I write first to make sure that people read Alison's analysis at Creekside of the BC Criminal Justice Branch report on the death of Robert Dziekanski just over a year ago at Vancouver International Airport.
As Alison says in comments, there is a more serious inquiry yet to come, the Braidwood inquiry, where we have to hope that all these sketchy references to unnamed medical experts, pathologists who draw imaginative conclusions, and experts in "addiction psychiatry" will be filled in and tested, because those unnamed experts will all be on the stand, answering lawyers of a calibre apparently not available to the BC Criminal Justice Branch. [NB: Please see Alison's corrections to this paragraph in comments below.]
We have problems with the RCMP, our local police forces, and the flaccid civilian authorities who seem not to know how to do their own research or assert proper democratic authority over the police.
I'm just as concerned, though, at the authority that our governments and courts give to purely speculative disciplines like psychology and psychiatry, and I am appalled to hear that qualified pathologists (who are supposed to be able to assess some factual things factually, like cardiac arrest) would fail to stop at the limits of their expertise and instead go on to invent a new fantasy cause of death, "Sudden Death Following Restraint," which is apparently the new "excited derlirium."
It's bad enough that pseudo-science, in this case believably tainted by political and commercial considerations, should be used to trash the memory of an innocent man. That people who claim to be medical professionals would pretend to be able to channel the mental state of someone they never met. That they should be doing Bill Frist-style long-distance diagnoses, and that any of this should be taken seriously by just about anyone else.
But it is terrifying to remember that our courts, our media, the general public are intimidated by this kind of intellectual fakery and assent too often to its use on those who are still alive.
I've been thinking for a while about what to me was a horrifying CBC report on how the return of Omar Khadr to Canada might be managed. It made me sick and furious, and I'm still trying to think of how to express that.
So that's why this post is called part one. For now, my tribute to Robert Dziekanski, for whom I lit a candle a year ago at Queen's Park, and my deepest condolences to his mother, Sofia Cisowski.
"Sudden Death Following Restraint" = "Bullshit Diagnosis to Cover Ass"
I'm curious: why the dig at psychology and psychiatry?
ADHR, I have both a long answer and a short answer (and I guess a few in between) to your question, and I'm not going to do the long answer now.
The short question is: What do they know?
Especially, what do they know that should be endorsed and enforced by any court of law?
Our courts of law are supposed to be committed to defending human liberty. The most basic requirement of human liberty is that no one, absolutely not no one, not never, fools about with your head.
When the clock radio CBC told me this yesterday morning, I screamed. What complete and utter shit.
My question is "what can I do"? And I ask that regarding both this particular issue and the Taser issue in general. As a relatively new Canadian, I'm not so clear on how police oversight is handled. Where can citizens bring pressure to bear?
This is all designed to make sure Tasers are never directly blamed for a death, only as a contributing factor, which lets the officers off the hook and keeps tasers on the belts. It's bogus, not even a very good cover-up.
Hi Skdadl, thank you for the link.
My too quick answer to your question as to whether a serious inquiry into this matter was in the offing was perhaps a bit misleading.
The Braidwood Inquiry consists of two parts - the first part into taser safety was concluded in May; the second part into Dziekanski's death will now commence in January, after having been twice delayed due to non-cooperation on the part of the RCMP.
You will be pleased to hear that aside from one medical researcher whose grant money was supplied by Taser Int, the various medical professionals and forensic psychiatrists who gave submissions in Part One were utterly scathing in their assessment of terms like "excited delirium".
Dr. Joseph Noone, forensic psychiatrist : "This excited delirium, which is not a medical or psychiatric condition, does not exist, and is used now as a pejorative expression to cover any agitated person....is basically an excuse for anything that happens, blaming it on the person who may suddenly die, and not on the people who are delivering care."
It was slam dunk, Skdadl. And I believe that's why "excited delirium" was replaced with "Sudden Death Following Restraint" in the entirely separate and anonymously written RCMP inquiry.
Likewise we also heard for I believe the first time in North America from experts willing to testify that yes tasers do kill full stop.
