Does Freedom of Speech allow Rejection of a Court's Findings?

In June I wrote about David and Collet Stephan being sentenced to jail for the death of their two year old son Ezekiel. David and Collet treated him with naturopathic remedies and did not respond to clear indications that Ezekiel was developing dangerous meningitis until it was too late. The judge acknowledged that they loved Ezekiel and were trying in their way to help him, but concluded that they did not have a right to choose their own beliefs over mainstream health care. He sentenced David to four months in jail, but allowed Collet to serve a three month sentence under house arrest.

The aftermath so far is fascinating. Both sides are appealing The "Crown" (Canada's term for the "state") is appealing the sentence as too lenient, on the following grounds:

 - The sentence is not proportionate to the gravity of the offence or to the degree of responsibility of the offender, and is unfit.

 - The Sentencing Judge gave insufficient weight to denunciation and deterrence.

- The Sentencing Judge underemphasized, or failed to give weight to, relevant aggravating factors.

- The Sentencing Judge overemphasized mitigating factors, or gave mitigative weight to factors that are not mitigating. 

- The Sentencing Judge misinterpreted the legal doctrine of wilful blindness.

"Wilful blindness"is a legal term referring to motivated ignorance. The Crown is alleging that the Stephans chose to ignore the obvious fact that Ezekiel needed urgent medical attention because of their cult belief in "natural" remedies.

The Stephans have appealed their conviction. A friend from Canada told m that the appeal is based, at least in part, on free speech grounds. According to my friend they argue that the judge's requirement that they post an unedited copy of his ruling on their website infringes on their right to freedom of speech. (I haven't been able to find the details of their appeal.)

David Stephan's two "letters from jail" (here and here) show him to be a principled believer in a false doctrine. He is convinced that he is taking a stand for justice, to protect other parents from intrusions of the state.

I believe, however, that the judge threaded his way between punishment and mercy in an admirable manner. The judge and jury concluded that David and Collet were guilty of failing to protect their son from preventable harm. From my reading of the media reports this was a correct finding. But the judge recognized that the Stephans were loving parents, acting on their longstanding beliefs. They meant well for their son, but they did him the ultimate harm.

The judge gave David, who he saw as the leader of the belief system, a short jail sentence, but allowed Collet to serve on home detention so that she could care for the children. I supported and continue to support his requirement that his findings be posted on the Stephan website. While the Stephans totally disagree with the findings, they have been convicted under the law. Their website promulgates the cult beliefs that led to their son's death, and could do the same in another family. Posting the judge's findings does not abridge their speech rights. They can, and will, continue to disagree the the judge and jury and to speak up for their false naturopathic doctrines. This is their right in a democratic society.

But if they persist in refusing to post the  judge's findings I would favor requiring Collet to serve her sentence in jail once David is out and could care for their children. I do not know the Canadian precedents for contempt of court, but it would seem that a substantial fine and an extended period of probation would be warranted.

I believe the Stephans deserve respect for the principled way in which they assert their beliefs. In their view they are standing up for truth and justice. David is careful to say that he discourages his supporters from anger or hatred. This is admirable. But in the democratic society of Canada, the Crown is the legitimate authority for ruling on the situation. If David can persuade the public to change the law, the situation will be different. But under the law, the judge has ruled correctly.

Jail Time for Parents for letting Toddler Die from Meningitis

Last week a Canadian court sentenced David Stephan to four months in jail and his wife Collet to three months of house arrest for their role in the death of their 19 month old son Ezekiel in 2012.

When Ezekiel became ill, his parents thought he had some form of "flu," and treated him with herbs and a mixture of apple cider, vinegar, horse radish root, hot peppers, mashed onion, garlic and ginger root. A friend who was a nurse told them he might have meningitis, but they persevered in their efforts to treat him by the "natural" modalities they believed in. A witness testified that when they drove Ezekiel to a naturopathic clinic, he was too stiff to sit in his car seat. As his condition worsened, his parents had to feed him with an eye dropper. They only summoned medical help when Ezekiel stopped breathing. The child suffered severe brain damage from anoxia and died a few days later.

David and Collet are part of a community built around vaccine refusal and faith in "natural" remedies. David's father Anthony founded TrueHope, after his wife, who suffered from bipolar illness, committed suicide. The company markets EMPowerplus, a "natural" product that they claim as a cure for bipolar disorder, depression, and even autism. Ezekiel's father David is Vice-President of the company.

David and Collet were convicted under a Canadian law that requires parents "to provide necessaries of life for a child under the age of sixteen years." The prosecution asked the judge to sentence them to 3.5 - 4 years in prison, close to the maximum the law allows (5 years). The judge called that "too harsh." He required prison for David because David refused to take responsibility for his actions. He asserted that a government conspiracy to squelch vaccine refusal was at work, and blamed Ezekiel's death on faulty ambulance care. In the judge's view, Collet was less responsible for Ezekiel's death. In addition to house arrest, he required her to publish his findings on her website. After their jail and house arrest terms, David and Collet will be on probation for two years, and will be required to obtain regular medical attention for their children.

Adults capable of making decisions are and should be free to choose no treatment or quack interventions. But they should not be free to refuse potentially life saving interventions - like antibiotics for bacterial pneumonia - for their children. Seen through the lens of both law and ethics, the judge ruled correctly. David and Collet loved Ezekiel, but they - especially David - made decisions a "reasonable" parent would know to be wrong. Ezekiel paid for their commitment to their "naturopathic" doctrines with his life.

(For a compendium of articles on the situation, see here.)

Taking Action on Sexual Abuse by Physicians

"Why Didn't Anyone Stop Dr. Hardy?" is the featured headline on the front page of today's Boston Globe. It's accompanied by the photo of the back of the head of a woman who complained about Dr. Hardy to the Massachusetts medical board in 2004. She has her hand against her cheek with a watch showing prominently, suggesting the passage of time over which numerous complaints were made about Hardy, with no action being taken. What follows is a summary of the article and my analysis of the key issues:

The story went back to his undergraduate days at Princeton. Both male and female classmates believed he had committed sexual assaults. But this was the 1970s, before the kind of focus on sexual misconduct that universities now apply. Hardy was president of the premedical society and even, for a time, a counselor in a sexual education program. A male classmate was concerned enough to send anonymous letters to medical schools warning that Hardy was "a person of poor character." Hardy trained at Cincinnati, Stanford and Harvard, becoming a gynecologist and fertility specialist.

In 1999 a woman reported to the gynecologist who had referred her to Hardy that Hardy has massaged her clitoris, saying he needed to get her "uterus to contract." She asked the gynecologist - was this a normal medical procedure? Her gynecologist said it was not, but apparently did not report Hardy to the medical board. In 2004 the patient featured in the article reported Hardy to the medical board, complaining that her clitoral area was raw and swollen after a surgical procedure. Hardy wrote a three page defense. The board took no action against him, but it did make a record of the complaint.

In 2011 Hardy told  a South Asian patient that women from her country were "clueless about sex," and that being brought to orgasm by his massaging her clitoris would help her get pregnant. When this woman ultimately went to the Massachusetts medical board the board conducted an extensive examination - including interviewing classmates from Princeton -  leading to Dr. Hardy's surrendering his medical license, and promising never to seek to be licensed in any other state. Dr. Hardy now lives in Thailand with his second wife and their young children.

