ITALY - Physician and researcher at the universities of Berkeley and London, he was, in the early 1980s, among those physicians practising the treatment of morphine-based maintenance of drug addicts in Italy, in order to remove them from the criminal circuits. As a result of this, he was the subject of a controversial penal affair, and faced with imprisonment. Dr. Del Gatto is the President of CO.R.A. (radical anti-prohibitionist forum).

ABSTRACT: The author examines the hypothesis that various therapeutical effects would result from the medical prescription of drugs. Prohibition would not be necessary if medicine, bio-ethics, pharmacology, law and justice were given a clear mandate on drugs.

("THE COST OF PROHIBITION ON DRUGS", Papers of the International

Anti-prohibitionism Forum, Brussels 28th september - 1st october 1988; Ed. Radical Party)

The Option of Prescribing Drugs

If physicians were allowed to prescribe narcotics, the following therapeutic effects might result :

a) a decrease in the number of drug-related deaths;

b) a reduction in the rate of illness;

c) an improvement in the drug addict's everyday life, due to the reduction of deviant and criminal behaviour;

d) a brake on the clandestine market, with the resulting decrease in micro-criminality.

This hypothesis was put forward by a few dozen Italian physicians around 1980, in reaction to the total absence inter alia of any initiative on the part of the public authorities. On the whole, the hypothesis proved positive in the field (Cotri, 1988), and continues today to be presented as one of the experimental alternatives to prohibition.

Spontaneous Remission

The hypothesis is based on the supposition of spontaneous remission, confirmed by Winick (1962) and then Coperman (1973) - "Drug addiction affects individuals between the ages of 16 and 30 after which period 70-60% tend to mature and give up using drugs voluntarily" - (Beltrame, 1980) - "The cure of drug addicts does not depend so much on specialised therapy as on the development of circumstances regarding their lives and the opportunities they offer for recovery".

Behaviour and Learning Processes

Another supposition is the admission that the problem of drug addiction involves not so much the substances - which can be extremely varied - as behaviour, which in some way they choose, and learning processes, the effects of which they consider pleasant as opposed to others which are unpleasant.

On the other hand, it is also true that any chemical substance introduced into a living organism has certain biological effects, some of which can constitute physiopathological problems. This is true for all pharmaceutical substances.

Regional Pharmacological Observers

In this context, the European Federalist Group of the Italian Parliament has presented a draft bill for the institution of "Regional Pharmacological Observers" to provide drug vigilance and scientific information on drugs.

According to the criteria of the PMS (Post-Marketing Surveillance), the observers could easily extend their activities to include drug addiction with positive results, as was the case in the Italian Marches region in 1986.

Thus, there are good reasons for accepting that experimental approach, which consists of the prescription of those drugs which can cause problems and the observation, throughout the territory, necessary, both as regards those drugs and all other pharmaceutic substances.

Methods of Regulation

A regulatory programme for drugs should seem more than reasonable in a century like ours, which has experienced a whole series of similar procedures, ranging from the by-now remote denunciation of Sinclair's jungle (1905) to Ullman's "Regulation Bogey" (1983). Current legislation envisages an increasingly political role for medicine and science in the area of public health. But, in fact, the real problems are connected to the degree of uncertainty which science and medicine cannot exclude, and the risk of bureaucratisation (Blau and Mayer, 1984). As regards the use of drugs - a far less dangerous human activity than many others - a pragmatic attitude of this sort is not acceptable. In fact, it is explicitly illegal, notwithstanding the physician's freedom of conscience and responsibility: precisely the chains of prohibition.

The Option of Illegality

It might be useful to consider the aspect of illegality in the context of judgements expressed in Italy - extending it, however, to include all prohibitory legislation.

Questions of a Legal Order

The following five questions could be asked, as regards the reasons for those judgements, the answers to which determined whether the accused was sentenced, fully acquitted, or acquitted for lack of evidence :

- Is drug addiction a disease?

- Is the prescription of the narcotic for therapeutic or non therapeutic purpose?

- Does it involve a moderate or non-moderate quantity?

- Is money involved?

- What were the physician's intentions?

The Two Conceptual Extremes of Drug Addiction as a Disease

The concept of drug addiction as a disease, is interpreted in the legal system either broadly - according to which "not only organic alteration constitutes disease, but also those disturbances of the psychic sphere, such as excitement, depression, irritability, melancholy, insomnia, trembling of the hand, and so on" (Court of Cassation: 1.10..56; 4.12.74; 29.5.62) - or in a limited way - according to which, disease is "that which is the object of diagnosis, prognosis and without other treatment", and, if drug addiction must be considered a disease, it must first of all be diagnosed and its termination or "substantial reduction" must be envisaged with a treatment which must be limited in time, so as not to in itself maintain, induce or expand the state of the disease. If both these interpretations are remote from the concept of health adopted by the World Health Organisation and echoed in Italian SSN Law (833/70), "not only as a condition of non-disease, but also of well-being in the fullest and widest sens

e, linked to the relationships created between man and environment and man and society", the second, which prevails in the legal system, with its 20th-century rules of diagnosis, prognosis and therapy, has a Foucault-like disciplinary function. Moreover, both physicians must explain to the prisoner the consequences which his decision not to eat could have on his state of health.

