Recovered Memory and Managed Care: HB 236's Post-Daubert "Science" Junket

by Linda Stout Saunders, Harold J. Bursztajn, and Archie Brodsky

Linda Stout Saunders is Treasurer of the New Hampshire Trial Lawyers Association and Director ofJurimetrics Associates, which offers consulting services in the area of law and psychiatry. Dr. Harold J. Bursztajn), Associate Clinical Professor and Co-Director, Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts Mental Health Center, is a practicing forensic psychiatrist. Archie Brodsky is Senior Research Associate, Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts Mental Health Center. The authors are affiliated with Judge and Jury Decision Making, a research and consultation service dedicated to understanding the processes by which judges and juries make decisions when complex scientific evidence is at issue.

"An Act Relative to Standards for Psychological Services" (HB 236), currently under consideration by the New Hampshire Legislature, would bring about sweeping changes in clinical practice, insurance reimbursement, and the law as applied to the mental health professions. In its original form, HB 236 provided only for a check on the reliability of expert testimony by therapists when such testimony contributed to a guilty verdict in criminal cases. Subsequendy, the bill was amended by the substitution of a much longer text known nationally as "The Truth and Responsibility in Mental Health Practices Act." New Hampshire is-ehe first state in which this legislation, promoted by the National Association for Consumer Protection in Mental Health Services, is being introduced. Its backers have also proposed a federal law that would require states to pass the legislation before receiving federal health care funding. [1]

As amended, the bill establishes rigid requirements in a number of areas pertaining to mental health practice. It requires that all requests for reimbursement for mental health treatment be accompanied by an informed consent form showing that the patient has been given certain specified information, including "scientific journal citations demonstrating that the proposed treatment has been proven reasonably safe and effective by reliable and valid scientific research studies including treatment outcome research... ." [2] It requires that insurers likewise be informed of the scientifically proven validity of mental health treatments, tests, and assessment instruments. [3] It mandates documentation of the validity of psychological assessments, tests, reports, and other expert testimony offered in legal proceedings. [4] Finally, as a remedy for noncompliance by mental health care providers, it provides for disciplinary action, including revocation or suspension of certification. [5]

Stated and Unstated Agendas

The stated purpose of HB 236 is to protect the public (as patients, taxpayers, civil litigants, and criminal defendants) from worthless and even dangerous mental health treatments, referred to as Mjunk science. [6] The legislation would accomplish this purpose by denying insurance reimbursement for such "unproven" remedies and by having unscientific testimony by mental health practitioners ruled inadmissible as evidence in legal proceedings.

Underlying this stated purpose, two unstated purposes can be discerned. One that features prominently in the testimony and publicity surrounding the bill is to curb the recent outbreak of criminal charges based on "recovered memories." The legislation was initially introduced in response to the cases of Joel Hungerford and John Morahan, who were accused of sexual assaults on minors based on memories the alleged victims "recovered" through psychotherapy. (Hungerford and Morahan are awaiting a pretrial hearing on the admissibility of testimony regarding recovered memories.) Supporters of the bill include members of the False Memory Syndrome Foundation, which seeks to alert the public to the all-too-real dangers of raise accusations instigated by ideologically driven therapists.

Less evident is the presumed agenda of the managed care industry. By requiring unrealistically arcane demonstrations of efficacy as a condition for requesting third-party payment, HB 236 would effectively deny reimbursement for a wide range of mainstream psychotherapies. Thus, the interests of one type of "third party" (those damaged by falsehoods concocted in another person's therapy) are perhaps being used in the interest of another type of "third party" (underwriters of mental health insurance). This convergence has resulted in a less than fully open attack on traditional "insight" therapy.

Looking at this legislation from the standpoints of clinical practice, cost containment, and legal procedure, this article will examine how well the bill's proposed remedies would serve its stated purposes, what other consequences their enactment might have, and whether more workable solutions already exist or might be envisioned. In each of the three areas, the legislation fails an essential ethical and policy test, in that its rigid provisions would severely inhibit flexible, individualized, and thus wise decision-making. Although its proponents use the United States Supreme Court's decision on the admissibility of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc. [7] to rationalize quantitative measures of efficacy in the mental health fields as if those were synonymous with scientific or specialized knowledge, a close reading of Daubert undermines that view. By the analysis given below, Daubert actually reaffirms the validity of judicial discretion in the same way we would reassert the validity of clinical judgment. Good law and good clinical care have much in common: They both attend closely to the details of individual case context before concluding whether the data under consideration are reliable and relevant to address a specific question.

Implications for Clinical Practice

Informed consent is an established principle of health law. The proposed legislation seeks to define informed consent more precisely in mental health care by linking it with established notions of scientific practice. In the words of the appendix to the model Truth and Responsibility in Mental Health Practices Act: "The major components of reliable scientific investigations are well known and essentially universally agreed upon." [8]

Would that law-making—or life—were so simple! In medicine (the assumed model for scientific mental health care in HB 236), a "probabilistic" paradigm for clinical decision-making has been proposed as an alternative to a mechanistic model of medical science. [9] According to this 20th century paradigm, not all knowledge is scientific and not all science is reducible to measurement. Rather, medical outcomes can be understood only in terms of a complex, ever-evolving configuration of causal factors. Decisionmaking must be dynamic and context-sensitive, and must recognize the causal role of the doctor-patient relationship itself.

