Addiction is not new. Drug trade wars have been fought.
Legislation passed. Empires funded. Social ills disguised, profits made,
careers progressed, lawyers enriched, jails filled, politicians acclaimed,
lives ruined.
Fundamental to addiction is that humans are strongly adapted
to both habit formation and habit reinforcement. Whether these be physical
habits such as how to walk or kick a football, social habits such as preferring
to speak with people who have the same interests, cognitive biases such as selecting
evidence which supports our view, or political biases such as liberalism or
conservatism. These are all, to some extent, habits.
Addictive behaviour is indicative of particularly strong habit
reinforcement. Addiction is built upon our neurological habit-forming processes,
our desire for pleasure, our capacity to prefer perverse arguments, our need
for social conformity (or the reverse), and highly unpleasant withdrawal
effects, lest we forget.
Understandably, given the machinery that’s at work, some
refer to a ‘compulsion’ to obtain and take drugs. An addict who says he is
compelled is not blamed. Those who are not blamed are more likely to seek help.
But in the eyes of the law, what counts as compulsion? A review of the concept
of “reasonable legal person” suggests that what many believe about substance-related
compulsion is not supportable at common law. For many addicts, if addiction is
an injury it is a preferred injury, for which there can be no indemnity.
Addictive prescription drugs are currently in the news; a
high standard of care is rightly expected from prescribing physicians and
evidence of breach is unfortunately, commonplace. Hundreds of thousands of
overdoses have resulted, at great cost.
Those who fund addiction-related social and medical services
may feel that the prescription drug-related cost of these services should be
repaid by someone- preferably someone with deep pockets and that includes reinsurance.
But these same authorities could also have prevented the problem, and did not.
They are certainly not blameless. Adopting the compulsion concept but without
providing the right response, has encouraged helplessness. The legal battle
continues, Med Mal and Pharma reinsurers await their fate. Will their policy
exclusions be watertight? When did the alleged injury occur?
Addiction has also been taken up as part of our day to day
vocabulary. Any activity done to excess is now called an ‘addiction’. Usage is
metaphorical rather than medical or legal. Shopping, smart phone use, internet
searching and even plastic surgery addiction is referred to as if
phenomenologically equivalent to drug addiction. The problem here is that
medical political authorities are encouraging the spread of the addiction
concept to these and other areas, such as food. This is a cause for concern to
insurers quite generally. What about caffeine addiction liability? What about
chocolate addiction liability? What about computer games addiction liability?
Should all forms of addiction liability be excluded or just addiction to
certain substances/activities?
Exclusions are just one response. A thorough understanding
of addiction gives rise to insights into the full range of medico-legal
concepts. Is addiction cumulative? Is it indivisible? What is the proximate
cause? What would count as indemnity? Opportunity for defences depends on
understanding the nature of addiction. Opportunity for coverage likewise.
A detailed report on addiction and medico-legal issues has
been circulated to Radar service
subscribers. It serves as a knowledge platform for detailed enquiry into the insurance
of addictive drugs and answers many of the ‘fashionable addiction’ questions.
