The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
REPORT AND RECOMMENDATION
This matter was referred to me by Judge Seybert to conduct an immediate hearing regarding Defendant David Brooks' prescribed medications, issues arising from changes to that regimen, and the impact, if any, on Brooks' ability to assist his attorneys in his defense. The hearing was conducted on February 8, 2010 and the following information constitutes my Report and Recommendation to Judge Seybert.
On January 14, 2010, Defendant David Brooks ("Defendant" or "Brooks") was arrested and placed in the custody of the Nassau County Correctional Center ("NCCC").*fn1 Subsequently, the issue of Defendant's medication was raised with the Court and, on January 20, 2010, after reviewing a letter submission from Dr. Michael Liebowitz, Defendant Brooks' treating psychiatrist, Judge Seybert entered an Order directing that NCCC provide Brooks with two medications previously prescribed by Dr. Liebowitz. The two drugs are Ativan and Ambien. Apparently, these two medications were not given to Defendant while he was at NCCC.
On January 27, 2010, after Defendant was found to be stockpiling his Ativan pills, Defendant Brooks was transferred to the Queen's Private Detention Facility ("QPDF") in Jamaica, New York, a facility operated by the GEO Group, Inc., whose headquarters are located in Boca Raton, Florida. The GEO Group has a private contract with the Federal Bureau of Prisons to house detainees.
Personnel at QPDF advised that they would not give Brooks Ativan and, instead, were administering three other drugs which the facility's psychiatrist determined were adequate to treat Defendant Brooks' condition. When Dr. Liebowitz was advised that Defendant Brooks was no longer receiving Ativan but instead was receiving the other three drugs, he wrote a letter dated February 3, 2010 addressed "To Whom It May Concern" and stating, among other things, that "stopping the Ativan. . . is highly dangerous to his [Brooks'] health." Because Dr. Liebowitz was away from his office, he forwarded the letter to Brooks' brother who, in turn, submitted it to Judge Seybert. The issue of Defendant Brooks' medications was addressed by Judge Seybert during the trial on February 4, 2010. See February 4, 2010 Trial Transcript at 1850 - 2115.*fn2
Specifically, Judge Seybert told Defendant's counsel "if you want a hearing on this issue, bring in Dr. Liebowitz, and there will be someone from Queens Men's House of Detention to testify with regard to what Mr. Brooks' medical needs are, not what Mr. Brooks' medical desires are. . . You can have Dr. Liebowitz come in and have a hearing before a magistrate judge on this issue." Trial Tr. at 1918, 1919.
On February 6, 2010, Dr. Liebowitz had a telephone conversation with Dr. Lyubov Gorelik, a psychiatrist who evaluated Brooks at QPDF. That conversation included a discussion of Brooks' medications. The two psychiatrists were not able to reach an agreement regarding those medications.*fn3 When the trial resumed on February 8, 2010, Defendant's counsel again raised the issue with Judge Seybert and stated that Dr. Liebowitz was present in the courtroom and prepared to address the Court. Judge Seybert referred counsel for the Government and Defendant Brooks to me for a hearing on the issue at ll a.m. This Report and Recommendation sets forth the facts elicited at the hearing as well as my recommendations to Judge Seybert regarding resolution of this issue.
II. THE FEBRUARY 8, 2010 HEARING
Defendant Brooks, his attorneys and counsel for the Government were present for the hearing. Counsel for both sides were given an opportunity to present a brief opening statement. Defendant Brooks' counsel expressed the concern that (1) there is an immediate danger to Brooks' health, and (2) as a result of the medication regimen at QPDF, Brooks is "unable to adequately and meaningfully assist in his own defense, both in communicating with counsel, reviewing, retaining information, memory issues and those sorts of things, even though he's obviously able to speak English and communicate." Transcript of the February 8, 2010 Hearing, at 7.*fn4 Counsel for the Government noted that the administrator of QPDF, Jason Maffia, had come to court at the request of the U.S. Marshal Service. Hrg. Tr. at 8, 9. Mr. Maffia is not a medical professional, but rather the administrator of QPDF. He brought with him a copy of the letter sent by psychiatrist Dr. Gorelik to Judge Seybert on Saturday, February 6, 2010 regarding Defendant Brooks' medication. Counsel for the Government referenced a notation in the letter of a finding by Dr. Gorelik and the staff psychologist that Defendant was "oriented, aware, coherent, appears anxious." Id. at 8, Ex.DB-JM-3. Dr. Gorelik went on to observe, according to the Government, that the course of treatment recommended by Defendant Brooks' private physician (Dr. Liebowitz) included "greater than the DEA-recommended amounts of Ativan."
