An Article About Addiction

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A N A L Y S I S A N D C O M M E N T A R Y

Responsibility for Addiction

Richard J. Bonnie, LLB

J Am Acad Psychiatry Law 30:40513, 2002

Taking as its starting point the characterization ofaddiction as a brain disease by the nations leader-ship in public health and biomedical science, thisarticle explores the implications of recent develop-ments in neuroscience for the concept of responsibil-ity. The terrain is divided into three parts: responsi-bility for becoming addicted, responsibility forbehavior symptomatic of addiction, and responsibil-ity for amelioration of addiction. In general, this pa-per defends the thesis that recent scientific develop-ments have sharpened but not erased traditionalunderstandings in the first two areas, while recentlegal developments have exposed new and intriguingtheories of responsibility for managing or ameliorat-ing addiction that may also have implications forother chronic diseases.

The subject of addiction has attracted increasinginterest over the past decade among moral philoso-phers,1,2 legal theorists,35 and, most intriguingly,economists6,7 and other social scientists.810Amongthe factors explaining this escalating intellectual in-terest in addiction are the crack epidemic that beginin the mid-1980s and triggered the latest drug war;the Surgeon Generals 1988 report on nicotine ad-diction; advances in the science of addiction, espe-cially in neuroscience; tobacco litigation predicatedon the addictive nature of nicotine; and continuing

public debate regarding the premises of national pol-icies toward users of illicit drugs.The advances in neuroscience serve as my point of

departure in this article. Remarkable scientificachievements during the past 25 years, especially in

the past decade, have significantly advanced our un-derstanding of addiction in several respects. First,neuroscientists have identified the neural circuitsactivated by using addictive drugsthe brains com-mon pathways of addictionand have therebyintensified the search for pharmacological treat-ments.11All these drugs affect the dopamine system,although through different mechanisms.11 Second,imaging techniques have revealed the effects on thebrain of prolonged administration of psychoactivedrugs. Alan Leshner, former Director of the NationalInstitute on Drug Abuse (NIDA), has summarizedthe evidence as follows:

Not only does acute drug use modify brain function in criticalways, but prolonged drug use causes pervasive changes in brainfunction that persist long after the individual stops taking the

drug. Significant effects of chronic use have been identified formany drugs at all levels: molecular, cellular, structural, andfunctional. The addicted brain is distinctly different from thenonaddicted brain, as manifested by changes in brain metabolicactivity, receptor availability, gene expression, and responsive-ness to environmental cues. Some of these long-lasting brainchanges are idiosyncratic to specific drugs, whereas others arecommon to many different drugs [Ref. 12, p 46].

Third, addiction specialists have demonstratedwhy addiction is plausibly perceived as a chronic dis-ease similar to other chronic diseases, such as diabetesand hypertension, that are also characterized by in-termittent remissions and relapses.11,13 There areseveral important claims embedded in this overallassertion: that the condition should be understood asa chronic disease, characterized by occasional relapse,rather than as an acute condition; that the high rateof relapse is related to the neurobiological changesthat accompany addiction; and that the onset, sever-ity, and management of the condition are affected byinteractions of biological and behavioral variables

Mr. Bonnie is Professor of Psychiatric Medicine and John S. BattleProfessorof Law, University of Virginia Schools of Lawand Medicine,Charlottesville, VA. Address correspondence to: Richard J. Bonnie,LLB, 580 Massie Road, Charlottesville, VA 22903. E-mail:[email protected]

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analogous to those that affect the onset, severity, andmanagement of other chronic diseases.

Is Addiction a Brain Disease?

The scientific leadership of the addiction field iswaging a broad dissemination campaign to bringthese advances to professional and public attention,

within medicine, among opinion-makers, and in thegeneral public. This campaign has a motto:Addic-tion is a Brain Disease. The core message is reflectedin the following excerpt from Alan Leshners stan-dard presentation while he was NIDA Director:

That addiction is tied to changes in brain structure and functionis what makes it, fundamentally, a brain disease. A metaphoricalswitch in the brain seems to be thrown as a result of prolongeddrug use. Initially, drug use is a voluntary behavior, but whenthat switch is thrown, the individual moves into the state ofaddiction, characterized by compulsive drug seeking and use

[Ref. 12, p 46].

