Pathology of Motivation and Choice

  • “A primary behavioral pathology in drug addiction is the overpowering motivational strength and decreased ability to control the desire to obtain drugs.”

  • “Pathophysiological plasticity in excitatory transmission reduces the capacity of the prefrontal cortex to initiate behaviors in response to biological rewards and to provide executive control over drug seeking. Simultaneously, the prefrontal cortex is hyper responsive to stimuli predicting drug availability, resulting in supraphysiological glutamatergic drive in the nucleus accumbens, where excitatory synapses have a reduced capacity to regulate neurotransmission.” [Kalivas, Volkow, Am J Psychiatry 162:1403-1413, August 2005]

Pathology of Motivation and Choice

  • Cellular adaptations in prefrontal glutaminergic innervation of the accumbens promote the compulsive character of drug seeking in addicts by decreasing the value of natural rewards, diminishing cognitive control (choice), and enhancing glutaminergic drive in response to drug-associated stimuli. [Kalivas, Volkow. Am J Psychiatry 162:1403-1413, August 2005]

Addiction Neurobiology

Addiction Neurobiology

  • Ventral tegmental area (VTA) and nucleus accumbens (NA): Dopaminergic connections to other brain regions alerting the organism to novel emotionally relevant events (salient stimuli) and to the pending appearance of them.

  • Reward pathways: “Rewarding” – but sense of pleasure not necessary

Addiction Neurobiology

  • Prefrontal cortex (PFC), especially the anterior cingulate gyrus (AC) and orbital prefrontal cortex (OPC): Areas of the brain recruited by emotionally relevant events (ERE) and predictors of them (dopamine mediated)

  • Involved in the evaluation of salience of the stimuli and the choice of behavioral response and it’s intensity (glutamate mediated).

Addiction Neurobiology

  • Amygdala: Associates emotionally relevant events to otherwise neutral stimuli that predict the event (largely gluatamate mediated) and involved in fear-mediated behavior

Addiction Neurobiology

  • “Extended amygdala” – Koob [Neuropsycholopharmacology 24(2): 97-129, 2001] central nucleus of the amygdala, bed nucleus of the stria terminalis, posterior shell of the nucleus accumbens. Core circuitry in state of allostasis.

  • Koob also describes the recruitment of brain and hormonal stress systems in the allostasis

  • Not addressed here because of its complexity and my focus on issues that relate to voluntariness

Addiction Neurobiology [Am J Psychiatry 162:1403-1413, August 2005]

Craving and Neurobiology

  • Complex concept and measurement

  • Confused with concept of “desire” and “avoidance of temptation“ in literature on voluntariness and responsibility for addiction


  • Lack of empirical data for “addictive personality”.

  • E.g., Vaillant’s prospective work

  • Novelty seeking and risk taking – generally consistent findings of personality dimension in those with addictions

  • These personality traits are heritable

Addiction Neurobiology [Am J Psychiatry 162:1403-1413, August 2005]

Addiction Neurobiology

  • These findings combined with functional imaging studies in addicts reveal a situation whereby prefrontal regulation of behavior is reduced in basal conditions, thereby contributing to the reduced salience of nondrug motivational stimuli and reduced decision-making ability. [Kalivas, Volkow. Am J Psychiatry 162:1403-1413, August 2005]

Addiction Neurobiology

  • “The behavioral sequences involved in obtaining desired rewards (e.g., sequences involved in hunting or foraging) become overlearned. As a result, complex action sequences can be performed smoothly and efficiently, much as an athlete learns routines to the point that they are automatic but still flexible enough to respond to many contingencies. Such prepotent, automatized behavioral repertoires can also be activated by cues predictive of reward.” [Hyman - Am J Psychiatry 162:1414-1422, August 2005]

Addiction Neurobiology

  • “The drug-seeking/foraging repertoires activated by drug-associated cues must be flexible enough to succeed in the real world, but at the same time, they must have a significantly overlearned and automatic quality if they are to be efficient. Indeed the cue-dependent activation of automatized drug seeking has been hypothesized to play a major role in relapse…” [Hyman - Am J Psychiatry 162:1414-1422, August 2005]

Addiction Neurobiology

  • “The upshot of such a scenario would be a biased representation of the world, powerfully overweighted toward drug-related cues and away from other choices, thus contributing to the loss of control over drug use that characterizes addiction.” [Hyman - Am J Psychiatry 162:1414-1422, August 2005]

Addiction Neurobiology

  • In Hyman’s view: [American Journal of Bioethics, 7(1): 8-11, 2007]

  • Brain mechanisms of learning and memory, specific to the pursuit of “natural rewards”,

  • rewards which are represented in the prefrontal cortex which assigns “value” to the stimulus,

  • mechanisms initiating automatic sequences of behavior dependent on the dorsal striatum,

  • all of these dopamine mediated,

  • are usurped by drugs because they activate this circuitry more powerfully than natural reinforcers.