Id. Defendants counsel then called Dr. Liebowitz to the witness stand.
A. Dr. Liebowitz's Testimony
Dr. Liebowitz testified that he is both a physician and a psychiatrist. He received a B.A. from Yale in 1965 and his medical degree from Yale in 1969. Hrg. Tr. at 10, 12. He is board-certified in psychiatry and is licensed to practice in New York and New Jersey. Id. at 12. According to Dr. Liebowitz, he is a distinguished fellow of the American Psychiatric Association, serves on the Scientific Advisory Board of the Anxiety Disorders Association of America, is a member of the American College of Neuropsychopharmacology, and is Managing Director of the Medical Research Network, a private clinical trials facility in New York City. Id. at 13.
In addition to his own practice, Dr. Liebowitz also conducts clinical research studies. From 1979 until 2000, he was a professor in the medical school at Columbia University. He currently retains his faculty status as a professor of clinical psychiatry at Columbia although he is not teaching classes. Dr. Liebowitz ran a program called the "Anxiety Disorders Clinic" at the New York State Psychiatric Institute for the research and diagnosis of anxiety disorders beginning in 1982. This was the first anxiety disorders clinic in the United States that specialized in the research and treatment of anxieties. Along with others, he developed methods of diagnosis and treatment for a variety of anxiety disorders, panic disorders, posttraumatic stress, and obsessive-compulsive disorders. Colleagues whom Dr. Liebowitz mentored are still involved in that work at the clinic. Id. 11, 14.
Dr. Liebowitz was also a member of the task force which wrote the anxiety disorders section of the DSM-IV -- the Fourth Edition of the Diagnostic and Statistical Manual published by the American Psychiatric Association which serves as the standard diagnostic classification used in the United States. Id. at 13. Dr. Liebowitz testified that
[w]e developed a lot of the protocols for treating panic disorder, for treating social anxiety disorder, for helping people with obsessive-compulsive disorders, with what medications to use; participated in trials and drugs approved by the FDA for those treatments. We found ways to use them and not use them, to help people use them most effectively.
In addition to having 250 peer-reviewed publications for which he is either a first author or co-author with other colleagues, Dr. Liebowitz has received numerous honors in his field. Id. at 15. It appears that Dr. Liebowitz's curriculum vitae is 57 pages long -- pages 1 through 7 were admitted into evidence as Defendant's Exhibit 1 (DB-ML-1).*fn5 Defendant's counsel offered Dr. Liebowitz as an expert on panic attacks and anxiety disorders. The Government asserted that testimony relating to Dr. Liebowitz's treatment of Defendant Brooks was relevant but objected to his being proffered as an expert because the issue at hand is "an order from the prison to give a specific course of treatment." Id. at 16. Although noting that he did not object to Dr. Liebowitz's qualifications, counsel for the Government voiced objection to the proffer of Dr. Liebowitz as an expert on the grounds that expert testimony in the context of the hearing was not relevant. I overruled the objection and Dr. Liebowitz was qualified as an expert.
Stating that he had treated Defendant on and off for 20 years, Dr. Liebowitz testified that Defendant suffers from a mental disorder, namely, panic disorder. He described panic disorder as "one kind of anxiety disorder where people experience very severe panic or anxiety attacks. Their heart rate starts to rise, they get red, feel they can't breathe, they feel they will suffocate, feel they will lose control or have a heart attack or die, and desperately need to flee the situation they are in." Id at 17. According to Dr. Liebowitz, panic disorder is distinct in terms of its features and treatment from other kinds of anxiety disorders. He described the circumstances as follows:
Q: In what way is it distinct from other kinds of anxiety disorders?
A: Well, the treatment is quite different from others, because the central focus here is to block the panic attacks so that patients no longer experience them. And gradually they lose their fear of having them, lose their fear of going places where they might have them.
So you need to find a treatment, often a medication treatment, that blocks the panic attacks. And that can be and has a number of differences from treating other different kinds of anxiety.