This is especially true in primary care medicine, where any office visit can have a therapeutic component. The therapeutic effect of the doctor-patient interaction can be crucial to the outcome, but it is also individualized, dependent on clinical insight, and difficult or impossible to validate by quantitative studies. How can one measure an increase in patient autonomy or authenticity that results, [10] or value these merely as benefits commensurable with "days not lost from work"?

At the other end of the scale, iatro-genesis (harm caused by the medical process) is a legitimate concern in medicine as it is in psychotherapy, but it is a risk that "comes with the territory." No law can eliminate this risk. Indeed, probably the best way to reduce the risk is to recognize that health care is a process, a human interaction, rather than boiling it down to an unrealistic fantasy of what "hard science" is in practice. Existing tort law, with its emphasis on due care, already highlights the clinician's need to weigh carefully benefits and risks to the individual being treated. In that way the iatrogenic as well as therapeutic effects of the process can be sensitively observed on a case-by-case basis. [11] Such a clinical process, which centers on the doctor-patient dialogue, is far removed from the pro forma caricature of informed consent envisioned by HB 236. Instead, it parallels the case-by-case judicial discretion called for in Daubert, [12] as described later in this article.

Moreover, concerns about iatro-genesis need to be balanced by an awareness of the "critogenic" (literally "judge-made") harms caused by the legal process. [13] The old saying that the cure can be worse than the disease applies to law—and legislation—as well as medicine. A common source of critogenesis is an overly legalistic approach to informed consent, whereby the proforma act of having the patient sign a long checklist of improbable risks may either overwhelm and intimidate the patient or give both patient and clinician a false sense of certainty and control. [14] The highly technical informed consent forms mandated by HB 236 threaten to start a new paper chase that will further distract clinicians from patient care. If clinicians feel they must continually keep one eye on such burdensome legislative requirements, they will be practicing defensively, and defensive practice is not good clinical practice. [15]

An alternative understanding of informed consent grows out of the probabilistic model of medical science described above. In this "process" model, informed consent is not an assembly-line product (a piece of paper) but an ongoing dialogue in which the physician engages the patient in the need to make decisions in the face of uncertainty. Through this alliance, the patient arrives at a deep understanding of the choices to be made and their possible consequences. [16] The mechanistic approach to informed consent perpetuated in HB 236 would only retard the evolution of this thoroughgoing, contemporary understanding of informed consent in both the clinical and legal professions.

If medicine resists facile reduction to "hard," quantitative science, then it makes even less sense to hold psychotherapy to such an unrealistic standard. With regard to the "recovered memory" controversy, abuses have indeed been perpetrated by some therapeutic zealots who have violated their own professions* principles of open-mindedness, neutrality, and respect for complexity. Clinicians who keep these principles in mind avoid jumping to conclusions, such as that a patient's reported memory is a straightforward reflection of cither external or internal reality. For their part, some patients misuse therapy by taking what they learn as fact rather than as insight and then use such "facts" as the basis for rationalizing grudges and even false accusations. As a result, some individuals and families have suffered grievous harms.

Although any therapeutic exploration is subject to uncertainty, the attempt to recover repressed memories can be a legitimate and useful therapeutic technique i n the hands of a scrupulous therapist who approaches each case with an open mind. (It is not, however, a recognized forensic method.) When an accusation of misconduct does arise from this process, an essential safeguard in the interest of justice is to disqualify the treating clinician as an expert witness. To maintain a clear distinction between clinical (experiential) facts and forensic (verifiable) facts, the treating therapist should be permitted to testify (if at all) only as to the facts of the treatment. [17] The job of rendering an expert opinion should be left to a qualified, certified [18] forensic evaluator. In particular, the skills and techniques of a forensic psychiatrist can be critical in distinguishing reliable from unreliable memories. [19]

In any case, the impact of the proposed legislation goes far beyond recovered memory therapy. The sexually and politically charged issue of recovered memory, with its evocation of the witch hunts of three centuries ago, is being used to discredit all insight-oriented mental health practitioners. Both HB 236 and the arguments advanced in favor of its passage fail to address the large middle ground between dangerous "fad treatments" and a narrow range of therapies whose beneficial outcomes can be measured in the quantitative terms with which the bill's supporters (who include behav-ioristically oriented practitioners) are comfortable.

Some types of psychotherapy have easily measurable outcomes (e.g., improved sleeping habits, improved erectile functioning, fewer cigarettes smoked). Others are not so readily quantifiable (e.g., the attainment of greater autonomy and authenticity). A vast number and variety of highly trained, respected professionals who seek the latter outcomes would find their practices declared unscientific and unreimbursable by the enactment of this legislation. From the standpoint of mainstream clinical practice, the proposed requirements for "scientific" validation are themselves unscientific in the sense of being an artifact of the limitations of measurement rather than a genuine reflection of a complex clinical reality.

One may Kbld various opinions about the validity and usefulness of traditional insight therapy, but to characterize what the great bulk of mental health professionals do as "junk science" is misleading, inflammatory, and stigmatizing. If the public and its elected representatives understood that the services many of them have relied on were being lumped together with "junk science" for legal and reimbursement purposes, they might well have second thoughts about HB 236. Nor would they be reassured by the rhetoric of the bill's promoters, which at its lowest point likens the psychotherapist's appeal to clinical judgment to Nazi scientific experimentation. [20]

By imposing the standards associated with a particular conception of experimental science and medicine on mental health services, this legislation would undermine the autonomy oflong-established professions that have evolved their own rules and procedures for applying knowledge in response to the conditions they deal with. The bill itself acknowledges that patients have benefited from significant advances in the techniques of psychotherapy. [21] Can we be sure that these advances would have occurred had the professions not been free to chart their own course?