In medical ethics classes we typically work with examples of "good v good" conflicts, as when respecting the patient's choices ("respecting autonomy") conflicts with the patient's health ("practicing beneficence"). I interpret the history of Dr. Hardy's case as the opposite - a "bad v bad" conflict.

If the patients' complaints are true, Dr. Hardy has malpracticed, disgraced his profession, and possibly committed felonious assault. Sadly, we know that some physicians betray their patients' trust and professional responsibilities in the way Hardy apparently did. In the past, however, it was not uncommon for an offending physician's denial to be believed, especially when the physician was a "respectable" Caucasian with top drawer credentials like Hardy. When colleagues and medical boards acted this way they were adding "system level injury" to the "direct injury" done by the abusive physician.

But in addition to bad things being done to patients by individual physicians, unresponsive colleagues and inactive medical boards, there are symmetrical risks of harm being done to "innocent" physicians. 40 years ago a young patient of mine with mild developmental disability was angry when I cancelled an appointment. She complained to the medical board that I had molested her. I had hurt her feelings, but that's not what she said to the board. By the time the board contacted me my patient and I had rescheduled the appointment and we were once again on good terms. I was too naive at the time to recognize how serious a complaint to the board could be. My patient had had a brief adolescent snit, but just as a malicious physician may lie about his offenses, a malicious patient may fabricate an accusation. When a board or the court of public opinion finds an "innocent" physician "guilty," a severe harm is done to the physician.

I don't see any way of ensuring the right answer to these "bad vs bad" conflicts. I know that patients have been harmed by having their reports of abuse disbelieved. But I'm sure that exemplary physicians have, on occasion, been harmed by complaints based on misunderstanding or malicious intent. Years ago, when I was in charge of a medical facility, a female patient complained that her male physician had been masturbating during an appointment. I met with the physician to take up the complaint. He said that perhaps his underwear had twisted around his testicles and that he readjusted his clothing and his anatomy via his pocket. (Male  readers have probably experienced the underwear problem.) I believed him, and explained what I thought had happened to the patient. She seemed to accept my interpretation, and that was the sole complaint ever received about the physician. But stranger things have happened than what the patient initially alleged. While I believe I got the situation right, a crystal ball might tell us that the physician lied and I unwittingly exonerated him and did an injury to the patient.

The excellent reporting done by the Boston Globe gives some guidance about how the health system and medical profession can handle these "bad v bad" conflicts better. Colleagues need to follow up on stories they hear from patients or rumors. At the very least this means talking directly with the physician in question. This isn't easy, but it's clearly the right thing to do. It didn't happen early enough with Dr. Hardy. If the physician is "guilty" it puts him or her on notice that the medical community is vigilant. At best the physician will say "I made a terrible mistake and I need to get help..." But even if the physician lies in a plausible manner, knowing that others are concerned will diminish the likelihood of repeat offenses.And if the accused physician is "innocent" he or she will be embarrassed or appalled, but it's better not to have unchallenged rumors circulating.

It's a privilege to be allowed to become part of patients' lives in the intimate way that medical care involves. But that very intimacy creates risks - primarily for patients but also for physicians. We need our health system to protect patients from exploitation and injury without making physicians so wary about accusations that they overly constrain their human warmth and caring.

Not an easy task!

Should You Kill Your Disabled Child?

I've just read a remarkable book about this question: Rescuing Jeffrey, by his father, Richard Galli. I got to the book via "Calling It Quits: When Patients or Proxies Request to Withdraw or Withhold Life-Sustaining Treatment After Spinal Cord Injury," an article assigned to Harvard Medical School students for this week's class on end of life care in the required course on "Medical Ethics and Professionalism."

On July 4, 1998, Jeffrey Galli, 17 at the time, dove into the shallow end of a swimming pool and fractured his neck, injuring his spinal cord in a way that left him quadriplegic and unable to breathe without ventilator support. Richard saved his life by pulling him out of the pool and breathing through his nose. But when Jeffrey got to the Hasbro Children's Hospital in Providence, Rhode Island, and the extent of his injury became clear, Richard and his wife Toby considered whether the right thing to do would be to withdraw treatment and let Jeffrey die.

Galli renders the anguished flow of his thoughts and feelings in admirably spare prose. Not surprisingly for a 17 year old, Jeffrey had given no guidance about he would want to have done in a situation like the calamity he experienced. In his initial state of unconsciousness, and the next few days of impaired awareness, his parents had to make decisions for him. Galli initially felt that Jeffrey - a very physical boy who was not drawn to reading or other forms of "living in his mind" - would not be able to tolerate the helplessness and immobility of quadriplegia. But he recognized that he wasn't a reliable decision-maker. Perhaps he was the one who couldn't tolerate Jeffrey's condition. Galli conveys the way thinking about Jeffrey mixed with projection onto Jeffrey brilliantly. At one point he imagines pulling the plug on Jeffrey and then committing suicide himself!

When Jeffrey started to regain consciousness and began to fathom what had happened, his first reaction was "I want to die." But over the course of the ten days Galli's narrative describes Jeffrey first oscillates between wanting to die and wanting to live, gradually settling on the will to survive.

Galli provides a service to clear thinking by using harsh words to bring out harsh facts. For him the question isn't whether to "withdraw medical treatment from Jeffrey" but whether to "kill Jeffrey." In part, making that choice would have been an act of love - sparing his son from the suffering that he expected would be Jeffrey's fate. But in part the choice would have reflected his own suffering at the loss of a son with mobility. For that reason. "killing" wfelt to him like the right word.

The crucial help Galli received was from a physician whose name he does not give and who was not part of Jeffrey's ongoing treatment. The physician conveyed that the life vs. death decision didn't have to be made now. If Jeffrey decided in the future that life in a wheelchair with no use of arms or legs and no ability to breath on his own was not worth living, he could have the ventilator withdrawn. Galli concluded that letting the treatment proceed was not committing his son to a life of unwanted suffering.

The book is painful to read, but once I picked it up I couldn't put it down.

(Jeffrey completed high school and then college. For an article about him at the University of Rhode Island, see here. For a video of Jeffrey and his younger sister Sarah in 2012, 14 years after the accident, see here. And for a post I wrote about an adult patient with quadriplegia who elected to have his ventilator turned off, see here.)

Badmouthing Your Doctor

A headline on the front page of this morning's Boston Globe jumped out at me - "Doctors fire back at patient critiques: Lawsuits target harsh web posts." It tells the painful story of the relationship between Gary Cotour and Dr. Sagun Tuli, neurosurgeon for his late wife Lyn.

Dr. Tuli operated on Lyn Votour to remove cancerous vertebrae. During the second surgery Ms. Votour experienced a stroke. After a stay at a rehabilitation hospital she returned home, bedridden and dependent on a feeding tube. Two years later, depressed and in pain, Lyn Votour asked Gary to remove her feeding tube. He did so, and she died.

