Resisting 12-Step Coercion



This book is here courtesy of See Sharp Press logo and of its authors.


The following chapter reduces the contents of this book to a few pages. The purpose of this reduction is to allow readers to communicate the book's content quickly to anyone who could benefit from it. This includes corrections officials, judges, employers, human resource officers, substance abuse program managers for the armed forces and other government agencies, and anyone who has a decision-making role in creating treatment options or in compelling individuals to attend treatment. In addition, readers can use this chapter to alert attorneys or other sympathetic professionals to the state of the law and to clinical issues involved in mandatory AA/12-step and/or abstinence treatment. Finally, this chapter can provide necessary background in public discussions that tend to be dominated by assumptions that AA and the 12 steps are the only path to recovery.




7
Summary of Legal and
Clinical Objections to
Compulsory AA, 12-Step,
and Abstinence Treatment

Dear Decision Maker:

This chapter is a summation of the book, Resisting 12-Step Coercion, by Stanton Peele, Charles Bufe, and Archie Brodsky, which deals with the legal and clinical pitfalls of mandating treatment for substance abuse, and particularly AA, NA, or 12-step treatment. As part of this summary, this chapter reviews the evidence on the efficacy and appropriateness of forcing people to abstain from alcohol. Finally, this chapter suggests alternative methods of dealing with people who abuse drugs or alcohol. Please take note of this material when considering the appropriateness of your substance abuse services/ regulations.

There are two aspects to the mandate to attend AA or 12-step- based treatment (and to abstain from alcohol) by a state-operated agency (such as the courts). These are legal and therapeutic:

Legal Issues

Coercion into AA and 12-Step Programs

Four higher courts have evaluated cases in which corrections departments, correctional institutions, and conditions of probation have required attendance at Alcoholics Anonymous, Narcotics Anonymous, or therapy based on AA's 12 steps. In these cases, the failure to comply carried serious penalties (i.e., return to prison, loss of parole opportunities or major benefits such as family visits). All of these cases have been decided since 1996. Uniformly, the courts have decided that such mandated attendance violates the First Amendment of the U.S. Constitution. The Bill of Rights begins with the statement that, "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. . . ." The first part of this statement is referred to as the "Establishment Clause" and has been interpreted by the U.S. Supreme Court to mean that no government body can require or encourage religious observance of any type. (This is also known as the separation of church and state.) It is this clause which two Federal circuit courts (the appeals courts just below the U.S. Supreme Court) and two state high courts (Tennessee and New York) have found were violated when prisons or courts required that inmates or defendants undergo 12-step therapy or participate in 12- step support groups.

Kerr v. Farrey (1996)

The United States Court of Appeals For the Seventh Circuit, reversing a district court decision, unanimously held "that the state . . . impermissibly coerced inmates to participate in a religious program, thus violating the Establishment Clause." In this case, an inmate at Oakhill Correctional Institution in Wisconsin was threatened with being sent to a higher security prison and with rejection of his parole application for refusing to attend Narcotics Anonymous meetings.

Warner v. Orange County Department of Probation (1999)

The United States Court of Appeals for the Second Circuit affirmed, 2-1, a Southern District of New York ruling that requiring an inmate plaintiff's participation in Alcoholics Anonymous as a condition of probation violated the Establishment Clause of the First Amendment to the U.S. Constitution. The plaintiff received nominal monetary damages. The dissenting Second Circuit Court judge indicated that the Free Exercise Clause of the First Amendment was a better basis for protecting Warner's (the plaintiff's) rights, and warned of the great possibilities for finding liability created by a decision that mandatory AA sentences without alternatives violate the Constitution. The circuit court took the unusual step of vacating its own decision and of remanding the case to the district court to decide whether the plaintiff had waived his right to object to the religious nature of AA. The District Court decided that Warner had not waived his First Amendment right, and the Second Circuit Court again upheld the decision.

Griffin v. Coughlin (1996)

New York's highest court, the Court of Appeals, prohibited (in a 5-2 decision) the state corrections department from making a prisoner's participation in the family reunion program conditional on his attendance in the prison's 12-step-based alcohol and substance abuse treatment program. The court ruled that such participation violated the Establishment Clause. This ban would apply to any compulsion to participate in "a curriculum which adopts in major part the religious-oriented practices and precepts of Alcoholics Anonymous." The decision emphasized the "proven effectiveness of the A.A. approach to alcoholism or drug addiction rehabilitation" and the acceptability of "a noncoercive use of A.A.'s 12-step regimen as part of an alternative prisoner drug and alcohol abuse treatment effort . . . , providing it offered a secular alternative to the A.A. component." The American Jewish Congress filed a friend-of-the- court brief in support of the inmate's claims.