Except for psychiatrists, who are licensed and regulated as part of the medical profession, mental health professionals are regulated under New Hampshire Revised Statutes Annotated (RSA) 330-A. The law provides for public representation on the Board of Examiners, standards for certification (education, character, supervised experience, examination), continuing education requirements, consultation with physicians when necessary, ethical standards, privileged communications between client and therapist, prohibition of sexual misconduct, a consumer complaint process, investigation of alleged misconduct, and disciplinary proceedings. The statute was enacted with the stated intent of consumer protection. [22] Nonetheless, in fulfillment of this goal, the statute explicidy respects the autonomy of the mental health professions with respect to setting standards of care. [23]

New Hampshire law seeks to protect the public by ensuring that mental health practitioners meet the standards established by their own professions. HB 236 represents a radical departure from this structure of regulation, which it would supplant in essential respects. As a more workable alternative, those who find the existing regulatory structure inadequate might seek to replace it with a more stringent licensing procedure. Legislation to that effect was introduced this year. [24]

In contrast, HB 236 appears unenforceable. When it comes to psychotherapeutic interventions, the scientific literature itself is nonexistent, especially when it comes to long-term benefits such as autonomy and authenticity, which are not easily quantified. [25] Therefore, the most likely outcome of passage of HB 236, other than administrative and judicial chaos, would be to reduce consumer choice and impede access to appropriate care.

Implications for Cost Containment

The notion of "informed consent for insurance companies" is a radical departure from existing law. Aside from its staggering legal ramifications, this novel application of informed consent has interesting conceptual and political implications. By asserting an entitlement to informed consent, insurance companies put themselves in the position of a relatively powerless entity requiring legal protection from the more knowledgeable, powerful health care provider. This plea may come as a surprise in the current climate of upheaval in health care, where providers are suffering an unprecedented loss of clinical and economic independence under the pressure of managed care expansion, with many private practices closing or being swallowed up by corporate entities. Moreover, it is not only providers who express alarm at the impact of managed care. Commonly reported complaints by patients include too little choice of physicians and other providers, loss of confidentiality between patient and clinician, a feeling of being demeaned by the need to prove one's need for treatment, and loss of trust in clinicians who appear to be serving two masters.

Given these problems, it would be imprudent to enact legislation that is so clearly in the interest of the managed care industry without a close examination of that industry's self-serving claims. While HB 236 is based on a highly critical perception of the per-dollar value produced by the mental health professions, it accepts uncritically the assumed benefits of managed care. Yet the actual cost savings achieved by managed care, especially in the long run, remain undocumented. [26] These savings may well turn out to be spurious when other third-party costs, such as increased long-term health care or disability insurance claims, are taken into account. [27]

If a medical or psychological treatment gave the patient an appearance of well-being while causing the patient's condition to worsen later on, the patient would have to be informed of these likely outcomes before consenting to the treatment. Yet such is the bias introduced into clinical decision-making by managed care. This competitive, profit-driven system, which rewards insurers, their employees, and clinicians for cutting immediate costs, is indifferent to outcomes if a semblance of cost-effectiveness can be maintained in the short run. [28] This imperative runs counter not only to principles of good business practice but also to fundamental principles of medical ethics, which require assessing the costs and benefits of a particular diagnosis or treatment with respect to the patient's clinical condition, not the insurer's or the physician's financial condition. [29]

Applying such a financial calculus to reimbursement for mental health services also runs afoul of the New Hampshire statute regulating health insurance, which mandates coverage (within certain limits) on the basis of a qualified clinician's judgment of what is in the patient's best interest. [30] This statutory protection for autonomy and flexibility in clinical decision-making—the antithesis of HB 236—is essential in mental health treatment, where the disruptive intrusions of managed care all too often threaten the ongoing therapeutic alliance that is the core of most treatments. [31] The survival of continuity of care is a major question mark in the assessment of managed care's impact on medicine generally; [32] in mental health treatment it is a sine qua non.

A true assessment of the impact of managed care on mental health outcomes would have to take into account such long-term costs as repeated hospitalizations, disability payments, and reduced productivity. To deprive large numbers of people of psychological counseling, only to enlarge the pool of people on disability payments, is not cost-efFective; it is simply cost-shifting. It is worth noting that "mental health care has always been the stepchild of health insurance," [33] even though its efficacy in containing other health care costs is well recognized in a variety of chronic medical conditions.

With scattered exceptions, current state and federal laws and regulations give patients little protection against under-treatment or arbitrary denial of benefits. [34] This situation is especially anomalous in that trie routine practices of the managed care industry seem clearly to violate several established legal doctrines: prohibition of corporate practice of medicine, restriction of practice of medicine to licensed physicians, prohibition of fee-splitting, and assumption of insurance risks by those not licensed to do so. [35] One observer has noted that "accepted MCP [managed care plan] practice is moving further from legal and ethical norms governing the practice of medicine." [36]

Under these conditions, the energy being put into HB 236 would better be redirected toward reforming the managed care system to restore the traditional priority placed on autonomous, consensual decision-making by patient and clinician in a dialogue predicated on the patient's best interest.37 Reform efforts might usefully focus on the following areas:

Informed choice of insurance plans. Prospective members of a managed care plan should receive as complete and as clear information about the plan as a patient receives in order to give informed consent to treatment. [38] The information should reflect how the plan really works— for example, if reviewers may deny benefits (1) without speaking to the patient, (2) without taking into account information provided by the patient and clinician, (3) without respecting patient-clinician confidentiality, (4) only after endless, burdensome requests for more data, or (5) using the vague criterion of "medical necessity," a term that is not used in clinical practice and that lends itself to arbitrary, self-serving interpretation. For example, it is not unheard of that, after an initial reviewer has denied benefits for long-term outpatient treatment as medically unnecessary because the patient is too healthy, on appeal a subsequent reviewer will deny benefits as medically unnecessary because the patient is too sick to benefit from anything other than crisis-oriented care!