Mr. Votour's relationship with Dr. Tuli apparently went well during her acute hospitalization, but after discharge it fell apart. After her death Mr. Votour asked to meet with Dr. Tuli. Here's what he later said about the situation:

I was not doing well with grief. I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.

The meeting Mr. Votour wanted never happened. Dr. Tuli claims that a hospital lawyer told her not to meet with Mr. Votour. The hospital denies this and claims that Dr. Tuli "indicated that she was not comfortable meeting with Mr. Votour."

Mr. Votour posted on his blog that doctors at the rehabilitation facility had encouraged him to file a malpractice suit against Dr. Tuli and that he lost his wife "not to cancer but to indifference and egotism."

In response, Dr. Tuli is suing Mr. Votour for defamation, asking for $100,000 in damages.

Whether it was the hospital lawyer's advice or Dr. Tuli's discomfort that led to not meeting with Mr. Votour after his wife's death, that meeting should have occurred. In addition to all of the work that has been done on the benefitial effects of apology, I draw on a personal experience here. Some decades ago I had brief contact with a college age student suffering from severe depression. The student believed that the depression stemmed from stressors, and that returning to school would alleviate the symptoms, as had occurred in the past. After discussion, I agreed with this prediction, but advised the student (I'm deliberately leaving out gender and other identifiers) to seek immediate help if the symptoms recurred. The symptoms did recur. The student sought help as I had advised, but committed suicide in the course of the care process.

The student's family asked to meet with me. We met for an hour or two. They pressed me to explain why I supported return to college rather than immediate hospitalization. After I did so they asked if I felt I had made a mistake. I said that I had thought carefully about the advice I'd given, but that in retrospect I wished I had followed a different course. I expressed my great sorrow about the student's death. It was one of the most painful meetings of my entire career.

Some years later I was contacted by a malpractice lawyer representing the family. My anxiety soared. The lawyer asked me for information, but told me that the family was bringing suit against the college, and had specifically requested that I not be brought into the case.

Given the terrible outcome it would have been entirely understandable for me to have been sued. I believe the heart to heart meeting we had had after the student's suicide assuaged potential bitterness against me. The family may well have felt that I made an erroneous judgment, but they did not feel as Mr. Votour did that the student's death was caused by "indifference and egotism."

The Boston Globe article quotes David Ardia, codirector of the Center for Media Law and Policy at the University of North Carolina, about the impact of the Internet on physician concern about our reputations: 

the Internet has realigned the power structure that existed between doctors and patients, giving patients far more influence than they have ever had. The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.

The article led me to look myself up on the rate-your-physician sites. The single patient response on healthgrades gave me the lowest possible grades on every category. I ended my clinical practice five years ago, but if I were still in practice I'd be concerned that 100% of the reviews I'd received gave me a F grade.

Dr. Tuli's suit against Mr. Votour reflects a classical form of "good vs good" ethical conflict. Freedom of speech is a fundamental good, enshrined in the First Amendment. But our public reputations are precious to us, and even a non-verbal critique like the one an anonymous former patient gave me on healthgrades can undermine a career. As unseemly as it is for a physician to sue a former patient, Dr. Tuli will not be the last physician to follow that unhappy route.

(Two examples of enterprises that offer to protect physician reputations can be seen here and here. And, thanks to an anonymous reader, here is a link to the original post that is no longer on the web.)

Suing your children in Singapore

In the post I wrote yesterday I referred to the tradition of filial piety in Singapore. When I was discussing that topic with a lawyer at the Centre for Biomedical Ethics he told me about Singapore's fascinating "Maintenance of Parents Act," which went into effect in 1996.

The law allows any Singapore resident, 60 years old and above, who is unable to maintain himself adequately, to claim maintenance from his or her children, either in a lump-sum payment, or in the form of monthly allowances. If the parent gives consent, relatives or caregivers may apply for court action on the parent's behalf. Cases (recently there have been about 100-150 per year) are heard by a special Tribunal that decides whether payment should be made and how much it should be, based on criteria including the parent's financial needs and the child's earning capacity and other financial obligations.  The maintenance claim may be dismissed if the children can prove that they were abused, neglected or abandoned by their parents when they were young. The law stipulates that only the basic amenities and physical needs of the applicant including shelter, food and clothing are required.  The maintenance is not linked to the parent’s previous standard of living.The applicants tend to be Chinese fathers, either widowed or divorced.
The law was proposed by Walter Woon, who was a member of the Singapore Parliament at the time and also professor of law at the National University of Singapore.I found his comments about the law very persuasive, and quote them here:

Some critics have said that applying to the court for maintenance from one's children is undignified. I wonder whether it is more dignified to apply for public assistance or to depend on the kindness of strangers. Or perhaps it would be more dignified to starve quietly and without fuss.

Cynics have dubbed this the 'Sue Your Son' law. They miss the point completely. It would be only in a very extreme case that any parent would take his children to court. The effect of the bill, if it becomes law, will be more subtle.

First, it will reaffirm the notion that each individual has a responsibility to look after his parents. It is not society's responsibility. Singapore is still conservative enough so that this idea is not objectionable to most people. The bill reinforces the traditional values of Christianity, Islam, Hinduism and Buddhism as well as Confucianism. It doesn't hurt a society now and then to be reminded of what its core values are.

Second and more important, it will make those who are inclined to shirk their responsibility think twice. As things stand, If a person asks family members or clergymen or the Ministry of Community Development to help him get financial support from his children, the most that they can do is to try to mediate. The trouble with mediation is that the mediators have no teeth. They can exhort, preach, persuade, cajole, plead and even beg. But when push comes to shove, there is currently no way that a son can be forced to support his parents.

But if there were a legal remedy, that would be a different matter. To be sued by one's parents would entail a massive loss of face. It would be a public disgrace. The hand of the conciliator would be immeasurably strengthened. It is far more likely that some sort of amicable settlement would be reached through private mediation if the recalcitrant son knows that the alternative is a public trial. So, one hopes that the fact that such a law exists will make it unnecessary for it to be invoked.

The critics who say that the proposed law does not promote filial piety are right. It has nothing to do with filial piety. It kicks in where filial piety fails. The law cannot legislate love between parents and children and husbands and wives. All the law can do is provide a safety net where morality proves insufficient.

I take a pragmatic view. The law I have proposed won't affect the people who already are supporting their parents, not only with money but, it is hoped, with love and respect. The only ones who need worry are those who aren't living up to their moral obligations. If the law helps even one poor person, I think the effort is worth it.

Many years ago, in what turned out to be the last year of my father's life, I persuaded him to move from Florida to Massachusetts, where I live. He was blind from macular degeneration and needed a supportive living environment - ultimately one with 24 hour nursing care available. I engaged a geriatric care manager to help me (his only child) scope out the options. She told me about maneuvers that would allow him to receive Medicaid support. In the spirit of Professor Woon, I did not want to do that. The care my father  needed was costly, but I could afford it, and it seemed obviously wrong to ask my fellow citizens to support him. If I had refused to pay for his support I hope Medicaid would have come after me, as Professor Woon wanted the Singapore authorities to be able to do.

More about the Massachusetts Board of Registration in Medicine and Doctor-Patient Sex

There were two letters to the editor in today's Boston Globe about the Massachusetts Board of Registration in Medicine's decision to take away Dr. Gary Brockington's license. (See here for my original post.)

