More Law and Less Protection:
"Critogenesis"
"Legal Iatrogenesis," and Medical Decision Making
HAROLD BURSZTAJN, M.D.
Dr. Bursztajn is Clinical Assistant Professor, Department of Psychiatry,
Harvard Medical School, and Co-Director. Program in Psychiatry and the
Law, Massachusetts Mental Health Center, Boston, Massachusetts.
Presented at a Scientific Meeting of the Boston Society for Gerontologic
Psychiatry, November 3, 1984.
Conversations with Sissela Bok, A. Stone Freedberg, and Alan Stone over
the years have been the source of inspiration for the ideas presented
here. Their incubation was nourished through joint efforts with members
of the Program in Psychiatry and the Law of the Massachusetts Mental
Health Center. The Program includes Paul S. Appelbaum M.D. (Director),
Archie Brodsky, Phil Brown, Ph.D., Ben Zion Chanowitz, Ph.D, Thomas G.
Gutheil, M.D. (Co-Director), Robert M. Hamm, Ph.D., R. James Holzworth,
PhD., Mark Hauser. M.D.. Joyce Nevis-Olesen, David Stone, M.A., Mark
Warren M.A., and this writer (Co-Director). The critical comments of
Sissela Bok, Ph.D., Archie Brodsky. Ben Zion Chanowitz, Ph.D., Thomas
Gutheil, M.D., and Joyce Nevis-Olesen have contributed significantly
to revisions in this paper made since its presentation. I am grateful
to Hilary Putnam. Ph.D.. for noting crités as a suitable root
term to designate critogenic as judge-caused, as in critogenic
injury.
Failure to provide quality health care for competence-impaired persons
in the geriatric population poses particular medicolegal problems. One
response to this failure has been increased legal activism by advocates
who press for an expanded judicial role in decision making for these
and other incompetent patients—an approach that aims to achieve both
the protection of patients' rights and the provision of quality health
care. Charles Baron, one of the leading scholarly proponents of this
position, has captured this admirable combination of concerns in the
title of his paper, "Medicine and Human Rights: Emerging Substantive
Standards and Procedural Protections for Medical Decision Making within
the American Family" (Baron, this issue).
Baron proposes that the courts, rather than families and physicians,
be the first (rather than the last) resort for the decision making necessary
for incompetent patients; the specific mechanism he espouses is the appointment
of a guardian ad litem for each incompetent patient with a petitioner—whether
that petitioner is the patient's physician or family.
Unfortunately, rather than providing increased protection for families
with loved ones whose competence is impaired or in question, this approach
has foundered in the past decade. In a chapter in Law, Psychiatry,
and Morality entitled "Psychiatric Abuse and Legal Reform:
Two Ways to Make a Bad Situation Worse," Alan Stone (1984),
a past president of the American Psychiatric Association, wrote of the
alienation of the family as one of its consequences. How can more law
mean less protection for both incompetent patients and their families?
This medicolegal paradox will be addressed from a theoretical perspective
emphasizing the critical role of uncertainty, particularly as it is shared
by physicians, patients, and families, in medical decision making—an
approach developed by members of the Program in Psychiatry and the Law
at the Massachusetts Mental Health Center. Within this context, discussion
will focus on the harmful effects, the nonmonetary costs, to elderly
incompetent persons and their families that overzealous judicial intervention
can occasion. Baron's thesis will be examined as an example of how unfamiliarity
with current clinical and research approaches to medical decision making
can generate a legal approach that can produce results inimical to well-intentioned
reformist aims.
A PARADOX AND TWO PREMISES
Baron's activist stance regarding incompetent patients is based on the
assumption that more law and more judicial intervention will inevitably
lead to increased protection of human rights and thus to maximization
of the public good. The positive social aim informing this stance—protection
of the rights of the incompetent and the system of due process ensuring
those rights—is not under attack in this paper. However, acceptance of
the adversary system as the soundest recourse for providing that protective
function bears close, hard scrutiny; and the ways in which medical decisions
based on shared uncertainty promote that protection, though unacknowledged
by Baron, warrant attention.