Free choice of providers. Whereas HB 236 seeks to contain costs by further constraining people's choice of providers, true managed care reform would respond to growing public discontent and restore the traditional respect for the clinician-patient relationship by expanding patient choice. An important first step would be to enact "any willing provider" legislation, mandating that an insurer deal with any qualified clinician who is chosen as a treating clinician by a plan member and who will accept reimbursement according to the terms offered by the plan.

Professionally qualified reviewers. A fair and clinically valid review process can occur only if reviewers are both qualified and independent. First, the reviewer must have relevant qualifications and experience in the area of decision-making in question. Such credentials and experience should be available to the patient. Second, to end the flagrant conflict of interest by whicrfteviewers employed by the insurer make insurer-friendly decisions, the patient should be free to choose his or her own qualified clinical consultant to conduct the review. The review would thus be equivalent to a second opinion by a non-treating, consulting clinician, and patient autonomy and choice would be enhanced. [39]

Accountability. The mental health professions already are regulated by statute and by their own professional organizations. In addition, therapists face malpractice liability when they are negligent or negligently breach confidentiality. Managed care plans, which often employ laypersons to make (in effect) life-and-death clinical decisions, have no such structure of accountability. State and federal regulation has been characterized as "insufficient and inconsistent." [40]

In the absence of the thoroughgoing legislative and regulatory reforms recommended by some observers, [41] the main route to managed care accountability is through the courts. (Successful legal actions can also be expected to accelerate the movement toward structural reform.) Given the different legal theories, jurisdictions, types of insurance agreements, and exemptions from liability that may come into play, the appeal to the civil courts understandably has produced mixed results. [42] Two California appellate court decisions allowing that third-party payers might be held liable for medically negligent actions influenced by cost containment decisions [43] are often cited as blazing this particular trail. Although some courts have upheld exemptions of insurers from liability cither on statutory grounds or on the rationale that third-party pressures do not obviate a physician's ethical and legal responsibilities, [44] more recent cases indicate a trend toward substantial liability risks for insurers. [45] Thus, the evolving case law would, if codified, protect patients from denial of insurance benefits by reviewers who exercise arbitrary authority without assuming consequent responsibility. Moreover, there is a need to protect patients from the encroachment on confidentiality that managed-care demands for an unending stream of easily computerized data engender.

Implications for Legal Procedure

From a legal as from a clinical standpoint, the radical reforms contained in HB 236 appear to be unnecessary, unworkable, and unwise. The courts have long recognized the value of psychiatric testimony in deciding a range of issues, such as criminal responsibility, competence, and damages for emotional injury. If anything, the courts' reliance on forensic psychiatric expertise has increased in recent years. [46] Applying the New Hampshire Rules of Evidence, the New Hampshire Supreme Court has established standards by which trial courts must assess the admissibility of testimony by mental health practitioners. [47] Employing the relevance/ reliability analysis enunciated in State v. Cressey, [48] the court has held that expert opinion is not sufficiently reliable to be admitted in a criminal trial as evidence that alleged victims have been sexually abused. [49] However, expert testimony may be admitted for the purpose of "explaining behavioral characteristics commonly found in child abuse victims to preempt or rebut any inferences that a child victim witness is lying." [50]

In delineating the allowable purposes for which expert testimony may be offered, the court has been careful to protect the role of the finder of fact against encroachment by expert witnesses. The court has been vigilant, for example, in disallowing expert testimony for the purpose of determining the credibility of a fact witness [51] or deciding questions of intent. [52] Thus, in the year and a half since Cressey, as trial courts have struggled to slsscss the admissibility of mental health professionals' testimony in this explosive context, the New Hampshire Supreme Court has responded by setting clear and appropriate standards. Furthermore, in an abuse and neglect proceeding, where New Hampshire Rules of Evidence do not apply, the court held that an expert's testimony that the child victim had been sexually abused by the respondent was not sufficiently reliable to be relevant. [53] Thus, even in less formal legal proceedings not governed by the Rules of Evidence, courts still must scrutinize psychological testimony for relevance and reliability.

Moreover, in two cases involving the admissibility of testimony of alleged victims concerning their recovered memories of sexual abuse, presently pending before the Hillsborough County Superior Court, Northern District, the court (J. Groffpresiding) has ruled that "[b]efore testimony of the victim's memory of the alleged assault may be admitted, a hearing shall be held at which the burden shall be upon the State to establish that the phenomenon of memory repression and the process of recovery through therapy have gained general acceptance in the field of psychology." [54] The fact that the court mandated a hearing to determine admissibility of the controverted testimony illustrates that New Hampshire trial courts are functioning effectively as guardians of the courthouse door (against so-called "junk science") by conducting pretrial review of potentially irrelevant, unreliable evidence. Contrary to the assertion in HB 236 that "unscientific testimony by mental health practitioners has become distressingly common," [55] New Hampshire judges are ensuring that only relevant and reliable expert testimony comes before the fact-finder.