Nurse Mary Hourihan gives a perspective on Dr. Brockington's overall practice like what we've heard from patients of other physicians who have been disciplined for sexual relationships with patients:

As a nurse who has worked at the Faulkner Hospital for more than 30 years, I was shocked and saddened to read your article concerning the state Board of Registration in Medicine’s revocation of Dr. Gary Brockington’s medical license (“Board revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24). The doctor has cared for his many patients with the utmost professionalism and expertise. Although I do not work directly with him, nearly every day I hear from our mutual patients the reverence in which he is held.

The board is denying thousands of patients the skilled, sensitive care this extraordinary physician provides. I feel that Brockington and his patients deserve reconsideration of this decision.

Mary Hourihan

West Roxbury  

There's nothing surprising about the fact that a physician who displayed a serious ethical lapse with a patient may have been an excellent physician for most or almost all of his patients. (For example, see here.) In my own experience, a former colleague who I knew to be a superb physician, such that I referred one of my sons to him for allergy care, has been convicted for murdering his wife! In prison, he continues to evince the caretaking characteristics that were so prominent in his care of patients. (See here.)

Donald Ross, a physician colleague of Dr. Brockington, comes to the same conclusion I did - that if Brockington's relationship with the patient was a brief, one-time event that occurred during a period of major stress, the Board's actions were too harsh. But I don't agree with Ross that the Board's decision necessarily reflects "lack of compassion." A Board can impose a severe penalty and still regard to person being penalized with compassion, in accord with the precept that we should hate the sin but love the sinner.

In reading the story about Dr. Gary Brockington’s affair with a woman who was a patient and a co-worker, it strikes me that the reaction of the state Board of Registration in Medicine was over the top and lacked compassion in its response (“State revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24).

Perhaps there was poor judgment involved, but this does not sound like a case in which a doctor used his position in the doctor-patient relationship in an exploitative way. Brockington was also going through a difficult time in his own personal life at the time, and sometimes we don’t make our best decisions under such circumstances.

Perhaps it would have been more appropriate to require Brockington to enter a counseling program rather than imposing what is essentially a death penalty to his career.

Dr. Donald G. Ross

North Andover

As I said in my original post, if Brockington's relationship with his patient was (1) brief, (2) a single occurrence in his practice and not a pattern, (3) occurred at a time of major stress, and (4) preceded by years of responsible caretaking, than (5) permanent loss of license seems too severe a penalty. This is not a matter of compassion but of realism. Some perpetrators of unethical behavior can be rehabilitated and will be able to serve others in a reliably ethical manner.

Was the Massachusetts Board of Registration Too Harsh on this case of Doctor-Patient Sex?

The Boston Globe recently reported that the Massachusetts Board of Registration in Medicine revoked the license of Dr. Gary Brockington, a 54 year old primary care physician and cardiologist, for having had a sexual relationship with a patient.

I've not been able to get a copy of the report from the Division of Administrative Law Appeals, so I'm entirely dependent on the Boston Globe story, which has extensive quotes from Brockington's lawyer. The story, if accurate and complete, leads me to speculate that revocation of licensure may be too severe a penalty in this specific situation.

According to the Globe, Brockington experienced a Job-like series of events in 2006. He was newly divorced, bankrupt, and depressed. During the same stretch of time his sister (his only sibling) broke her neck and was left by her husband. Brockington became legal guardian for her two young children.

One of his patients, a married woman who was a technician at the hospital where Brockington practiced, and who had worked with him on procedures, invited him to stay in her basement. According to Brockington's lawyer he told her she would have to get another primary care physician. He did, however, renew some prescriptions for her. He stayed in her home for two months. Apparently the brief sexual relationship occurred during the last two weeks of his stay. He moved out in July, 2006. The woman did not herself register a complaint.

If, as Brockington's lawyer claims, the facts show that this was a single episode in an otherwise exemplary career, it's not clear that public safety requires permanent loss of license. In other posts I've strongly supported permanent loss of license when the pattern of facts was different, as in this case. In another case, I concluded that Rhode Island was correct when it reinstated the license of a physician who participated in an extensive rehabilitation program, and agreed to continue in ongoing psychotherapy and long term supervision of practice. (see here)

The spokesman for the Massachusetts Board of Registration is quoted as saying that "the board has zero tolerance for sexual misconduct between physicians and patients." I believe that "zero tolerance" is the correct stance, but don't believe that sexual misconduct always requires permanent loss of license. If the Boston Globe article is the full story, a case can be made that this was a single, out-of-character episode that occurred in extraordinarily stressful circumstances. If that is how the Board saw the situation, I believe it acted too harshly.

More about the Massachusetts "Death with Dignity" Act

Last week I wrote about the Massachusetts "Death with Dignity" ballot initiative. For those who are interested in the initiative and how it is playing out, this morning's Boston Globe has a very informatinve article on the topic.

Massachusetts Death with Dignity Ballot Initiative

My home state of Massachusetts has an initiative on the November ballot that would establish a "death with dignity" law closely modeled on the existing laws in Oregon and Washington. Surveys suggest that a majority of the public support the law, but influential groups including the Catholic Church and the Massachusetts Medical Society oppose it.

Today I had the privilege of meeting with a group of elderly men at a community center to tell them about the initiative, summarize the essence of the pro and con positions, and then lead them in discussion. In other words, something like a focus group.

The heart of the discussion was a spirited exchange between two of the participants. One who I'll call "Skeptic," opposed the initiative. Human nature being imperfect, he anticipated that some doctors would "specialize" in certifying that patients met the criteria for receiving a lethal prescription without the kind of careful clinical attention the law encourages. Whether the motivation was financial profit or perverse sadism, Skeptic was certain that this kind of medical misbehavior was inevitable.

The other, who I'll call "Advocate," argued that the right to receive a prescription for ending one's life in the context of a terminal illness is a natural and necessary extension of the right to refuse treatment or to discontinue ongoing treatment. Advocate believed that science has created all manner of life prolonging interventions and that patients need tools to control what they receive or are subjected to.

Skeptic focused on the risks arising from misuse of the proposed law. Advocate focused on the risks arising from lack of autonomy for patients with terminal conditions.

The group agreed that both risks were real. Oversight by the Department of Publich Health, to whom use of the law would have to be reported, and the Board of Medicine, which could sanction outliers of the kind Skeptic envisioned, was trusted by some but not by others.

In my summary of the pros and cons I cited religious beliefs about the wrongness of hastening one's own death and told the group about the Roman Catholic Archdiocese website "Suicide is Always a Tragedy." No one in the group, however, brought in theological reasoning. I don't know if this was because theology was not a driving force for them or if they regarded religious belief as private.

Where we ended was with a sense that the exchange between Skeptic and Advocate was best understood as a "good versus good" conflict. Skeptic took a consequentialist view - the law would allow unethical physicians to consign people to death without application of the safeguards the law sought to put into place. Advocate took a rights-based view - patients need and deserve more tools to allow them to advance their own autonomous choices.

