Temple University of the Commonwealth System of Higher Education

Beasley School of Law

Project on Harm Reduction in the Health Care System

Memorandum

Date: July 3, 2000

Subject: Prescribing and Dispensing Injection Equipment in New Hampshire

INTRODUCTION

Numerous medical organizations and even the federal government itself now recommend that injection drug users (IDUs) employ a new, sterile syringe each time they inject.⁽¹⁾ Unfortunately, the number of sterile syringes required to follow this standard -- approximately one billion⁽²⁾ -- exceeds the available supply by many millions. The continuing shortage of syringes contributes to the spread of HIV, and is thus a major health problem. Many commentators have suggested that the health care system can help increase access to safe injection equipment through prescription, pharmacy sales and other measures such as hospital or clinic-based needle exchange programs (NEPs).⁽³⁾

This Memorandum assesses the legality, under New Hampshire law, of physician prescription and pharmacy sale of injection equipment to patients who are known to be injecting illegal drugs. It assumes that ensuring of a patient's access to sterile injection equipment is clinically effective and conducive to public health, ethical, and constitutes only one facet of the care the patient is receiving from the physician. These assumptions are justified and discussed in two companion reports: Zita Lazzarini, Ethical Issues in Prescribing and Dispensing Syringes to Injection Drug Users, and Josiah Rich, Syringe Prescription in Rhode Island: A Case Study. The risk of malpractice liability is discussed in a third companion piece, Professional Liability in the Prescription and Dispensing of Sterile Injection Equipment to IDU Patients, by Maxwell Mehlman.

We conclude that physicians may legally prescribe and pharmacists may legally dispense syringes to injection drug users as a health care intervention to prevent a patient acquiring or transmitting HIV.

This Memorandum addresses the following specific questions:

1) May a physician legally prescribe sterile injection equipment to an IDU patient?

2) May a pharmacist legally fill such a prescription?

3) How might New Hampshire law be changed or clarified to promote access to sterile injection equipment for IDUs through the health care system?

I. May a Physician Legally Prescribe Sterile Injection Equipment to an IDU Patient?

Answering this question requires a two-step analysis. We determine first whether prescription of sterile injection equipment is consistent with the general law governing medical practice. If so, we then ask whether any other law, such as a drug paraphernalia provision, prohibits prescription of syringes to an IDU patient. We begin with an overview of the regulatory environment.

A. The Regulatory Scheme

Medical Licensure Law

The practice of medicine in New Hampshire is governed by the Medical Practice Act, N.H. Rev. Stat. Ann. §§ 329:1 to 329:31, with regulations found in the New Hampshire Code of Administrative Rules. The state medical board has the authority to adopt rules, pursuant to this chapter. In addition, the board shall:

(a) Examine and investigate persons who apply for the authority to practice medicine in New Hampshire and license to those who are found qualified under the standards of this chapter.

(b) Investigate and examine existing licensees and commence disciplinary action concerning licensees in accordance with the standards of this chapter.

(c) Investigate and prepare reports on any matter within the scope of this chapter.

(d) Assess, compromise, and collect civil penalties against persons engaged in the unauthorized practice of medicine or other violations of this chapter.

N.H. Rev. Stat. Ann. § 329.2.

New Hampshire medical licensure law is silent on the physician's general authority to write prescriptions for or dispense drugs and devices. Leaving aside any limitations imposed by other laws, a physician is free to prescribe any drug or device she believes will benefit the patient and the prescriptions of which is consistent with proper professional conduct. According to the Medical Practice Act, the Board also has the power to take disciplinary action against a physician and limit, revoke, or suspend a license upon finding that the person:

..

(d) Has engaged in dishonest or unprofessional conduct or has been grossly or repeatedly negligent in practicing medicine or in performing activities ancillary to the practice of medicine or any particular aspect or specialty thereof, or has intentionally injured a patient while practicing medicine or performing such ancillary activities.

...

(i) Has willfully or repeatedly violated any provision of this chapter or any substantive rule of the board.

(j) Has been convicted of a felony under the laws of the United States or any state...

N.H. Rev. Stat. Ann. § 329:17.

The Board of Medical Examiners has issued regulations, but they do not govern the prescription and dispensing of drugs and controlled substances. The board does not add any disciplinary actions.

Controlled Drug Act Generally

The New Hampshire Controlled Drug Act, N.H. Rev. Stat. Ann. § 318-B:1 et seq., states that possession of or control of controlled drugs obtained as authorized shall be lawful if in the regular course of business, occupation, profession, employment, or duty of the possessor. As under the medical licensure law, the term "controlled drug" does not include a device such as a syringe, so the prescribing rules set out below are relevant only by analogy if at all.

