More Law and Less Protection:
"Critogenesis" "Legal Iatrogenesis," and Medical Decision Making


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.


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.


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.


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.