I wasn't trying to persuade the group to any position on the law. My aim was to (a) inform them and then (b) get a sense of how a population for whom the law, if passed, could become relevant, thought about the law. We concluded that intelligent, thoughtful, well-motivated persons of good will could, would, and did disagree.

I'll write more about the topic after November 6!

Returning to Practice After Loss of License

Two years ago I wrote about Dr. Brian Kwetkowski, a primary care physician in Rhode Island, who lost his license for having a sexual relationship with a patient. According to the Rhode Island Board of Medical Licensure and Discipline, Dr. Kwetkowski is a 1996 graduate of the New England College of Osteopathy, and is Board Certified in Family Medicine. The Board reported that three years prior to his voluntary surrender of his license, Dr. Kwetkowski commenced a sexual relationship with a 19 year old female patient.

The Board required Dr. Kwetkowski to "enter a treatment facility and complete all of the recommendations of the evaluators." Dr. Kwetkowski did this at the Acumen Institute, in Lawrence, Kansas. The clinical staff has impressive credentials. All had formerly been associated with the Meninger Clinic until the Clinic moved from Kansas to Texas in 2003. Here's how Acumen describes its program:

Embedded within all aspects of our individual and group treatment, education, and coaching processes is an emphasis on the components of professionalism, maintaining appropriate role functions, and high-achievement. We endeavor to help our clients to develop the insight and the skills they need to resolve work-related and personal difficulties and fashion life plans that foster integrity, authenticity, and physical and psychological well-being. Within an intensive day treatment/coaching process, our staff helps each physician to:


•Identify deficits in professionalism

•Recognize personal development needs and goals and develop an adaptive way to have those needs met

•Identify and adjust personality attributes that have led to self-defeating outcomes

•Monitor response to medication, if indicated

•Internalize new leadership and personal life skills sets

•Implement new skills that promote a team-based work environment

•Develop a leadership plan tailored to the client's particular strengths and career context

These are the right goals for physicians a licensure board sees as potentially capable of rehabilitation and return to practice.

I learned today from a reader's comment that on March 8, 2011, the Rhode Island Board of Medical Licensure and Discipline reinstated Dr. Kwetkowski's license. He must be monitored by the Rhode Island Physicians Health Committee for five years, continue in weekly psychotherapy, practice only in a group setting, be chaperoned with all female patients, and had to return to the Acumen Institute three times in 2011 for followup assessment, which included polygraph testing "to document the absence of boundary violations."

Many of Dr. Kwetkowski's former patients responded to my original post and described him as an outstanding physician. I assume from the Board's actions that his track record apart from the serious boundary violation must have been good, and that the violation was not part of a pattern carried out with other patients. I further assume that the Board believed that it was safe to allow him to return to practice under the specified conditions. If Dr. Kwetkowski continues to care for patients in the exemplary way former patients described and respects proper boundaries for the remainder of his career, the Board's decision will have been correct.

Patient Autonomy after Death - the Case of Anne Sexton

I hadn't thought about the controversy surrounding Diane Middlebrook's biography of Anne Sexton since its publication in 1991 until I saw a recent Boston Globe article about Dawn Skorczewski's new book about Sexton.

Sexton's first psychiatrist, Dr. Martin Orne, had made tapes of psychotherapy sessions available to Middlebrook, for which he was roundly condemned, as in a New York Times editorial titled "Betrayed: The Poet and the Public":

Anne Sexton likely assumed that the relationship between psychiatrist and patient was as confidential as that between priest and penitent. Anyone who enters therapy does so with that assumption. Confidentiality is at the heart of the process. Betrayal is, or should be, unthinkable.

By taking the tapes, Ms.Middlebrook followed her profession. But by offering them, Dr. Orne dishonored his.

Sexton became Orne's patient in 1956 when she was hospitalized after a suicide attempt. At the time she was a depressed and lost housewife with a high school education. Orne encouraged her to respect her latent strengths and find ways to make her life feel more meaningful. Sexton began to write poetry. Her first book - To Bedlam and Part Way Back was published in 1960. In 1967 she won the Pulitzer Prize for Live or Die.

Sexton's symptoms interfered with remembering what happened in therapy, so in 1960 Orne began to record sessions. Sexton would then listen to the tapes and make notes. This unconventional technique was very useful to her. She continued in treatment with Orne until Orne moved from Boston to Philadelphia in 1964.

But Sexton was never free from the impact of mental illness. On October 4, 1974, a year after separating from her husband of 25 years and being dropped by her third psychiatrist, she committed suicide.

In my review of contemporary comments on Orne's allowing Middlebrook to listen to the tapes, I was impressed with how scathing the criticism was. Dr. Willard Gaylin, Professor of Psychiatry at Columbia and co-founder of The Hastings Center, who I admire but do not know, said:

Doctors have no obligation to history and certainly should not act as a research assistant to a biographer...[Dr. Orne's actions were] a betrayal of his patient and his profession.

And my good friend Dr. Jeremy Lazarus, who in 1991 was chair of the American Psychiatric Association Ethics Committee and is now President-elect of the American Medical Association, commented:

A patient's right to confidentiality survives death. Our view is that only the patient can give that release. What the family wants does not matter a whit.

The position Drs. Gaylin and Lazarus took about Orne's release of the tapes followed from an opinion rendered by the American Psychiatric Association Ethics Committee in 1983:

Question: Can I give confidential information about a recently deceased mother to her grieving daughter?

Answer: No. Ethically, her confidences survive her death. Legally this is an unclear issue varying from one jurisdiction to another. Further, there is a risk of the information being used to seek an advantage in the contesting of a will or in competition with other surviving family members.

 Three years later the Ethics Committee was questioned as to whether this opinion was too rigid:

Question: It seems to me your earlier opinion about revealing confidential information after the death of a patient is too restrictive. Can there be exceptions?

Answer: Theoretically, yes, although such a circumstance has not yet been brought to our attention. As with maintaining the confidences of a living patient, exceptions can be made to protect others from imminent harm or under proper legal compulsion. However, weakening this view reduces our responsibility to living patients who trust us to protect their confidences even after their death.

I agree with the questioner - the 1983 opinion is at best a half truth, and potentially a source of dubious ethical advice.

If the information at question had clearly been regarded as confidential by the deceased person - as by saying "this is for your ears only" - of course the confidence should apply in death as it did in life. But suppose the deceased patient had given no explicit guidance, but had loved and trusted her daughter? If the daughter had asked for information or to talk with the psychiatrist when her mother was living, the psychiatrist would have asked his patient/her mother for guidance. In that spirit, after the patient's death I believe the right thing for the psychiatrist to do is to make the best judgment he can about what his patient would have wanted him to do. Simply treating anything for which explicit anticipatory guidance wasn't given as confidential can result in harms to the living the deceased patient would have wanted to avoid.

That's the thought process Dr. Orne followed with regard to the psychotherapy tapes. In an op ed in the New York Times he wrote:

In 1964, when I left Massachusetts, I offered to return all of the therapy tapes to Anne. She asked that I keep them to use as I saw fit to help others, though she retained a few for herself...In the judgment of all who knew her well, Anne definitely would have wanted the tapes released exactly as was done. What others would see as exposure, she saw as honesty. Sharing her most intimate thoughts and feelings for the benefit of others was not only her expressed and enacted desire, but the purpose for which she lived.