A practitioner⁽⁴⁾ other than a veterinarian, in good faith, in the course of his professional practice, and for a legitimate medical purpose, may administer⁽⁵⁾ and prescribe controlled drugs⁽⁶⁾, or the practitioner may cause the same to be administered by a nurse or intern under his direction and supervision. In a bona fide emergency situation, the practitioner may dispense⁽⁷⁾ a controlled drug to a patient under his care but only in a quantity not to exceed a 48-hour supply for all schedule II substances or a 7-day supply of schedule III, IV, or V substances.

N.H. Rev. Stat. Ann. § 318-B:10(I). In addition, "[a]n individual to whom or for whose use any controlled drug has been prescribed, sold, or dispensed by a practitioner or pharmacist, or other person authorized under the provisions of N.H. Rev. Stat. Ann. § 318-B:5 or 8, ... may lawfully possess it only in the container in which it was delivered to him by the person selling or dispensing the same." N.H. Rev. Stat. Ann. § 318-B:14(I).⁽⁸⁾

Syringe Prescription Law

The Pharmacy Act includes specific provisions regulating sale, control/possession, and prescription of hypodermic syringes. As amended in 2000⁽⁹⁾, the law provides:

I. (a) Hypodermic syringes, needles or any instrument adapted for the administration of drugs by injection shall not be sold except in registered pharmacies. No person shall sell, furnish, or give to any person or persons other than a duly licensed physician, ...pharmacist, ... or any other medical institution or a state or governmental agency, or a regular dealer in medical, dental or surgical supplies, or a resident physician or intern or advanced registered nurse practitioner of a hospital, sanitarium or other medical institution, under 18 years of age, an instrument commonly known as a hypodermic syringe, hypodermic needle or any instrument adapted for the administration of drugs by injection without the written or oral prescription of a duly licensed physician, dentist, veterinarian, or advanced registered nurse practitioner. Such prescription shall contain the name and address of the patient, the date of the prescription, the description of the instrument prescribed, and the number of instruments prescribed.

(b) The following conditions shall apply to all purchases of hypodermic syringes or needles:

(1) Pharmacists shall provide to each purchaser at the time of purchase information regarding the safe disposal of hypodermic syringes or needles, including local disposal locations or a telephone number to call for such information, if appropriate.

(2) Pharmacists shall also provide purchasers with information on drug addiction treatment, including a local telephone number to get assistance, if appropriate.

(c) A purchaser shall not be sold more than 10 syringes or needles at any single purchase unless such purchaser has a prescription for a bulk purchase.

(d) The commissioner of health and human services shall adopt rules, under RSA 541-A, relative to:

(1) The content, format, and distribution of any materials required under this paragraph.

(2) Any other matter necessary to administer this paragraph.

N.H. Rev. Stat. Ann. § 318:52-c(I). The control or possession of a hypodermic syringe is prohibited without a prescription for persons under 18 years of age. As amended in 2000,⁽¹⁰⁾ the law provides:

No person under 18 years of age shall have under his or her such person's control or possess a hypodermic syringe, hypodermic needle, or any instrument adapted for the administration of drugs by injection, except a duly licensed physician, ..., pharmacist, ... registered wholesale druggist, manufacturing pharmacist, manufacturer of surgical instruments, official of any government having possession of the articles covered by this section by reason of his official duties, paramedical personnel acting under the direction of a physician, dentist, ... or other licensed medical institution acting under the direction of its superintendent or officer in immediate charge, a carrier or messenger engaged in the transportation of such articles during the official performance of his duties, or a unless the person who has received a written or oral prescription issued under N.H. Rev. Stat. Ann. § 318:52-c. For the purpose of this subdivision, no such prescription shall be valid which has been outstanding for more than one year. Provided, however, that the industrial use of hypodermic syringes, needles or instruments in any manufacturing process not utilizing drugs shall not be prohibited, so long as such use is under the proper supervision of a designated person or persons; and such hypodermic syringes, needles or instruments may be purchased for such use from a registered drug store without a written or oral prescription issued under N.H. Rev. Stat. Ann. § 318:52-c.

N.H. Rev. Stat. Ann. § 318:52-e. The Pharmacy Act also discusses the recording and filling of prescriptions for hypodermic syringes.⁽¹¹⁾

Every person who dispenses, sells, furnishes, or gives away a hypodermic syringe or hypodermic needle or an instrument adapted for the administration of drugs by injection, upon the written or oral prescription of a duly licensed practitioner under RSA 318:52-c, shall record over his such person's signature the date of sale or furnishing of the instrument and the number of instruments sold. This prescription shall be retained on file for a period of 4 years and shall be open to inspection by any public officer or employee engaged in the enforcement of RSA 318 or 318- B.⁽¹²⁾ A prescription filled in accordance with this section shall be sufficient authority, without the necessity of a renewal or reissuance, to permit subsequent sales or the furnishing of hypodermic syringes or hypodermic needles or instruments adapted for the administration of drugs by injection to the person to whom the prescription was issued for a period of one year from the date of its original issuance.