HB 236 seeks to amend RSSA 330-A by setting forth rigid standards for admissibility of testimony by mental health care providers in legal proceedings. [56] The mechanistic approach to admissibility mandated by the bill is contrary to the theme of flexibility underlying the New Hampshire Rules ofEvidencc. New Hampshire Rule of Evidence 102 states, "These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined." [57] The Reporter's Notes to Rule 102 observe that the New Hampshire Rule "is identical to the corresponding Federal Rule that establishes flexibility as its theme," [58] and identify the philosophical underpinnings of the rules, which are:

(a) to prefer the pursuit of general normative goals to the strict construction of inflexible, technical rules, (b) to permit the court sufficient latitude to fairly decide issues where strictly construed rules would tend to compete or conflict, and (c) to favor the pursuit of the truth, and a fair and just determination of issues over fastidious adherence to the letter of codified common law. [59]

The central variable that determines the structure of litigation is the pursuit of factually accurate outcomes. Pursuing this objective is premised upon a belief that objective fact-finders are capable of reconstructing history if provided with credible evidence. To that end, the rules allow for liberal admissibility of evidence in the first instance ("[a]ll relevant evidence is admissible...") [60] and define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." [61]

Judges are charged with determining the admissibility of evidence, including assessing relevancy of evidence, ruling on the qualifications of a person to testify as an expert, and finding whether expert testimony will assist the jury. [62] According to the Advisory Committee's Note to Federal Rule of Evidence 401, " [r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." [63] In other words, assessing relevance is a matter of analysis and reasoning. Relying on his or her individual experience, general knowledge, and understanding of human conduct and motivation, the judge must determine the nexus between the evidence offered and the proposition to be proven. It is recognized that wise judges may come to different relevancy conclusions in similar situations. [64] Even the same item of evidence may fare differently from one case to another depending on its relationship to other evidence in the case and the experience the judge brings to bear on the relevancy determination. [65] Accordingly, judges are granted a great deal of latitude in determining relevancy. [66]

Similarly, pursuant to New Hampshire Rule of Evidence 702, judges are granted broad discretion in deciding who is qualified to testify as an expert and whether proffered expert testimony will assist the jury in resolving issues in the case. [67] The New Hampshire Supreme Court recently held that it was an abuse of discretion for a trial court to exclude testimony of an orthopedic surgeon on the grounds that the surgeon was per se unqualified to render an opinion on the psychological health of a patient. [68] According to the Supreme Court, "[a]n individual's qualifications must be determined on a case-by-case basis, not by application of a per se rule of exclusion or inclusion." [69] HB 236 usurps the trial court's function of determining questions of admissibility and thereby deprives litigants of their right to have preliminary questions regarding the qualifications of persons offered as experts and the admissibility of expert testimony resolved by an objective decision-maker.

Consistent with the theme of flexibility underlying the Rules of Evidence and the goal of ascertaining truth na the adversarial process, New Hampshire law provides for and favors liberal discovery, and the trial court has wide leeway in controlling its scope. [70] Pursuit to New Hampshire Superior Court Rule 35(b) (3), parties may discover the identity of experts to be called at trial, the subject matter on which the expert is to testify, the facts and opinions to which the expert is to testify, and the bases for each opinion. [71] The facts known and opinions held by a non-testifying expert retained by a . party in anticipation of litigation or preparation for trial are considered attorney work product and are discoverable only upon a showing of exceptional circumstances. [72] However, the identity of such an expert is discoverable, unless the information is shown to be irrelevant or privileged. [73]

As a practical matter, HB 236 fails to specify when, to whom, and under what circumstances the mental health care provider must provide reports and other information required under proposed RSA 330-A:29. For example, if retained by a party in anticipation of litigation or to assist in preparation for trial, is the mental health care provider obligated by statute to provide reports to the other parties and the court? The failure to specify the way in which RSA 330-A:29 works on a practical level has serious implications. RSA 330-A:30 imposes severe penalties on mental health care providers for failing to comply with the requirements imposed by the statute.

Moreover, the fact that HB 236 imposes penalties on mental health care providers for failing to meet the requirements of proposed RSA 330-A:29 clearly places an affirmative duty on the mental health care provider to produce the information identified in the statute and to establish his or her qualifications to administer and interpret tests. Consequently, the burden of identifying information pertinent to a case in controversy is shifted away from the advocates, and control of the discovery process is shifted away from the judge. These shifts disrupt the inherent balance of the adversarial system and intrude upon the province of advocates and judges, contrary to rules of evidence and procedure. [74]

Courts do not agree as to whether psychological testimony is considered "scientific." The mandate of HB 236, that proposed mental health treatment comport with factors set forth only as "general observations" of scientific reliability by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. [75] is both misguided and inappropriate. Before Daubert, many courts had exempted "soft" scientific evidence such as psychological testimony from Frye. [76] For example, in People v. McDonald, the court ruled that psychological testimony about the supposed unreliability of eyewitness identification did not have to be subjected to the scrutiny of Frye. [77] Additionally, courts have struggled with assessing the admissibility of "syndrome" evidence, such as testimony regarding rape trauma syndrome, disagreeing as to whether the evidence was subject to Frye scrutiny. [78] However, some courts have already held that the definition of science in Daubert is so broad that such testimony must meet the test for admissibility announced in that case. [79] Other courts have extended application of Daubert to medical testimony, [80] which heretofore generally has been exempted from the special scrutiny of Frye. [81] It is clear that the controversy over whether psychological testimony is based upon "scientific knowledge" as defined in Daubert has yet to be resolved.