The characterization of addiction as a brain diseasehas been contested.5,14 At the present time, I thinkthis claim has to be understood more as a politicalstatement than as a scientific proposition. To say thataddiction is a brain disease is useful as a rhetoricaltool in a debate about public policy; but, scientifi-cally, it is both incomplete and premature. It is in-complete because it fails to communicate the wholestory about the behavioral and contextual compo-nents of addiction. (In his standard presentation, Dr.

Leshner was always careful to note that addiction isnot just a brain disease.) Behavioral componentsare much more substantial in addiction than in Alz-heimers disease, Parkinsons disease, or epilepsy oreven in schizophrenia. It is premature, because re-search has not connected the observed changes in thebrain to behavior. After all, Dr. Leshner found itnecessary to speak metaphorically, because we can-not yet speak scientifically. It is still not possible toexplain the physiologic and psychological processesthat transform the controlled use of drugs intoaddiction.11

Notwithstanding its scientific shortcomings, I em-brace the characterization of addiction as a brain dis-ease because of its value as a political statement.Medicalization of addiction (as a policy choice) willhave salutary effects on the lives of people enmeshedin drug use and on society, whether or not this termcaptures the full complexity of the condition. Addic-tion is amenable to treatment, although outcomeevaluations of treatment must take into account the

high probability of relapse, and our society should beinvesting more resources in treatment while reducingits expenditures on incarceration. Moreover, contin-ued investment in research is likely to pay off intherapeutic advances (although there is likely to beno biologicalfixfor addiction).

One prominent rhetorical feature of the campaignneeds much more careful scrutiny, howeverthequestion of voluntariness. According to two leadingclinical researchers on addiction:

At some point after continued repetition of voluntary drug-taking, the druguserloses the voluntary ability to control itsuse. At that point, thedrug misuserbecomesdrug addictedand there is a compulsive, often overwhelminginvoluntaryas-pect to continuing drug use and to relapse after a period ofabstinence [Ref. 13, p 237].

Dr. Leshner puts the point this way:We need to face the fact that even if the condition initiallycomes about because of a voluntary behavior (drug use), anaddicts brain is different from a nonaddicts brain, and theaddicted individual must be dealt with as if he or she is in adifferent brain state. We have learned to deal with people indifferent brain states for schizophrenia and Alzheimers disease.Recall that as recently as the beginning of this century we werestill putting individuals with schizophrenia in prisonlike asy-lums, whereas now we know they require medical treatments.

We now need to see the addict as someone whose mind [read:brain]) has been altered fundamentally by drugs [Ref. 12, p 46].

The emphasis on involuntariness bristles with impli-cation for responsibility. Medicalizing addiction andemphasizing its neurobiological underpinnings ismeant to negate the common belief that addictionmanifests a moral weakness or a flaw of character andthereby to counteract stigmatization and punish-ment. Presumably, people should not be held mor-ally and legally accountable for behavior that is in-voluntary. But we should take a much closer look atthese assertions. What is meant by involuntariness inthis context? Is an addicts drug use involuntary after

the switch is flipped? In what sense? Is relapse invol-untary? In what sense? Do people voluntarily take therisk of becoming an addict when they begin to usedrugs? Should this matter? These are very difficultquestions, and the answers have a direct bearing onlegal issues of responsibility. My goal in this article isto explore ethical and legal concepts of responsibilityin these three domains (addiction, relapse, andonset).


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The Vocabulary of Voluntariness

After addressing several important conceptual is-sues about the vocabulary of voluntariness, I willcover the law on each of these issues.

Addiction

What is meant when it is said that drug use be-comes involuntary after the switch is flipped? Doesthe disease cause drug use in the way that a brainlesion causes epileptic seizures or loss of cerebralblood flow causes loss of consciousness? This is thelanguage of mechanism, and the language of choice,or voluntariness, has no place in it.5 Clearly, how-ever, something more is involved with addiction thanmechanism. Addiction is not just a brain disease. Thelink between brain and behavior is mediated throughconsciousness. Thus, when we say that the addicts

drug use is involuntary and symptomatic of dis-ease, we mean something different from what ismeant when we say that having a seizure is involun-tary. In terms of responsibility, this is a very impor-tant distinction.

