STATEMENT OF EXPERT OPINION IN HICKEY VS. MARKS

The Department of Justice, Law and Society
School of Public Affairs
The American University
4400 Massachusetts Avenue, Northwest
Washington, District of Columbia 20016

June 4, 1998

Mr. Christopher A. Rose
Christopher Rose & Co.
24 Lower Market Street
Penryn, Cornwall TR10 8BG
United Kingdom
RE: Dr. Patrick Hickey

Dear Mr. Rose:

0.0 Background and Qualifications

0.1 I am Arnold S. Trebach, J.D., Ph.D. I am a Professor Emeritus in the Department of Justice, Law and Society of the American University in Washington, District of Columbia. In addition, I am the founder and past president of The Drug Policy Foundation, which is also located in Washington. Late in 1997 I retired from both the university and the foundation. I remain very active in the field of drug policy research and reform.

0.2 I am a scholar, teacher, and policy expert with a special interest in the comparative history of drug control and treatment in the United States, Britain, and other countries. My method of research combines intensive analysis of original documents in medicine, addiction, and law along with interviews with participants in drug treatment and control. I find it particularly important to visit clinics, doctor's surgeries, prisons, police stations, and street drug markets -- and to talk to those involved, including addicts. I started in the drug field in 1972.

0.3 I have developed a degree of comparative knowledge about prescribing practices that has resulted in my being called upon to lecture on the subject before medical audiences (for example, Grand Rounds at Harvard Medical School) and before other professional organizations. I have also testified before a Congressional committee on the subject. From 1985 to 1989, I served as a member of the Working Group on Drugs and Crime of the National Research Council of the National Academy of Sciences. In 1987 I was called upon to advise the defense and to appear as an expert witness before the General Medical Council in the case of Dr. Ann Dally.

0.4 I established the Institute on Drugs, Crime and Justice at the American University in 1973. A major function of the institute is to present seminars in England on the comparative operation of the drug control systems in the UK and the US. Because we were located in the UK for approximately three weeks each time, the greatest emphasis was on the UK. Between 1974 and 1989, I presented ten of these seminars. Appearing were some of the leading drug treatment experts in the country at the time, including, among others, Martin Mitcheson, Philip Connell, Thomas Bewley, John McClure, Dale Beckett, Ann Dally, and John Marks of Liverpool. Also appearing were addicts, pharmacologists, researchers, police, and government officials. H.B. "Bing" Spear, the Chief Inspector of the Drugs Branch of the Home Office, appeared at all ten of the institutes, in several cases along with some old friends who were long-time injecting heroin addicts receiving regular prescriptions from doctors. The institutes were usually based in London but in 1989 approximately ten days were also spent in Liverpool, where the participants were able to examine at close hand the Merseyside harm reduction model.

0.5 I will direct the 11th Institute on Drugs, Crime and Justice, through the American University, June 7-27 of this year. It will take place in Amsterdam and London. The coordinator of the Amsterdam program (June 7-17) will be Ernst Buning, Director of the Bureau of International Drug Policy, Municipal Health Service, City of Amsterdam. The coordinator of the London program will be Professor Gerry V. Stimson, Director of the Centre for Research on Drugs and Health Behavior, Imperial College of Medicine. In each city, as in past seminars, we will look first-hand at the leading edge of drug treatment, control, and policy development.

0.6 In addition to being the professor, I have also functioned as a student at these institutes for I listened carefully to the guest speakers, took notes, and wrote about what I saw and heard in periodic articles and books. My first book in the field, The Heroin Solution, was published by Yale University Press in 1982. My education has also been enriched by field trips to drug clinics, doctor's surgeries, hospitals, and research centers. In the past, I traveled around the US and sought similar information. My continuing education also took me to Canada, The Netherlands, Germany, Switzerland, Israel, the Soviet Union, and Australia. In each of these countries I sought and obtained information about addiction, AIDS, treatment, and control, often from the people most directly involved in dealing with those issues. In each of these countries, save for the Soviet Union and Israel, I personally encountered a number of physicians who believed in and practiced medicine along the lines of the Liverpool British System. Indeed, they often mentioned the Merseyside Harm Reduction Model as the new standard for the world. Under a rigorous scientific protocol and with government approval, I have observed that Swiss doctors are now experimenting with long-term maintenance of addicts on heroin, morphine, methadone, and other powerful drugs, often in huge doses. Approximately 1,000 addicts who have failed all other treatments are enrolled. Several of the doctors involved in these experiments fully support the Liverpool System and go far beyond it in a sense because they are experimenting with allowing addicts to choose both the drug and the dosage, sometimes 1,000 milligrams of injected heroin a day. (One tentative result shows that many addicts soon voluntarily reduce the dosage.) The Liverpool British System has medical adherents around much of the civilized world.