The Court in Daubert held that Rule 702, the primary locus of the trial judge's obligation to screen scientific testimony and evidence, established a general relevance/reliability standard as a prerequisite to admissibility. [82] In Daubert, the discussion of specific factors to be applied in assessing admissibility of expert testimony was limited to the scientific context. [83] However, Rule 702 also applies to testimony by all experts whose opinions may be based on "technical, or other specialized knowledge." [84] Based on the Court's analysis that Rule 702 imposes a general requirement of relevance and reliability on expert testimony based on scientific knowledge, it follows that a general requirement of relevance and reliability would also apply to expert testimony based on cither technical or other specialized knowledge. In assessing the reliability of expert testimony based on technical or specialized knowledge, trial courts would be obliged to look to the discipline in which the knowledge is based for specific indicators of reliability.

The New Hampshire Supreme Court adopted this paradigm for assessing the admissibility of the psychologist's testimony at issue in State v. Cressey. [85] The court looked to New Hampshire Rule of Evidence 702 and found that " [s]ubsumed in the requirements of Rule 702 is the premise that expert testimony must be reliable to be admissible." [86] The court noted that the "determination of whether particular expert testimony is reliable and admissible rests, in the first instance, within the sound discretion of the trial court," [87] and then identified the factors it considered in assessing the reliability of the expert's testimony. Recognizing that psychological evaluation of a child suspected of being sexually abused is, "at best, an inexact science," [88] the court did not rigidly apply the specific factors suggested in Daubert for assessing admissibility of testimony based on scientific knowledge. Rather, the court modified its analysis, relying on factors apropos to the discipline of psychology, in which the knowledge upon which the expert based her testimony was grounded. [89] The flexible approach taken by the court in Cressey is that which the United States Supreme Court contemplated under its holding in Daubert.

HB 236 defines "research" and "reliable scientific research" by reference to "the criteria for acceptable scientific conceptions and evidence as noted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. C t. [sic] 2786 (1993)." [90] The application of these criteria to informed consent forms and to setting rigid foundational requirements for the admissibility of assessments, tests, reports, and related testimony by mental health care providers [91] represents a flagrant misuse of the holding in Daubert, which stands for a flexible approach to the admissibility of expert testimony, and of the decision in Cressey, which declines to classify psychological testimony as science.

If a revision of the standards for admissibility of expert testimony really were needed (and the above arguments strongly indicate that it is not), that revision should not be done piecemeal. It would be incumbent on legislators, attorneys, and jurists to take a comprehensive "systems approach" to the question, rather than single out one narrow area of expert testimony for special restrictions. In any case, the protection of innocent people from unreliable testimony by psychotherapists would be more effectively accomplished by respecting the ethical boundaries established by the mental health professions themselves.

As noted above, expert testimony should be given by objective forensic evalu-ators, not by treating therapists. It is appropriate for treating therapists to involve themselves empathically in patients' subjective reality, but the facts of that reality are not the facts at issue in the courtroom. Judges who refuse to admit a treating therapist's testimony about recovered memories of abuse, and instead order a forensic evaluation of the alleged victim, are acting in line with Daubert as well as with the ethical code of the American Academy of Psychiatry and the Law. [92] Maintaining that ethical boundary in the evidentiary realm would go far toward ending the tragic misuse of mental health testimony.


"Truth and responsibility" are more complex than the proposed legislation makes them out to be. Both in health care and in the law, some flexibility in decision-making must be preserved, so that a clinician or judge can make wise and fair decisions about the case at hand. Indeed, the tragic injustices against which the proponents of HB 236 rail have occurred when clinicians, together with the legal system, have followed a rote calculus to a predetermined conclusion instead of examining the complexities of the individual case. HB 236 would simply substitute one such rigid logic for another, thereby greatly restricting New Hampshire residents' access to both the clinic and the courtroom.

This legislation is an unworkable concoction of unconsidered reactions to real personal suffering and the vested interests of managed care under the ideology of "science." Many of its provisions would be difficult to interpret and implement without destroying existing structures of professional and statutory regulation and legal procedure. In the rush to stop iatrogenic, or clinically caused harm, HB 236 would itself inflict a kind of critogenic, or legally mandated harm. It would be the kind of radical surgery from whose very "success" the patient would bleed to death.