Braidwood 2 will investigate Dziekanski's death.
Testifying will be the four RCMP officers involved, a representative from the government of Poland, Robert Dziekanski's mother, Vancouver Airport Authority and workers from the airport, BC Civil Liberties Union, and TASER™ International.
Unfortunately as a provincial inquiry, it does not have jurisdiction over the federal RCMP.
Oops, knocked the end off my own comment...
Although Part One is finished, it will form the basis for Part Two, so I haven't entirely misled you here as to the continued relevance of the testimony re tasers and shrinks.
My fault, Alison -- I should have remembered at least some of that and then checked the rest. I was in such a hurry to get to my rant about clockwork-orangery -- naughty lazy skdadl.
I have a part two too. It's taking a lot of chewing, though.
skdadl,
I'm not persuaded that the courts are supposed to be protecting liberty. I see their role as much more limited, namely conservatively making law where the statutes give no (clear) answers. Mostly, I'm following H.L.A. Hart. My concern here would be that courts are not well-made to defend liberty. Judges, for example, are not trained in understanding what liberty is nor how it can be legitimately (as opposed to illegitimately) curtailed. If that's what the courts are about, we need to think more carefully about who we pick as judges.
That said, I would argue that psychologists and psychiatrists know about as much as any medical professional, within their sphere of expertise. What we run into more frequently with psychology/psychiatry is a conflict between the needs of the courts and the ability of the science.
In, say, orthopaedic surgery, answers are fairly direct: the bone is broken or it isn't. (But not always: frozen shoulder is somewhat controversial.) So, if a court decision depends on the verdict of an orthopaedic surgeon -- say, in criminal law, we're dealing with an assault case and trying to determine if the victim was actually injured seriously or not.
In other disciplines, things get more difficult. Rheumatologists, for example, diagnose fibromyalgia, but it's not clear that fibromyalgia is a free-standing disorder on its own, or even a physical condition (see here, for example). Given that, if a court has to decide whether a victim of assault or injury suffers from fibromyalgia or not -- a question that a court can't postpone but must answer, if it's relevant -- they will not get much help from medical science. By the same token, though, the courts can't just invent answers all on their own; there are people who study this disorder, so their expertise (such as it is) must be considered.
The same seems to apply to psychology and psychiatry. The diagnoses they work with are opaque, difficult to substantiate, and subject to disagreement. But, frequently, courts find they they must answer questions where the evidence of psychologists or psychiatrists is clearly relevant, but just isn't (yet) definitive enough to give a clear answer.
So, who's to blame here? Medical science, for not being advanced enough to give clear and immediate answers to certain questions? Courts which need these answers? It's really hard to pinpoint one responsible party.
What do psychologists and psychiatrists know? They know some things. The majority of folks under psychological or psychiatric care do get better. They don't know enough, clearly. But we're dealing with a relatively immature part of the medical sciences here (psychology being considered part of philosophy until about the 19th century). So, it's to be expected that their answers are not all that clear.
ADHR, it's too late for me to respond thoughtfully, as I should, but I will do that tomorrow morning.
For ADHR:
I'm not persuaded that the courts are supposed to be protecting liberty.
Well, gosh, that is a shame. You are perhaps familiar with the Canadian Charter of Rights and Freedoms? See part 1, article 2, re freedom of conscience and all that that entails.
Our courts, especially the SCC, are absolutely charged with defence of the constitution and the Charter, and they were charged with defence of those principles even before the 1982 codification, given long direct traditions in both Canadian and British history. More than that, that article is paramount in the bills of rights and declarations and charters of every democratic nation, and there are reasons for that -- there have been since at least the C17, arguably earlier.
This isn't the place for my essay on Diderot and Rousseau, but we can't have democracy if we don't live up to that, or at least try to, and I believe or at least hope that most constitutional advisers in every nation grasp that.
Anyway, everything I wrote followed from that position, plus a deep respect for the opening of the Hippocratic oath: "First, do no harm."