N.H. Rev. Stat. Ann. § 318:52-d.

Drug Paraphernalia Law

The New Hampshire Drug Paraphernalia Act, based on the Justice Department's model act, reprinted in Annotation, Validity, under Federal Constitution of So-called "Head Shop" Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related Paraphernalia, 69 A.L.R. Fed. 15 (1984 & Supp. 1998), is found in the Controlled Drug Act. N.H. Rev. Stat. Ann. § 318-B:2. The act provides a tri-partite definition of "drug paraphernalia." Until amended this year,⁽¹³⁾ it defined drug paraphernalia generally as "all equipment, products and materials of any kind which are used or intended for use or customarily intended for use in ...concealing, injecting, ingesting, inhaling ... or otherwise introducing into the human body a controlled substance in violation of this chapter," N.H. Rev. Stat. Ann. § 318-B:1(X-a), and made it a crime for "any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance," RSA 318-B:2, II. The 2000 needle deregulation legislation removed syringes from the coverage of the act by cutting both the act's references to injecting. Violation is a misdemeanor. Id. § 318-B:26.

B. Analysis

The first question is whether prescription of sterile injection equipment to IDUs is generally authorized under statutes governing medical practice. The syringe prescription laws, N.H. Rev. Stat. Ann. §§ 318:52-c will allow a physician to directly provide ten or fewer needles to a patient, and will allow any adult to buy ten or fewer needles at a pharmacy without a prescription. We consider here the legality of prescriptions to IDU patients in any number prior to January 1, 2001, and in numbers greater than ten thereafter.

These provisions prohibit sale, furnishing or possession of syringes (in quantities greater than ten) to individuals over 18 years of age without a physician's prescription. The syringe prescription provision by its terms imposes no limits on a physician prescribing a syringe, and is premised on the legality of a physician writing such a prescription We assume, in this case, that the authority granted under the prescription statute would be construed to require that the prescription comport with general medical standards. New Hampshire law nowhere sets out in positive terms the extent or basis of the physician's general authority to write prescriptions for syringes or other devices. This authority is assumed, as an aspect of the professional practice of medicine. The law and regulations governing the prescription of controlled drugs, however, set out the standards that would almost certainly be borrowed by courts in a syringe prescription case. Under these laws, a prescription is valid if it is written if good faith, for a legitimate medical purpose, in the normal course of professional practice. N.H. Rev. Stat. Ann. § 318-B:10(I). (A similar standard is used throughout the country.) A prescription for sterile injection equipment, issued to a patient who cannot or will not enter drug treatment, for the purpose of preventing the transmission of a serious communicable disease during injection, would seem to be well within the parameters of allowable discretion set by this standard.

No cases in New Hampshire have assessed the legality of a syringe prescription, let alone one to an IDU. There are no reported cases of a physician being prosecuted for misprescribing controlled substances. Cases under similar federal and state laws, however, help specify the requirements. In normal usage, "good faith" entails a genuine concern for the well-being of the patient and others who might be infected through sharing injection equipment with the patient, and conduct devoid of malice or deception: "Good faith is that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." The People v. Lonergan, 219 Cal.App.3d 82, 90, 267 Cal.Rptr. 887, 892(1990)(citation and quotations omitted). A physician who is providing syringes to a patient who cannot or will not enter drug treatment, and whose injection drug use places him at high risk of contracting or spreading a communicable disease, should have no difficulty satisfying this prong of the prescription standard.

In determining whether a prescription arises within the usual course of professional practice, courts may consider such matters as whether a bona fide physician-patient relationship existed, whether other care was provided, whether proper records were kept of the encounter, whether the prescription was based on a proper history or individualized assessment of the patient's risk factors, efforts to provide other harm reducing services, follow up and so on. See State v. Young, 406 S.E.2d 758, 771 (W.Va. 1991) (prescription written on street to patient who had not been properly examined was not in course of professional practice). See generally United States v. Moore, 423 U.S. 122, 142-43, 96 S.Ct. 335, 345 ("The evidence presented at trial was sufficient for the jury to find that respondent's conduct exceeded the bounds of "professional practice." As detailed above, he gave inadequate physical examinations or none at all. He ignored the results of the tests he did make. ... He did not regulate the dosage at all, prescribing as much and as frequently as the patient demanded. He did not charge for medical services rendered, but graduated his fee according to the physician."). A physician prescribing syringes to bona fide patients in his regular office or in a clinic, keeping records and providing other treatment services, would not be at risk of failing this prong of the test.