Evans v. Tennessee Board of Paroles (1997)

The Supreme Court of Tennessee, responding to petitions from two inmates regarding their failed parole hearings, found unanimously that the trial court erred in dismissing one of the inmates' (Anthony Evans') claim for injunctive relief from the Board's requirement that he participate in Alcoholics Anonymous. The court remanded the case to the trial court to determine whether AA was religious in nature, while citing case evidence that this was indeed true.

Conclusions

Court decisions, strictly speaking, are limited in their applicability to the jurisdictions in which they are made. On the other hand, courts often turn to sister jurisdictions for guidance; and federal courts, in particular, can accept precedents from other district or circuit courts in the absence of applicable decisions in their own jurisdictions. Based on existing precedent, courts are obligated to require alternatives to AA or 12-step programs, and specifically non-religious alternatives such as SMART Recovery and Rational Recovery, where state agencies require or encourage (through imposition of benefits or penalties) substance abuse treatment. Any court should recognize this obligation, and a person should be able to present a reasonable alternative option that he or she genuinely wishes to pursue. When people are required to create and follow programs of their own choosing, of course, society and its agencies can properly require adherence to the designated program and responsible behavior as conditions of continued freedom.

Informed Consent

Overview

During the past several decades, informed consent has become an established principle of health law as well as clinical ethics (Appelbaum, 1997). The courts have repeatedly reaffirmed that a person (even one who is hospitalized for mental illness, if competent) has the right to refuse any and all medical treatment. The requirement that a person give informed consent to medical treatment is based on a widespread social consensus that people have the right to control access to their own bodies and make decisions about their own health and well-being decisions with which others might disagree and live or die with the consequences.

Legal Requirements

Although statute and case law concerning the scope and application of informed consent vary from one jurisdiction to another, the basic principles are consistent. The right to give or withhold informed consent is one possessed by competent adults. Besides competence, two main requirements must be met for informed consent to take place: information and voluntariness. In order to be able to make an informed decision, a person must be informed about the nature of the treatment offered, its risks and benefits (i.e., possible outcomes, including side effects, and their probability of occurrence), and possible alternative treatments. The risks and benefits of no treatment at all must also be considered. The requirement of voluntariness means that consent must be given freely and may not be coerced. Physical coercion clearly violates this stipulation, as do psychological or emotional coercion though their presence or absence is at least to some degree a matter of interpretation.

Exceptions to the informed-consent requirement mainly involve emergencies in which the need to act quickly overrides the need for consent. The right to informed consent may also be overridden or compromised when others are directly endangered by a person's decisions. But this does not justify the denial of the opportunity for full consent by virtually all patients who enter alcoholism treatment, and particularly after they have overcome a specific drinking crisis.

The treatment industry typically relies on the concepts of denial and loss of control to override the right of the patient to decide what is best for him or her and to select a treatment option or no treatment based on his or her values. This issue has not been resolved in the courts. But even the American Society of Addiction Medicine (ASAM) (1992) has recognized only a very narrow range of circumstances in which the treatment provider may proceed without obtaining informed consent: "Addictionists should treat individuals only with their consent, except in emergency and extraordinary circumstances in which the patient cannot give consent and in which the withholding of treatment would have permanent and significant consequences for life and health."

At the same time, it is also true that most alcohol and drug treatment professionals do not recognize any kind of treatment other than 12-step treatment, or that any other treatment can be effective. In a survey of all alcohol treatment providers listed in the San Diego Yellow Pages in October, 1998, Tom Horvath and Jeff Jones found that 45 percent of the centers stated that 12-step treatment was the only available approach, while 47 percent acknowledged that alternatives existed but claimed these were not effective (cf. Horvath, 1999). Only in addiction treatment is such self-serving ignorance common.

Therapeutic Issues

Efficacy<

In deciding that mandatory AA attendance is illegal, courts often note the "proven effectiveness" of AA and standard 12-step programs. However, research does not support this supposition. A group of researchers working with William Miller, of the University of New Mexico, reviewed all controlled clinical research on alcoholism treatment. Using a summing technique called "meta-analysis," they rated therapies as follows (the higher the score, the higher the indicated effectiveness):



Table 1
Most and Least Effective Alcoholism Treatments

Highest Rated
Brief interventions +239
Social skills training +128
Motivation enhancement + 87
Community reinforcement + 80
Behavioral contracting + 73

Lowest Rated
Metronidazole 102
Relaxation training 109
Confrontational counseling 125
Psychotherapy 127
General alcohol counseling 214
Alcoholism education programs 239

Methods with Too Few Tests to be Reliably Rated
Sensory deprivation + 40
Developmental counseling + 28
Acupuncture + 20
Calcium Carbamide 32
Antipsychotic medication 36
Alcoholics Anonymous 52

Source: Hester & Miller (1995)


The ratings combine assessments both of the quality of the studies in support of a therapy's effectiveness and the degree of superiority (or inferiority) found for the target treatment compared in the studies to other treatments. Note that, almost uniformly, it is the ineffective therapies (AA, alcohol education and counseling) that are employed in court-mandated programs.

