When evidence has rebutted a medical or scientific thesis, it is not only unethical, but arguably fraudulent and thus unprotected by the First Amendment, to present that thesis as if it were untested or supported. Assigning a high value to the free exchange of ideas is not tantamount to valuing all ideas equally
Sheila Suess Kennedy, J.D.
Assistant Professor, Law & Public Policy
School of Public & Environmental Affairs
Indiana University Purdue University Indianapolis
801 W. Michigan Street #4061
Indianapolis, Indiana 46202 Jean Mercer, Ph.D.
Professor of Psychology
Ricard Stockton College
Pomona, New Jersey 08240 Wanda Mohr, Ph.D., R.N.
Associate Professor
School of Nursing
Indiana University Purdue University Indianapolis Charles W. Huffine, M.D.
Assistant Medical Director
Child & Adolescent Programs
Kings County Mental Health, Chemical Abuse and Dependency
Services Division
Seattle, Washington
Snake Oil, Pro
Snake Oil, Ethics and the First Amendment: What’s a Profession to do?
Underlying the Free Speech clauses of the First Amendment is a fairly simple proposition: the government cannot decide what opinions we hold nor what courses of action we advocate. It doesn’t matter how much that opinion deviates from conventional wisdom or majoritarian preferences and beliefs. Under the First Amendment to the United States Constitution, minority positions are protected from official suppression.
Most of us believe that this a good thing, that the vigor of public debate, the clash of competing opinions, the need to rebut even bizarre and offensive proposals with logic rather than power contributes to robust and healthy discourse. When all points of view are “on the table” our horizons are broadened, and the range of possibilities we consider is expanded.
When public debate proceeds to the point of public or private action, however, the issue is no longer one of free speech. The impact of free, or unrestrained, action on the public weal is not necessarily beneficial, and may be quite harmful. While our right to freedom of speech protects discourse about competing values, our actions are subject to scrutiny based upon the nature of their results.
So far, so good—but when we attempt to apply those principles to claims about human physical and mental health, the lines become far less clear. We protect new scientific or medical theories under rules of academic freedom or norms of peer review, because we expect them eventually to be supported or discarded through the accumulation of evidence. From the outset, we may not have sufficient evidence to draw a final conclusion about a scientific or medical idea, but we assume that those decisions, when made, will be evidence-based.
When evidence has rebutted a medical or scientific thesis, it is not only unethical, but arguably fraudulent and thus unprotected by the First Amendment, to present that thesis as if it were untested or supported. Assigning a high value to the free exchange of ideas is not tantamount to valuing all ideas equally. Creationists are entitled to their beliefs, but a responsible society will not trade biology instruction for theology. Tolerance for uninformed opinion does not and cannot require an intellectual relativism in which rigorously tested and replicated factual assertions are considered equivalent to unsupported beliefs and opinions.
Although our national ethos places great value on rights, the exercise of rights without appropriate recognition of corresponding obligations is likely to make life in a society nasty, brutish and short. Not all rights imply obligations on someone’s part, but some certainly do. For example, when rights are classified as “claim rights,” others are obligated to honor the claim (Montague, 2000). We suggest that the right to practice a profession should be seen as imposing “reciprocal” rights—that is, the person who claims the right simultaneously agrees to assume certain obligations to clients, colleagues, and the general public.
Among the obligations accepted by today’s professional, we may include analytical and educational communication to the public. Professionals have an affirmative ethical obligation to distinguish between the kinds of issues that are evidence-based and those that involve value assumptions that cannot be subjected to empirical analysis. Health-care professionals, especially, have an obligation to distinguish between remedies that represent the careful consensus of highly trained experts and snake oil. In this context, it is appropriate to recall that the First Amendment does not protect one who falsely cries fire in a crowded theater.
In this article we consider the appropriate legal and ethical response to advocacy of so-called “alternative” or “invalidated” therapies that place people at risk of harm. What are our professional and civic obligations under such circumstances? What sorts of harms justify intervention by government agencies? What level of harm is required before professional societies are not only justified, but ethically required, to respond? What form should such response take, and what are the risks involved? Finally, we make a number of recommendations that may help psychiatrists and other mental health professionals navigate the waters between the Charybdis of the fiduciary ethic and the Scylla of legal exposure.
