Psychiatric Annals

ADDICTIONS IN FORENSIC PSYCHIATRY 

Basic Law for Addiction Psychiatry

Daniel W Hardy, MD, JD; Malini Patel, MD; Donald Paull, PhD, JD

Abstract

No medical specialty is more closely associated with the law than psychiatry. With the exception of psychology, pathology, and dentistry, no other medical specialty has a generally recognized subspecialty in forensics. Psychiatrists regularly testify in civil and criminal courts and before various state and federal regulatory agencies on such issues as psychological damages, legal insanity, a multitude of legal competencies, and fitness for a variety of occupational duties, including fitness to practice medicine (or law).

At the same time, no medical specialty has ever been as closely regulated as psychiatry. Most states have mental health codes that regulate, often to a significant degree, the practice of psychiatry. Psychiatrists are commonly subject to rules and regulations governing the manner in which they hospitalize patients, prescribe medications or use restraints, discharge patients, and handle patients' records during and after treatment. Such rules and regulations are either not applicable to or substantially exceed those applicable to other branches of medicine.

These circumstances alone would behoove all psychiatrists to have some familiarity with the legal system. We find, however, that the practice of addiction psychiatry, or any legitimate branch of addiction mental health, warrants a particular knowledge of the legal system.

First, most patients who are abusing or dependent on substances do not seek treatment voluntarily. Increasingly, they are compelled to seek treatment by court order. Such circumstances invariably entail significant consequences (and hence stresses) for patients and may impose particular duties and responsibilities on psychiatrists. Psychiatrists need to understand these ramifications and be comfortable practicing in these settings.

Second, as the law involves itself in psychiatrists' practice, psychiatrists need to involve themselves in the law. Are addictions a consequence of genetics or diseases? Are they a result of free will or immorality? The answers to such questions will determine governmental policies regarding everything from treatment benefits, to disability funding, to Americans with Disabilities Act employment considerations, to possible exculpation for criminal activity. Psychiatrists must continue to educate and reeducate themselves, as well as the judges and lawyers to whom they increasingly must respond, regarding the scientific advances in psychiatry.

This article provides addiction psychiatrists or mental health professionals with a basic overview of the law that they are increasingly called on to deal with; suggests important differences between forensic psychiatrists and general psychiatrists, but similarities between forensic psychiatrists and addiction psychiatrists; identifies important questions that addiction psychiatrists should ask when undertaking court-mandated treatment; and suggests a possible model for legal-mental health collaboration in selected cases.

A LEGAL PRIMER

The Federal Constitution

The U.S. Constitution provides for three branches of government (legislative, executive, and judicial), each with separate powers.

Legislative Branch. The function of the legislative branch is to legislate (ie, to enact laws). Article I, Section 1 of the Constitution states simply, "AU legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Section 8 spells out the powers delegated to the national government by the states, among them the power "to regulate Commerce with foreign Nations, and among the several States." This became the basis on which much of the later expansion of powers of the national government was pegged. Section 9 spells out what state governments are prohibited from doing.

The picture was rounded out by the adoption of Amendments IX and X. Amendment IX states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," whereas Amendment X states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to…

No medical specialty is more closely associated with the law than psychiatry. With the exception of psychology, pathology, and dentistry, no other medical specialty has a generally recognized subspecialty in forensics. Psychiatrists regularly testify in civil and criminal courts and before various state and federal regulatory agencies on such issues as psychological damages, legal insanity, a multitude of legal competencies, and fitness for a variety of occupational duties, including fitness to practice medicine (or law).

At the same time, no medical specialty has ever been as closely regulated as psychiatry. Most states have mental health codes that regulate, often to a significant degree, the practice of psychiatry. Psychiatrists are commonly subject to rules and regulations governing the manner in which they hospitalize patients, prescribe medications or use restraints, discharge patients, and handle patients' records during and after treatment. Such rules and regulations are either not applicable to or substantially exceed those applicable to other branches of medicine.

These circumstances alone would behoove all psychiatrists to have some familiarity with the legal system. We find, however, that the practice of addiction psychiatry, or any legitimate branch of addiction mental health, warrants a particular knowledge of the legal system.