0.7 In 1986 I founded The Drug Policy Foundation for the purpose of providing a respected national and international forum for exploring alternative policies for dealing with drug problems. DPF is an independent non-profit educational organization supported wholly by private contributions. A major thrust of the organization is support of harm reduction or public health approaches to dealing with all aspects of the drug problem. While the organization supports no single method of dealing with drugs, most of our 20,000 members would probably endorse the so-called British System as it has been implemented in Liverpool. It should be noted that more often this is referred to now as harm reduction or medicalization. The harm reduction movement now has spread throughout much of the civilized world.

0.8 Areas of Expert Advice

I have been asked to give expert advice on a number of questions in regard to the libel action brought by Dr. Patrick Hickey against Dr. John Henry Marks. The questions and my answers follow.

1. Is what is called the "Liverpool" or "British" School of Thought or System, a School of Thought or System recognized by a reputable, respected and substantial body of medical opinion?

1.0 Yes.

1.1 In the US since 1915 and in the UK since 1920, opiates and cocaine were restricted by law and regulation to medical use. The big question was: what was legitimate medical use? The answer to that question causes enduring difficulty. However, I have met many doctors who believe in the basic approach of the Liverpool School, who write about it, who advocate it publicly, and who practice it in their daily work.

1.2 Some of the most important doctors who advocated the British System were the eminent physicians who composed the Rolleston Committee during the period 1924-26. It is my opinion that the Rolleston Report explains the British System as well as any single document and that its advice is still vibrant today, for Britain and the world. The committee was set up by the Minister of Health to answer that difficult question alluded to above in regard to heroin and morphine. Its purpose was "to consider and advise as to the circumstances, if any, in which the supply of heroin and morphine ... to persons suffering from addiction to these drugs may be regarded as medically advisable...."

1.3 The committee concluded that in two types of cases there should be no question about providing the drugs: (1) when the patient was suffering from an organic illness such as inoperable cancer, in which case the possible production of addiction should be ignored: and (2) when the drugs were being administered as part of plan to gradually reduce the dosage.

1.4 Then the committee defined two classes of people for whom the indefinitely prolonged administration of the drugs might be necessary. These were, first, those who could not function outside an institution without the drugs, and, second, "those who are capable of leading a fairly normal and useful life so long as they take a certain quantity of the drug, usually small, of their drug of addiction, but not otherwise."

1.5 Of course, the Rolleston Committee did not establish the British System. Rather, the committee codified the best thinking of the British medical profession on how to deal with addiction and the prescribing of drugs. That best thinking was reflected in the tone of the Rolleston Report which displayed enormous respect for the integrity and independent professional judgment of individual physicians. Thus, the so-called British System was dominant for decades in the minds and hearts of the British medical profession. During the time of my most intensive visits, 1974-1989, most of the doctors who lectured in my institute or with whom I talked believed in the system.

1.6 There does not exist, nor has there ever existed, a clearly enunciated and universally accepted method by which all responsible physicians are supposed to treat drug addicts. If there is any one conclusion that stands out in my quarter century of work in this field it is that.

1.7 After a quarter of a century of searching the world, moreover, I have yet to find a single drug-treatment method that has anything near universal acceptance by a majority of physicians. It is my expert opinion that in that world Dr. Patrick Hickey methods of treatment have a decent and respected standing.

1.8 Not only is there no unitary system of acceptable drug treatment methods, but also the methods accepted by powerful medical leaders keep shifting. For proof of this proposition, one need look no further than the very significant changes that have taken place in the "Guidelines of Good Clinical Practice in the Treatment of Drug Misuse" in the United Kingdom since 1984.