Posthumous judgments aren't infallible. If there's life after death, Anne Sexton's spirit might say - "Doc, you got it all wrong about the tapes!" But Orne made a responsible determination, based on his own direct experience with Sexton, the view of her daughter (the executor), and the views of people like poet Maxine Kumin, Sexton's best friend. That kind of judgment is the best we can do.

What survives a patient's death is our commitment to conducting the relationship in accord with the patient's wishes within the parameters of professional responsibility. If a patient wanted revenge against a family member we wouldn't carry it out. But on the basis of a thoughtful conclusion that Anne Sexton would have wanted Diane Middleton to be able to listen to the tapes, Orne was continuing to relate to his patient in a respectful, caring manner!

A Conservative Judge Finally Gets Health Reform Right

Judge Jeffrey Sutton's finding on the health insurance mandate in the U.S. Court of Appeals (Sixth Circuit) gives hope that the right wing is not totally bonkers.

Before readers flame me for questioning Tea Party theology, here's what David Brooks, the conservative New York Times columnist, wrote about Republicans on Tuesday with regard to the debt ceiling "debate":

...the Republican Party may no longer be a normal party. Over the past few years, it has been infected by a faction that is more of a psychological protest than a practical, governing alternative.

The members of this movement do not accept the logic of compromise, no matter how sweet the terms. If you ask them to raise taxes by an inch in order to cut government by a foot, they will say no. If you ask them to raise taxes by an inch to cut government by a yard, they will still say no.

The members of this movement do not accept the legitimacy of scholars and intellectual authorities. A thousand impartial experts may tell them that a default on the debt would have calamitous effects, far worse than raising tax revenues a bit. But the members of this movement refuse to believe it...

Judge Sutton's conservative credentials are impeccable! He clerked for Justice Scalia in 1991-1992. He was nominated to the court by George W. Bush and confirmed after a contentious debate by a 52-41 Senate vote. His well-reasoned, well-written decision has set conservative ideologues on their heels.

Judge Sutton's reasoning won't surprise anyone who understands the health system. He concludes that health insurance is a national enterprise, appropriately subjected to the Commerce Clause. He further concludes that to expand access while maintaining a market-based approach to insurance, the mandate is required - otherwise we'd all wait until we needed care and only then start paying our premiums. .

Here's how Judge Sutton structures the analysis:

the [mandate] provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance...our task is to determine whether self-insuring for the cost of health care services is an economic activity, and whether Congress had a rational basis to conclude that, in the aggregate, this activity substantially affects interstate commerce.

He concludes, obviously correctly, that Congress did indeed have a rational basis, consistent with the Constitution and established law, for its conclusion.

And with regard to Tea Party fury at being penalized for the "inaction" of not buying insurance, the Judge, in effect, agrees with David Brooks that the outrage is a psychological symptom, not a rational argument:

...the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label. The vast majority of individuals are active in the market for health care delivery because of two unique characteristics of this market: (1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.

...Call this mandate what you will—an affront to individual autonomy or an imperative of national health care—it meets the requirement of regulating activities that substantially affect interstate commerce...No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.

It's very important that Judge Sutton clearly empathizes with the libertarian component of American values. He's writing as a good conservative, not a liberal egghead, and he doesn't like the mandate. But he makes clear that not liking it, even being offended by it, doesn't make it Constitutional invalid:

That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership?... And if Congress can do this in the healthcare field, what of other fields of commerce and other products?

These are good questions, but there are some answers. In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them. (emphasis added)

Judge Sutton's opinion supports David Brooks's distinction between rational, admirable conservatism and irrational, often pathological, Tea Party ideology. He places his faith in facts and time, not ideological passion. Hats off to the judge for bringing sanity and thoughtfulness into the health reform debate:

Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

How to Defend Resistance to the Health Insurance Mandate

For decades, the U.S. has seen the number of uninsured as a national disgrace. We've wrung our policy hands together to address the problem, entirely ineffectively.

But in the context of resistance to the Patient Protection and Affordable Care Act, Judges Hudson and Vinson, and the health insurance mandate resisters, have turned the issue of not being insured on its head. For them the ethical issue is their right to choose not to be insured, not society's obligation to ensure that all citizens have access to decent health care.

Conflict over the mandate rests on Isaiah Berlin's distinction (in his 1958 essay "Two Concepts of Liberty") between negative and positive liberty, defined as follows in the Stanford Encyclopedia of Philosophy:

Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one's life and realize one's fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.

The health reform law promotes positive liberty - the possibility of pursuing our "fundamental objectives" through good health. The mandate resisters are asserting negative liberty - the right to make their own choices.

Both forms of liberty are fundamental goods. But in large part the two "sides" are talking (or, to be more accurate, shouting) past each other.

I strongly support the Patient Protection and Affordable Care Act. It's far from perfect, but it's the best we could accomplish. But like the mandate resisters and most other human beings, I don't like to be told what to do.

The problem with my insisting on my right to be uninsured is that if I or my uninsured family incur a major expense, unless I pay the bill myself, you'll pay it for me by paying more for your own insurance and more in tax.

In other words, my liberty is your coercion.

Proposals that individuals who refuse insurance should sign a pledge not to make claims on health care paid for by others are ridiculous. When my child develops a treatable but otherwise fatal cancer, and I say - "I've come to my senses - I repent my foolish decision - please help my innocent child!" - society won't, and shouldn't, say "tough luck."

Here's what a responsible mandate resister should propose:

"I have considered the options and conclude that I do not want to purchase health insurance. I realize that I may incur health care costs in the future. I intend to pay out of my own resources, but to ensure that I do not impose my costs on others, I am putting $XXX into escrow to cover the inevitable uncertainties."

The escrow amount should be large enough to pay for, say, the tenth percentile of costs incurred by uninsured people. A poor mandate resister could perhaps be required to pay a pro-rated sum into escrow. Wily insurers would probably figure out ways to make money by providing stop loss coverage for the voluntary refusers of health insurance, just as bail bondsmen make money by putting up bail payment.

Simply insisting on the right to be uninsured is an unethical stance. It recognizes my right to negative liberty, but does so at your expense. Requiring me to put a sum into escrow allows me to follow my own drummer, but protects you from having to bear the consequences.

Judge Vinson's Ruling

I've spent several fascinating hours reading the decision handed down yesterday by Judge Roger Vinson of the U.S. District Court for Northern Florida. Judge Vinson concluded (1) that the individual mandate on which the Patient Protection and Affordable Care Act rests is unconstitutional and that (2) because, in his view, the entire law depends on the mechanism of the mandate, the law is itself unconstitutional. While I totally disagree with both parts of his conclusion, the opinion is well written and - at least to someone like me with limited knowledge of constitutional law - wonderfully educative.

In Judge Vinson's analysis, the case turns on seven words in Section 8 of the U.S. Constitution. Section 8 enumerates the powers of Congress. The third enumeration gives Congress power "To regulate Commerce...among the several states." What I found most educative in his opinion is the history he gives of the debate between more restrictive and more expansive interpretations of the commerce clause:

"...this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it, is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."