Even within the realm of conscious experience,there are situations in which one can properly saythat a person has norealchoice (like grasping theedge of a cliff, when the inevitable effects of muscularfatigue will prevail, no matter how hard the victimchooses to resist). Again, this is the language of mech-

anism, but this is not what is meant byloss of con-trolin addiction. Loss of control means that, due toneurobiological processes deep in the brain over

which the addict no longer has control, he or she isexperiencing a strong need for or desire for the sub-stance, a desire so great that it is unlikely that he orshe will be able to resist it. This is the language ofchoice and compulsion, not of mechanism andcausation.5

The addict has the experience of choosing, just asa person under duress (push the button or Ill killyou) has the experience of choosing. Such situations

involve a hard choice rather than no choice. Clini-cally, I am addressing what most accurately might becalled impairments of volition rather than involun-tary behavior. This important conceptual distinc-tion is needed to connect scientific and clinicalideas about addiction (and other pathological con-ditions involving so-called compulsions, such as ob-sessive compulsive disorders) to the vocabulary ofresponsibility.

Relapse

The nature of relapse is another matter too easilyblurred by the brain disease rhetoric. Even after de-toxification and a period of abstinence, addicts have astrong susceptibility to relapse. In fact, 40 to 60 per-cent of patients treated for addiction relapse within a

year, and the rate is highest for tobacco addiction. Itis said that this tendency to relapse is involuntary,because the person has no control over conditionedresponses associated with previous drug-taking. Forexample, McLellan and colleagues explain:

[One neurobiological] explanation for [addicts] tendency torelapse lies in the integration of the reward circuitry with themotivational, emotional and memory centers that are co-lo-cated within the limbic system. These interconnected regionsallow the organism not only to experience the pleasure of re-

wards, but also to learn the signals for them and to respond in ananticipatory manner. Repeated pairing of a person (drug-using

friend), place (corner bar), thing (paycheck), or even an emo-tional state (anger, depression) with drug use can lead to rapidand entrenched learning or conditioning. Thus, previouslydrug-dependent individuals who have been abstinent for longperiods may encounter a person, place or thing that previously

was associated with their drug use, producing significant phys-iologic reactions such as withdrawal-like symptoms and pro-found subjective desire or craving for the drug. These responsescan combine to fuel theloss of control that is considered ahallmark of drug dependence [Ref. 11, p 1691].

Does it make sense to characterize relapse as invol-untary under these circumstances? The physiologi-cally conditioned feelings may be involuntarily

aroused, and relapse may be made more likely by thisconditioning and the accompanying neurobiologicalchanges; but the addict is not an automaton, re-sponding mindlessly to environmental cues. What ismeant is that the addict has a strong predisposition orvulnerability to the use of drugs. Of course, relapse isnot inevitable, and its likelihood can be reduced if theaddict chooses to avoid the contexts or environmentsthat trigger relapse.

Note that in what was just said, I have simulta-neously used the probabilistic vocabulary of causa-tion and the individual-centered language of choice.Clinically speaking, the experience of compulsion isthe experience of feeling that one must choose to dosomething to avoid pain or dysphoria. Similarly,

whether a particular individual can avoid relapse is atleast partly affected by whether he or she chooses totake precautions, such as to avoid exposure to predis-posing environmental cues.

The central claim of this article is that the conceptsof disease and choice are compatible, and that the law

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(which is based on our shared moral intuitions) caneasily incorporate advances in our understanding ofthe neural substrates of addiction. These advancesamend, but do not displace, the vocabulary of choice.

Onset

The same point is pertinent to the preaddictionphase of drug use. Although OBrien and McLellansay that drug use is voluntary during this phase,they emphasize that the onset of drug use also hasmany involuntary components:

One reason why many physicians and the general public areunsympathetic toward the addict is that addiction is perceivedas being self-[in]flicted:they brought it on themselves.How-ever, there are numerous involuntary components in the addic-tive process, even in the early stages. Although the choice to trya drug for the first time is voluntary, whether the drug is takencan be influenced by external factors such as peer pressure,price,and, in particular, availability. . . . Nonetheless, it is true that,

despite ready availability, most people exposed to drugs do notgo on to become addicts. Heredity is likely to influence theeffects of the initial sampling of the drug, and these effects are inturn likely to be influential in modifying the course of contin-ued use. Individuals for whom the initial psychological re-sponses to thedrug areextremely pleasurable maybe more likelyto repeat the drug-taking and some of them will develop anaddiction. Some people seem to have an inherited tolerance toalcohol, even without previous exposure [Ref. 13, p 237].