The Requirement of Abstinence

Therapy in the U.S. is oriented almost exclusively towards abstinence. Thus, as a condition for probation, parole, etc., an individual is often ordered to abstain from alcohol. This requirement is supported unwaveringly by the mainstays of the medical treatment establishment, including the American Society of Addiction Medicine (1974), whose very first policy statement was on the absolute necessity of abstinence for recovery, and by Enoch Gordis, director of the National Institute on Alcohol Abuse and Alcoholism (NIAAA). This requirement can be objected to on several grounds, the two most important being:

1) Without a clinical diagnosis of alcohol dependence, the requirement of abstinence makes no sense even according to 12-step treatment providers. That is, when such groups and individuals note that someone has obviously returned to moderate drinking, they maintain that the person was only a problem drinker and not alcohol dependent, and for such an individual a reduction in drinking is unexceptional. For example, when U.S. News and World Report ran a cover story indicating that controlled drinking was an option for most problem drinkers (Shute, 1997), G. Douglas Talbott (1997), then president of ASAM, wrote a letter chastising the periodical for claiming "that treatment for alcoholics is based on 'folklore,' rather than science." Nonetheless, Talbott acknowledged, "moderation management is acceptable for abusive problem drinking." Therefore, a coerced individual should insist on receiving a formal, written diagnosis, whether of alcohol dependence or alcohol abuse/problem drinking. This document allows the individual to have another expert independently evaluate the diagnosis.

2) In fact, no study finds that abstinence is required or particularly effective in dealing with any type of alcohol problem. Recently, the entire abstinence requirement has been challenged by research from an unexpected source the NIAAA. This organization organized Project MATCH (1997), whose goal was to discover whether alcoholic persons did better when referred to treatments matching certain of their key characteristics personality, severity of problem, etc. In fact, matching results were not particularly significant, but the NIAAA hierarchy and Project MATCH directors noted the great improvement by subjects in all the treatments included in the study. The subjects -virtually all of whom were alcohol-dependent---reduced their drinking at 18 months after treatment from, on average, 25 to 6 days per month, and from 15 to 3 drinks per drinking episode. In other words, abstinence was of secondary importance in improved outcomes in the most expensive clinical alcoholism study ever conducted, involving therapy designed and administered by the most important treatment researchers in the U.S.

Treatment Choice

Paralleling the legal and ethical issue of informed consent, there are therapeutic grounds for encouraging patient choice of treatment. A great deal of evidence supports allowing alcoholics to select treatment types and goals based on their values and beliefs. This research indicates that commitment to therapy and successful outcomes are encouraged by providing the patient with options for example, to pursue controlled drinking or abstinence (Booth et al., 1992; Elal-Lawrence et al., 1986; Orford & Keddie, 1986; Sanchez- Craig & Lei, 1986; Sobell et al., 1992).

The Necessity of Treatment

The requirement of attending treatment, whether in a legal, correctional, or private context, is based on the idea that no one can recover from any sort of an alcohol problem without treatment. Once again, results from the NIAAA's own research proves this notion wrong. The National Longitudinal Alcohol Epidemiologic Survey (NLAES), which surveyed over 40,000 Americans about their drinking habits, focused on approximately 4,500 subjects who had been alcohol dependent at some time in their lives. In the first place, only 1,233 were treated, compared with 3,309 who were not. But the untreated subjects were actually more likely to have recovered from alcohol abuse or dependence than those treated!



