Effective Drug Control: Toward A New Legal Framework

are used or stored by pharmacies, drug wholesalers, hospitals, outpatient surgery centers,
doctors’ offices or clinics, nursing homes and adult family homes and boarding homes.
The FDA regulates the initial approval of a drug and the manufacture and
distribution. The decision whether or not to make a drug prescription or over the counter
is not always based strictly on science. Advisory committees to the FDA recommend
whether or not to allow a prescription drug to be sold over the counter before the FDA’s
commissioner decides to accept or reject the finding, but such a decision involves more
than science or patient safety, as influences like marketing and financial considerations,
politics, doctors’ concerns and consumer psychology may also contribute. Doctors often
prefer prescriptions for drugs that are generally safe enough to be over the counter
because they would like the ability to monitor their patients’ use of the drugs and they are
vocal about this concern whenever a drug comes up for consideration as an over-thecounter
option. Although it is reasonable for doctors to be concerned for their patients’
safety, some are concerned that it could prevent people from having easier access to
medicines they need. 457
The “gray market” is the term used to describe the market in diverted legal
prescription drugs. These drugs are diverted not only by drug abusers but by licensed
health care professionals and others at any site where the drugs are stored, administered,
prescribed or dispensed. The manners in which drugs are diverted include theft, armed
robbery, burglary, record alteration, prescription forgery, “wastage” and substitution. For
example, from January through February of 2003, drug thefts from pharmacies in the
state of Washington included four armed robberies, four burglaries, eight employee thefts
and four lost-in-transits, totaling 28,925 dosage units at a cost of $20,893. The main drug
implicated was Oxycontin. In 2002, the Washington State Pharmacy Board investigated
130 nurses, 6 pharmacists, 13 pharmacy techs and one pharmacy intern for diversion.
These investigations may lead to criminal charges or, at the very least, administrative
proceedings by their respective professional boards, but the Pharmacy Board prefers to
employ the “medical model” rather than the “criminal model.” The boards send violators
to treatment, withhold their licenses until required follow-ups with aftercare and
meetings, and monitor them for up to five years with urinalysis. 458
Existing Legal Remedies – Civil and Other Non-Criminal Sanctions
Civil Proceedings: The Other “Drug Courts”
Courts hearing certain types of civil cases already operate as a parallel system of
“drug courts.” The civil courts are concerned with assessing and addressing conduct that
adversely affects others – particularly children – and such conduct is often associated
with substance abuse. Compared with the criminal courts, the civil courts are charged
with evaluating harm and finding remedies, rather than determining guilt and meting out
punishment, and are therefore more remedial and therapeutic in nature. 459
Civil courts are regularly called upon to evaluate and remedy the impacts of drug
use in family law cases involving divorce, child custody, child support, and child welfare.
Drug use might be addressed in the course of a tort claim, employment law case or civil
commitment proceeding. The following is a partial list of civil proceedings in which