First, most patients who are abusing or dependent on substances do not seek treatment voluntarily. Increasingly, they are compelled to seek treatment by court order. Such circumstances invariably entail significant consequences (and hence stresses) for patients and may impose particular duties and responsibilities on psychiatrists. Psychiatrists need to understand these ramifications and be comfortable practicing in these settings.

Second, as the law involves itself in psychiatrists' practice, psychiatrists need to involve themselves in the law. Are addictions a consequence of genetics or diseases? Are they a result of free will or immorality? The answers to such questions will determine governmental policies regarding everything from treatment benefits, to disability funding, to Americans with Disabilities Act employment considerations, to possible exculpation for criminal activity. Psychiatrists must continue to educate and reeducate themselves, as well as the judges and lawyers to whom they increasingly must respond, regarding the scientific advances in psychiatry.

This article provides addiction psychiatrists or mental health professionals with a basic overview of the law that they are increasingly called on to deal with; suggests important differences between forensic psychiatrists and general psychiatrists, but similarities between forensic psychiatrists and addiction psychiatrists; identifies important questions that addiction psychiatrists should ask when undertaking court-mandated treatment; and suggests a possible model for legal-mental health collaboration in selected cases.

A LEGAL PRIMER

The Federal Constitution

The U.S. Constitution provides for three branches of government (legislative, executive, and judicial), each with separate powers.

Legislative Branch. The function of the legislative branch is to legislate (ie, to enact laws). Article I, Section 1 of the Constitution states simply, "AU legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Section 8 spells out the powers delegated to the national government by the states, among them the power "to regulate Commerce with foreign Nations, and among the several States." This became the basis on which much of the later expansion of powers of the national government was pegged. Section 9 spells out what state governments are prohibited from doing.

The picture was rounded out by the adoption of Amendments IX and X. Amendment IX states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," whereas Amendment X states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Amendment XSV, adopted in 1868, after the end of the Civil War, contained the final, major curtailment of state power: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This equal protection clause constituted the basis by which the Supreme Court, under Chief Justice Warren, banned racial segregation in public schools.1

Executive Branch. The role of the executive branch of the government is embodied in Article II of the Constitution. Its major function is to execute (ie, administer and enforce) the laws promulgated by Congress. However, the executive branch also creates laws by issuing executive orders and by making treaties, the latter with the advice and consent of the Senate. Consider just two executive orders for the sweep oí power implicit in that right: Lincoln's Emancipation Proclamation and Truman's executive order ending segregation by race in the armed forces of the United States. The authority for each flowed, in part, from the constitutional empowerment of the President as Commander-in-Chief of the armed forces.

Judicial Branch, The judicial branch of the government is described in Article IH. However, one of its major functions as we know it, construing the constitutionality of legislation, largely came about as a result of the landmark 1803 U.S. Supreme Court case Marbury ? Madison2 in which it was held, "It is emphatically the province and duty of the judicial department to say what the law is." Trials are conducted by the judiciary based on laws passed by the legislature (eg, what actions constitute crimes). However, whereas the legislature defines criminal activity, the judiciary continues to emphatically assert its right to determine the procedures by which trials are conducted. This distinction is often important when a trial verdict is appealed to a higher court. Substantive errors, where the trial court failed to follow the law, are more likely to result in reversals than are procedural errors, where the trial court did not follow the rules. It can be difficult to make the distinction.

Thus, the U.S. Constitution created three equal branches of government acting to provide "checks and balances" on each other's powers. This system worked so well that each state has since adopted a constitution embodying that same separation of powers.

State and Local Government

Counties are branches of state government, and cities and other municipalities exist and operate under franchises issued by the state government. Their powers are derived from and dependent on state authority. For example, states issue and revoke drivers' licenses and define and enforce significant legal violations of the privilege to drive, such as driving under the influence of drugs or alcohol, whereas municipalities define and enforce parking violations.

There are a number of areas where the regulatory powers of the federal government and state governments overlap. The regulation of the manufacture, sale, and distribution of alcohol and controlled substances is one. The addiction psychiatrist will most commonly encounter the law in the treatment of patients abusing alcohol or other substances who are being prosecuted for violation of state laws, such as driving while intoxicated or possessing a controlled substance in an amount not large enough to raise the presumption that a sale of the same was intended. Occasionally, however, persons accused of dealing drugs will successfully plea bargain to the lesser charge of possession and find their way into outpatient therapy instead of prison.