Drug Addiction not as Clinical/Biological Illness, but as Social Representation

It is true that on the biological/clinical plane, as well as in the legal context, the concept of drug addiction as an illness is marginal, while it has significance in the social context as representing a physical condition which has a definition and implies a particular social conduct. Drug addiction appears then to be a condition for reflection on the social status of illness, as a destructive element, as regards its capacity to liberate, and as regards occupation. It is via the inactivity of the patient versus the productive activity of the well, as well as participation versus exclusion and conformity versus deviance, that the rapport of the individual with society is expressed (Parsons, 1970).

Therapeutic Action and the Code of Ethics

Therapeutic prescription is the most controversial act in the entire set of regulations governing medicine's relationship to drug addiction - not lacking in conflict between juridical and medical provisions. In fact, the Medical Code of Ethics includes the following:

Liberty and Independence Article 1 - the practice of medicine in freedom and independence of judgement and behaviour.

Diligence, Ability and Prudence Article 4 - the performing of professional duties with diligence, skill and prudence, in accordance with science and individual conscience and in the observance of the ethics governing the practice of medicine, and those governing the legal profession which do not conflict with the aims of the medical profession.

Article 19 - treatments which involve a decrease in the sick person's physical and psychic resistance can only be justified by a rigorous assessment of therapeutic requirements with the sole aim of healing, or of relieving suffering.

The Physician must not force a prisoner to take nourishment Article 52 - when a prisoner refuses to eat, the physician - who will decide whether or not the patient is conscious of the consequences of that refusal - must not take the initiative, nor participate in forced, artificial feeding. The physician's judgement as to the prisoner's capacity to realise the consequences of his refusal to eat must be confirmed by a second physician. Moreover, both physicians must explain to the prisoner the consequences which his decision not to eat could have on his state of health.

Presenting these New Ethics of the Italian Medical Profession on January 7, 1970, the President of FNOOMM spoke of "an instrument of the physician's professionalism, independence and function in the social context".

The Tokyo Declaration

In the World Medical Association Declaration in Tokyo (1975) on the use and abuse of psychotropic substances, physicians are urged to perform works of civic, social and humanitarian education in order to demonstrate practical and harmless solutions in cases in which the use of drugs is necessary, with an invitation to caution and the collection of data on risks in cases of non-medical use.

Nurimberg and Helsinki

If reasons and arguments are found for a greater respect of the drug addict's civil and human rights in the Medical Profession's Code of Ethics and in the various Declarations (in addition to the Tokyo (1975), Nurimberg (1947) and Helsinki (1964) Declarations), the various legislation set down different ways of representing the crime of illegal prescription, although they do not succeed in presenting a univocal definition of therapeutic and non-therapeutic use.

Therapeutic Actions and the Judiciary

There are few decisions in which the judge perceives that the law, with reason and good sense, refers to the acquisitions of medical science, as well as to Art. 39 of the Constitution (Const. Court, Sentence 57/66) in the definition of disease and therapy. More frequently, it can be read in judgements that, "according to a systematic interpretation, only that type of intervention which leads directly and immediately to the termination of the drug addiction itself, or at least to a rapid diminishing of its intensity, can be considered as therapeutic"; more rarely: "(...) the therapy, in medical practice, is not only all the means prepared for curing a disease, but also those interventions which, if not aimed at at a cure, in any case tend to avoid aggravating the illness and prepare the patient to receive other, more incisive treatment."

Generally, the law is interpreted - both in the part containing the penal norms and that concerning preventive, curative and rehabilitative actions - in the sense that the medical prescription of narcotics is allowed for breaking the habit, and sometimes just for maintaining it. Linked to the concept of therapeutic or non-therapeutic use is the idea of a "moderate quantity", which is that consumed in non-therapeutic personal use, or that which does not appreciably exceed, in therapeutic use, the requirements of the cure.