Id. at 17-18. Dr. Liebowitz further stated that he has also treated Defendant for generalized anxiety disorder -- distinct from panic disorder -- which entails a heightened tendency to worry chronically, to feel jumpy, tense, to have trouble sleeping and to be always on edge. Id. at 18.
After several years of treatment during which he tried a number of differing medications in varying doses on Defendant, Dr. Liebowitz finally arrived at putting Defendant on Ativan in substantial doses. Id. Dr. Liebowitz testified that Defendant is not on the first line of approach with treating someone suffering from panic disorder. Initially, Defendant had been treated with imipramine, a tricyclic antidepressant, which typically works as an antianxiety medication. The drug was given to Defendant in substantial doses but was not effective. Subsequently, newer selective serotonin reuptake inhibitors ("SSRIs") came on the market, including Prozac, Zoloft, Paxil, Celexa and Lexapro. Because those drugs were shown to help panic disorder, Dr. Liebowitz tried them with Defendant, but noted that if you started a patient at too high a dose, you actually made them worse, not better, regardless of your intentions. For this reason, Dr. Liebowitz asserted, the prescribing individual must be very familiar with the treatment of panic disorder to do it properly. Id. at 19. Brooks was tried on substantial doses of Prozac which did not yield a satisfactory result.
At that juncture, Dr. Liebowitz switched Defendant to a different line of medications known as benzodiazepines. The first one utilized with Defendant was klonopin, which Defendant took for several years with some success. Id. at 20. In 2002, Defendant was switched over entirely to Ativan. Over the years, Defendant did well with the Ativan treatment, but some escalation of the dosage has been required and Defendant is now taking a higher than usual dose, 20 milligrams a day, which, according to Dr. Liebowitz, is "effective" and "well tolerated." Id. Dr. Liebowitz added that the dose currently prescribed for Defendant is not dangerous unless it is stopped abruptly. He noted that treatments have to be tailored to the individual, including dosages. Ativan is a benzodiazepine which poses no danger to Defendant if taken as prescribed. Id. at 21.
Dr. Liebowitz testified he is aware that based upon a submission he made to Judge Seybert in mid-January that an Order was issued to NCCC directing that Defendant be given both Ativan and Ambien and is further aware that Defendant received neither one. Id. at 22. As to the risk, Dr. Liebowitz stated that there is a danger where a patient taking Ativan in substantial doses becomes physically dependent on the drug so that it cannot be stopped abruptly without a person running the risk of a severe withdrawal reaction. The drug must be tapered slowly. Stopping Ativan abruptly, without a suitable substitute, can result in "the shakes, tremors, increased anxiety, increased heart rate, increased blood pressure. And those are only the first minor symptoms." Id. In severe cases, a person can have convulsions. Moreover, a patient is likely to suffer a relapse of the underlying illness, namely, vulnerability to panic attacks, fear of having the panic attack, and the attack itself. According to Dr. Liebowitz, Defendant's being imprisoned and being in the middle of a trial heightens the anxiety and makes him more vulnerable to a relapse of panic disorder. Without the necessary medication, the situation becomes "more terrifying and makes it harder to participate as fully as he might if he's properly medicated." Id. at 23.
A summary of medication that personnel at QPDF determined to be appropriate for Defendant was reviewed by Dr. Liebowitz after being admitted into evidence.*fn6 The exhibit indicates that when the Defendant arrived at QPDF, a staff nurse performed an initial mental health evaluation. The document also states that the Defendant suffers from anxiety, depression, and anxiolytic dependence, was displaying benzodiazepine-seeking behavior, and "feels anxious, is shaking and has panic attacks." Id. at 25, 26. Dr. Liebowitz testified that these are symptoms he would expect under the circumstances because it seemed likely that Defendant was experiencing withdrawal from the Ativan as well as a relapse of his illness. According to Dr. Liebowitz, there is no sound medical justification, in his view, for taking Defendant off medication in this manner. Id. at 27. Dr. Liebowitz added that taking Defendant off the Ativan in this abrupt fashion was a "total disregard for the Federal Bureau of Prisons Guidelines for Mental Health Care." Id. As to the Bureau of Prisons Guidelines, Dr. Liebowitz testified that he found the Guidelines on the internet and noted that the Bureau of Prisons recognizes that people come into their custody on high doses of benzodiazepines and that their recommendation, if someone is deemed to be physically dependent on a benzodiazepine, is to withdraw the medication slowly, "and no more than 5 to 10 percent per day." Id. As to the Guidelines, Dr. Liebowitz went on to note that . . . they also state if you switch a patient to a, quote, antidepressant, as was done in Mr. Brooks' case, for the treatment of anxiety, the drug should be introduced slowly, the antidepressant brought up to a proper therapeutic dose, and only then should the benzodiazepine withdrawal be started.