Courts in other jurisdictions have described a legitimate medicinal or therapeutic purpose as one that is "'recognized' or 'accepted'" by the medical profession. Hurwitz v. Board of Medicine, 1998 WL 972259, *1 (Va. Cir. Ct. 1998). Such acceptance or recognition must be shown by competent medical evidence. Id. One measure of legitimacy is whether a physician "render[s] proper medical care to his patients." Greenspan v. Osherhoff, 232 Va. 388, 398, 351 S.E.2d 28, 35 (1986). It is often said to be the burden of the prosecution to prove not simply that some physicians disagree with the practice at issue, but that "'no' responsible segment of the medical profession exists which accepts appellant's methods." See, e.g., Commonwealth v. Salameh, 421 Pa.Super. 320, 324, 617 A.2d 1314, 1316 (1992), appeal denied, 536 Pa. 641, 639 A.2d 26 (1994).⁽¹⁴⁾ Unanimity of medical opinion is not required. See, e.g., Glover v. Board of Medical Quality Assurance, 231 Cal.App.3d 203, 282 Cal.Rptr. 137 (1991). See generally S.E. Stone, The Investigation and Prosecution of Professional Practice Cases under the Controlled Substances Act: Introduction to Professional Practice Case Law. 21 Drug Enforcement 23 (1983). There is ample support for the position that prescribing sterile injection equipment comports with treatment principles accepted by a responsible segment of the medical profession. See Zita Lazzarini, Ethical Issues in Prescribing and Dispensing Syringes to Injection Drug Users, and Josiah Rich, Syringe Prescription in Rhode Island: A Case Study. Given this medical evidence, it would also be difficult to argue that providing sterile injection equipment falls beneath the minimal standards of professional practice set forth in the laws governing the practice of medicine.

Conclusion: A prescription for sterile injection equipment to an IDU patient is consistent with the standard for a valid prescription under New Hampshire laws governing the physician's authority to prescribe.

We turn now to the second question: Do any other laws prohibit physicians from prescribing sterile injection equipment to IDU patients?

The main possibility is the drug paraphernalia law. As we will discuss further in the pharmacy analysis below, we have concluded that the syringe prescription law, rather than the drug paraphernalia law, governs prescribed syringes. For purposes of this portion of the analysis, however, we will assume that syringes are covered by the general provisions of the drug paraphernalia law.

As of January 2001, the drug paraphernalia law act will no longer act as a barrier to syringe prescription. The recent amendments to N.H. Rev. Stat. Ann. § 318-B:1 explicitly delete equipment "used or intended for use in...injecting...a controlled substance" from the definition of drug paraphernalia. Moreover, "inject" has also been deleted from the list of unlawful activities enumerated in N.H. Rev. Stat. Ann. § 318-B:2.

Even without the new language, however, the paraphernalia law does not prohibit the writing of a syringe prescription for an IDU patient. The law makes it "unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to ... inject, ... or otherwise introduce into the human body a controlled substance." N.H. Rev. Stat. Ann. § 318-B:2. "Deliver" is not defined in New Hampshire's Controlled Drug Act, or elsewhere in its analogous laws, but generally means "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship." Cal. Health & Safety Code §11009.A delivery would require the syringe to pass from the possession of the physician into the possession of the patient, and so each entails the physician' actually, or at the very least constructively, possessing the syringe.

A physician who writes a prescription for an item is not actually transferring possession of that item to the patient, but merely providing the patient with instructions and authorization for the pharmacist who will transfer possession by dispensing the prescription. Nor does the concept of a constructive possession and delivery embrace the writing of a prescription. Constructive delivery requires at least constructive possession. This term is not defined in New Hampshire law, but is usually said to exist "where a defendant maintains some control or right to control contraband that is in the actual possession of another." People v. Morante, 20 Cal.4th 403, 417, 975 P.2d 1071, 1080, 84 Cal.Rptr.2d 665, 674(1999). The authority to write a prescription for a syringe does not give the physician the ability to exercise control or dominion over it; like the patient, he would have to go to the pharmacy and purchase the syringe in order to possess it.⁽¹⁵⁾

Conclusion: Writing a prescription for a syringe does not violate any New Hampshire law. A physician may therefore legally prescribe injection equipment to an IDU patient.

II. Does Dispensing a Needle by a Pharmacist to an IDU Based on a Physician's Prescription Violate New Hampshire's Drug Paraphernalia or Syringe Prescription Laws?

A. The Regulatory Scheme

Medical Licensure Law

The practice of pharmacy in New Hampshire is governed by the Pharmacy Act, N.H. Rev. Stat. Ann. §§ 318:1 to 318:55, with regulations found in the New Hampshire Code of Administrative Rules. The Act vests in the State Board of Pharmacy power to adopt such rules pursuant to this chapter. N.H. Rev. Stat. Ann. § 318:5-a.

Pharmacists are governed by the hypodermic prescription provision, N.H. Rev. Stat. Ann. § 318:52-c et seq. and recent amendments, described above. In particular, the amendments require pharmacists to provide purchasers with information regarding proper syringe and needle disposal practices and information on drug addiction treatment.⁽¹⁶⁾

Misconduct sufficient to support disciplinary proceedings under the Pharmacy Act shall include:

...