It is important to note that the concept of volun-tariness is being used in two different senses in thispassage. With regard to any specific act of using

drugs,compulsionis the relevant sense, and this iswhat OBrien and McLellan13 mean when they saythat drug use is voluntary before the addiction switchis flipped, and involuntary afterward. However,

when they refer to the involuntary features of theearly phases of the addictive process, OBrien andMcLellan emphasize that certain factors increase theprobability that a particular person will be exposed todrugs, will continue to use them, and will becomeaddicted to them. Now they are using the wordin-voluntaryin thecausationsense. Note, however,that the vocabulary of causation is not incompatible

with the vocabulary of choice in this context. Forexample, people who are aware of their vulnerabilitymight choose to behave in a way that reduces the riskof addiction or, conversely, might knowingly takethat risk.

Addiction and Legal Responsibility

With these preliminary observations in mind, Iwill explore legal concepts of responsibility that track

the clinical chronology of addiction: the preaddictivephase, period(s) of active addiction, and the period ofremission.

Responsibility for Becoming Addicted

I begin with whether people are responsible for

becoming addicted. As noted, everyone agrees thatpeople choose (voluntarily) to initiate the use of ad-dictive drugs. The question of ethical and legal inter-est is whether people who voluntarily choose to useaddictive drugs are responsible for the consequencesof their actions, including addiction. Should it besaid, for example, that people who become addictedhave only themselves to blame and that they have nolegitimate claim on the society to insulate them fromthe consequences of their own folly? Assuming that,once addicted, the person has a brain diseaseanirreversible pathological process under what cir-cumstances does the person bear responsibility forbecoming addicted? This question has direct rele-vance for some of the key policy goals of the publiccampaign now being waged by the scientific leader-ship of the addiction field: access to addiction treat-ment and nondiscriminatory access to health careand public economic assistance.

Whether drug users are responsible for becomingaddicted connects to a broader question of ethics.

When are people responsible for their own disabilityor disease? Many cases of conscious risk-taking can

lead to injury or disease, including riding a motorcy-cle 100 mph without helmet or engaging in promis-cuous, unprotected sexual behavior, not to mentionsmoking and using other addictive drugs. However,as OBrien and McLellan13 point out, many peoplehave the genetic good fortune to be essentially im-mune from these conditions, because the effects oftobacco or the hormonal surge associated with risk-taking are aversive to them, whereas others are bio-logically predisposed to sensation-seeking or to ad-diction. Again, we have the mixed vocabulary ofpredisposition and choice.

Judgments of responsibility are not made in theabstract, however; they are contextual. Fundamen-tally, the underlying issue in any given context is

whether the distributive principle is need orfault. A person with an injury or disease is ordi-narily no less entitled to rescue, treatment, or con-tinuing support by virtue of having contributed tothe onset or severity of the disabling condition. Thedistributive principle in this context is need, not




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fault. However, addicts do not now have equal accessto health care and disability benefits: Addiction treat-ment is often not covered under health insuranceplans or is subject to benefit restrictions not applica-ble to other covered conditions. Addictive disordersare not in themselves a basis for disability benefits

under the Supplementary Security Income (SSI) andSupplementary Security Disability Income (SSDI)programs; and addicts have a diminished priority inaccess to scarce medical resources (e.g., liver trans-plants). Whether these disadvantages are rooted in

judgments of personal responsibility is more ambig-uous, because some of these restrictions might beexplained or justified on grounds of effectiveness andcost. However, to the extent that they are rooted incontroversial judgments of responsibility,15 thebrain disease formulation probably strengthens theclaim of access.