1.9 There is simply no doubt of the fact that a respectable body of physicians in the United Kingdom and in other western democracies believed then, and do now, not only that Dr. Hickey's approach to treatment was responsible but also that the dominant American-London approach was irresponsible and destructive of the health of patients and of society in general. The essence of harm reduction, a movement sweeping much of the civilized world, is that drugs and drug addicts cannot be simply told to disappear, that we must, however reluctantly, all accept the presence of drugs and attempt to reduce the harm that they cause, and that any major attempts to seek a completely drug-free society will rend that society asunder.

1.10 Thus, the major goal of physicians in this ethical mode is to seek to keep addicts as healthy as possible even while they may be prescribing dangerous drugs to them. The hope is to keep the addicts in treatment until they reach a point where they can start curing themselves, with or without the assistance of a physician. Practitioners of harm reduction would view Dr. John (London) Marks' approach of refusing to prescribe Diconal or other dangerous drugs to addicts like Martin Scholes as likely to cause more not fewer suicides.

1.11 Had Dr. Hickey sent Mr. Scholes and a few others back out into the street despite their pain and agony -- whatever its cause -- we would never have heard of his case. Not prescribing is safe for the doctor, at least in the short run.

1.12 The harm reduction or British School approach would hold that the seemingly safe course creates only the illusion of safety. Again, taking the Scholes case as an example, had Dr. Hickey refused to prescribe, especially when the patient claimed to have lost his medicine in the laundry, the illusory safe course would have us believe that the cause of tight drug control would have benefitted both the patient and society in general. However, harm reduction would hold that due to the denial of drugs, the patient might have been even more determined to take his life and would have done so by other means. The patient might also have committed crimes to obtain money to buy the drugs of his destruction on the black market, thus widening the circle of harm by victimizing his innocent neighbors.

2. Is the General Medical Council effective and impartial in the adjudication of drug cases?

2.0 No.

2.1 The Dally case cast serious doubt in my mind on the effectiveness and impartiality of the GMC when dealing with cases of alleged improper prescribing of drugs. In the past, I had long been an admirer of British methods in dealing with drug issues. This included admiration of the GMC for the balanced good sense and intelligent restraint it displayed over the years in reviewing drug cases. I thus viewed the Dally decisions of the Professional Conduct Committee of the GMC as temporary aberrations. Subsequent events, including especially the Hickey case, have led me to believe that decisions of the GMC in the drug field have come to represent more and more only the views of a limited and powerful medical elite and not the profession as a whole. In such cases GMC decisions too often are based not on objective science but rather on the politics of the medical profession; they explain only what wing of the profession is in power at a given time and thereby controls the disciplinary machinery of the profession.

2.2 It is also my opinion that two systems or schools now operate in the United Kingdom. The first is a latter day version of Rolleston which, I believe, it is still fair to call the British System, which I have long admired and, for the most part, still do. Under this system the leaders of the medical profession, including especially those in a position to impose disciplinary sanctions, show great deference to the clinical judgments of doctors brought to their attention. Doctors who fit into this protected class, perhaps the majority of the doctors in the country, usually follow most of the rules, formal and informal, laid down by the elite, which might also be called the Drug Abuse Establishment, based mainly among the leaders of the large London clinics. Doctors in this favored class are protected from sanctions even when it would appear that they have made terrible mistakes or have taken action not in conformity with some of the formal rules.

2.3 The second school or system of drug control might be called the British-American System. It applies all of the rules of the profession with rigidity and harshness to those who contravene them. It even applies sanctions sometimes when no significant infraction can be discerned. This British-American System presumes the doctor has been wrong unless there is overwhelming evidence the other way. This system applies to those doctors who experiment with new methods of dealing with drug abuse, who openly challenge the precepts of the Drug Abuse Elite, or both. Both Ann Dally and Patrick Hickey fit into this class and felt the sting of the power of the British-American System.