(b) Conviction of a felony or any offense involving moral turpitude;

(c) Any dishonest or unprofessional conduct, or gross or repeated negligent conduct in the practice of pharmacy or in performing activities ancillary to the practice of pharmacy or any particular aspect or specialty thereof;

(d) Behavior which demonstrates a clear conflict with the basic knowledge and competence expected of licensed pharmacists or any particular aspect or specialty of the practice of pharmacy, or any intentional act which demonstrates a clear inconsistency with the health and safety of persons making use of the professional services of any person licensed under this chapter;

...

(g) Willful or repeated violation of any provision of this chapter, any substantive rule of the board, or any other federal, state, or local drug or pharmacy-related law, rule, or regulation.

N.H. Rev. Stat. Ann. § 318:29. The Board of Pharmacy rules define "unprofessional conduct" as conduct and practices which are hostile to the protection of public health, safety and welfare and includes:

(1) Knowingly engaging in any activity which violates state and federal statutes, regulations and rules governing the practice of pharmacy;

...

(4) Knowingly altering prescriptions or other records which the law requires the pharmacy or pharmacist to maintain;

(5) Knowingly dispensing medication without proper authorization or prescription;

...

N.H. Code Admin. R. Ann. Ph. 701.02(r).

A pharmacist is authorized to dispense medications ordered by a valid prescription, and is ordinarily expected to do so in the absence of a good reason to refuse. Strauss S. The Pharmacist and the Law. Baltimore MD: Williams & Wilkins, 1980:29-31; Steven W. Huang, The Omnibus Reconciliation Act of 1990: Redefining Pharmacists' Legal Responsibilities, XXIV Am. J. L & Med. 417 (1998). The pharmacy regulations state that:

(b) A licensed pharmacist shall:

...

(2) Never condone the dispensing, promoting or distributing of drugs or medical devices, or assist therein, which are not of good quality, which do not meet standards required by law or which lack therapeutic value for the patient;

...

(5) Observe the law, uphold the dignity and honor of the profession, and accept its ethical principles;

(6) Pharmacists shall not engage in any activity that will bring discredit to the profession and shall expose, without fear or favor, illegal or unethical conduct in the profession;

...

(10) Not agree to practice under terms or conditions which tend to interfere with or impair the proper exercise of professional judgment and skill, which could tend to cause a deterioration of the quality of his/her service or which require him/her to consent to unethical conduct;

...

N.H. Code Admin. R. Ann. Ph. 501.01.

Controlled Drug and Drug Paraphernalia Laws

The paraphernalia law discussed in I.A. above are also applicable to pharmacists. The controlled drug act has a separate provision entitled Sale By Pharmacists. It states that:

A pharmacist, in good faith and in the course of his professional practice, may sell and dispense controlled drugs ... A pharmacist, in good faith, may sell and dispense controlled drugs requiring prescriptions to any person upon the written prescription of a practitioner, provided it is properly executed, dated and signed by the person prescribing on the day when issued and bears the full name and address of the patient for whom, ... the drug is dispensed, or upon oral prescription, ... provided said oral prescription is promptly reduced to writing by the pharmacist, stating the name of the practitioner so prescribing, the date, the full name and address of the patient for whom, or the owner of the animal for which, the drug is dispensed, and, in all instances, the full name, address and registry number under the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended, or federal food and drug laws of the person so prescribing. ... The person filling the prescription shall write the date of filling and his own signature on the face of the prescription. The prescription shall be retained on file by the proprietor of the pharmacy in which it is filled for a period of 4 years so as to be readily accessible for the inspection of any officers engaged in the enforcement of this chapter. The prescription as to a controlled drug may be refilled pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. The person refilling a prescription for a controlled drug shall record on the prescription the date of refill, the quantity dispensed, and his initials.

N.H. Rev. Stat. Ann. § 318-B:9.

The regulations for the Controlled Drug Act do not make clear whether a pharmacist has an independent responsibility to ensure that controlled drugs are properly prescribed. However, in most states, "the responsibility for the proper prescribing is upon the prescriber, but a corresponding responsibility rests with the pharmacist who dispenses the prescription." Ohio Admin. Code § 4729-5-30.

B. Analysis

After January 1, 2001, pharmacies will be allowed to sell up to ten syringes without a prescription. The amendments do not alter the physician's discretion to prescribe more than ten syringes. We have concluded above that a physician's prescription for any reasonable quantity of sterile injection equipment, written under the factual conditions assumed for purposes of this Memorandum, is valid under New Hampshire law. The syringe prescription statute does not set any additional substantive standards for filling a syringe prescription, but rather simply requires a prescription as a condition of sale to a person under eighteen years of age. Ordinarily, the pharmacist is required to fill a valid prescription. The next question is whether filling the prescription would be prohibited under any other provision of law.