Table 2
National Longitudinal Alcohol Epidemiologic Survey (NLAES)
Data on Alcohol Dependent Subjects
Drinking over prior year Treated Untreated Total
drinking with abuse/dependence 33% 26% 28%
abstinent 39% 16% 22%
drinking w/o abuse/dependence 28% 58% 50%
Source: Dawson (1996)

Note that this superiority in outcome is because many more untreated than treated alcoholics are able to reduce or control their drinking. These results agree with the NIAAA-funded Project MATCH results, which NIAAA director Enoch Gordis likewise disregards. Responding to the article noted in U.S. News and World Report, which indicated that problem drinkers (but not alcoholics that is, alcohol- dependent persons) can moderate their drinking, Gordis (1997) declared, "Regarding the need for abstinence as a treatment goal, current evidence supports abstinence as the appropriate goal for persons with the medical disorder 'alcohol dependence' (alcoholism)." But this evidence does not include two enormous research projects, Project MATCH and NLAES, funded and/or conducted by Gordis's own agency. Once again, the head of the leading alcoholism research and treatment agency in the world declared his allegiance to conventional bureaucratic "truths" rather than scientific evidence.

Alternative Programs

Of course, one difficulty in providing or allowing alternatives to AA and 12-step programs is their relative dearth in America (see Horvath, 1999). But because there is a real need for them, "alternative" self- help groups such as SMART Recovery and Rational Recovery, as well as non-12-step treatment programs, will continue to grow in popularity (see Appendix B). We hope that the legal and clinical findings summarized in this chapter and book will encourage this trend. However, for the time being, it is not safe to assume that alternatives to 12-step programs will be available in your area. Likewise, even prevention or secondary-prevention alcohol abuse programs are currently almost exclusively 12-step and disease-oriented. (Secondary prevention means educating people to drink moderately after they have already displayed signs of abusing alcohol.)

A provider, payor, or patient may be asked to provide an alternative program. One such secondary prevention program has been developed by Alan Marlatt and his colleagues at the University of Washington; it's based on providing sensible information about alcohol's effects and how these effects are influenced by the individual's expectations, the environment, and cues surrounding the drinker's consumption of alcohol. (Such an approach is called "cognitive-behavioral" or "social-learning.") The drinker is then helped to develop accurate and realistic standards for drinking levels, and to develop the skills with which to adhere to these standards (Dimeff et al., 1998). Self-management skills are steeped in an important concept termed "self-efficacy," the belief that one can control one's existence and bring about beneficial outcomes for oneself. Marlatt and his colleagues (1998) have reported significant positive results from such programs with college problem drinkers. Another such program is outlined by a naval clinical psychologist in a letter to one of us (S.P.):

My most frequent clients on the ship are young men between the ages of 18 25. We have female crew members on the ship, but they certainly get in less trouble. There is some documentation that in the military in general we have a greater portion of people with childhood problems. It certainly is extremely common for us to hear people say that they joined the military to get away from a bad home life or a dismal future. This takes them geographically away from the troubled family or bad neighborhood, and places them in a highly structured environment with clear rules.

Many people adapt and are better off with the structure and rules. Others have great difficulty trusting anyone in authority, complying with rules, and living up to adult responsibilities. These are reasons why I think a Life Process program (Peele et al., 1991) that encourages self-awareness, acceptance of personal responsibility, clarification and development of values, and recognition of the importance of our role within the larger culture is fruitful. I taught a "Risk Reduction" program a brief psychoeducational group that was very well received and was non-specific for the type of trouble people had gotten into. It was also not focused on telling people to change, but everyone signed up wanting to change.

A further five-week program (with the Navy or similar setting in mind) for brief education, prevention, or secondary prevention is outlined here. Each weekly unit is designed for a two-hour session with two hours of preparation. (Reading materials are available at Peele & Sas, 1999.) While the program is ostensibly about alcohol, it actually prompts a more inclusive analysis of lives, habits, goals, and self-management principles. The sessions comprise the following:

1) Environmental analysis: Analysis of special nature of the setting in which drinkers are placed in terms of a ship, bursts of intermittent activity broken by free time; dangers of environment, such as pitching and dark decks; loneliness and absence of family; the range of excessive behaviors in which people engage and negative emotions people experience; and so on.

2) Positive drinking and other habits: Review of positive drinking habits such as moderate consumption involved with other activities, such as meals and social conversation; review of the dangers of bursts of excessive consumption during intermittent free periods and of heavy total consumption resulting from drinking over many free breaks; review of drinking for relaxation and leisure versus drinking for escape that muddles feelings, hurts concentration and reflexes; and so on.

3) Realistic positive activities: running and exercise, reading and computers, educational opportunities, social time and support groups, and so on.

4) Planning for the future: Developing life goals and the means needed to achieve these. For example, in the Navy, understanding the sailor's role in larger ship operations and in the overall command; military career opportunities and planning; post-career options; and so on.

5) Addictive behaviors: What are addictive behaviors and how do we recognize them, whether to alcohol, drugs, or anything else; what are the causes of addiction; how can people prevent the development of such problems rather than addressing them only after they become fully addicted or alcohol dependent?