2.4 Even more important than the impact of these harsh methods on doctors is their impact on patients. There is evidence that a number of patients of outcast doctors died after the doctors were forced to cease caring for them. For example, Brian Sigsworth, one of Dr. Dally’s patients who figured prominently in her trial, came back to her when he was released from prison. He pleaded with her to take him back as a patient. She reluctantly refused because of the GMC assault upon her. Later, she received news from Bing Spear that he had died of a heroin overdose, probably from heroin purchased in the black market.

3. If the British School of Thought or System is a legitimate school of practice, what are its salient features and any benefits for (a) the addicts themselves and (b) medical practitioners and drug workers operating the system and (c) for society in general?

3.1 The British School of Thought or System places reliance on the professional judgement and integrity of individual physicians. That school of thought creates great benefits for the society and its people.

3.2 Under any system of modern medicine -- British or American, Liverpool or London -- Dr. Hickey's treatment of Martin Scholes, and probably of some of his other patients, was completely within the bounds of good medical practice. The reason is that the differences between all of these systems and subsystems revolve around the issue of long-term prescribing of the drug of addiction, usually an opiate of some kind. All of these systems should accept the short-term prescription of drugs to ease the pain and anxiety of addicts or other people in psychic or physical pain or both. Supporting this line of reasoning in the UK is a section of the Rolleston Report, mentioned above. The Rolleston Committee dealt summarily with cases in which the doctor was dispensing drugs by the "gradual withdrawal method." In other words, these distinguished physicians felt that no serious issues were raised when a doctor provided drugs on a temporary basis to an addict.

3.3 I will now discuss in brief form the benefits of the British System for each of the three groups mentioned in this question, starting with the addicts.

3.4. Benefits for addicts. Perhaps the major benefit of the British system, when it is operating properly, is that it allows patients to be treated as individuals with unique problems needing a unique diagnosis and a unique treatment plan. There is no uniformity about the addict population of Britain or any country. They should be treated like any other group of patients and approached with respect, politeness, and flexibility. Their wishes should be considered in developing a treatment plan. Relatively few addicts are insane and incapable of making rational decisions affecting their own welfare. Of course, many addicts believe that they must have a steady supply of drugs to keep functioning at certain periods in their lives, and such beliefs are worthy of consideration -- although a particular doctor may well disagree with them. Many addicts on the other hand sincerely believe at certain points in their addiction careers that they must be detoxified. That wish also deserves respect. Responsible doctors do not seek to prescribe drugs for addicts who wish to get off them.

3.5 Benefits for medical practitioners and drug workers operating the system. In my opinion, the greatest benefit of the British system for the professionals operating the drug treatment system is that they are allowed to act like respected and competent professionals whose clinical judgments will be upheld in most circumstances. Such a posture of respect for professional judgments reflects the reality both of the diverse nature of the addict population and also the unsettled state of drug treatment doctrine in the modern medical world. In such a situation of protective respect, innovation can flourish.

3.6 Benefits for society in general. Drug addiction is a serious problem that causes immense distress to masses of people, those directly afflicted with the malady and their families and neighbors. However, even more harm is caused, in my opinion, by improper methods of control, treatment, and enforcement. There are no established, proven scientific methods for preventing drug abuse, for treating addicts, or for curbing the importation and sale of illegal drugs. The pursuit of the illusion that such methods are easily at hand has caused immense harm to society in general, including many innocent citizens who have nothing to do with the drug scene. The British system, when properly operated in accord with the harm reduction philosophy, provides the possibility of greatly reduced agony for addicts and their families and neighbors.

4. If the American School is a legitimate School of practice, what are its salient features and any benefits for (a) the addicts themselves, (b) the medical practitioners and drug workers operating the system, and (c) society as a whole?

4.0 This is a very difficult question and I have spent a good deal of time reflecting on a sound answer. In sum, my answer is that there are few benefits and a multitude of terrible costs.

5. What observations do you have on Dr. Hickey’s choice and use of Diconal within the scope of the British system and in particular his treatment of Martin Scholes, Merryll Johnson, and his treatment of other patients?