Case Law

Historically, courts have not looked with favor on individuals who abuse alcohol and other substances. Voluntary intoxication, with one major exception, is not recognized as a defense in a criminal prosecution. The exception, variants of which are recognized in most jurisdictions, is that when a person is so intoxicated that he or she as a consequence of intoxication is unable to form the requisite intent (mens rea) to commit a crime, a finding of not guilty may be warranted. This defense is rarely successful. Somewhat more likely to be successful is a defense based on the chronic voluntary abuse of intoxicants as a consequence of which organic brain damage has occurred sufficient to support a recognized diagnosis of mental disease.3

Involuntary intoxication, on the other hand, is usually recognized as a defense. For example, a defendant smokes marijuana that, unknown to him or her, has been laced with phencyclidine hydrochloride and then kills someone while in a drug-induced psychosis. Such circumstances may support a finding of not guilty by reason of insanity. The ultimate determination, however, which is a matter of fact, not law, must be made by the judge or jury, often with the benefit of testimony provided by a mental health professional trained in forensics or addictions. Although substance abuse or dependence is frequently unsuccessful as a defense in criminal proceedings, it may be raised as a mitigating factor in sentencing hearings (ie, but for the defendant's intoxication at the time of the crime, he or she would not have acted in such a manner).4 However, this is a "double-edged sword." In People ? Shatner,5 an appeal from a death sentence, the defendant asserted that his history of drug abuse at least partially explained and exculpated his criminal behavior. The Illinois Supreme Court found this to be an aggravating factor rather than a mitigating factor, and affirrned the death penalty.

The relative lack of appellate court law supporting the advancement of intoxication or addiction as a defense or mitigating factor is somewhat skewed by the fact that criminal cases in which a trial verdict is rendered in favor of the defendant are not subject to appeal by the prosecution pursuant to the "double jeopardy" clause of Amendment V to the Constitution. Only cases that are appealed are formally reported and serve as legal precedent. The law has refrained from prescribing definitive circumstances or criteria for such defenses and allows appropriate cases to be decided by the judge or jury based on the particular facts.

Statutory Law

Statutes such as that in Illinois known as the Alcoholism and Other Drug Dependency Act or Treatment Alternatives for Criminal Justice Clients, 20 ILCS 301/40-5 et seq, exist in many states. Under such laws, an addict or an alcoholic who meets the statutory criteria and is charged with or convicted of a crime may elect treatment in a designated program. However, there are often multiple exceptions. Treatment in lieu of prosecution may not be an option if the crime is one of violence or of several enumerated drug offenses; if the person has a record of 2 or more convictions of crimes of violence, or if other criminal proceedings alleging commission of a felony are pending against the person; if the person is on probation or parole and the probation or parole authority does not consent to the election; if the person elected and was admitted to a designated program previously; if the person has been convicted of residential burglary and has a record of 1 or more felony convictions; if the crime is driving under the influence of drugs or alcohol; or if the crime is reckless homicide or a reckless homicide of an unborn child in which the cause of death consists of the driving of a motor vehicle by a person under the influence of alcohol or drugs at the time of the violation.

On a finding by the court that the defendant is eligible to make the election, the court may sentence the defendant to probation with treatment as an essential condition. On successful completion of the treatment program, the court will ordinarily discharge the defendant from probation and, on motion, vacate the judgment of conviction and dismiss the criminal proceedings. However, if the court finds that the defendant is an alcoholic or an addict not Likely to be rehabilitated through treatment, or that the alcoholism or addiction and the crime committed are not significantly related, or that imprisonment is necessary for the protection of the public, it will impose a sentence as in other criminal cases.