Addiction Neurobiology

  • Damasio [American Journal of Bioethics, 7(1):3-7, 2007] points out that lesions of the ventral and medial prefrontal cortices (VMPFC) impact decision making, including social and moral decisions

  • Those patients favor solutions that are less wise, less emotional, less acceptable

  • Social emotions are impacted – empathy, justice, compassion

  • VMPFC monitors connection between decision options and actions, and outcomes

  • Learning is likely cumulative

  • Anterior cingulate may modulate conflict among decision options

Addiction Neurobiology

  • Thus: apparently complex and “voluntary” drug seeking behaviors…may not be as freely planned and executed as they first appear.”

  • “Such cognitive views have not yet penetrated folk psychology, and it is premature for these views to have any place in the courtroom. Nonetheless, these cognitive views deserve a place in current ethical discussions of personal responsibility.”

Analysis of Legal Issues

  • In the following, note that the law emphasizes behavior despite (generally) acknowledging that addiction is an illness

Landmark Rulings

  • Robinson v. California [1962] held that it was unconstitutional to convict a person for being an addict because to do so would be to punish him for having a disease, in violation of the Eighth Amendment which prohibits cruel and unusual punishment.

Landmark Rulings

  • From Robinson:

  • “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold…I do not see how under our system being an addict can be punished as a crime. If addicts can be punished for their addiction, then the insane can also be punished for their insanity. Each has a disease and must be treated as a sick person.”

Landmark Rulings

  • Powell v. Texas [1968]: Powell was an alcoholic convicted of public drunkenness, and argued that drunkenness was a symptom of a disease and that he was therefore powerless to control it. The court ruled that Powell could not be found criminally responsible for being an alcoholic, but he could for being drunk in public. The majority of the U.S. Supreme Court found that though Powell was alcoholic, he did not suffer from an “irresistible compulsion” which he was “utterly unable to control”. [Gendel – Psych Clin N. Am, 29: 619-673 2006]

Landmark Cases

  • Bonnie [J Am Acad Psychiatry Law 30:405-13, 2002] points out that in Powell, the justices were reluctant to imply that conditions which impair volition could be used to excuse criminal behavior, such as pyromania and kleptomania, which would “unsettle the law of criminal responsibility.”

  • Interestingly, this case was Powell’s 100th conviction for public drunkenness.

Landmark Cases

  • Generally, in the criminal law, voluntary intoxication is not exculpatory and does not admit of insanity defense

  • One possible exception is in specific intent crimes, as opposed to general intent crimes: Diminished Capacity (also called Diminished Responsibility)

  • e.g. 1st degree murder in which conviction may only result from the determination that the defendant had the specific intent to kill rather than the general intent to harm

  • Requires that the defendant have the mental capacity to form specific intent

  • Intoxication may impair the capacity to form intent

Landmark Cases

  • Montana v. Egelhoff [1996] U.S. Supreme Court upheld a Montana lower court which, acting on the basis of the Montana criminal code which excluded consideration of voluntary intoxication in determining the mental state of a defendant, convicted Egelhoff for murder though he argued that his BAL of 0.36 percent rendered him incapable of the mental state required.

  • Montana Supreme Court had overturned the conviction, arguing that “all relevant evidence” should be considered when evaluation whether Egelhoff acted “knowingly and purposefully” (definition of intent).

  • U.S. Supreme Court noted that four-fifths of the states allowed information about intoxication to be used in considering whether a defendant had the mental capacity to form the specific intent to commit a given crime. The Court also noted that it was well-established in common law that voluntary intoxication did not provide an excuse for committing a crime. The Court held that though consideration of intoxication in determining mental state was generally accepted, they did not find it to be fundamental. [Gendel – Psych Clin N. Am, 29: 619-673 2006]

Disability Law [Bonnie - J Am Acad Psychiatry Law 30:405-13, 2002]

  • Americans with Disability Act “embodies the distinction between disease and conduct.”

  • Employer may establish rules of conduct that apply even when an employee is disabled.

  • Rules of conduct trump non-discrimination

  • Use of illegal drugs even away from work are grounds for firing

  • May institute drug screens and fire for positive illegal drugs even if worker suffers addiction

  • Enrolling in treatment provides a safe harbor if following program recommendations

Disability Law [Bonnie - J Am Acad Psychiatry Law 30:405-13, 2002]

  • Under ADA, employee may sign an agreement in which his job is hostage to compliance with the terms

  • Should employers have the authority to prescribe conditions of treatment?