5.1 Obviously I cannot answer this question in terms of how I would have treated those people because I am not a doctor. However, I can express an expert opinion as to how Dr. Hickey’s approach compared to that which might have been taken by other competent physicians and how it compared to the broad range of medical opinion and practice. I can also express a viewpoint in terms of my understanding of the objective science involved in the matter. From these viewpoints, I can state quite confidently and without hesitation that his methods in dealing with these patients fit within a broad stream of acceptable medical opinion and practice.

This is also my opinion regarding his decision to prescribe Diconal.

5.2 Based on the scientific evidence and the reports of its use in clinical practice, it is my opinion that Diconal is similar to heroin and other powerful narcotics in that it is helpful to some patients at certain points in their lives, but like all drugs it carries both risks and benefits. No medicine is risk-free.

5.3 This fact was brought home dramatically by a meta-study recently reported in the Journal of The American Medical Association. The medical researchers carefully analyzed 39 scientific studies of US hospitals and came to surprising conclusions. Excluding cases of improper administration, they found that even when the drugs were properly prescribed in the controlled setting of an in-patient hospital, adverse drug reactions occurred in 6.7 percent of hospitalized patients; fatal ADRs occurred in .32 percent. Thus the researchers estimated that approximately 106,000 patients died during 1994 in US hospitals from drugs that were administered within established published guidelines. These data cover all drugs and are not confined to one class, such as narcotics. Indeed, it appears that most of the medicines administered were not narcotics. Jason Lazarou, MSc; Bruce H. Pomeranz, MD, PhD; Paul N. Corey, PhD. "Incidence of Adverse Drug Reactions in Hospitalized Patients, A Meta-analysis of Prospective Studies," JAMA, April 15, 1998 - Vol 279, No. 15, p. 1200.

5.4 With this background, I turn to the treatment of Martin Scholes. Scholes appeared to be a very difficult patient who presented a challenge to the entire medical profession precisely because he was deviant and difficult. However, it is my opinion that many doctors in the UK and elsewhere are drawn to help such patients because they do present such great challenges. Such doctors would have taken the approach that Dr. Hickey did and would have tried to keep him in treatment and off the black market. Their patience would have been tried by the alleged loss of his drugs and by his persistent agonized demands for more. But that is par for the course in addiction treatment, especially when dealing with young patients whose lives are in chaos. Some doctors might have decided to embark on a course of maintenance therapy with a powerful narcotic like Diconal. Dr. Hickey’s decision on the other hand was by some clinical standards quite conservative: to give him three prescriptions along with an attempt to enroll him in a holistic therapy program aimed at getting him drug free. The choice of Diconal, a perfectly legal medicine, was also within the bounds of respectable and responsible medical practice for the reasons I have already described.

5.5 The fact that Mr. Scholes died from the drugs prescribed was also a sad part of the universe of addiction treatment. For one reason or another, addicts in the UK and in other countries have a much higher death rate than the general population. The proper assessment of the tragic death of Martin Scholes is that this poor man died at his own hand. The chain of causation is hidden in his own psyche, and we shall never understand it fully now, but one reasonable interpretation would be: (1) he was suffering from clinical depression and perhaps other forms of mental illness; (2) he was dependent on a variety of drugs as a form of self-medication for his psychic and accompanying physical pain; (3) the drugs helped ease his pain but the pain continued to haunt him in his often chaotic life; (4) he was devastated by the prospect of the court case and the possibility of going to prison; and (5) like so many depressed addicts, he eventually decided that he could not control his self-hate (one of the components of depression) and committed the ultimate act of self-hate. If this line of reasoning be accepted, the fact that Dr. Hickey prescribed Diconal and other drugs to this man shortly before he took his own life probably delayed the suicide but in no significant way contributed to its actual occurrence.

5.6 The fact that the above interpretation was a reasonable one, or at least within the realm of opinion that might be expressed by medical experts, is documented by the coroner’s findings in two other cases that occurred in the same County of Cornwall during recent years. All three cases, Scholes included, were brought before the same coroner, Dr. John David Bruce. Mr. Scholes died on September 17, 1987. Dr. Bruce held a coroner’s inquest during the next month and found that the cause of death was "misadventure." There was no clear evidence as to precisely how he died although suicide was a strong possibility. During that hearing and in a subsequent damning letter to the GMC, he made it clear that he blamed the death on the irresponsible behavior of Dr. Hickey. It would be fair to say that the actions of Dr. Bruce led directly to the erasure of Dr. Hickey from the medical register.