More specifically, "the law suppresses every possible form of utilisation of narcotics, unless for therapeutic, personal use of those possessing them, limited to the quantity needed and for non-therapeutic use, always personal and limited to a moderate quantity. With this, we have a precise regulatory element which allows us to define non-therapeutic use; among all the possible uses for narcotics, the one in which it is least easy to see therapeutic intent is pure and simple consumption in order to maintain the drug addiction. If this use were also to be considered therapeutic, there would be no possibility of a non terapeutic use being represented which, instead, the law recognises."

The Lack of Seriousness and the Superficiality of Anti-Prohibition

This judgement, one of the first, went down in the history of Italian jurisprudence as the "Genoa Judgement", and reveals the criteria on the basis of which analysis could be made of Italian judgements of full acquittal, acquittal for insufficiency of evidence, or condemnation, according to the physician's intention; i.e. according to his supposed or declared anti-prohibition leanings, his social or political position. One appeal judgement reads, "the court has not failed to note the lightness and superficiality of the conduct of the accused, where the supposition is that he had wanted to anticipate in fact, that controlled liberalisation of drugs which has been proposed by several camps".

The most common solution is that of condemning the physician, unless he is granted pardon for "high social and moral value", as long as there has been no money involved. The simple request of an ordinary fee, however, involves money; as in the case of a well-meaning physician who prescribes buprenorphine for a drug addict.

The Prohibition of Pain-Killers and Anorexic Drugs

The mention of the latter case brings up another vexing question concerning the prescription of pain-killers and anorexic drugs - a risky business for the physician even if it is commonly necessary in daily practice. The fact is particularly serious in neoplastic pathology, in which cases the physician must be reasonably competent in deciding on the usefulness of indicating a drug, its safe use, and even the potentiality present for inducing addiction.

Medical Ethics

On the one side, oaths, statements and ethical codes extolling the physician's freedom and responsibility, and on the other, a legislation which can be interpreted and is interpreted in restrictive terms. If, as Horing states, "man's biological nature does not possess any definite normative character, resulting in medicine's sometimes failing to perform its task optimally, as it is based only on biological laws," the legal profession would appear to be even more marginal and contradictory than the medical one. A contentious jurisdiction between the legal institution and the medical one is conceivable, not only and not so much as a conflict between professions, but rather as a basic experience, so that if the physician faces daily the other's Weltanschauung (see J. Roth's The Saintly Drinker, or Lowry's Under the Volcano), the judge should refrain from this, since he has must stand as rationaliser and regulator.

This does not imply refusing control of health interventions, which is in fact desirable as an opportunity for criticism and scientific reflection.

As the legislator indicates, for example in Art. 3 of Law 180/1978, and Articles 34 and 35 of Law 833/78, the judge's task seems to be rather that of guarantor of the equilibrium between authority and freedom, participation and coercion, public and private.

Schwarzenberg: from Physician to Minister and Vice-Versa

It is perhaps too ingenuous to expect good policy, so that Prof. L. Schwarzenberg can declare to Liberation of 5.2.87 that he is in favour of "controlled sales of drugs to avoid overdoses", but if as the new Minister of Health in France, he suggests "a possible distribution of drugs to addicts on the condition that it does not encourage drug addiction, because the sick are not delinquents", it would be better if he resigned and went back to being a professor...

The Ending of Prohibition

Proposing putting an end to prohibition, the devastating results of which are expressed in a recent Lancet editorial, would seem plausible :

once the right dimension has been given to medicine and pharmacology; simply the adequate and objective information on substances and their biological effects;

once the right dimension has been given to the legislative and juridical; merely that of wise regulations and their reasonable application;

once a few suggestions result from the extensive ethical debate currently called bio-ethics-ethics.

New Bio-ethics-Ethics

The principles of Bio-ethics-ethics (on the basis of the Nurimberg Declaration) assert

-that the consensus of the subject volunteering for experimentation, must be completely free and that no reason of State can go against that will; that is, the priority of the subject's will;

-that it is possible to test a new pharmaceutical substance, according the Helsinki Declaration and the Venice Charter, providing an informed consensus is obtained; that is, that the possible consumer is informed adequately before consenting;

-that if self-experimentation is possible, within the limits deducible by law (Art. 5 of CC), it would also be possible for a subject to test the effect of a drug on himself, except for the obligation of a doctor's prescription;

-that the use and also the abuse of drugs belong to the religious, philosophical and anthropological fields and should be left to individual conscience rather than to State authority;

-that it is not possible to be absolutely certain of the therapeutic and non-therapeutic effects of a substance;

-that drug use is not necessarily a symptom of an unjust and repressive society;

-that, since the control of behaviour is a scientific reality, it would be well to affirm from the outset that it must be based on the rights of the individual and his informed consensus. In conclusion, putting the physician in handcuffs would cause more contradictions and problems than it solved. In fact, it would block one of the means of experimentation in the interests of abolishing prohibition.