Two major premises underlie Baron's position and are clearly expressed
in his writing (1981, this issue).
Each premise has positive objectives, and action on the basis of each
can have negative consequences. Together they reveal important differences
in the approaches of the legal and medical professions and underscore
the far-reaching implications of these differences for issues at the
interface of law and psychiatry. Continuing examination of these and
other legal, as well as medical premises and approaches by members of
both professions may decrease divergences between them as the demand
for their joint expertise in areas of growing public concern increases.
1. The "Public Is Better Than Private" Premise
According to Baron, judicial decision making in regard to incompetent
patients has the clear advantage of being subject to public examination,
unlike clinical decisions made by physicians and families. But is it
true that public decision making is an unmixed blessing in cases of impaired
competence?
Legal intervention has costs as well as benefits, and an idealized view
of the judiciary—particularly its adversarial aspects—overvalues the
system's benefits and undervalues its costs. Although the benefit derived
from public debate and education on important social issues resulting
from publicity brought by legal proceedings may be unassailable, the
circumstances, conditions, and procedural safeguards for those most personally
affected merit serious assessment.
At the heart of the care and comfort that medicine offers to both incompetent
elderly patients and their families is the therapeutic alliance with
the family built by the physician and focused on shared uncertainty.
(Bursztajn, Feinbloom, Hamm, and Brodsky 1981).
Subjecting the physician-patient-family alliance to the bright light
of publicity in these situations deprives the family, as well as the
physician, of the opportunity for dealing with the complex feelings of
hostility, grief, love, and sadness that crisis precipitates; that is,
an opportunity for reparation, healing, and growth. (As Elvin Semrad
said, "People grow only around sadness. It's strange who arranged
it that way, but that's the way it seems to be" [Rako
and Mazer, 1980, p. 45].)
Even more direct deleterious consequences of legal intervention in patient
care can occur. As Alan Stone (1984) has pointed
out, alienating families from their competence-impaired relatives by
public judicial intervention undermines the foundation on which long-term
care for the incompetent patient rests. Rather than risk the spotlight
of public attention, many families, as well as others providing health
care, are more likely simply to withdraw from ongoing involvement. What
makes tragedy tolerable for those nearest to it, both family and physician,
is the feeling that one has done one's best, that a moral choice has
been made for those unable to choose, and some control has been exercised
in the face of tragedy by those who care, personally and professionally,
for the incompetent patient.
Clinical experience and psychodynamically based thinking have taught
modern medicine the value of restrained intervention in the complex process
of family mourning that shrouds decision making for the incompetent patient
faced with death. Mourning for a family member's loss of competence
through illness or approaching death can permit family members to begin
to let go of childhood fantasies of omnipotence and immortality that
inhibit an effective adaptation to loss, and hence to life: "For
a relative to witness the almost miraculous changes which may occur in
the dying patient not only must be of tremendous importance to the mourning
process, but may well change the attitude of the bereaved toward his
own death. We, the hospital staff, must make sure not to deprive the
relatives of this experience" (Pincus, 1974, pp. 8-9). This reflection
by a young priest, quoted in Lillian Pincus's work on mourning (1974),
reveals one face of that adaptation.
The idealized view of inevitable public progress through legal intervention
has its counterpart in that view of medicine based on seventeenth-century
mechanistic science, which inspired the belief that uncertainty in patient
care can be reduced ad infinitum. Just as the consequences of this view
in medicine have been to push intervention by medical technology beyond
the point of diminishing returns for the patient, the form of legal intervention
proposed by Baron has had similar counterproductive results.
Disregard of the potential for harm entailed in the public exposure following
judicial intervention is analogous to the type of disregard in the medical
arena instanced by invasive clinical tests, such as coronary artery angiography,
and their iatrogenic cost. While the medical profession is becoming increasingly
aware of iatrogenesis as a possible consequence of invading the body
of an individual, no such awareness restrains advocates of public legal
procedures from the potential consequence of "worsening an already
bad situation" by invading the family-body dynamic. The legal part
of this analogy—the possibility that judicial proceedings in the case
of an incompetent elder and his or her family could "make a bad
situation worse"—describes an instance of potential "legal
iatrogenesis."