Unvalidated Treatments
For purposes of this discussion, unvalidated treatments (UTs) are therapies for physical or mental health problems that are employed in the absence of empirical or theoretical support for their effectiveness, despite substantial evidence that they are worthless or harmful. They are frequently based on assumptions that are at odds with paradigms generally accepted by professionals working in related areas. UTs are often described as “unconventional,” “unorthodox,” or “alternative” approaches. Some practitioners of UTs sincerely believe in the efficacy and appropriateness of their therapies, while others are contemporary incarnations of the frontier patent-medicine salesman. UTs may be sought out by patients or families who are desperate for help that they have not—or perceive that they have not—received from professionally approved treatments. Individuals who habitually reject an “establishment” view and readily accept theories that run counter to common professional practice also explore them. Indeed, many such therapies flourish as a result of “establishment” disapproval. UTs often involve underground or unlicensed activities, but there are cases in which they are funded or encouraged by state legislatures or by national organizations. For example, Therapeutic Touch (TT) is a practice that has been debunked by a well-publicized study published in the Journal of the American Medical Association (Rosa, Rosa, Sarner and Barrett, 1998). TT continues to be taught university schools of nursing, and nurses can receive continuing education credits and tuition reimbursement for taking courses in TT in some states. Some UTs, like the “FastForWord” reading program, may possibly be effective, but have presented only poorly designed research carried out in commercial contexts (Veale, 1999). Some, like “patterning,” a physical treatment performed by parents of brain-injured children, have been the subject of repeated professional policy statements (American Academy of Neurology and American Academy of Pediatrics, 1967; American Academy of Pediatrics, 1982; American Academy of Pediatrics, 1999) but continue to flourish as underground practices. Others, like the “DARE” anti-drug education program, have been shown to be ineffective (Lynam, Milich, Zimmerman, Novak, et. al., 1999) but are strongly supported by some citizens and receive community funding. Finally, there are UTs such as Attachment Therapy (AT), the example we will analyze in the following sections, that have been shown to have harmful or even fatal effects as well as a lack of empirical validation.
The problem of UTs is greatly exacerbated by media coverage of these unorthodox approaches, which frequently involves a phenomenon termed “pseudosymmetry” (Park, 2000). That is, reporters will dutifully seek to “balance” their coverage of these treatments by giving each point of view equal weight, even though 99% of professionals question the therapies’ effectiveness. Such seemingly balanced reporting gives the public the impression that serious debate over efficacy exists, where, in fact, there is none.
To make matters worse, individual professionals and professional groups may be ignorant of the existence of UTs or unwilling to make public statements decrying them. Thus, UTs may continue to be employed by some members of the profession until or even after direct harm to a patient attracts the attention of the police, the courts, and the media.
How UTs Differ
Whether UTs are directed at physical or mental problems, or involve medical, physical, or psychological treatment components, they have a number of characteristics that differentiate them from mainstream medicine. Evaluating UTs may require a sophisticated knowledge of research methods and professional practice. For this reason, responsibility for detecting and identifying UTs probably belongs to relevant professional groups, rather than to the general public, legislators, the police, or the courts.
Perhaps the most significant characteristic distinguishing UTs from most mainstream psychiatric practices are harmful side effects coupled with broad claims of effectiveness associated with a therapeutic approach (Nickel, 1996; Nickel and Gerlach, 2001). While validated and appropriate medical interventions often will carry a degree of risk, the nature and magnitude of that risk is understood through a process of systemic and longitudinal study that has been replicated by researchers. The risk is discussed and disclosed prior to use of the therapy, and forms a basis for informed consent by the patient. With UT’s, there is no prior discussion of possible ill effects; the emphasis is instead upon the positive and comprehensive anticipated effects. In the absence of prior disclosure, reasonable people would not expect treatment of mental health problems to cause physical injury or death, yet serious injuries have occurred in the cases of some UTs for mental health problems (as will be discussed later in this section).
Furthermore, despite the fact that a single type of treatment is not usually effective against a range of disorders with different symptoms and etiologies, many UTs claim such effectiveness. This distinction is a necessary, but not a sufficient condition to distinguish UTs from mainstream practice. It is conceivable that, on rare occasions, harmful side effects can be counterbalanced by empirical evidence of significant beneficial effects for most patients, and there is likewise a small logical possibility that a single treatment actually could be effective for many types of problems. It is highly unlikely, however, that a treatment posing real danger to patients will also be effective for a wide range of psychiatric disorders.