Here again the issue is the paraphernalia law. Under the recently amended provisions of the paraphernalia and syringe prescription laws, the paraphernalia statute will not prohibit pharmacists from dispensing syringes. The amended language deletes "inject" and "injecting" from the definition of drug paraphernalia and its criminal provisions. Until the amendments take effect in January of 2001, the fundamental question is whether the sale of a syringe dispensed by a valid prescription, for legitimate medical reasons, is prohibited by New Hampshire's paraphernalia law. We conclude that it is not.

New Hampshire has two distinct paraphernalia provisions, a "general" prohibition, N.H. Rev. Stat. Ann. § 318-B:2II, and a "retail" one, id § II-a:

II. It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

II-a. It shall be unlawful for any person, at retail, to sell or offer for sale any drug paraphernalia listed in N.H. Rev. Stat. Ann. § 318-B:1(X-a).

The first question to be addressed is necessarily which of these provisions would apply to a pharmacist selling prescription syringes. Although both deal with paraphernalia, there are significant differences in the conduct prohibited by the two provisions. An examination of these differences demonstrates that the retail, rather than the general, prohibition applies to retail pharmacies, and that the retail provision does not and was not intended by the legislature to restrict the sale of prescription syringes.

The general prohibition, section II, is the typical prohibition provision based on the model act. It includes a scienter requirement: one can only break the law if one "knowingly" delivers paraphernalia - i.e., acts with knowledge or substantial certainty that the object will be used to inject a controlled substance. The general prohibition applies to any transfer, whether for pay or gratis, by anyone who has this intent. The retail prohibition, section II-a, applies more narrowly to retail sellers, and has no intent requirement. The retail provision makes it a crime to sell any item of paraphernalia "listed in N.H. Rev. Stat. Ann. § 318-B:1(X-a)," regardless of intent. Section 318-B:1(X-a) is the definition of "drug paraphernalia" at the beginning of the Controlled Drug Act. Like the model act, it has a general definition of paraphernalia and then a list of specific items that qualify as paraphernalia. Taking "listed" in its plain and common meaning⁽¹⁷⁾

compels the conclusion that the retail provision, unlike the general prohibition, would not cover unenumerated items like paper clips or cigarette rolling papers that had both legitimate and illegitimate uses.⁽¹⁸⁾

The question of which of these two sections applies to pharmacists is one of statutory construction. On questions of statutory interpretation, the Supreme Court "is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.'" State Employees' Ass'n v. Cheney, 119 N.H. 822, 826, 409 A.2d 775, 777 (1979). The court begins its examination with the plain meaning of the words used in the statute according to the common and approved usage of the language. RSA 21:2; Town of Wolfeboro v. Smith, 131 N.H. 449, 452, 556 A.2d 755, 756 (1989). We will not place a literal interpretation on a phrase when doing so removes it from the context of the whole, State ex rel. Fortin v. Harris, 109 N.H. 394, 395, 253 A.2d 830, 830-31 (1969), nor will we construe a statute as unconstitutional where it is susceptible of a constitutional construction, White v. Lee, 124 N.H. 69, 77-78, 470 A.2d 849, 854 (1983), but we will not modify the meaning of a statute that is plain on its face, Appeal of Cremin, 131 N.H. 480, 483, 554 A.2d 1298, 1300 (1989). Where statutory language is clear and unequivocal there is no need to examine the legislative history for further illumination as to the legislature's intent. Chroniak v. Golden Investment Corp., 133 N.H. 346, 351, 577 A.2d 1209, 1213 (1990);

State v. Johnson, 134 N.H. 570, 575-76, 595 A.2d 498, 502 (1991). "We look to the plain meaning of the words used in the statute when possible. Nevertheless, we do not assume that the legislature would enact statutory language that would lead to an absurd result." Atwood v. Owens, 142 N.H. 396, 398, 702 A.2d 333, 335 (1997) (citation omitted). Finally,

It is a well-recognized rule of statutory construction that where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the latter will be regarded as an exception to the general enactment where the two conflict. 2A Sutherland Statutory Construction § 51.05, at 315 (4th ed. 1973); see In re Robert C., 120 N.H. 221, 225, 412 A.2d 1037, 1039 (1980); see also People v. Breyer, 139 Cal.App. 547, 550, 34 P.2d 1065, 1066 (1934).... Cf. Attorney-General v. Duncan, 76 N.H. 11, 15, 78 A. 925, 927 (1911);

State v. Bell, 125 N.H. 425, 432, 480 A.2d 906, 911 (1984).

The retail provision is more specific than the general one in the conduct it prohibits, the people it covers, and the range of objects it regulates. In the instance of pharmacy sales of syringes (at least) it conflicts with the general prohibition. Moreover, applying the general provision to pharmacy syringe sales would produce an absurd result.