Since iatrogenesis means "doctor-caused," we unfortunately
cannot ask our legal colleagues to use this term as a reminder of the
injury that legal intervention may precipitate. Nor is there any clear
legal counterpart for the medical maxim primum non nocere (first, do
no harm) which serves to remind clinicians of the possible costs of intervention.
But we can ask members of the legal profession to find a suitable
corresponding term or a maxim to describe the judicial counterpart to
the medical profession's basic injunction. Perhaps critogenesis—"judge-caused"—can
begin to supply the needed analogue.
The right to privacy (Warren and Brandeis, 1890)
as protection against potential "legal iatrogenesis" or critogenic
injury receives little, if any attention from those who would otherwise
be among the first to proclaim its violation in cases of potential medical
iatrogenesis. When the particular case involves an issue of broad social
concern—and, given the ever-enlarging geriatric population, competency
determination for the elderly is just such an issue—maintaining the delicate
balance between public information and individual privacy requires constant
vigilance, particularly as the technological means for making private
matters public continually expands (Bok, 1982).
2. The "When in Doubt, Oppose" Premise
The belief that the adversary system can best protect patient interests
lies at the heart of Baron's espousal of a court-appointed guardian ad
litem to advocate, on the patient's behalf, for a position opposed to
that of the petitioner—regardless of what that position is or who presents
it. Such a narrow view of patient interests presumes that all families
coping with the crisis of loss and grief that accompanies adaptation
to the incompetence of a loved one function at a most primitive level
of narcissistic pathology, wherein anything the "weak" patient "gains" the "strong" family
member must "lose." Families can, of course, function at this
and other pathological levels; regressive, narcissistic, as well as paranoid,
family patterns do exist. However, the possibility of working through
such defensive patterns in the grieving process with a supportive physician
is seriously hampered when the legal arena becomes the locus for interpersonal
regression. Legal proceedings thwart the natural grieving process and
attendant resolution of intrapsychic conflict by introducing an external
focus for conflict—litigation. The contention of the courtroom thus
displaces, and avoids grieving and its healing effects for the family.
We recognize that there are patients without families and those with
families overwhelmed by their crisis. However, where a secure doctor-patient-family
alliance is in place, it provides the most positive condition for working
through the medical, emotional, and psychosocial issues confronting the
incompetent patient and his or her family (Isenberg
and Gutheil, 1981). Most importantly, the automatic appointment
of an adversarial guardian ad litem to advocate for the patient is an
indiscriminant disruption of that meliorative condition.
The complexity of contemporary medical decision making requires analysis
and weighing of factors along a wide spectrum of possibilities; it must
therefore eschew mechanistic, "black or white" extremes in
order to arrive at determinations that are clinically and ethically sound.
In contrast, the adversarial system, by its very nature, focuses on such
extremes, and Baron's proposal of a court-appointed guardian ad litem
for all incompetent persons with a petitioner embodies this
focus. Its emphasis on opposition leaves little room for considering
crucial questions involving the nature and circumstances of competence:
What are the ways in which it fluctuates? What physiological, psychodynamic,
and psychosocial factors and situations contribute to its diminution
or enhancement? How can it best be nurtured? How and when has it increased
or diminished in a particular patient's life (Gutheil
and Appelbaum, 1982)? The complexity at the core of these issues,
as well as the decision-making process required to address them, is too
often dispelled by a crack of the gavel. The proceedings thus set in
motion then rely heavily on the fantasy that the most thorough battle
by adversaries will, perforce, arrive at the best resolution of these
issues.