A second distinction between UTs and mainstream medical practice is the absence of information about the therapy in normal professional sources. In order to determine whether this is true of a particular treatment, informed evaluators must have some level of awareness of existing controversies over unorthodox treatments, including whether its practitioners also use or recommend other treatments that are not accepted by the relevant professions. Such evaluators also must be aware of normal professional sources such as specialized books and professional journals. An Internet or database search will readily disclose whether a treatment is presented primarily or exclusively via websites and little-circulated publications such as clinic newsletters rather than via peer-reviewed professional publications.
Because clinical programs and professional associations usually emphasize
standards of practice and ethical considerations in making treatment choices, well-trained clinical professionals are most likely to possess the training to identify questionable therapies. Thus, they may be attuned to the fact that a proposed treatment fails to comply with professionally accepted practice guidelines. But clinical professionals may be less alert to warning signals about a treatment’s failure to be congruent with accepted theory. Incongruence with theory may suggest the use of unusual paradigms that are not generally shared by relevant professionals, but in day-to-day work, most practitioners have little time to consider details of theory. In addition, available information about a treatment may not be explicit about the theory behind it, and it may be difficult for practitioners to discern what models underpin the practice or to evaluate whether those models share the assumptions of a given discipline.
The most obvious difference between UTs and mainstream practices in health care is lack of empirical support. Unfortunately, however, most practitioners have had little
involvement in research and remain somewhat vague about the nature of credible empirical evidence. As one writer has noted, “… many scientists themselves do not have a working knowledge of defensible scientific method. [They] seek mainly confirmatory rather than contradictory evidence… [and] do not understand the risks of small samples or lack of independent replications” (Smith, 2000, p. 2050). As a result, the task of identifying lack of empirical support probably must fall to the small number of practitioners who are routinely involved in research design and who consider it an important part of their professional lives.
The differences between UTs and mainstream medicine are characterized by the former’s broad claims of efficacy for unorthodox approaches that have not been, or cannot be, empirically demonstrated. In making this distinction, we recognize the difficulties of “creating public policy in a climate of clinical indeterminacy.” (Feinberg and Beyer, 1998) and have no wish to suggest action to suppress interest in treatments that are problematic to study, but may have genuine value for some patients. Any action taken, whether legal or educational, should be reserved for therapies with significant harm potential.
Case Study: Attachment Therapy
Can we actually evaluate a psychiatric treatment against the standards for mainstream medical practice? One candidate is attachment therapy (AT), a treatment approach that has been the subject of recent news reports and which employs physical restraint of children at a time when serious questions are being asked about restraint practices.
AT is an unconventional treatment used to treat childhood and adolescent behaviors that resemble conduct disorders. Because the behaviors appear to be associated with early separations and other attachment-related experiences, the constellation of behaviors is labeled as attachment disorder and has been linked with the DSM-IV diagnosis of Reactive Attachment Disorder (RAD). Children from about 4 years of age through adolescence are characterized as aloof, hostile, demanding, uncooperative, and sometimes dangerous to animals or other children. Many children who are subjected to AT are adopted, often after infancy and from orphanages or other settings where they have experienced abuse and neglect.
Like most therapies, AT varies in its actual practice, depending on the therapist and the child in treatment. AT has two basic components, holding therapy and therapeutic parenting, both of which appear to be used in some form for every client. Holding therapy began as a form of physical restraint of the child at a level of intensity that produced fear and rage (James, 1994; DeAngelis, 1997). For example, the child might lie across the laps of two adults with his or her right arm behind the back of one adult and left arm restrained (Keck, quoted by Helding & Cline, undated). This procedure is intended to cause the child to release old emotions and to prepare for new, positive, affectionate relations (e.g., with adoptive parents). More recently, “holding therapy” seems to be evolving into a form that puts less emphasis on the stimulation of rage and more on the repetition of actions posited to produce emotional attachment to the parent. (Levy and Orlans, 2000a). “Rebirthing,” a related form of restraint, is employed by a small number of attachment therapists. In this harsher and much more aversive procedure, children are wrapped tightly in blankets and held by several adults who push against them in imitation of uterine contractions (Crowder, 2000a). The child is challenged to fight to escape and be “reborn” while the parents watch, either in person or on a video monitor.
Can we classify attachment therapy as a UT, employing the warning signals we
discussed earlier? Examination of the practice in terms of these warning signals suggests
that we can legitimately do so.
