I'm a great admirer of Glenn Greenwald, but he put up one post recently that I found quite odd -- not to mention outside of his usual bailiwick. He doesn't understand why there are drugs that are available only by prescription. Why shouldn't a competent adult be free to consume any pharmaceuticals she or he chooses, without having to get permission of a physician?
This is a rather surprising question that I can't recall ever seeing a serious person ask before. That doesn't mean it isn't a good one -- there are plenty of unexamined assumptions in our culture and law. But I think this is pretty easy to answer. I wrote to Greenwald, but he didn't care to answer. This is what I wrote, slightly edited for presentation here:
Dear Mr. Greenwald:
You write:
“Adults have the right to do all sorts of things that other people, including experts in a particular field, think are stupid and self-destructive, even when the person's livelihood or even life are at stake. That is, more or less, a defining attribute of being an adult.
What is the difference between the attorney-client and doctor-patient relationship, where the former is purely advisory but the latter becomes parental? And other than consumption of medicine which can actually affect the public health (such as excessive consumption of antibiotics), why should an adult be deemed a criminal for using a particular medicine all because a doctor (for whatever reasons, including self-interest) will not give permission?”
First, of course, as commenters have already suggested, you conflate some issues, in both law and public health, when you move between the issues of so-called controlled substances, and prescription drugs in general. Not all controlled substances are prescription drugs, and the overwhelming majority of prescription drugs are not controlled substances. With rare exceptions – which I will discuss at the end – most so-called abuse of controlled substances is not done with a motive of treating disease, but for recreational purposes, or to satisfy the compulsions of addiction.
Controlled substances, such as morphine, that also have approved medicinal uses, are therefore made available by prescription only because the Congress (and for the most part the state legislatures as well, although there are some conflicts here) has judged that it is in the public interest to prohibit their non-medicinal use. I happen to be opposed to the criminalization of illicit drug use, although there are some pretty strong arguments in favor of restricting distribution, and that is what the prescribing system does.
One problem that we have in continuing the discussion from this point is the double-meaning of the term “drug.” It means an illicit substance of abuse – we do not call alcohol or tobacco “drugs” in this sense, because they are not illicit, but they are nevertheless addictive and potentially harmful to their users – and it also means a pharmaceutical product intended to treat, cure or prevent disease.
So, let us now continue with the non-“drug” drugs, such as antibiotics, cold remedies, NSAID analgesic-anti-inflammatories, laxatives, anti-diarrheals, anti-depressants, blood pressure medications, cholesterol medications, cancer chemotherapy, etc. Many of these, as you know, are indeed available without a prescription. Your local CVS has literally hundreds of feet of shelf space filled with nothing else. (Some of these do happen to have potential recreational uses, but the government hasn’t gotten around to making them controlled substances. An example is the antitussive dextromethorphan. But that’s a digression.) For other remedies, you have to go to the pharmacy counter and present a prescription from a physician. You are asking, “Why is this?”
While I share with you a strong proclivity to favor the liberty interest, it seems not to have occurred to you that government restricts it in many areas other than drug prescribing for the sake of the welfare of the individual. For example, while adults can drive, if they demonstrate proficiency, they are not allowed to exceed the speed limit, blow through red lights, or operate motor vehicles which have not passed safety inspections. In most states they are required to wear seat belts. I am not allowed to build a house, or to rent out an apartment, that does not conform to the building code. I cannot purchase clothing that does not meet flammability standards, or children’s toys which have been found to be unsafe. And there are innumerable other examples. If you object to making certain drugs available only by prescription, you will have to think through hundreds of such analogous situations and see why they are the same or different.
Now, as for the prescription drug regime, the fundamental rationale has to do with the observation of Paracelsus: “All substances are poisons; there is none which is not a poison. The right dose differentiates a poison…” Since his day we have learned even more, of course, and we now know that different people react differently to the same substance, and what is more important, that chemicals have multiple biological effects. Harmful effects may emerge immediately (acute poisoning) or become evident only after exposure over days, months or years. In the case of substances intended to treat disease – pharmaceuticals – beneficial effects must always be weighed against harmful effects.
These calculations are often very complex, and require inputs of knowledge which are quite diverse, along with sophisticated decision making models. Even a small mistake can kill you -- for example, taking certain anti-depressants and then eating fava beans or drinking coffee.
At the same time, as you well know, drug manufacturers are eager to sell you their products, and any viewing of prime time television will make that abundantly clear.
The fundamental reason why many drugs are available by prescription only is that you, Glenn Greenwald, are simply not competent to decide whether you ought to take them, when you ought to take them, how much of them you ought to take, whether you ought to take them in combination with certain other drugs, and so on and so forth – in other words, you are not in a position to make use of your liberty should it be granted to you. That would be equivalent to the liberty to run into the middle of the interstate highway, or sunbathe on the railroad tracks. It is not a liberty that most sensible people would want to have.
Your desire to take opioid analgesics against your doctor’s advice is a very special case. Many people try to wangle prescriptions for opioids in order to sell them on the street; others are addicts. Doctors are required to be vigilant about such people and can even be prosecuted for prescribing these drugs irresponsibly. That in fact troubles me. However, in the case of drugs which are not controlled substances, doctors are not criminally liable, although they may be liable for civil malpractice. But the reason you can’t get these drugs without a prescription is similar to the reason why you can’t fly an airplane without a license or build a house that is not approved by the building inspector.
Now, there is the very special case of controlled substances which doctors are not allowed to prescribe, but which some people think should be permitted, of which marijuana is the most commonly debated. Medical marijuana laws, as generally proposed, would require a physician's prescription to possess marijuana. So this is quite separate issue.
I hope these observations are helpful to you.
What do you think? Is this a question that should be seriously considered? Should all approved drugs be available without a prescription? That strikes me as a fairly nutty idea, but Greenwald is a smart guy who is right about most things. Is he as far off base on this as it seems to me?
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