5.7 Another young addict, Trevor Long, died on August 1, 1993. At the inquest in January 1994, unlike in the Scholes inquest, there was clear evidence as to how he died, tricuspid valve endocarditis, a heart disease common to injecting drug users. Several local doctors, including psychiatrist Dr. Arthur Charnaud who specialized in addiction, and several pharmacists were involved in his treatment. Mr. Long received prescriptions for large amounts of Diconal (8 to 12 and sometimes 14 tablets per day) over a period of several years; he also received many syringes. It was well known to the medical professionals that he was injecting Diconal, even though the medicine was prescribed in oral form. He was seen to be unwell on numerous occasions. The medical professionals did not, the coroner found, consult adequately with one another. Moreover, they were ignorant of the basic medical fact that injecting drug users might contract this heart disease. Dr. Bruce observed in his summary report that "the endocarditis from which he died is a treatable condition, so different management might have produced different results." This would seem to say that gross incompetence of the doctors involved, fully documented by the evidence, had caused the death of Trevor Long, a clearly preventable death according to the record of the inquest. Yet, the penultimate sentence of the inquest report by coroner Dr. John David Bruce was: "I therefore return a verdict that death was due to dependent abuse of drugs." No letters were sent to the GMC asking for action against the doctors. In my opinion, the actions of the doctors and other medical professionals in the Long case were clearly deficient by most of the standard medical measures. There is no way in which the same coroner could find that the doctor was to blame in the Scholes case and that the patient was to blame in the Long case -- unless prejudice was involved on the part of the coroner. This unfortunately seems the only rational explanation, in my opinion.

5.8 Jamie Dean Barnecutt was found dead on February 25, 1994. The inquest was held in June again under the direction of Dr. Bruce. The evidence showed that this young man was a long-time addict who had been taking injected amphetamines and tranquilizers for many years. Most of these drugs had been prescribed in the months before his death by local doctors, including Dr. Charnaud. The doctors had also prescribed Prozac as an antidepressant to help in the process of withdrawing him from all drugs. He was a heavy binge drinker and also apparently was taking methadone bought on the black market. The exact circumstances or motivation for his death were not clear although the Home Office pathologist performing the autopsy gave the cause of death as aspiration of stomach contents and a drug overdose augmented by alcohol. There was little evidence of inappropriate actions on the part of the doctors involved in prescribing for him although (1) they had been prescribing large amounts of drugs over a period of many months and (2) one of the drugs mentioned in the cause of death finding by the pathologist was a prescribed tranquilizer. Based purely on the written record, the doctors were more directly involved with this patient’s treatment and had prescribed more drugs than had Dr. Hickey in the treatment of Mr. Scholes. Dr. Bruce returned a coroner’s verdict of "death by misadventure." No letters were sent by Dr. Bruce to the GMC seeking further official action. Both the Long and Barnecut cases show how it was possible for other doctors, like the coroner Dr. Bruce, to view the Scholes case as part of the normal practice of addiction medicine in which the most important variables may well have been the often unpredictable and chaotic actions of the patients themselves -- and in which there are sometimes tragic outcomes.

5.9 My opinion of Dr. Hickey’s treatment of Merryll Johnson is that, considered against the backdrop of other such cases I have studied, it was a success. Young addicts on cocaine and amphetamines are difficult to treat. Dr. Hickey prescribed on September 11, 1987 a short course of Diconal therapy, 20 tablets. According to the patient, this medicine helped her get through a difficult period in her life without getting a prescription for the drugs she had been abusing. It is noteworthy that this successful use of Diconal therapy occurred at about the same time as the events in the Scholes case that dominate this matter. My opinion of the Johnson case, in sum, is that (1) Dr. Hickey showed skill as a therapist in helping a very difficult addict-patient; and (2) he knew how to use Diconal successfully.