When the policy issue of concern is compensationfor the losses associated with addiction, the distribu-tive principle is fault, and the general rule is personalresponsibility based on an informed-choice para-digm. Whatever their vulnerability, and howeverstrong the environmental influences, people know-ingly take the risk of becoming addicted when theyuse drugs with addictive properties that are wellknown. Smokers know about the risks of addiction,and drinkers of alcohol know about the risks of alco-holism.16 Undercover drug purchasers know about

the risks of using the goods they are buying and arenot entitled to compensation under a workerscom-pensation program when those risks materialize.17

Physicians who become addicted to opiates divertedfrom the hospital pharmacy are responsible for theircondition and cannot shift the blame to the hospitalsnegligence in allowing access.18

The law reflects a fairly strong commitment to therule of personal responsibility for becoming addicted

when one knowingly uses addictive substances; andmedical use of drugs whose addictive properties areunknown can give rise to manufacturer liability(Crocker v. Winthrop Laboratoriesis illustrative of aseries of suits brought successfully in the 1970sagainst the manufacturer of Talwin, a pain relieverthat its users did not know was addictive.).19 There isbut one possible deviation from this rulethe pros-pect of an industrys having liability for addictingadolescents to tobacco and alcohol. This would bethe exception that reaffirms the rule by marketingalcohol and tobacco to children and adolescents, who

are unable to appreciate the consequences of theirbehavior (especially the grip of addiction), the man-ufacturers could be held liable for causing theiraddiction.

Responsibility for Behavior Symptomatic of

AddictionAccording to the standard vocabulary, the hall-

mark of addiction is loss of control over drug use. Ihave no doubt that prolonged use of drugs is accom-panied by many changes in brain function that arecorrelated with the experience of loss of control, but

what are the implications of this phenomenon forpersonal responsibility, whether moral or legal? Areaddicts responsible for using drugs after the switchhas been flipped? If not, are they responsible for otherconduct prerequisite to drug use (e.g., theft) or con-sequent to use (e.g., public drunkenness)? Does thebrain disease formulation have a bearing on thesequestions?

The area of law most clearly relevant to responsi-bility for addictive behavior is the criminal law. Theresponse of the law to addiction cannot be fully un-derstood without understanding a few general prin-ciples of criminal responsibility:

1. Every person over a certain age is thought tohave the capability to obey the commands of the law.This is a key postulate of the rule of lawthat the lawis generally and equally applicable to everyone. Lack

of responsibility must be regarded as a begrudgingexception to the general rule.2. A very narrow exception has traditionally been

recognized for persons with severe mental illnesseswho do not have the capacity to understand or ap-preciate the moral significance of their conduct.

3. Some states have expanded this exception tocover cases of severe volitional impairment, but thismove has been highly controversial, particularly

when it is not limited to situations involving psy-chotic decompensation. That is, the criminal law hasbeen highly resistant to excusing offenders who haveimpulse disorders, paraphilias, or other conditionsthat allegedly impair volition.

4. Setting aside the insanity defense, the criminallaw has also been resistant to excusing people whoclaim to have committed offenses because their will

was overborne by strong emotions or pressures. Thebest illustration is the defense of duress. A narrowdefense has been recognized for the extraordinarycircumstances in which a person is threatened with

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imminent death or serious bodily harm but not otherkinds of threats, including financial or social ruin(even though these threats would render the threat-ening party guilty of extortion if he or she were seek-ing the victims money rather than his assistance incommitting a crime).

Given this strong general resistance to volitionalgrounds of excuse, it should come as no surprise thataddiction has not been recognized as a defense inprosecutions for using drugs, for being drunk, or forother conduct symptomatic of loss of control. Yet, atthe same time, many judges probably share the moralintuition that addiction should be an occasion forcompassion and mitigation, even if it does not qual-ify as an excuse. Moreover, aside from the issue ofresponsibility, the wisdom of using criminal prose-cution as a means of dealing with problems of addic-tion has been controversial for more than a century,

with fluctuating cycles of support for criminalizationand decriminalization.

This long-standing ambivalence was reflected intwo cases decided by the U.S. Supreme Court in the1960s in which the Court was asked to use constitu-tional rulings to push the states in the direction ofdecriminalization. In Robinson v. California,20 theCourt held that convicting a person for being anaddict punishes a person for having a disease andtherefore amounts to cruel and unusual punishmentbanned by the Eighth Amendment. Yet, as legal

commentators pointed out immediately, the deci-sion seemed to imply that an addict could not bepunished for the symptoms of the disease, includingusing drugs or possessing them for this purpose.Thus, the Courts ruling inRobinsonraised the pos-sibility that the Constitution forecloses criminaliza-tion of drug offenses committed by addicts.