  1. An Act Relative to Standards for Psychological Services, 1995: Hearing on HB 236 Before N.H. House Executive Depts. and Admin. Comm. (Feb 7, 1995) [hereinafter Hearing] (statement submitted by R. Christopher Barden).
  2. 1995 N.H. H.B. 236, § 330-A:27.
  3. Id., § 330-A:28.
  4. Id., § 330-A:29.
  5. Id., § 330-A:30.
  6. See Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991).
  7. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).
  8. Hearing, supra note 1, at 13.
  9. Harold J. Bursztajn et al., Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope With Uncertainty (Routledge 1990) (1981).
  10. Harold J. Bursztajn and Archie Brodsky, Authenticity and Autonomy in the Managed-Care Era: Forensic Psychiatric Perspectives, 5 J. Clin. Ethics 237 (1994).
  11. See, e.g. Bursztajn et al., supra note 9, at 54-84, 204-30.
  12. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).
  13. Harold J. Bursztajn, More Law and Less Protection: "Critogenesis," "Legal Iatrogenesis," and Medical Decision Making, 18 J. Geriatr. Psychiatry 143 (1985).
  14. Harold J. Bursztajn et al., The Rebirth of Forensic Psychiatry in Light of Recent Historical Trends in Criminal Responsibility, 17 Psychiat. Clin. N. Am. 611, 624 (1994).
  15. See Thomas G. Gutheil et al., Malpractice Prevention Through the Sharing of Uncertainty: Infored Consent and the Therapeutic Alliance, 311 New Eng. J. Med. 49 (1984).
  16. Id.; Harold J. Bursztajn et al., Legal Issues in Inpatient Psychiatry, in Inpatient Psychiatry: Diagnosis and Treatment 379 (Lloyd I. Sederer ed., 3rd ed. 1991); Bursztajn et al., supra note 14, at 624.
  17. American Academy of Psychiatry and the Law: Ethical Guidelines for the Practice of Forensic Psychiatry (1991), at IV; Harold J. Bursztajn, Traumatic Memories as Evidence: True or False?, J. Mass. Acad. Trial Att'ys, July 1994, at 77-78.
  18. For example, a psychiatrist should be certified by the American Board of Medical Specialties, Board of Psychiatry and Neurology, as having added qualifications in forensic psychiatry.
  19. Bursztajn, supra note 17, at 80; see also Harold J. Bursztajn and Archie Brodsky, Competence and Insanity, in Psychiatric Secrets (Alan M. Jacobson and James L. Jacobson eds., forthcoming 1995); Thomas G. Gutheil, True or False Memories of Sexual Abuse? A Forensic Psychiatric View, 23 Psychiat. Ann. 527 (1993).
  20. "Even more importantly, it is critical to remember that the Nazi 'scientists' mistakenly thought they 'knew' that Jews were 'inferior' based upon their 'clinical experience and judgment.'" Hearing, supra note 1, at 17. On the contrary, Nazi ideology allowed virtually no latitude for individual judgment. Nazi science—with its emphasis on measuring to death Jewish guinea pigs in the pursuit of demonstrable, quantifiable, and therefore "scientific" racial differences—was a monstrous perversion of mechanistic science.
  21. 1995 N.H. H.B. 236, § 330-A:1, II.
  22. "This chapter shall assure that all consumers of mental health services shall receive an individual mental health diagnosis and, according to this diagnosis, shall receive consultation from a specific and appropriate mental health practitioner." N.H. Rev. Stat. Ann. [hereinafter "RSA"] 330-A:1 (1993).
  23. "The purpose of this chapter is to regulate mental health services provided by practitioners in the state to assure that the services are effective and of a quality consistent with the standard of care within each profession...." RSA 330-A:1 (1993).
  24. 1995 N.H. H.B. 357.
  25. Alan A. Stone, Psychotherapy and Managed Care: The Bigger Picture, Harvard Mental Health Letter, Feb. 1995, at 6.
  26. Ruth Simon, A Flawed Remedy: Managed Care, Money, Apr. 1993, at 114, 119-20; U.S. Gen. Accounting Office, Pub. No. GAO/HRD-94-3, Managed Health Care: Effect on Employers' Costs Difficult to Measure 810, 1216 (1993).
  27. See Gregory Simon et al., Health Care Costs Associated With Depressive and Anxiety Disorders in Primary Care, 152 Am. J. Psychiatry 352 (1995).
  28. Sheva J. Sanders, Regulating Managed Care Plans Under Current Law: A Radical Reversion to Established Doctrine, 20 Hofstra L. Rev. 73, 76-78 (1991).
  29. Barry R. Furrow, The Ethics of Cost-Containment: Bureaucratic Medicine and the Doctor as Patient-Advocate, 3 Notre Dame J.L. Ethics 7 Pub. Pol'y 187, 198-200 (1988); see also Alan L. Hillman, Financial Incentives for Physicians in HMOs: Is There a Conflict of Interest? 317 New Eng. J. Med. 1743 (1987).
  30. "Each insurer...shall provide...coverage for expenses arising from the treatment of mental-illnesses and emotional disorders which, in the professional judgment of psychiatrists, psychologists and licensed pastoral counselors, are subject to significant improvement through short-term therapy, and benefits for expenses arising from diagnosis and evaluation of all other mental illnesses and emotional disorders." RSA 415:18-a, I (1993).
  31. Stone, supra note 25, at 6-7.
  32. Ezekiel J. Emanuel and Allan S. Brett, Managed Competition and the Patient-Physician Relationship, 329 New Eng. J. Med. 879 (1993); Susan J. Stayn, Note, Securing Access to Care in Health Maintenance Organizations: Toward a Uniform Model of Grievance and Appeal Procedures, 94 Colum. L. Rev. 1674, 1711-12 (1994).