In other words, the new treatment should be put in place and established and shown to be tolerated and successful before you start taking away the old treatment. This was done completely backwards, according to the e-mail you showed me.
Dr. Liebowitz recounted the three medications prescribed by Dr. Gorelik for Defendant at QPDF, namely, Buspar, Vistaril and Celexa. In discussing Buspar, Dr. Liebowitz stated that this drug is a "quite old mild anxiolytic, not of the benzodiazepine family, and its efficacy is quite questionable." Id. Dr. Liebowitz prescribes Buspar only very rarely and asserted that the drug was introduced before the establishment of the anxiety disorders described in DSM-IV, so "it's never been proven effective for any of those." Id. at 29. Regarding Vistaril, Dr. Liebowitz testified that it is a sedating antihistamine, like Benadryl, which will "help you go to sleep at night but would do nothing for benzodiazepine withdrawal because it is not of the same family as benzodiazepine . . ." He noted that this is true of Buspar as well Id. Celexa is an SSRI that is marketed as an antidepressant according to Dr. Liebowitz and has some efficacy in anxiety and even panic disorder. However, Dr. Liebowitz recounted that Defendant was tried on Lexapro, a drug almost identical to Celexa. Even with a much lower dose, Defendant was not able to tolerate Lexapro and actually felt worse with it. Even if Celexa is used, and even if Defendant were to tolerate it, Dr. Liebowitz stated that it would take four to six weeks to work because it is much slower working than benzodiazepines. Moreover, that course of action would leave Defendant with no protection for his panic disorder for four to six weeks. Dr. Liebowitz maintained that prescribing Celexa in this manner is also a violation of the Bureau of Prisons Guidelines:
. . . rational practice would say that you keep the benzodiazepine he's using, you build it up slowly, find out if he tolerates it, if it's helpful, find if it is helpful, and then go through that slow taper of the benzodiazepine if your intention is to cross him over. That would be the rational practice. What was done here is irrational.
Q: When you say "irrational," in your view, medically irresponsible?
In his conversation with Dr. Gorelik on February 6, 2010, Dr. Liebowitz learned that Dr. Gorelik did not have access to the NCCC records for Defendant Brooks. They discussed her approach of taking Defendant off Ativan immediately. Id. at 31-32. Dr. Liebowitz believes there are two faulty premises underlying Dr. Gorelik's approach. First, Dr. Gorelik told Dr. Liebowitz that her area of specialization is substance abuse and she sees Defendant's primary problem as one of substance abuse. Since Dr. Gorelik sees Defendant as an abuser of benzodiazepine, her goal is to get him off benzodiazepine -- or, if he is already off the benzodiazepine, not to give him any more. Id. at 32. Second, while Dr. Gorelik recognizes that Defendant has an anxiety disorder, Dr. Liebowitz testified that she did not make a distinction in her own mind between panic disorder and other kinds of anxiety disorders and saw them essentially as one and the same. Id. In relating the details of their conversation, Dr. Liebowitz added that Dr. Gorelik's belief is that if you treat anxiety, you treat panic, so if Buspar is indicated for anxiety, it should help the Defendant. Likewise, Vistaril in Dr. Gorelik's view should help because it is sedating and has some antianxiety properties. Similarly, Celexa over some period of time might help anxiety. Id.
After hearing these statements from Dr. Gorelik, Dr. Liebowitz testified that he tried to talk to her more vigorously "about panic versus anxiety." Id. at 33. He explained that SSRIs had already been tried and were not helpful and that the Defendant had done well on benzodiazepine and was on a stable regimen. If Dr. Gorelik was going to take Defendant off Ativan, Dr. Liebowitz urged her to consider putting him on a drug like Clonazepam, a sister drug to Ativan, which Defendant had been given in NCCC in 2008 and which was effective once they were able to get Defendant to a suitable dose. Id. Dr. Liebowitz stated that Dr. Gorelik's call that morning took him by surprise since he was away visiting his grandson in Idaho. The conversation with Dr. Gorelik ended apparently without any resolution to the issue.
