Physician Autonomy and the Opioid Crisis

36 Pages Posted: 6 Mar 2018 Last revised: 29 Aug 2018

See all articles by Claudia E. Haupt

Claudia E. Haupt

Northeastern University - School of Law; Yale University - Yale Information Society Project

Nathan Guevremont

Yale University - Law School

Mark Barnes

Ropes & Gray LLP - Boston; Yale University - Law School

Date Written: February 26, 2018

Abstract

Between 1999 and 2015, 183,000 Americans died from drug overdoses related to prescription opioids. While the opioid crisis has multiple causes, the role of the medical profession in the emergence and response to the crisis has attracted significant regulatory attention. As it is, however, the regulatory framework governing physicians’ prescription of opioids markedly departs from otherwise applicable regulatory approaches to regulating the professional practice of medicine. Federal and state laws, both preceding the epidemic and responding to it, already curtail physician autonomy to a greater degree than in almost any other area of medical practice. To make matters worse, the variety of legislative interventions in this area, both before and now during the crisis, have created a patchwork of incoherent regulation.

This article first describes limitations on physician autonomy related to opioids, both at the federal level and in the five states with the highest overdose rates. It next compares those measures with limitations on physician decision-making in other areas of medicine. Measures limiting the autonomy of physician decision-making in these other areas help shed light on the significance and implications of opioid-specific regulations. We also consider the extent to which these legislative intrusions into the patient-physician relationship may be primarily driven by ideological or political values rather than concern for public health, as in the case of abortion, or laws, described below, mandating that physicians not discuss gun safety with their patients. The history of opioid regulations suggests these moral judgments may likewise be in play in the opioid context.

It is possible that the scope and severity of the opioid epidemic may justify these medical practice limitations. First, it is undisputed that some members of the medical profession played a significant role in creating the crisis. The epidemic of serious overprescribing (even if much of it was in good faith) may explain state legislatures’ willingness to intervene. Second, the unique public health context of the opioid epidemic may justify restrictions on physician autonomy with opioids. While physicians are primarily concerned with their individual patients, opioids present risks to others outside of the patient-physician relationship. But it is still important both to recognize how regulation of the use of opioids in medical practice is exceptional, and to try to understand whether the public health and public policy rationales offered for this regulation are persuasive reasons to depart from the norm. It may be, for example, that the regulations as enacted are not as narrowly or wisely tailored as they might be to fulfill the articulated policy and public health goals. Regulation might ultimately be designed in such a way as to maintain the important values served by physician autonomy within the patient-physician relationship while still protecting individual patient and public health. Further, regulation might more appropriately be considered by and issued in the course of the general oversight of quality of physician care, instead of decreed by legislatures.

Keywords: professional regulation, physician regulation, law and medicine, health, opioid crisis

JEL Classification: K10, K14, K19, K2, K20, K29, K32

Suggested Citation

Haupt, Claudia E. and Guevremont, Nathan and Barnes, Mark, Physician Autonomy and the Opioid Crisis (February 26, 2018). Journal of Law, Medicine and Ethics, 2018. Available at SSRN: https://ssrn.com/abstract=3130252

Claudia E. Haupt (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Nathan Guevremont

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Mark Barnes

Ropes & Gray LLP - Boston ( email )

800 Boylston St
Prudential Tower
Boston, MA 02199
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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