A Conjunctive Standard Under the Controlled Substances Act: Why it Would Benefit Buprenorphine-prescribing Clinicians and Their Patients.

Abstract

Buprenorphine is a prescribed controlled substance that effectively treats opioid use disorder. Fear of federal prosecution contributes to buprenorphine's under-prescribing. Such fears may be heightened in jurisdictions that follow a "disjunctive standard" of prosecution under the federal Controlled Substances Act (CSA). In jurisdictions with a "disjunctive standard," clinicians can be prosecuted for either (a) lack of a legitimate medical practice (eg, to improve the health of the patient) or (b) deviating from the "usual" course of professional practice. Problematically, the disjunctive standard could allow for the prosecution of clinicians even when no harm results and the clinician's deviation from usual practice was intended to improve the patient's health. This Commentary argues that the "conjunctive standard" is more approrpiate than the "disjunctive standard" for prosecution under the CSA. The conjunctive standard would require prosecutors to additionally prove the clinician lacked a legitimate medical purpose when prescribing. Therefore, federal prosecutors could focus on truly bad actors-those who clearly lack a legitimate medical purpose, such as those prescribing merely for profit to patients without health conditions that would benefit from the prescription. Ultimately, by decreasing fears of prosecution, a conjunctive standard might contribute to an increased buprenorphine treatment supply during the ongoing overdose crisis.