However, six years later, the Court receded fromthis position in Powell v. Texas.21 Powell, an alco-holic, was convicted of public drunkenness. He ar-gued that Robinson stands for a broad principle ofexcuse: an addict cannot be punished for conductsymptomatic of disease (a condition he is powerlessto change). The Court declined to embrace this prin-ciple and readRobinsonnarrowly. According to theprevailing view in Powell, although an addict, likeRobinson, cannot be punished for the status of beingan addict, he or she can be punished for conduct,such as possession or use. Similarly, Powell could notbe punished for being an alcoholic, but he could bepunished for appearing in public while drunk.

In the course of its opinion, the Court mentionedtwo reasons for refusing to take the law down thepath of excuse. First, the prevailing justices pointedout, tools are unavailable to measure volitional im-pairment and thereby to differentiate between of-fenders who werecompelledby their addictions to

use drugs and others who could have chosen not toviolate the law. Second, the Court was concernedabout the implications of such a ruling for the fabricof legal rules governing criminal responsibility: If anaddict cannot be punished for using drugs, whatabout conduct symptomatic of all other volitionaldisorders (now called impulse disorders in DSM-IV)such as pyromania and kleptomania? Also, constitu-tionalizing an excuse for volitional impairment

would require all the states to recognize a defense forwhat was then called anirresistible impulseunderlaws governing the insanity defense. The Court didnot want to unsettle the law of criminalresponsibility.

These concerns are still pertinent today. The ad-vances in neuroscience that have begun to elucidatethe neural substrates of addiction reinforce the argu-ment for an excuse based on compulsion, but theyhave not yet begun to answer these operational ques-tions. Science has not yet connected the dots betweenbrain and behavior, between synaptic changes andthe experience of craving and compulsion. We stillhave no validated behavioral models of craving.

The effect ofRobinsonandPowellwas to ratify thetraditional reluctance of courts and legislatures toexcuse addictive behavior. It is important to empha-size, however, that these decisions are not incompat-ible with the characterization of addiction as adis-ease,or even as abrain disease.What they standfor is the proposition that, even if addiction is a dis-ease, the Constitution does not preclude punishmentof addicts for their unlawful conduct. Symptoms ac-tually caused by disease are not punishable, but con-duct said to be compelled does not have to be ex-cused. Compulsion may diminish responsibility, butit does not erase it.

Quite apart from the question of excuse, the wis-dom of criminalization may be questioned. In myopinion, it is sensible to forgo punishment in favor oftreating addicted offenders, not only for consump-tion-related offenses but also for other criminal con-duct that may be linked to their addiction. However,I do not favor repealing criminal sanctions. Thestrongest justificationif not the sole onefor re-




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taining criminal sanctions against drug use is thatthey provide therapeutic leverage for engaging peo-ple in treatment and facilitating compliance. Indeed,despite their emphasis on destigmatization, I suspectthat Drs. Leshner, OBrien, and McLellan and otherproponents of a medical approach would resist de-

criminalization of addictive behavior for the samereason.

Responsibility for Relapse

To incarcerate a severely addicted person for usingdrugs before detoxification and short-term with-drawal is inhumane and unwise, but what about re-voking a defendants pretrial release for failing a pe-riodic urine screen? Or revoking an offendersprobation for failing to remain dry or clean afteragreeing to do so or after signing a so-called last-chance agreement (LCA)? Is requiring abstinence as acondition of probation for an addict reasonable?Courts have held that it is, at least when the offend-ers drug use was connected to the offense.22 Usingprobation as a tool for keeping the addict engaged intreatment and for prolonging the period of absti-nence seems ethically permissible because it is in-tended to help the addict achieve personal responsi-bility for managing his or her condition. To put itanother way, it eschews punishment for addiction

while holding the offender responsible for relapse. Inthis section, I explore the notion of responsibility for

relapse, first as an axiom of clinical practice and thenas a basis for a legal principle.