BEYOND "LEGAL IATROGENESIS "—BEYOND "CRITOGENESIS"
By shedding the illusion that medical science can fulfill childhood wishes
for omnipotence and omniscience, we can recognize the harm that can be
produced by medical technology in the pursuit of an unattainable mechanistic
ideal of science (Bursztajn et al., 1981; Gutheil,
Bursztajn, and Brodsky, 1984). Over half a century ago. Judge Jerome
Frank articulated similar caveats in relation to medicine and the law
in observing that the law's perception of "the state of scientific
knowledge" might be in need of revision: "For unfortunately
too many persons, science is a charter of certainty .. . [and] seems
to hold out an expectation that ultimately man will gain total relief
from uncertainty. ... Of course that is an unscientific conception of
science" (Frank, 1930, p. 307).
Empirical research currently in progress by members of the Program in
Psychiatry and the Law at the Massachusetts Mental Health Center demonstrates
the constraints placed on both clinical and judicial decision making
by human judgmental processes under conditions of uncertainty. For example,
we have presented work (Bursztajn, Chanowitz, Gutheil,
and Hamm, 1983) showing that the decision to prescribe neuroleptics
for a psychotic patient is significantly influenced by how the possibility
of the side effect of tardive dyskinesia was worded; that is, whether
as a consequence to be "risked" or "accepted." This
study revealed that neither medical expertise nor judicial impartiality
was immune to the influence of how language "frames" situations
(Tversky and Kahneman, 1981). Both judges and psychiatrists
in the study were influenced by whether the potential side effect was
described as something to be "risked" or "accepted"—a
linguistic factor "framing" the uncertain dimensions of the
situation (and, traditionally, not taken into account as relevant). However,
in the light of the legal tradition's emphasis on protecting people from
harm of human origin, judges in the study tended vastly to overestimate
the probability of harm by medical intervention. In this regard, Edwards's
(1968) finding concerning the conservatism of
probability estimates should serve as a reminder that initial overestimates
are not easily corrected. Thus, simply providing judges with correct
estimates of the probability of this side effect occurring—or with other
clinical data in similar situations—is insufficient for thorough evaluation
and subsequent judgment.
Limiting critogenic harm is therefore not merely a matter of making psychiatric
expertise available in the adversary process. Such expertise will also
not correct for the legal "hindsight bias" (Fischhoff,
1975), which reflects one of the fundamental differences between
the training, theoretical frameworks, and pragmatic approaches of the
medical and legal professions: the physician is trained in prospective
decision making; the judge in methods of retrospective judgment; and
the aura of certainty subsumed by the latter is to the former more of
a wish than a reality.
Perhaps patients, families, physicians, lawyers, and the public good
may best be served by developing a model of interaction between the legal
and medical systems based on cooperative and complementary rather than
adversarial mechanisms. An ongoing educative process—through forums and
research—to achieve this end is a long-range process that can only develop
over time. And it can best take place in an atmosphere conducive to alliance
rather than in the heated atmosphere of the courtroom.
CONCLUSION
The clinical and research considerations discussed here argue for a legal
counterpart to the medical dictum primum non nocere, particularly
with regard to legal intervention in the doctor-patient-family relationship.
As Putnam (1981) has emphasized, any decision involves
giving some benefit of the doubt. Our work supports the conclusion
that in all but the most extreme instances, the family and the physician
of the incompetent patient are best able to serve the patient's interests
by being given the benefit of legal doubt and concomitant judicial non-intervention.
Legal reformers who wish to protect the rights of patients and families
in medical decision making should consider the limitations of judicial
expertise in making prospective medical decisions, in addition to the
possible emotional costs of legal intervention incurred by patients and
families.
In cases where the threshold for judicial or medical intercession has
been clearly exceeded, perhaps the best mechanism for resolution is one
whereby investigation precedes intervention. In such cases, the alternative
of a physician-attorney team—coguardians ad litem, charged with investigating
options in the best interest of the patient—merits joint consideration
by members of both professions. The psychiatrist's participation in competency
assessment, vicarious decision making, and quality of care is a first
attempt at specifying the prerequisite expertise demanded of the physician
member of such a team (Bursztajn, Gutheil, Kaplan, and Brodsky [unpublished]).
Such a team, experienced in dialogue rather than debate, can offer protection
against both iatrogenic and critogenic injury.
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