5.10 My opinion of his treatment of other patients must start again with the caution that I view these matters from my limited view as a scholar and researcher. I do not claim to know all of the drugs involved or the proper therapies. However, I found nothing in any of the records presented to me that would make me form the opinion that his actions were outside the realm of respectable medical practice. Despite the findings of the GMC that all of the patients mentioned were drug addicts, I do not see most of them as addicts, except for a few of them. One of those addicts not yet mentioned was Marie Allen, who was a difficult patient. My study of the medical literature and interviews with doctors around the world leads me to believe that most doctors would have lost patience with her long after Dr. Hickey kept trying to help her. In my opinion, his treatment was unusual, but it might have saved her life. Chaotic diazepam abusers are at great risk of overdose and death, especially if they are also alcoholics, which apparently she was. Purposely attempting aversion therapy by prescribing a large dose of diazepam was risky; leaving her to continue her habit was risky also. Dr. Hickey chose a courageous path and won. His approach fits within what I view to be modern harm reduction or the British System in that respect should be shown for the clinical judgement of physicians in difficult cases where there are no risk-free therapies. Most important, this therapy worked.

5.11 Speaking again as a scholar and as a student of comparative medical methods, in my opinion Dr. Hickey was deficient compared to many other doctors I have studied in several respects. First, he did not keep adequate records and files. I have rarely encountered a doctor in my research who said that he kept most records of patient visits in his head. While I understand that some records were written down, most were not. Second, he sounded superior and almost cavalier in the way he responded to questions about his methods of practice when questioned by authorities; for example, when he refused to sum up his approach to holistic medicine, saying that it was almost unexplainable. At other times his description of how holistic medicine fit into his practice was confusing and even contradictory. Thus he was not a good witness for himself and for his medical philosophy. Third, and consistent with the second, was his admission that he did not read the Guidelines nor medical journals on a regular basis.

5.12 This seemingly cavalier attitude hid the professionalism of his methods. He stated that he did not have to conduct physical examinations of his patients. Yet it appears clear from the evidence that, like most doctors, he did indeed conduct them when he felt it was necessary. When moreover I looked at the treatment he actually provided -- as distinguished from how he described it -- it was my opinion that the treatment was competent, professional, responsible, and supported by a respectable body of physicians. It is also noteworthy that he looked over the Guidelines to the extent that he was able to see that his treatment was within their spirit. I agree with this observation to the extent that, as I have said, the Guidelines urged GPs to get involved in the treatment of addicts and also claimed to allow flexibility and individualized treatment.

5.13 His explanation of his methods often obscured the soundness of his medical decisions. At one point, for example, he said that he did not know that addicts ground up Diconal and injected it -- and that had he known, he would not have prescribed it to Mr. Scholes. At the same time I believe that his providing Diconal to this patient was responsible. I do find it surprising that any physician working with addicts in the UK would not have known in 1987 that addicts might grind up Diconal and inject it. He did say that he knew that addicts ground up many tablets but he did not know that many of them did prefer to grind up Diconal tablets and inject it.

5.14 In sum, Hickey did not always keep good records and at times seemed disorganized and even naive, but he was a competent, responsible physician who provided highly professional and effective medical service to his patients. Like many competent members of many professions, including those in the law and in academia, his deficiencies of organization in certain arenas of his work did not at the end of the day substantially interfere with his overall superior performance.

6. In relation to the words used in the programme by the Defendant generally (for a summary please see the third page of the Re-Amended Statement of Claim) please comment upon the following: On the subject of orthodoxy do you consider (i) the British School and (ii) holistic medicine to be unorthodox?

6.1 I do not consider (i) the British School and (ii) holistic practice to be unorthodox. I do suspect that at least a minority of doctors in the UK and elsewhere deliberately follow holistic principles. However, I also believe that the notion of treating the whole person, body and spirit, is gaining approval around the world in medical practice.

7. On the matter of risk, do you consider it responsible of a doctor under the British System to assess and calculate the relative risks of prescribing drugs to the addict and to society against the relative risks to the addict and society of not prescribing?