As was mentioned earlier, one of the major chal-lenges faced by addiction treatment researchers is torelate the positive effects of treatment to the changesin the brain caused by chronic drug addictionthatis, to begin the task of connecting the dots betweenbrain and behavior. A recent study by Gottschalk andcolleagues23 responds to this challenge in an intrigu-ing way. They point out that one of the known ef-fects of chronic cocaine administration is multiplefocal decreases in cerebral blood flow. Hypothesizingthat abstinence would be associated with increases incerebral blood flow, that these increases would be agood measure of improvement in cognitive function,and that such increases would be correlated with re-sponsiveness to cognitive behavior therapy (CBT),they presented several case reports highlighting thisrelationship. For our purposes, the most importantfeature of this preliminary study is that responsive-ness to CBT is defined as improvement in the pa-

tients capacity to learn new behavior and readinessfor behavioral change (cognitive flexibility)a con-cept that is more or less equivalent to a capacity (will-ingness) to assume personal responsibility for man-aging ones addiction.

From a clinical standpoint, then, we are trying to

help people in recovery take responsibility for theirsituations, and, if we mean it, this also implies thatthey should accept responsibility when they fail.

Aside from its purely moral connotations, the lan-guage of responsibility plays an integral part in allclinical encounters in chronic disease management,including treatment of asthma, diabetes, addiction,and many psychiatric disorders. Physicians and othertherapists implicitly balance compassion for patients

whose self-defeating behavior is driven by patholog-ical processes with an effort to help them improvetheir capacity to exercise self-control. Indeed, assess-ment of capacity for taking responsibility has beencharacterized by Halleck as an inherent part of med-ical practice (Ref. 24, p 338). Shaping incentives forself-control and disincentives for self-destructive ornoncompliant behavior are often important ele-ments of therapy.

In the context of addiction, the clinician mustbalance an understanding of the difficulty of achiev-ing and sustaining abstinence with some form oftherapeutic pressure or leverage to reduce the risk ofrelapse. Contingency management can provide pos-

itive reinforcers for compliance with the treatmentcontract,25 but failure to earn the reinforcers does notnecessarily lead to a strong attribution of responsibil-ity. However, addiction treatment specialists also of-ten rely on threats of negative consequences, includ-ing family discord, suspension of professionalprivileges, or revocation of probation, to deterrelapse.

The explicit use of threatened sanctions for theirclinical utility inevitably exposes the issue of respon-sibility. Clinicians share a common-sense moral in-tuition that people should not be punished (or bedeprived of something to which they are otherwiseentitled), unless they can properly be said to be re-sponsible for their choices. If they lack substantialcontrol over their behavior (under the hard-choiceparadigm), compassion and assistance, rather thanpunishment, are indicated. However, at a suitablestage in the clinical course of treatment, blame forfailure is not only useful as a clinical stratagem but isalso a fair professional response. Defining the line

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between compassionate understanding and personalaccountability is a complex, morally textured clinicaltask. According to one addiction specialist with

whom I discussed this problem, it is necessary toexcuse occasionalslip-upsby patients who remainengaged in the therapeutic process (because, after all,

occasionalslip-upsare expected); however, impos-ing treatment sanctions (e.g., license suspension, orprobation revocation) on a patient who has droppedout of the treatment program or has been persistentlynoncompliant is both fair and efficacious (because itpreserves the deterrent value of the threat).

Do, or should, attributions of responsibility in theclinical setting have any bearing on moral or legalresponsibility? I will explore this question in the con-text of modern disability law, specifically the em-ployment provisions of the Americans with Disabil-ities Act (ADA).26 The ADA embodies thedistinction between disease and conduct that, as wehave seen, defines the boundaries of responsibilityunder the penal law. Specifically, an employer is per-mitted to establish generally applicable rules of con-duct (if they are justified by business necessity) and tohold all employees accountable for violations, even

when the violation may be attributable to the em-ployees disabilityfor example, threats against co-

workers that might be symptomatic of a severe psy-chiatric disorder.

Although addiction counts as a disability under

the ADA and an employer may not discriminateagainst an otherwise qualified person on grounds ofdisability, rules of conduct basically trump the non-discrimination requirement of the ADA in this con-text. Use of an illegal drug, even off the job, is itself alawful basis for exclusion or termination of employ-ment, even without any documented effect on per-formance. Employers are permitted to prescribe ran-dom drug tests and to fire people who arecurrentlyengaging in the illegal use of drugs regardless of

whether their drug use is symptomatic of addiction.Even though use of alcohol off the job is not illegaland does not ordinarily implicate any rule of conductfor employees, most employers have sound businessreasons to ban intoxication on the job or even to banuse of alcohol at the workplace and would be permit-ted to enforce such rules against everyone, includingalcoholic employees.