  33. Stone, supra note 25, at 5.
  34. Stayn, supra note 32.
  35. Sanders, supra note 28.
  36. Id. at 116.
  37. See generally Bursztajn et al., supra note 9.
  38. See Sanders, supra note 28, at 107; Stayn, supra note 32, at 1702, 1705-06, 1715-19.
  39. Illinois has enacted a statute that provides for an independent second opinion. See Ill. Ann. Stat. ch. 111 1/2, para. 1409.3, 4-10(a) (Smith-Hurd 1988).
  40. Stayn, supra note 32, at 1708.
  41. Id. at 1709-20; Sanders, supra note 28, at 101-02.
  42. Paul S. Appelbaum, Legal Liability and Managed Care, 48 Am. Psychol. 251 (1993); Lloyd I. Sederer, Judicial and Legislative Responses to Cost Containment, 149 Am. J. Psychiatry 1157 (1992); Stayn, supra note 32, at 1706-08.
  43. Wilson v. Blue Cross of So. Cal., 222 Cal. App. 3d 660; 271 Cal. Rptr. 876 (1990); Wickline v. State, 192 Cal. App. 3d 1630, 239 Cal. Rptr. 810 (1986).
  44. See., e.g., Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. 1989); Varol v. Blue Cross and Blue Shield of Michigan, 708 F. Supp. 826 (E.D. Mich. 1989).
  45. See, e.g., Mimbs v. Commercial Life Insurance Co., 832 F. Supp. 354 (S.D. Ga. 1993); Fox v. HealthNet, No. 219692 (Cal. Super. Ct. Riverside County, Dec. 28, 1993); Corcoran v. United Health Care, Inc., 965 F.2d 1321 (5th Cir.), cert. denied, 113 S. Ct. 812 (1992).
  46. See generally Bursztajn et al., supra note 14.
  47. State v. Cressey, 137 N.H. 402, 404-12, 628 A.2d 696, 698-703 (1993).
  48. Id. at 404-05, 628 A.2d at 698.
  49. State v. Silk, 138 N.H. 290, 639 A.2d 243 (1994); State v. Huard, 138 N.H. 256, 638 A.2d 787 (1994); State v. Luce, 137 N.H. 419, 628 A.2d 707 (1993); State v. Chamberlain, 137 N.H. 414, 628 A.2d 704 (1993).
  50. 137 N.H. at 412, 628 A.2d at 703.
  51. 138 N.H. at 290, 639 A.2d 243.
  52. State v. St. Laurent, 138 N.H. 492; 642 A.2d 335 (1994).
  53. In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994).
  54. State v. Hungerford, consolidated Nos. 94-S-45-47 & 93-S-1734 (N.D. of Hillsborough Cty., Sept. 14, 1994) (consolidating referenced case with State v. Morahan) (order on defendants' motion to dismiss).
  55. 1995 N.H. H.B. 236, § 330-A:1, V.
  56. Proposed RSA 330-A:29 is titled "Assessments, Tests, Reports and Related Testimony by Mental Health Care Providers in Legal Proceedings." However, this section is unclear regarding the way in which the stated requirements are applicable at trial. It is assumed that the mandates of 330-A:29 are prerequisites to the admissibility of any testimony by a mental health care provider based upon any assessment or test, and that a mental health care provider called as a witness by any party must provide the court and all parties with a report that complies with proposed RSA 330-A:29, III.
  57. N.H. R. Evid. 102.
  58. N.H. R. Evid. 102 reporter's notes.
  59. Id.
  60. N.H. R. Evid. 402.
  61. N.H. R. Evid. 401.
  62. N.H. R. Evid. 104(a).
  63. N.H. R. Evid. 102.
  64. Fed R. Evid. 401 advisory committee's note.
  65. Id. at 340.
  66. See, e.g., State v. Smith, 135 N.H. 524, 607 A.2d 611 (1992) (determination of whether evidence is relevant is within sound discretion of trial judge, and decision will not be reversed absent evidence of abuse of discretion).
  67. See, e.g., Mankoski v. Briley, 137 N.H. 308, 627 A.2d 578 (1993) (determination of whether witness is qualified as expert is left to sound discretion of trial court).
  68. Id. at 310, 627 A.2d at 579.
  69. Id. at 313, 627 A.2d at 581.
  70. Johnston v. Lynch, 133 N.H. 79, 94, 574 A.2d 934, 943 (1993).
  71. N.H. Superior Ct. R. 35(b)(3).
  72. 133 N.H. at 95, 574 A.2d at 944.
  73. Id.
  74. See N.H. R. Evid. 611 and N.H. Superior Ct. R. 35.
  75. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).
  76. Under the so-called "Frye test," the science underlying an expert's testimony must have gained "general acceptance in the particular field to which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
  77. People v. McDonald, 37 Cal. 3d 351, 373-74, 690 P.2d 709, 723-24 (1984).
  78. See, e.g., David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or. L. Rev. 19 (1987).
  79. See, e.g., United States v. Amador-Galvan, 9 F.3d 1414 (9th Cir. 1993).
  80. See, e.g., Henricks v. Front Row Theater, No. 66710, 1994 Ohio App. LEXIS 5667 (Dec. 15, 1994); Reese v. Stroh, 74 Wash. App 550, 874 P.2d 200 (1994).
  81. See generally Linda S. Saunders et al., Providing Objective Proof of Mental Harm Through Psychophysiologic Testing for Post-Traumatic Stress Disorder, 15 T.B.N. 72, 77-78 (N.H. Trial Lawyers Assn. 1993) (comparing courts' treatment of clinical impressions to scientific data).
  82. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795 (1993).
  83. Id. at 2795 n.8.
  84. Id.
  85. State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993).
  86. Id. at 404, 628 A.2d at 698.
  87. Id. at 405, 628 A.2d at 698.
  88. Id. at 407, 628 A.2d at 698.
  89. Id. at 407-10, 628 A.2d at 700-01.
  90. 1994 N.H. H.B. 236, § 330-A:26,IV.
  91. Id., §§ 330-A:27-29.
  92. American Academy of Psychiatry and the Law, supra note 17, at IV.