- Harmful side effects have been associated with AT. “Rebirthing” apparently
caused the death of a 10-year-old girl in May, 2000 (Crowder, 2000, a, b). The child asphyxiated after telling the adults seven times that she could not breathe (Robinson, 2000). Other deaths have occurred when holding therapy (as opposed to “rebirthing”) techniques were used by parents who had been instructed by attachment therapists (Smith, 1996; Horn, 1997). It should be noted, however, that a court decided in one case that the physical and emotional discomfort of a child whose foster parents used holding was due to errors in the use of the technique, not the technique itself (Martinez v.Abbott, 1997). In the Martinez case, the court had found that the child was not allowed to eat for three days until she accepted food from her stepmother; that the father and stepmother lay on top of the child for up to 5 hours while she screamed “get off me–you’re hurting me”; and that the father and stepmother misused other techniques they had learned from an AT support group. (We should note that while health-care professionals may categorize the expenditure of time and money without any evidence that a treatment is effective as a “harmful side effect,” courts will nearly always vest discretion in the parent to make such choices absent demonstrable physical or psychological harm or a willful refusal to offer a child an accepted treatment regimen that is clearly indicated. This is especially true in situations where the parents’ religious views are part of the impetus for the choice of treatment.)
- Broad claims of effectiveness have been associated with AT. One early advocate (Zaslow and Menta, 1975) reported that the practice helped acne. In addition to
treatment of aggressive children whose early lives have been unstable, the approach is now being suggested for those with NICU experience (Levy & Orlans, 2000a) and for ADHD ( Ladnier & Massanari, 2000). Even children of divorced parents are said to need AT (Rhodes, 1997). One proponent of holding has proposed it for normal infants as a means of encouraging attachment (Welch, 1989).
- AT has been associated with known UTs such as “thought-field therapy,” in
which the patient concentrates on an emotional issue while acupressure points are tapped (Ladnier & Massanari, 2000).
- There is also an absence of information in normal professional sources with respect to AT. It is rarely mentioned (apparently never by name until very recently) in peer-reviewed journals or in books published for professionals.
Most of the information about AT is on the Internet, and much of that is on personal websites or comes from newsletters of interested clinics and support groups. However, two books by proponents of AT have recently appeared, one published by Academic Press and the other by the Child Welfare League of America (Levy & Orlans, 1998; Levy 2000). On-line programs for the American Psychological Association conferences of 1997 and 1999 also list workshops to be given by one of these authors.
- It appears that AT fails to comply with professionally-accepted practice
guidelines. This is most obvious with respect to the deaths of children, but it should also be noted that AT does not share the concern of most clinicians with the ethical issue of physical contact when a child passes some maximum age, although some AT practitioners have raised questions about this (Combs, 1999). The special concerns of therapists about physical contact or restraint of abused children are not shared by some attachment therapists (Hage, 1997). The child’s consent to treatment is considered essential by some practitioners of AT, but others consider it impossible for a disturbed child to make a reasoned judgment (Helding & Cline, undated).
- AT is not congruent with accepted theory, in spite of its practitioners’ claims that
it is derived from the work of Bowlby (1982) and Ainsworth (Ainsworth, Blehar, Waters, & Wall, 1978 ) on attachment. Rather than following Bowlby’s ethological, developmentally oriented analysis of the child’s emotional attachment to an adult, AT is based on the assumption that attachment results when a parent repeatedly relieves a child’s feelings of fear and rage. Proponents of AT posit that attachment normally occurs as a result of thousands of repetitions of distress and relief in the first two years of life; these repetitions are termed ‘the bonding cycle” (Keck & Kupecky, 1995). Bowlby’s approach emphasizes social interactions in the second half of the first year as the source of attachment.
A second and even more dramatic incongruence between AT and accepted theory
involves a prenatal and perinatal process referred to as “bonding” and thought by AT practitioners to be an essential aspect of emotional development. “Bonding” is
considered to include a genetic connection based on the shared ancestry of child and birth mother, as well as “an intensely emotional shared experience during pregnancy and birth between mother and infant” (Levy & Orlans, 2000b, p.244). This assumption about “bonding” leads AT practitioners to assume that all adopted children suffer from grief and rage at their loss, no matter how early their adoption occurred. The idea of “bonding” is, of course, contrary to any accepted ideas about the cognitive abilities of prenatal infants or infants soon after birth.