What an employer cannot do is discriminate, onthe basis of disability, against a person who has com-

pleted or is participating in an addiction rehabilita-tion program. Enrolling in treatment provides a safeharbor for addicted employees as long as they comply

with the conditions of treatment.27 This may requireemployers to accommodate the demands of treat-ment. The effect of the ADA, then, is to promote

self-identification by addicts, grant a safe harbor fortreatment, and use continued employment as a leverto promote therapeutic compliance. By creating thesafe harbor, the law invites addicted employees totake responsibility for ameliorating their addictions.Negotiations regarding the conditions of treatmentoccur within the shadow of the ADA, but once theconditions are set, the employee bears the risk ofnoncompliance.

This process is illustrated in the case of WilliamMararri, a steelworker whose alcoholism was accom-modated by allowing him to enter into an LCA afterhe twice violated bans against workplace intoxica-tion. The LCA required him to submit urine sampleson request for five years and specified that a positiveresult at any level would be sufficient cause for ter-mination, as would reporting for work after havingconsumed alcohol. After he was fired for failing aurine screen, Mararri sued under the ADA. The SixthCircuit Court of Appeals held that firing Mararri forfailing a urine test administered pursuant to a validLCA did not violate the ADA, even though it was nota company-wide policy.28

Mararris company had chosen to accommodate hisalcoholism when it might have lawfully discharged himfrom the outset for being intoxicated on the job. Inother cases, however, the LCA might itself be a reason-able accommodation of employees with a history ofrelapse. Either way, once the LCA is signed, the em-ployees job is hostage to his or her compliance with itsterms. Some disability rights advocates might regardthis arrangement as unduly paternalistic, arguing thatemployers should not have the authority to prescribeconditions of treatment. However, whether or not thisapproach is ethically appropriate, it seems to representthe prevailing understanding of the ADA. It also caststhe characterization of addiction as a chronic relapsingdisorder in a somewhat different light: it emphasizesresponsibility rather than excuse, and it also raises ques-tions about the generalizability of the principle embed-ded in the addiction cases. Is this a special rule for ad-dicted employees or does it represent a more generalprinciple of disability employment discrimination law?




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Several recent cases involving diabetes,29 bipolardisorder,30 and asthma31 strongly suggest that a moregeneral principle is emerging. These cases suggestthat people have a responsibility to ameliorate andmanage their own disabilities. This means seekingtreatment when the disorder is identified and com-

plying with medical direction, including taking pre-scribed medication. An employer has an obligationunder the ADA to accommodate such an employeeonly to the extent that the residual impairments lieoutside the employees control. Only then is it fair toshift the costs of accommodation to the employer.

Summary

In summary, to characterize addiction as a diseaseis not necessarily morally incompatible with sayingthat addicts are responsible for yielding to it. This is

admittedly a demanding approach to responsibility,but our criminal law has always set the bar prettyhigh. Holding addicts responsible is also stronglysupported on utilitarian grounds because the threatof sanctions provides leverage to press them intotreatment and to keep them engaged while therapeu-tic efforts are undertaken. Such a stern approach maybe thought to be both unfair and unduly paternalis-tic. However, focusing on relapse suggests a moregentle, less jarring way of thinking about the addictsresponsibility: After the period of detoxification andacute treatment, the addict is responsible for taking

steps to manage the addiction.In this connection, the similarity between addic-

tion and other chronic diseases, which lies at theheart of the brain disease claim, becomes particularlypertinent. Yes, addiction is best understood as achronic relapsing disorder. This helps to establishrealistic expectations for the benefits of treatment,but it also emphasizes the important role of behaviorin disease management and points in the direction ofa theory of responsibility for managing ones ownillness.

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Ct. App. 1979)18. Campo v. St. Lukes Hospital, 755 A.2d 20 (Pa. Super. Ct. 2000)19. Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex. 1974)20. Robinson v. California, 370 U.S. 660 (1962)21. Powell v. Texas, 392 U.S. 514 (1968)

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Bonnie


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