My response to the decision comes from (a) my understanding of the health care system and (b) my understanding of the ethical basis for universal coverage, and not from (c) any skill at arcane debate about the multiple court precedents.

It's hard for anyone who has worked in an emergency room or hospital to regard being uninsured as unrelated to "commerce." If I am not insured and am hit by a car, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires the emergency room to treat me. And if I require surgery the hospital will swallow my debt unless I can pay the enormous bill. You will cover the bill I don't pay via your taxes and the increase in your own insurance premium my bad debt contributes to. If I have good manners I will thank you for your generous act of commerce! But if I'm focused on my own liberty, I'll be attuned to my right not to be insured, not your right not to have to pick up my tab. Commerce be damned!

Even if Judge Vinson agreed that lack of health insurance is a problem affecting "Commerce...among the several states," he comes down hard on the mandate as an unprecedented penalty for "inaction." Here are two key comments:

Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States. (p 38)

A statute mandating that everyone purchase a product from a private company or be penalized (merely by virtue of being alive and a lawful citizen) is not a “modest” addition to federal involvement in the national health care market, nor is it “narrow [in] scope.” (p 57)

As I and others have commented, the conservative attack on mandating purchase of private insurance, if successful, pushes the country towards the very thing the mandate is designed to avoid - tax supported universal coverage, whether by a single payer or a voucher system. In psychiatry that would be called "return of the repressed"!

For health professionals, having access to care rest on arcane arguments about commerce seems bizarre. The Preamble to the Constitution and the first enumeration in Section 8 both proclaim our responsibility, through the government, to "promote the general Welfare." Health is a core component of our "Welfare," and without health liberty rights mean nothing - we can't pursue or use our liberty from the sickbed. The Patient Protection and Affordable Care Act represents a serious effort to "promote the general Welfare" in the domain of health.

The fate of the reform law will ultimately play out in the Supreme Court. In addition to the dizzying interplay of precedents the justices will brandish against each other, I hope they give more recognition to the fundamental moral obligations for our society the Preamble to our Constitution asserts:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Chilean Miners, Informed Consent, and Medical Ethics

I've never met Chris MacDonald, but I admire his superb Business Ethics Blog. Chris teaches philosophy and business ethics at Saint Mary's University in Halifax, Canada.

This post is triggered by what Chris wrote yesterday about the recently rescued Chilean miners, but a paragraph from his post today explains what I like so much about his way of approaching ethics. I highlighted the key sentence:

A bit of economics can go a long ways in helping understand a range of issues in business ethics. I’m not an economist myself, but I’ve read a fair bit of economics here & there. And I want to read more. In order to arrive at sound ethical conclusions, you need more than just ethical beliefs: you need some understanding of how the world works. For many issues in business ethics, economics provides relevant facts.

Chris hits the nail on the head. In medical ethics, as in business ethics, to "arrive at sound ethical conclusions" requires ability to reason well and even a bit of theory, but also practical knowledge "of how the world works."

Chris discusses two fascinating questions about the miners. First, what law are they under? He cites a law review paper from 1949 that imagines trapped miners who agree to shoot dice to see which one of them will be killed and eaten by the others. Without cannibalism, all will starve to death. When rescued, the survivors are tried for murder. Four judges find them guilty. The fifth acquits them. He argues that while trapped, they formed a mini-society, cut off from the system of government above them, and appropriately created their own form of civil society. Happily, no situation of "earthly crime" occurred in Chile, but the question of how it would have been handled after rescue is not simple.

The second question is relevant for medical ethics. While trapped, the miners drew up a contract agreeing to share equally any profits from telling their story (see here). But Chris asks - in the situation of entrapment, was true informed consent possible? He speculates that the largely positive force of strong group pressure for cooperation might be seen as creating "undue influence" and "duress."

Many years ago, my primary care physician referred me for a cardiac stress test. I arrived at the site, was ushered to the treadmill, and given several pages to read to get my "consent." The technician was standing by, in effect twiddling his thumbs. It wasn't a situation for leisurely perusal and reflection on risks and benefits! I knew enough about the test so that I could sign without reading the mini-tome, but in a minor way, the setting embodied the kind of "undue influence" and "duress" that Chris imagines in the Chilean mine.

In medical ethics class we teach all about the difference between explanation, persuasion, manipulation and coercion in seeking informed consent. Unfortunately, those lessons are often undone when students get to their clinical rotations and are sent off with a clipboard to "consent the patient" before a procedure is done.

Another factor, closer to my own field of psychiatry, involves all the discussion of the miners' supposed need for psychological treatment. The teams working with them while they were trapped were very sophisticated in their psychological thinking, as by not sending down games likely to provoke competition. 2300 feet underground it would be too easy for disputes to get out of hand.

The Chilean government will make six months of counseling available to the men. But some columnists have written that the men will surely suffer psychological disorders on their return. In their view, counseling is inevitably required. In actuality, some probably will need that kind of help, but others probably wont. In our mental health oriented, sometimes psychobabble dominated, culture, we can do inadvertent harm by our assumptions about how the psyche "must" work.

Years ago I did that myself while supervising a psychiatric resident in treating a mildly retarded man who had been incarcerated in a state facility as a teen for exposing himself in public. He had spent the next 50 years in the facility until the deinstitutionalization movement led to his being transferred to a community residence. He seemed happy. I said to the resident - "that can't be all there is to it. After all, he's lost his home of 50 years."

The resident probed and probed. We concluded that I was wrong. Remarkably, the man expressed no resentment for his incarceration. He was a simple soul, and took pure pleasure in being able to go to the neighborhood store when he wanted. In my supervision I'd imposed an assumption on him rather than letting him speak for himself.

With veterans returning from Iraq and Afghanistan, we're doing the right thing by emphasizing that "warriors" who are depressed are strong, not weak, when they ask for help. But in my practice I saw many people who were so persuaded that there was only one way to experience grief that if they didn't cry their unshed tears would create the equivalent of a poisonous toxin inside. Societal receptiveness to sadness and tears turned into a command for them.

In medicine, a core component of the "understanding of how the world works" required for ethical practice comes from listening to our patients without imposing stereotypes and preconceptions.

Judge Vaughn Walker's Decision about California Proposition 8

I recently read all 136 pages of Judge Vaughn R. Walker's decision in which he found that California's Proposition 8 is unconstitutional. Prop 8, enacted by a 52 to 48 percent margin in 2008 consists of 14 words: "Only marriage between a man and a woman is valid or recognized in California."

Judge Walker was nominated to the court by President Reagan in 1987. Ironically, his nomination stalled in the Senate Judiciary Committee. Because he had represented the U.S. Olympic Committee in its suit of the proposed "Gay Olympics" over use of the Olympic name, Walker was regarded as "insensitive to gays." President George H.W. Bush renominated him to the Federal District Court in Northern California in 1989, and he was unanimously confirmed.

Judge Walker's opinion made me proud of the U.S. Here is the gist of his extended analysis:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages...

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs...

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate...