In at least two places, interpretations are called for under such legislation: what is an "addict" or an "alcoholic," and what constitutes a "designated program"? The former is usually defined by the appropriate statute. (Tfie Mentally Disabled and the Law by Brakel et al.6 provides a comprehensive, although perhaps dated, review of statutory definitions of alcoholics and drug addicts.) The latter is based on rules and regulations promulgated by the executive agency charged with the administration of the act. Either interpretation, however, may prove to be an appealable issue to be taken to a reviewing appellate court. Generally, appellate courts strictly enforce provisions of this procedure, and there are many cases that have reversed prison sentences and remanded for proceedings under this statute.7,8

THE ADDICTION PSYCHIATRIST AS A FORENSIC PSYCHIATRIST

There are important similarities between addiction psychiatrists and forensic psychiatrists. However, forensic psychiatrists differ from general psychiatrists in several significant respects:

1. The duty of the general psychiatrist is uniquely to his or her patient, modified only by Tarasoff ? Regents of the University of California and child or elder abuse statutes or case law to the contrary. The forensic psychiatrist owes a concomitant duty to the court that referred the patient or évaluée. A mental health professional undertaking a court-ordered evaluation will be required to report to the court his or her findings. Under most circumstances (with the possible exception of inculpatory statements), this entails the inclusion of clinically relevant statements from the defendant. The consequence of this is that physician-patient confidentiality is essentially abrogated. The patient or évaluée must be advised oí this fact and must be able to competently waive the right to confidentiality.

2. The forensic psychiatrist is uniquely dedicated to the here and now. He or she may engage briefly and for specific purposes in the patient's or evaluee's fantasies, delusions, or falsehoods, but will invariably seek corroboration from records, collateral interviews, or both.

3. The forensic psychiatrist is involved in an ongoing risk assessment of his or her patient's or evaluee's potential for violent or other criminal activity, recognizing that a history oí such behavior is the best, although fallible, indicator of future criminal activity.

Certainly, these realities of the practice of forensic psychiatry resonate with the practical concerns of addiction psychiatry.

First, the mere fact of a court referral for treatment connotes certain expectations from the court, not only of the patient but also of the psychiatrist. These expectations may, if incorporated into a court order, impose certain duties on the psychiatrist to the court that are implicitly (or explicitly) agreed to by the psychiatrist who accepts into treatment the court-mandated patient.

Second, regardless of coexisting pathologies, denial, rationalization, and minimization (or at times exaggeration) are hallmarks of the substance abuser. Independent corroboration of the history of a patient who is abusing or dependent on substances by record review and collateral interviews is highly recommended. Independent corroboration of the patient's assertions regarding current use or abstinence by random (or, if appropriate, focused) drug and alcohol screens is mandatory.

Table

TABLEImportant Questions Addiction Psychiatrists Should Ask When Undertaking Court-Mandated Treatment

TABLE

Important Questions Addiction Psychiatrists Should Ask When Undertaking Court-Mandated Treatment

Third, patients who are abusing or dependent on substances are at risk not only for noncompliance, relapse, and continued substance abuse, but also for reckless behavior, criminal behavior (especially in support of a drug habit), and violent behavior and exacerbation of most Axis I (and Axis ?) diagnoses. Swartz et al. clearly identified the relationship among mental illness, substance abuse, noncompliance with medications, and violence.9 Just as patients are at risk, psychiatrists are at risk for malpractice actions brought by patients, their representatives, or third parties injured by patients. Thus, all psychiatrists should practice défendable, not defensive, medicine. They should identify the issues to be addressed, corroborate information, document their rationale, and not hesitate to seek consultation.

It is well established that more than half of ail criminal defendants are substance abusers, and that drug abusers are at high risk for rearrest.10 When the addict or alcoholic also has a mental illness, sentencing or diversion from prosecution may include mental health treatment. Increasingly, this is how the addiction psychiatrist encounters his or her patients. Dealing with the legal system may seem to be a daunting undertaking for many addiction psychiatrists and general psychiatrists, partly because of their ignorance of related laws and partly because of their reluctance to interact with judges, lawyers, and the system. We believe, however, that with a basic understanding of the legal system and a modicum of experience in dealing with it, addiction psychiatrists will welcome such cases and learn to use the system to their patients' advantage.