I wasn't blaming psychology or psychiatry for their problems in the courts, although I can certainly draw up for you fairly quickly a long list of individual psychologists who've been playing games at GTMO who I not only would "blame" but would like to see in the dock before something like the Nuremberg Doctors Trial.
My interest is in making sure that citizens generally and our courts grasp the severe limitations of the psych "sciences" and the terrible damage that even well-intentioned practitioners can do by getting carried away, usually in the ignorant conviction that they have much positive knowledge. Most citizens, including many of our judges (as you seem to agree above), are absurdly deferential to anyone with a medical degree (and most psychologists don't even have that). That deference has been drilled into us. It has to be drilled out. Medical professionals are craftworkers; they are sometimes good at what they do, but they overreach dangerously often, and that's because we let them. It's part of our culture.
There are times when we have no option other than to restrain people with serious illnesses of the brain. (I write as an Alzheimer's widow, btw, and if you think that applying any kind of restraint was easy for me, think again.)
But short of that, listening to some puffed-up psych guy opine about the mental state of someone he has never met, or even someone he's interviewed occasionally during a court-ordered vacation in a facility, is to me as a believer in democracy sheer obscenity.
The law can try on the law. It cannot try our minds -- it simply cannot. On principle it cannot, and there is no one with a social-science degree who knows enough to instruct the courts. Plus those pathologists in this case really stepped over the line of their discipline -- they should be ashamed of themselves.
I used to use the word voodoo to describe some of this. I don't do that any more, having been taught a few lessons in cultural sensitivity. Maybe I'll just fall back on superstition and credulity -- too many of our citizens and our public officials are superstitious and credulous when it comes to the science of the mind, and they have no place attempting to use it.
The law judges actions, not thoughts or mental states. We kill democracy if we lose that principle.
Still not convinced, I'm afraid. The SCC is charged with interpreting and applying the Charter. They can't defend liberty because they can't go outside the Charter and create some new liberties the Charter does not hold. The Charter circumscribes their power. That's an instance of how courts work generally. And, as said, it's a good thing: judges aren't trained to understand the issues surrounding liberty (including its nature and when it can and cannot be infringed).
Now, I suppose you could define "defending liberty" in those terms -- limning constitutional principles -- but that's a pretty narrow conception of liberty which lets the framers of the Constitution completely off the hook for some of their rather obvious errors. It's striking, for example, that there are no explicit labour rights in the Charter, although they exist in international law; it's also striking that there are no explicit rights to the necessities of life, while other Constitutions (such as the Constitution of India) do provide for same. I don't see how people can be at liberty if they don't have enough to eat or anywhere to live.
I wouldn't put a ton of weight on the Hippocratic Oath per se. The "do no harm" thing sounds decent enough, but the Oath itself technically also includes prohibitions against surgery, physician-assisted suicide and abortion. The Declaration of Geneva is much better.
I'm not persuaded that courts don't try minds. They don't try them directly, certainly, but there is that sticky point of mens rea, which looks like trying the mind. It's worse if I push a piano out a window and kill someone meaning to than if I push a piano out a window and kill someone accidentally. If psychology/psychiatry can provide some insight into that, then it does have a role to play.
In my experience, though, courts tend not to pay much attention to what medical experts have to say. Perhaps that's due to my exposure to civil rather than criminal cases (mostly auto insurance litigation). In the cases I've read, I've seen judges override well-established medical testimony in favour of wild guesswork, largely because -- it seems -- the judge didn't like the conclusion of the careful testimony. So, I wouldn't say deference is the issue. It strikes me that the problem is the conflict between the ability of the science and the needs of the court, and the unwillingness or incapacity of judges to address that openly. When it comes to something as nonsensical as "excited delirium" and other diagnosy-sounding terms, they get introduce partly because of unscrupulous physicians, but also partly because the courts need an answer and aren't willing (or perhaps able) to accept "we really don't know".
Whether that limitation is something courts can overcome or not is unclear to me. It may require some statutory revisions to allow courts to make decisions consistent with what the sciences they rely on are actually capable of telling them.