The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples...“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

...Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

Two of my good friends in high school killed themselves in their 20s. Despair and shame about their sexuality was a major factor in their deaths. A college friend who spent several painful years trying to turn himself into a heterosexual described how at our 25th reunion he went to a dance sponsored by the gay and lesbian student association. Seeing gay and lesbian couples dancing together made him cry for the time he had wasted in the closet. One of my best friends in medical school was a closeted gay man. I can remember his terror that if he was "found out" his medical career would be ruined before it started. And in my psychiatry residency (in the mid 1960s) we were taught that if a gay or lesbian patient did not want to work on changing their sexual orientation there was no point in undertaking psychotherapy!

I found Judge Walker's opinion inspiring - not because of soaring rhetoric (there isn't much) - but because of the systematic way in which he considers the factual basis for prohibiting same sex couples to marry. He finds the arguments on behalf of prohibition lack any plausible basis in fact, and concludes that Prop 8 is based on the kind of faulty moral outlook that contributed to the deaths of my high school friends, that terrified my friend in medical school, and that I encountered in the teaching we received in residency.

I hope that over time Judge Walker's decision proves to be the final stake in the heart of our malignant history of anti-homosexual social prejudice.

Justice and Full Vindication for Whistleblowing Nurses

In February I wrote about how physician Rolando G. Arafiles, hospital administrator Stan Wiley, and Winkler County (west Texas) Sheriff Roberts tried to intimidate and prosecute two whistleblowing nurses who complained about the care Dr. Arafiles was providing. (See here and here.)

It took the jury one hour to acquit the one nurse who was brought to trial. (Charges against the other were dropped before the court date.)

The nurses then sued the hospital, Dr. Arafiles and Mr. Wiley for vindictive prosecution and denial of First Amendment rights. This week the defendants settled out of court for $750,000. In the meanwhile, the Texas Board of Medicine has charged Dr. Arafiles with numerous violations.

The two nurses have not been able to find other jobs. But Dr. Arafiles is still employed by the unrepentant hospital.

Doctor-Patient Sex - Is There a Duty to Warn the Patient's Spouse?

Justice Nicholas Colabella recently ruled in Levine v Werboff that an aggrieved husband is entitled to bring suit against his wife's psychiatrist.

Carl Levine alleges that Werboff had unprotected sex with his wife without revealing that he was infected with the herpes virus and without using precautions to prevent transmission. Levine claimed that as a result of Werboff's actions his wife contracted herpes and passed on the infection to him.

Werboff argued that Levine did not have standing to sue him. Judge Colabella disagreed. Here's the judge's reasoning:

1. New York Public Health law - "makes it a misdemeanor for a person, knowing himself to be infected with an infectious sexually transmitted disease, to have sexual intercourse with another."

2. Although judges are concerned about expanding the scope of duties, "there is nothing unfair about extending such a duty to a spouse of the infected person."

3. The judge, however, rejected Levine's effort to charge Werboff with malpractice - "the doctor-patient relationship that is the basis for a malpractice claim was between defendant and plaintiff's wife, not plaintiff."

I found nothing in Judge Colabella's decision that attributed a greater duty to Dr. Werboff than to any person with herpes alleged to have infected Levine by infecting his wife. But my hunch is that the Judge was influenced by the fact that a psychiatrist has a well-known and unambiguous ethical commitment not to have sexual relations with a patient. This means that if Dr. Werboff had such a relationship with Levine's wife, he was committing a seriously unethical act quite apart from transmitting herpes.

The question of how far to extend a physician's scope of duty is challenging. If a patient on a medication falls asleep in his car and injures a pedestrian, can the injured pedestrian sue the physician? (I discussed this issue in a previous post about Coombs v Florio, a Massachusetts case.) But in the Levine case, the alleged action was a gross violation of medical ethics and a potential basis for malpractice action, should Levine's wife choose to complain. From the perspective of ethics as well as law, Judge Colabella got it right!

Child Pornography, Law, and Ethics Education

A recent New York Times article about federal judge Jack Weinstein's view that the law requiring mandatory sentences for possession of child pornography is "unnecessarily cruel" raised three important points about ethics and ethics education for me.

1. The relationship between law and ethics. In ethics discussions with students and practicing physicians, participants often start by asking "what is the law?" My response is always the same. "First let's decide what we think is the right thing to do. Then we can ask about the law." If the law disagrees with our conclusion, that's a reason to reassess our analysis. After all, the law reflects society's view of how we should govern ourselves. Maybe our reasoning was wrong.
   
   But maybe the law is wrong. Judge Weinstein abhors child pornography. But he believes that many of those prosecuted for possession of pornographic images do not present a risk to children, and that mandatory long term prison sentences are sometimes unjust. The judge now proposes to tell the jury what kinds of mandatory sentences guilty verdicts will require, so that the juries will consider the punishment as well as the crime.
   
   This is not a typical court practice. Whether the judge's view of the degree of threat possession of child pornography poses or does not pose to children is correct, he'd making an important distinction between law and ethics.
   
   Law tells us what's legal, but not necessarily what's right.
   
   
2. Wishful thinking about human nature and the effectiveness of "treatment." In a recent case, Judge Weinstein did impose the mandatory five year prison sentence. But he wasn't happy about it - "This is an unnecessarily harsh and cruel sentence under the circumstances. This defendant requires treatment and a stable life outside of prison..."
   
   A social worker who wrote in response to the article spoke in a similarly optimistic way about mental health assessment and treatment:

   For some, if not most, collectors, child pornography films are a relatively harmless way of dealing with feelings of sexual attraction to minors. Such individuals would not think of actually touching a child inappropriately.
   
   For others, however, the viewing is a step on the way to actually performing the acts they view. To imprison the former group is a waste of taxpayer money; for the latter group, imprisonment is essential, and sentencing laws should be based not on a fixed time period but on the likelihood of repeating the abuse upon release.
   
   To distinguish between those who will and those who will not move on to abuse of children, the court should request assessment by mental health professionals. Such assessment is also needed for the decision whether to release the prisoner.

   But as Hamlet said to Horatio - "There are more things in heaven and earth than are dreamt of in your philosophy." Human nature is too complex and mysterious for our mental health categories to comprehend and reliably manage. We don't have effective treatments for sexual offenders, and our ability to predict dangerousness is limited at best. Recommending treatment reflects an admirably optimistic view of the fundamental goodness of our species, but it's not an evidence-based proposal. Ethics isn't just about values - it's about facts as well!
   
   
3. Emotion and moral judgment. The NYT article also tells about Judge James Graham, who sentenced a 67 year old man who had suffered a stroke to one day in jail, plus restrictions on computer use and registration as a sex offender. Judge Graham was quoted as follows:

   When you have to sit there on the bench and look at someone like my stroke victim and say, 'I have to send this man to prison for six years,' it just doesn’t feel right....It’s not right.

   In the Harvard Medical School class on medical ethics that just ended, I encouraged students to be very attentive to what they felt as they reflected on ethical matters, since emotional responses are relevant to our moral assessments. But we need to step back from those feelings to decide whether they reflect moral intuitions we should endorse or prejudices we should reject.
   
   That's how I interpret Judge Graham's comment. The initial "it just doesn't feel right" reflects his emotional reaction. His repetition, after a momentary pause - "it's not right" - reflects, I believe (and hope) his assessment of the initial "moral intuition."