Like many Americans - my wife and I recently watched the Netflix series Making A Murderer. Some of the the critical reviews have called it riveting. A few have suggested that not all of the evidence was given - making it an overly favorable presentation for the defendants. In this series two Wisconsin men are accused of murdering a young woman and then burning her body. The case is sensational because one of them - Steven Avery was in the process of suing the county where the crime occurred for wrongful prosecution in a previous case where he was sentenced for rape and served 18 years in prison. He was subsequently exculpated on DNA evidence and released from prison. The other defendant was his nephew Brendan Dassey. The central theme of the series is whether or not law enforcement including the District Attorney had made up their minds that the defendants were guilty and did everything they could to arrive at that verdict. We see for example what is essentially a coerced confession from Dassey and one that he later withdraws. A key witness in that case recants her testimony during cross examination and says that she made up her previous statement based on television broadcasts. The documentary presents law enforcement, prosecuting attorneys, and judges making a long series of assumptions and decisions that all seem squarely focused on putting the defendants away for life without the chance of release in Avery's case and for at least 42 years in the case of Dassey. The defense attorneys do an excellent job of illustrating the bias involved in this case and emphasizing how the legal system is designed to function on a theoretical level and how it really functions in Manitowoc and Calumet counties in Wisconsin. In episode 9, Dean Strang makes the above statement about certitude.
As a psychiatrist I have had a lot of first-hand contact with the legal system through civil commitment hearings, hearings involving forced medication and electroconvulsive therapy, guardianship hearings, competency hearings, and as an expert witness in malpractice cases. I also testified as an expert in a criminal proceeding involving homicide and a diminished competency defense. All together I have testified in hundreds and possibly thousands of these hearings. In the vast majority of those hearings I was not compensated and it was seen as just part of my job. The lack of compensation is a fairly good basis for humility in court cases. In many of the cases involving a certain legal threshold, I refused to make assumptions and asked that the attorneys ask me the specific question involving a legal standard. In some of these cases, it seemed like a moving target and there always seemed to be pressure to say things that I did not really want to say.
In some of these cases, I was reprimanded by the judge for stating clear facts. I remember one case involving a dead animal where the judge interrupted me and told me that under no circumstances was I to mention that dead animal again. In this case, it was central to the process and there was no jury hearing the case only the judge. To this day. I don't know why the judge told me to eliminate it from my testimony. In another case, I was asked a question about medication side effects that were clearly listed on court paperwork and the judge reprimanded me for "reading off the boilerplate". I did not have the form in my hands and was testifying extemporaneously. The entire court proceeding in most of these hearings is typed up on court documents that are "boiler plate." The medication side effects form was no different from all of the rest.
I am used to fielding the questions from attorneys that start with "Doctor - isn't it true......" knowing that those statements are seldom true. I know that when the attorney starts to address me as "Mister" rather than "Doctor" - he or she is usually trying to annoy me and I am not annoyed. I have watched the same courts swing from a permissive state where everyone gets committed to a situation where there are hotly contested hearings and people with serious problems are released. That dynamic is usually changes due to a catastrophic outcome when a person has been released by the court. The system I have dealt with in my career has been highly idiosyncratic but necessary. There is no way that vulnerable people with severe mental illness could get treated without it. The big difference is that there is usually no bad guy. At its worst, something bad has happened or is about to happen as a result of mental illness or addiction.
Certitude is a word I have not encountered in a long time. A standard definition is: The state of being certain or convinced of something; complete assurance; confidence. There are few things in medicine that can be stated with certitude. Certitude may also be a discerning point between physicians and many other groups. If you are clueless enough to start out in the field with that general attitude and continue to maintain that position - you will be beaten down in a hurry. There is simply no way that you can be certain with a high degree of confidence of diagnoses, treatments or outcomes in any field of medicine. Even if the diagnosis is 100% correct, individual response to treatment can make outcomes unpredictable. A physician may find that their patient is unable to tolerate any of the top three recommended treatment modalities and they are forced to not treat the problem or use a tertiary sub optimal solution. There is far too much biological variability built into the system.
Dean Strang's comment on certitude is an indictment of the legal system that also applies to the managers of the health care system, the politicians that manipulate it, and most certainly the vast majority of the so-called critics of psychiatry and medicine. The physicians are doing what they can to deal with a high degree of uncertainty and the bureaucrats are pretending that everything can be neatly measured and that outcomes are highly predictable. They are also pretending that good work can be done in ridiculously brief encounters. Politicians have come up with a long series of non-solutions to health care. The end result is a system of large companies that are essentially guaranteed large profits by political mandates and statutes. They have the power to order physicians to do low quality work and generally waste their time. Health care costs are probably the second largest tax on Americans and many Americans are paying more than the per capita health care expenditure in the US - by far the largest expenditure of any country in the world.
Psychiatry is a special case when it comes to certitude. There are a large number of prominent for profit critics that are certain about all of the negatives in psychiatry. They mock psychiatrists, presume to tell us what is wrong with the field, and don't hesitate to come up with poorly thought out moral arguments against the field. There is a slightly less aggressive group that act like we are not there when they implement changes in systems design consistent with the general trend of rationing more services to people with mental illnesses. Their common bond is a lack of scholarship. Despite that lack of scholarship and clinical experience - they all act with certitude.
I thank Dean Strang for another important dimension to use in analyzing these dynamics. If you happen to see this series - you will realize how important this idea is.
George Dawson, MD, DFAPA