The retail provision prohibits sale only of paraphernalia on the list in the definition section of the Controlled Drug Act. Although it generally adopted the text of the model act without amendment, the legislature in New Hampshire declined to follow the model act's inclusion of hypodermic needles and syringes from the list. Thus, by design, the plain text of the retail paraphernalia prohibition avoids conflict with the syringe prescription law. It does not interfere with the pharmacist's discretion to dispense a syringe pursuant to a valid prescription, because it does not apply to syringes.

Reading the general prohibition to apply to pharmacists selling needles would not only create a conflict between the syringe prescription law and the paraphernalia law, but would literally make it illegal for pharmacists to dispense syringes for use with any controlled substance, even if the medication had been properly ordered by a physician in full compliance with the Controlled Drug Act. This problem arises because the New Hampshire paraphernalia law omits a qualifier found in the model act and most other states' laws: the general paraphernalia law makes it unlawful to deliver an item knowing that it will be used to consume controlled substances; most other states' statutes and the model act apply only when the paraphernalia is to be used to consume controlled substances in violation of controlled substances laws. Thus a pharmacist could not dispense a syringe to a terminally ill patient to inject legally prescribed morphine, a controlled substance. This is an absurd result, which the legislature cannot reasonably be said to have intended. By contrast, the list of paraphernalia covered by the retail syringe prohibition does not include syringes, while the items that are included would not be dispensed by a pharmacist for legitimate medical reasons.

Reading the retail, rather than the general, prohibition to apply to pharmacists is also required by the rule of lenity in the construction of criminal statutes. "The rule of lenity serves as a guide for interpreting criminal statutes where the legislature failed to articulate its intent unambiguously. The rule generally holds that ambiguity in a criminal statute should be resolved against an interpretation which would increase the penalties or punishments imposed on a defendant." State v. MacLeod, 141 N.H. 427, 434, 685 A.2d 473, 479 (1996) (citations omitted).

The paraphernalia provisions and the syringe prescription law add up to a sensible and consistent legislative scheme that is carefully crafted to forbid drug stores and other retail outlets from operating as head shops doing a trade in drug paraphernalia, without interfering with the sale of hypodermics by proper physician prescription. Apart from its validity as an exercise in plain-language statutory interpretation, this reading also respects the legislature's intent in passing the paraphernalia law.

The paraphernalia law was passed in 1981, as part of a national trend, led by the federal government, to eliminate what had become a burgeoning commercial trade in the tools of drug use: By 1976, between fifteen and thirty thousand "head shops" did an annual three billion dollar business in such items as rolling papers, bongs and freebasing kits. See Kimmelman, supra; Lawrence O. Gostin & Zita Lazzarini, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 Emory L. J. 587, 611-12 (1997) (reviewing Congressional investigation of paraphernalia problem). Paraphernalia laws, including New Hampshire's, were aimed at head shops, not doctors and pharmacists. The fact that hypodermics were removed from the list of drug paraphernalia in the definition, and the fit between the retail paraphernalia and syringe prescription law, demonstrate that the legislature never intended for the paraphernalia law to restrict the professional discretion of physicians and pharmacists established in the syringe prescription law.

Conclusion: Dispensing sterile injection equipment by prescription to known IDUs does not violate New Hampshire law.

III. How Might New Hampshire Law Be Changed or Clarified to Promote Access to Sterile Injection Equipment for IDUs Through the Health Care System?

This Memorandum has concluded that physicians may prescribe and pharmacists may dispense sterile injection equipment to IDUs as a health-care intervention to prevent the transmission of blood-borne pathogens. New Hampshire has substantially deregulated the sale and possession of injection equipment. Nevertheless, several legal measures would add clarity to the legal situation or otherwise protect public health by enhancing access to safe injection equipment.

1. The Medical and Pharmacy Boards have the power to and should issue regulations explicitly stating that providing sterile injection equipment to IDU patients in order to prevent transmission of a serious communicable disease is an acceptable medical/pharmacy practice. N.H. Rev. Stat. Ann. §§ 329:1 to 329:31 (Medical), N.H. Rev. Stat. Ann. § 318:5-a (Pharmacy).

2. The Medical and Pharmacy Boards should require training in the theory and practice of harm reduction as part of mandated continuing education. N.H. Rev. Stat. Ann. § 329:16-g (Medical), N.H. Code Admin R. Ann. Ph. 403.2 (Pharmacy).

1. U.S. Public Health Service & Infectious Diseases Society of America, Guidelines for the Prevention of Opportunistic Infections in Persons Infected with Human Immunodeficiency Virus, 48 (RR10) MMWR 1 (1999); U.S. Public Health Service. HIV prevention bulletin: medical advice for persons who inject illicit drugs. Atlanta, GA and Rockville, MD: U.S. Public Health Service, May 8, 1997; accord J. Normand, D. Vlahov, & L. Moses eds. Preventing HIV Transmission: The Role of Sterile Needles and Bleach (1995) (National Academy of Sciences); Statements/Resolutions/Policies on Increased Access to Clean Needles and Syringes (collected at http://www.sfaf.org/prevention/needleexchange/statements.html); T. Stephen Jones and David Vlahov, Use of Sterile Syringes and Aseptic Drug Preparation Are Important Components of HIV Prevention Among Injection Drug Users, 18 J Acquir. Immune Defic. Syndr. S1 (Supp. 1, 1998).