Dr. Liebowitz stated that Defendant was on a larger dose of Ativan because over the years, Defendant had built up an immunity or tolerance to the drug, and it took a larger dosage to have the same therapeutic effect. Id at 34. As Dr. Liebowitz observed, "[a] normal dose, for him, is an inadequate dose." Id. at 35. When asked if there is a cross-tolerance between Ativan and the three drugs that Dr. Gorelik thinks are appropriate for Defendant, Dr. Liebowitz responded no and added that there is "no pharmacological relationship with them, so they don't help any withdrawal symptoms . . . just the opposite. He would probably be overly sensitive to Celexa. . . a big dose of a foreign drug would be adverse." Id. Defendant's counsel then explored what impact the changing medications would have on Defendant's ability to assist his counsel:
Q: Dr. Liebowitz, will -- in your opinion, will the complete withdrawal of Ativan for Mr. Brooks have any impact or potential impact on his ability to assist his lawyers in the defense of his criminal case?
A: I would say yes. I mean, it's like taking away the migraine medicine for someone who has extreme migraines. You are essentially stripping someone of a therapeutic tool and rendering him such severe anxiety on top of what anybody would normally feel in this situation, it would be very hard for him to function adequately.
Q: Similarly, by substituting the three drugs as a package for the Ativan and the Ambien, would that have an impact on his ability to assist in the defense of his own case?
A: I think you are compounding the problem. You are taking away medicines that work. You are introducing medicines not likely to be helpful and actually can exacerbate the condition, some of which he's already shown not to tolerate. His body will have to struggle with these foreign substances. It makes it much worse, not better.
Dr. Liebowitz was then asked to review the February 6, 2010 letter from Dr. Gorelik to the Court which the Government provided at the hearing. In that letter, Dr. Gorelik wrote "Mr. David Brooks was diagnosed with anxiety disorder -- Not Otherwise Specified -- and anxiolytic dependence on January 30, 2010. Id. at 37. Dr. Liebowitz stated that this was not a correct diagnosis because "anxiety disorder -- not otherwise specified is . . . a residual term that's left with people with anxiety states not covered by the other disorders -- the panic disorders, generalized anxiety, social anxiety, OCD." Id. at 38. Defendant has a very clear history of panic disorder and also generalized anxiety disorder which, according to Dr. Liebowitz, means that personnel at QPDF "missed the main diagnosis." Id. In addition, Dr. Liebowitz testified that by further diagnosing Defendant with anxiolytic dependence -- a condition Dr. Liebowitz contends Defendant does not have -- "they are essentially calling him a substance abuser" and claiming that Defendant is dependent on Ativan in a way that interferes with his functioning. Id. at 39, 40. Dr. Liebowitz emphasized that this is not the case and what interferes with Defendant's functioning is the lack of a benzodiazepine. Essentially, Dr. Liebowitz testified, QPDF is treating Defendant for what they view as a a trivial condition -- anxiety disorder NOS, something not very serious and for which they are giving Defendant "lightweight drugs." Id.
In pointing to the interview notes from QPDF, Dr. Liebowitz stated that nothing is being done to treat Defendant's underlying condition, which the notes themselves reflect: "Detainee reports episodes of anxiety, feels panicky at times, feels claustrophobic in the SEG cell." Id. at 41. Asserting that Defendant still needs an acceptable treatment, Dr. Liebowitz testified that he was not making an argument that QPDF has to give Defendant Ativan if that is not one of their approved drugs. Rather, Dr. Liebowitz stated that he is "100 percent certain that they have on their formulary drugs that would be appropriate, that would have cross-utility with the Ativan." Id. Defendant's counsel then drew Dr. Liebowitz's attention to the statement in the QPDF letter asserting that QPDF is "concerned that the dose of potentially dangerous DEA-controlled medication, Ativan, that was used by patient's private psychiatrist in the past, prior to the incarceration to the Nassau correctional facility, significantly exceeded the maximum daily dose recommended by the FDA as a safe dose." Id. at 42. Dr. Liebowitz responded that the FDA approves a generally accepted ...