PRACTICAL ASPECTS FOR ADDICTION PSYCHIATRISTS TO CONSIDER

Before accepting such cases, addiction psychiatrists should understand the parameters of the treatment order and should ask for any necessary clarification or modifications. The table contains important questions that psychiatrists may need to ask. These questions address aspects of mandated treatment that distinguish the tasks of the psychiatrist from those of regular clinical work. Although the use of external motivators in the treatment of the mentally ill offender who abuses substances can seemingly be more cumbersome and difficult, it can offer significant advantages. The answers to the questions in the table will provide a wealth of positive and negative reinforcers that can become the basis of a behavior modification program to be incorporated into the overall treatment plan.

A POSSIBLE MODEL FOR LEGAL-MENTAL HEALTH COLLABORATION

This is a difficult population to treat, with varying degrees of motivation and premature termination threatening to undermine the demonstrated benefits of psychosocial and pharmacologic treatment.13"15 Although legally enforced extended treatment may help to facilitate compliance with treatment and, consequently, treatment success, it remains a paradox that many addiction psychiatrists and substance abuse programs continue to require patients to demonstrate motivation as a condition for starting treatment. It is prudent to remember that an essential purpose oí addiction treatment is to motivate and that legal mandation is a potent tool to stimulate motivation.

Appelbaum16 argues that "in the absence of judicious (but not necessarily judicial) coercion, patients will not receive needed care, their condition will deteriorate, and they will suffer psychological and perhaps physical distress." Rappeport17 also notes that many involuntary or mandated patients benefit from external coercive pressure and do well in treatment. This was demonstrated in Gallant's smaU, but statistically significant, 1968 study.18 Nineteen alcoholic parolees were randomly assigned to either a compulsory or a voluntary outpatient treatment group. At the 1-year follow-up, 7 of 10 of those in the compulsory group were abstinent compared with none in the voluntary group. These findings suggest that enforced treatment may be a valuable technique for the treatment of the offender who is a substance abuser.

Case Example

The following case illustrates how the addiction psychiatrist can use legal leverage to achieve successful outcomes in this traditionally difficult to treat population.

A 24-year-old man was referred for assertive community treatment services. He was serving a 12month probation term for assault and battery while intoxicated with cocaine. Psychiatric evaluation resulted in a diagnosis of bipolar affective disorder, cocaine and alcohol dependence, and antisocial personality disorder. The treatment recommendations included psychotropic medication, attendance at a weekly medication monitoring group, participation three times a week in an intensive substance abuse group, and random drug screens. Wraparound services also included help with vocational, financial, housing, and family support issues. From the start, the patient's motivation and compliance were poor. Blood levels of prescribed medications were subtherapeutic. His attendance at groups would fluctuate in response to clinician pressure, and his participation in substance abuse groups was minimal. The results of drug screens continued to be occasionally positive. Despite frequent communication with the patient's probation officer, treatment appeared to be at a standstill.

When reevaluating the treatment plan, the team recommended inpatient substance abuse treatment as part of the mandate and the court entered such an order. Although the patient was coerced to enter the inpatient program as an alternative to jail time, the structure and extended form of the program served to provide a successful outcome. The patient then completed his outpatient aftercare without incident. When probation was terminated, he elected to stay in treatment and continues to be stable and sober.

Besides rüghlighting the positive role of the legal system in treatment, this case also demonstrates the need for case management for these patients. Stein and Test's landmark study in 198019 led to case management becoming a mainstay of community mental health services. Since then, assertive case management has emerged as the model with the greatest promise for severely and persistently mentally ill individuals.20 Combining the coercive power of the legal system with assertive case management provides a model of care for patients who would otherwise often become treatment failures.

Drug Courts

Drug courts (ie, courts dedicated to prescribing treatment rather than imposing punishment for juvenile drug offenders, non-violent drug offenders, or both) began in Dade County (Miami), Florida, in 1989. There are currently more than 300 drug courts in various jurisdictions across the United States, although approximately 40% are in Florida and California. According to the National Drug Court Institute,

In these courtrooms, the judge acts as a team leader who works with attorneys, probation department officials, drug abuse specialists and others to help the offender overcome addiction and become a productive member of society. . . . Most programs feature some sort of outpatient drug treatment and require the offender to make regular appearances before a judge - who monitors the offender's progress, step by step - Many drug courts feature public graduation ceremonies for individuals who have successfully completed the program. The graduations are designed to not only reward the participants but to encourage them to remain sober.10

Addiction psychiatrists will recognize in this description many similarities to mainstream addiction programs. The difference, of course, is that drug courts involve mandated treatment. Lawyers will recognize similarities to the treatment alternative law described earlier. The more subtle difference is the active and ongoing role of the drug court judge as an integral member of the treatment team.