3. Id.; Scott Burris, Peter Lurie, Daniel Abrahamson, and Josiah Rich, Physician Prescribing of Safe Injection Equipment to Prevent HIV Infection: Time for Action, __ Annals of Internal Medicine __ (2000); T. Stephen Jones, Should Pharmacists Sell Sterile Syringes to Injection Drug Users? 39 J Am Pharm Assoc 1 (1999); Alvin Novick, A Duty to Care: Sterile Injection Equipment and Illicit-drug Use, 11AIDS & Pub. Pol'y J. 63 (1996).

4.

"Practitioner" means any person who is lawfully entitled to prescribe, administer, dispense or distribute controlled drugs to patients;

N.H. Rev. Stat. Ann. § 318-B:1(XXVI).

5.

"Administer" means an act whereby a single dose of a drug is instilled into the body of or given to a person or animal for immediate consumption or use.

N.H. Rev. Stat. Ann. § 318-B:1(I-a).

6.

"Controlled drugs" means any drug or substance, or immediate precursor, which is scheduled pursuant to N.H. Rev. Stat. Ann. § 318-B:1-a.

N.H. Rev. Stat. Ann. § 318-B:1(VI).

7.

"Dispense" means to distribute, leave with, give away, dispose of, deliver, or sell one or more doses of and shall include the transfer of more than a single dose of a medication from one container to another and the labeling or otherwise identifying container holding more than a single dose of a drug;

N.H. Rev. Stat. Ann. § 318-B:1(VIII).

8. The Controlled Drug Act also includes prohibitions against deceit and fraud relating to prescriptions:

V. No person shall obtain or attempt to obtain a controlled drug:

(a) By fraud, deceit, misrepresentation, or subterfuge;

(b) By the forgery or alteration of a prescription or of any written order;

(c) By the concealment of a material fact; or

(d) By the use of a false name or the giving of a false address.

VI. No person shall willfully make a false statement in any prescription, order, report, or record required hereby.

VII. No person shall, for the purpose of obtaining a controlled drug, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, practitioner, or other authorized person.

VIII. No person shall make or utter any false or forged prescription or false or forged written order.

Id. § 318-B:2.

15. It should be noted that courts interpreting controlled substances laws have sometimes interpreted terms like "sell," "dispense," "furnish" or "distribute" to embrace the writing of a prescription for a controlled substance. See, e.g., Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214 (1920); United States v. Thompson, 624 F.2d 740 (C.A.5, 1980); Commonwealth v. Comins, 371 Mass. 222, 356 N.E.2d 241 (1976), certiorari denied (1977), 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793; State v. Moody, 393 So.2d 1212 (La. 1981). See generally Christopher Vaeth, State Law Criminal Liability of Licensed Physician for Prescribing or Dispensing Drug or Similar Controlled Substance, 13 A.L.R.5th 1, 73-84 (1993). This interpretation, however, is not supported by New Hampshire law.

Although a physician who prescribes a syringe does not physically provide a needle to the patient, and therefore could not be said to engage in conduct potentially covered by the paraphernalia statute, there is a risk that prescribing a syringe could be prosecuted as aiding and abetting a violation of the paraphernalia statute that would occur when the pharmacist dispensed the syringe, or for conspiracy to violate the paraphernalia statute. These charges are available to a motivated prosecutor. The risk to the physician is slight, however, for several reasons. Such a prosecution would be unusual: there is no reported case in New Hampshire of a charge of aiding and abetting a paraphernalia violation, nor are either conspiracy or accomplice charges commonly deployed where the core offense is a misdemeanor. More importantly, both crimes depend upon the underlying illegality of providing sterile injection equipment by prescription. Our analysis suggests that this behavior is not a crime. With a valid prescription, a patient is not violating the paraphernalia law when he purchases the needle, and the physician, or pharmacist, cannot be his accomplice or co-conspirator.

18. Indeed, the constitutionality of statutes based on the model act has generally turned on the scienter requirement, which cures the problem of broad definition of paraphernalia: because almost anything could be turned into drug paraphernalia based purely on the recipient's intentions, statutes only provide fair warning of what is prohibited if they require a showing that the defendant actually knew of the planned illegal use. See Lawrence O. Gostin & Zita Lazzarini, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 Emory L. J. 587, 614-15 (1997). The retail prohibition in New Hampshire avoids this problem by including only the enumerated items, and not those that might fall under the broader definition.