7.0 This question goes to the heart of the matter, in my opinion. As I have shown, every time a doctor decides to prescribe any drug to any patient, not only narcotics to addicts, there are serious risks. Every doctor must make judgments as to the relative risks of prescribing or not prescribing. It is my opinion that this involves a critical part of the education of doctors; this is a major element of the development of clinical wisdom over a period of years in practice. Dr. Hickey believed that, among other treatments, a prescription was indicated, in part to keep the patient in treatment with him and away from the black market, thus curbing the spread of AIDS. That is a respectable point of view, especially within the British System. It is also likely that this approach was being followed by large numbers of doctors during the 80s so as to inhibit the spread of AIDS. The approach was successful. An epidemic was averted.

8. Turning again to the words of the Defendant, in your opinion was Dr. Hickey practicing substantially within the ambit of (i) the British School and (ii) the spirit of the Guidelines?

8.1 Yes, Dr. Hickey was practicing substantially within the old or traditional British School in that he was seeking to assist a patient in turmoil and personal agony with counseling, spiritual guidance, and prescribed medicine on a temporary basis. Also, he was practicing within the spirit of the 1984 Guidelines albeit some sections and the overall tone discourage GP involvement and initiative and experimentation.

9. Do you consider that Dr. Hickey displayed a dangerous, ignorant and irresponsible attitude and approach to dispensing dangerous drugs to drug abusers which was not in their interests and which would inevitably lead to the death of one of them?

9.0 No.

9.1 Dr. Hickey was cautious and knowledgeable in his methods of prescribing drugs. He helped a great many patients deal with their drug and alcohol problems. He seemed to have a good sense of when and under what conditions to prescribe powerful drugs such as Diconal, and obtained good results with a number of patients on this medicine. Compared to many other doctors I have studied he was miserly and stingy in the manner in which he prescribed drugs to the few true drug abusers in his care. Even if I look only at Cornwall and the few doctors mentioned in the records involved in this case, he has to be considered a cautious prescriber. For example, in his statement at the inquest into the death of Trevor Long, Dr. Charnaud testified that he prescribed the patient large doses of Diconal over a period of approximately three years.

9.2 Dr. Hickey did, and was entitled to, adopt a flexible approach to the needs of individual patients. This, as we have seen, is consistent with some parts of the 1984 Guidelines.

9.3 Every doctor who treats an addict seeking a prescription for drugs is presented with the fact that the patient wants drugs from the doctor. The doctor always has the choice of saying no, with the clear knowledge that the doctor may never see the patient again. When the doctor says yes, this does not necessarily make the doctor an easy mark or a drug trafficker. Rather, this action may say that the doctor has decided to meet the request of the patient and in the process keep the patient in medical treatment. I found no evidence that Dr. Hickey was an easy mark, was being manipulated by addicts, or was a drug trafficker; quite the contrary. Dr. Hickey had strong views and was following a course aimed at helping each patient according to those views.

10. Please comment on these statements by Dr. Marks in the progammme: (1) Dr. Hickey in giving Scholes Diconal would "convert an amphetamine abuser to a Diconal abuser which is much worse;" (2) "He’s using his position as a registered doctor to take powerful conventional drugs and use them ...on way-out theory, in a way in which no doctor in this country could support;" and (3) "Scholes was a disaster waiting to happen. This man put his own narrow ideas in front of the weight of medical opinion on the management of drug addicts. If Scholes hadn’t come, sooner or later somebody similar would have come and the same outcome -- a man would have died."

10.0 I find no scientific support for these statements. With one exception, the prescribing practices of Dr. Hickey fit within the range of normality for many physicians. The one exception was Marie Allen, who was provided extra high doses of diazepam as aversion therapy. The treatment worked. Martin Scholes was given only a relatively modest dosage of drugs compared to other prescriptions by other doctors.

10.1 There is no reliable evidence that any patient died because of any treatment provided by Dr. Hickey over a period of many years. That includes Martin Scholes, who did die of an overdose of Diconal. It is unclear why he died at that time, whether by accidental overdose or suicide, although it would appear that the latter was the case. Thus, I do not believe the historical record or current science would provide any support for the statement that Scholes was a disaster waiting to happen.

I would be glad to enlarge on my answers and to provide additional information if asked.

Sincerely yours,

Arnold S. Trebach, J.D., Ph.D.

Professor Emeritus