  • Emphasizes responsibility rather than excuse

  • Other ADA cases involving diabetes, bipolar disorder and asthma suggest that it is emerging that under this law people have the responsibility of managing their illnesses

Regulatory Law

  • It is common among professions regulated by the states for addicted professionals to be:

  • Disciplined for having and addictive disorder (progress is being made in some states)

  • Disciplined for behavior caused by such illness

  • Disciplined in the form of probationary agreements that allow continued practice if meeting conditions of treatment and monitoring

  • Clearly under the theory that people are capable of preventing addiction, managing behavior, and avoiding relapse

Regulatory Law

  • Recent study [McClellan – Brit J Med. Nov 2008] demonstrates that monitored addicted physicians have high rates of sobriety and long term preservation of the ability to work

  • 2-3 times that of the general population

  • This success attributed to monitoring:

    • Oversight and support
    • Accountability
    • Network therapy (after Galanter)
    • Implicit or explicit contingency contract

Regulatory Law

  • Makes incorrect attributions regarding the ability to prevent addiction, but…

  • Underscores the salutary effect of taking responsibility for addictive disorder, especially relapse

  • Even if volition is impaired

  • Even if behaviors downstream to addictive illness may not be as voluntary as they seem


  • Big Book: fundamental early document addressing both medical and moral aspects of addiction

  • Addresses issues of responsibility in radical and profound manner – as a (stepwise) process

  • Steps 1-3: Powerlessness as the foundation of responsibility, spirituality as a tool for becoming responsible

  • Steps 4-9 are about taking responsibility

  • Steps 10-12 are about maintaining it


  • The process of becoming responsible should be part of the dialogue regarding responsibility for

    • Behavior caused by addiction
    • Managing “defects of character”
    • Relapse
  • Effective treatment, promoted by PHP monitoring, as in the AA tradition, must be about the dynamic process of assuming responsibility


  • Injury caused by addiction, or allostasis to the condition of addiction, involves changes in the pre-frontal cortex (and other neurobiological changes) that impact the process of rational, emotional, and social decision-making

  • Therefore, the addict’s ability to choose, and to choose abstinence, is to some degree impaired and diminished


  • Damage to the mechanisms of decision making and choosing, or volitional impairment (evaluating behavioral options and shaping behavior) suggests that the addict be afforded:

  • Better access to care and protections caused by their need (e.g. medical care, disability contexts)

  • Mitigation (rather than excuse) to varying extent in criminal and regulatory contexts

  • Understanding of loved ones


  • There is a fundamental difference between having no choice and a hard choice (despite the language of neuroscientists who speak of involuntary and compulsive behavior)

  • e.g. literal or figurative involuntariness (seizure, muscle fatigue) and impairment of volition (compulsion or “automatic” behavior) are fundamentally different

  • Responsibility for aspects of addiction is codified in many aspects of law and ordinary social mores, and in the 12-step tradition

  • Responsibility is a dynamic concept, not static


  • The diminished ability to choose wisely (choose not to use) is core disability in addiction

  • That disability is a burden, because choosing to remain sober is hard

  • Becoming increasingly responsible for maintaining sobriety = becoming less disabled = more effectively treated illness

Suggestions for Educating PHP Participants

  • Explain that damage to the decision making apparatus is a core disability, characteristic of their illness

  • Learning to manage this disability is a hard task but is their responsibility – their mission should they choose to accept it

  • The disability does not resolve, but improves to the degree that they learn to be responsible

  • The activities that we all know to be central to successful recovery are aimed at this lesion

Suggestions for Educating PHP Participants

  • One cannot do it alone – one’s own thinking isn’t good enough, ever

  • The scaffolding afforded by the 12-step fellowships facilitates the assuming of responsibility and diminishes the disability

  • Assuming responsibility for addiction is an active process

Selected Readings

  • Bonnie RJ. Responsibility for addiction. J Am Acad Psychiatry Law 30:405-13, 2002

  • Gendel, MH. Substance misuse and substance related disorders in forensic psychiatry. Psychiatric Clin N Am. 2006 29: 619-673

  • Hyman SE. The neurobiology of addiction: implications for voluntary control of behavior. American Journal of Bioethics 7(1): 8-11, 2007

  • Hyman SE. Addiction: A disease of learning and memory. Am J Psychiatry 2005;162:1414-1422.

  • Kalivas, PW, Volkow ND. The neural basis of addiction: A pathology of motivation and choice. Am J Psychiat 2005;162(8):1403-1413

  • Koob GF, Le Moal M. Drug addiction, dysregulation of reward, and allostasis. Neuropsycholopharmacology 24(2): 97-129, 2001

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