One study by the U.S. Government Accounting Office indicated that 71% of those enrolled in 131 drug court programs remained in the programs.10 However, even the most fervent advocates of the drug court movement recognize that more study is needed to determine its effectiveness.

CONCLUSION

Psychiatry and the law are irreversibly entwined. As the practice of addiction psychiatry becomes increasingly involved in the treatment of court-mandated patients, it is important for addiction psychiatrists to familiarize themselves with the law to appreciate how they can use it to their patients' benefit. We suggest that addiction psychiatrists can profit from the forensic psychiatry model, where court-mandated treatment of involuntary patients is the standard and is usually successful. We suggest that drug courts, bringing together clinical and legal professionals in the most integrated approach to addiction treatment yet attempted, offer a promising mechanism for the successful treatment of the most difficult of these patients.

REFERENCES

1. Brown v Board of Education, 347 US 483 (1954).

2. Marbury v Madison, 5 US (1 Cranch) 137 (1803).

3. Jackson v State, 902 NE2d 947 (Ind 1980).

4. Démouchette v State, 502 SW2d 712 (Tex Cir App 1973).

5. People v Shatner, 174 I112d 133, 673 NE2d 258 (1996).

6. Brakel SJ, Parry J, Werner BA. The Mentally Disabled and the Law. Chicago: American Bar Association; 1985.

7. People v Lillard, 247 LU App 3d 683, 617 NE2d 420, 187 111 Dec 212 (3d Dist 1993).

8. People v Brown, 267 111 App 3d 482, 641 NE2d 948, 204 IU Dec 518 (1st Dist 1994).

9. Swartz MS, Swanson JW, Hiday VA, Borum R, Wagner HR, Burns BJ. Violence and severe mental illness: the effects of substance abuse and nonadherence to medication. Am J Psychiatry. 1998;155:226-231.

10. California Judges Association. Drug Courts. San Francisco, CA: California Judges Association; 1999. Available at: www.calcourts.org/municipal/munidrug.html. Accessed July 31, 2000.

11. Baekeland F, Lundwall L. Dropping out of treatment: a critical review. Psychol Bull. 1975;82:738-783.

12. Craig RJ. Reducing the treatment drop out rate in drug abuse programs. J Subst Abuse Treat. 1985;2:209-219.

13. Weinman PH, Kang SY, Upton DS, Woody GE, Kemp J, Millman RB. Retention of cocaine abusers in outpatient psychotherapy. Am } Drug Alcohol Abuse. 1992;18:29-43.

14. Kleinman PH, Woody GE, Todd TC, et al. Crack and cocaine abusers in outpatient psychotherapy, NIDA Res Monogr. 1990;104:24-35.

15. Stark MJ, CampbeU BK. Personality, drug use, and early attrition from substance abuse treatment. Am J Drug Alcohol Abuse. 1988;14:475-485.

16. Appelbaum PS. Empirical assessment of innovation in the law of civü commitment: a critique. Law, Medicine & Health Care. 1985;12:304-309.

17. Rappeport JR. Enforced treatment: is it treatment? Bull Am Acad Psychiatry Law. 1974;2:148-158.

18. GaUant DM, Faulkner M, Story B, et al- Enforced clinic treatment of paroled criminal alcoholics. Q / Stud Alcohol. 1968;29:77-83.

19. Stein LI, Test MA. Alternative to mental hospital treatment: I. Conceptual model treatment program, and clinical evaluation. Arch Gen Psychiatry. 1980;37:392-397.

20. Taube CA, Morlock L, Burns BJ, Santos AB. New directions in research on assertive community treatment. Hosp Community Psychiatry. 1990;41:642-647.

TABLE

Important Questions Addiction Psychiatrists Should Ask When Undertaking Court-Mandated Treatment

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