- Finally, AT lacks empirical support in the form of well-designed research. Only three evaluative reports appear to be available. One was a before-and-after study of symptoms of 12 children brought to the Attachment and Bonding Center of Ohio (Lester, 1997). The evaluators reported no statistical data, but stated a general conclusion that the treatment was effective. The author noted that some of the improvement, which was greatest in the interval between evaluation and the beginning of treatment, might have resulted simply from contact with supportive persons. A second study (Randolph, 2000) examined changes in parents’ reports before and after children received AT, but used no untreated comparison group. The third study was more extensive and examined changes over the course of a year in 25 children receiving holding therapy (Myeroff, Mertlich, & Gross, 1999). Appropriately, the researchers used a comparison group rather than a before-and-after comparison, thus accounting for the effects of normal developmental change. Unfortunately, the comparison group was made up of children whose parents had wanted them to enter AT but had for various reasons been unable to come for treatment. Differences between the groups might have occurred as a result of differences in marital functioning, finances, the needs of other children, or other factors that could affect both the children’s symptoms and the possibility of entering treatment.
On almost every point of the criteria we have suggested, we see evidence that
makes us conclude that AT is both unvalidated and potentially dangerous. Yet it is financially supported by some state legislatures (New Hampshire Executive Council Minutes, 1999) and has the support of a number of national adoption organizations (see http://members.aol.com/RADchina) and of the Child Welfare League of America.
Difficult Questions
The persistence of UTs like Attachment Therapy raises difficult questions. From a clinical perspective, why would therapists not wait for validation of a treatment before using it? Some reasons are quite benign. Validation of a treatment is a long and tedious process that bores most people and that few lay persons understand (Dawes, 1994). Approval of randomized experimental trials may be difficult to get if there is any possibility of harm to children, and many years may pass before a treatment receives official sanction by professional disciplines. While such trials take place, patients and their families continue to suffer. Favorable reports based upon personal anecdotes may thus tempt busy practitioners to use a UT, particularly when faced with desperate parents seeking help for their children.
At a less benign level, Dawes (1994) and Stanovich (2001) have suggested that professional organizations may have fostered an ethos suggesting that professionals’ intuitive insight and clinical experience have as much validity as systematic empiricism. .
Such an ethos empowers unscrupulous and entrepreneurial practitioners to engage in creative profiteering at the expense of their clients and gullible families. Indeed, some professionals are emboldened to make public statements denigrating the value of empirical study. Recently, the director of a public school project for enhancement of cognitive development explained her impatience with mainstream science: “I don’t need proof’,” she said (Hershenson, 2000), even though her project was using public funds that might be better used elsewhere. As noted clinical researcher Paul Meehl (1993) warned, “if we do not clean up our clinical act and provide our students with role models of scientific thinking, outsiders will do it for us” (p.728).
A more difficult question is: what can be done to protect individuals from harm? The legal system, as discussed below, is a “blunt weapon.” Attempts to legislate the choice of therapies will—in all but the most clear-cut cases—create more problems than they will solve. While empirical validation is ideal, many therapies are not evidence-based. Most are harmless, and many may be effective for some people. Furthermore, as the current acrimonious debate about stem-cell research demonstrates, medical or psychological issues are not free of political implications.
Unvalidated Treatments and the LawIn theory, the law provides several mechanisms for dealing with the most dangerous unvalidated therapies. While the First Amendment protects advocacy of all sorts, it does not shield negligent or willfully harmful actions. Therefore, once a therapy actually harms someone, a suit for damages (or malpractice if a medical professional is involved) is entirely appropriate. This is small comfort to the individual who has already suffered the harm; however, such suits do serve as a warning to others engaged in providing the therapy in question. A remedy after the fact has other drawbacks as well. Lawsuits are notoriously expensive to bring; furthermore, depending upon the facts involved, the cause of an injury may be very difficult to prove.
Any analysis of the law governing the promotion of these therapies must begin with recognition that the exchange of information about, or advocacy of, untested or unvalidated treatments is protected by the First Amendment, which prohibits government from suppressing even speech that may eventually lead to dangerous behaviors. This is perfectly reasonable: if we were to give our elected officials the right to determine for us in advance which ideas may later prove to be dangerous, freedom of expression would soon become illusory. As Justice Holmes famously noted, “Every idea is an incitement.” Gitlow v. People of the State of New York, 268 U.S. 652 (1925) (Holmes, J. dissenting). Furthermore, medical and scientific history is replete with ideas that were originally considered unorthodox and later were recognized as important and correct. The First Amendment is founded upon the notion that the proper method of combating bad ideas is with better ones, that in a true “marketplace of ideas” the good will ultimately drives out the bad.
The difference between speech and action is by no means as clear as some might suggest, however. We routinely legislate against harms inflicted verbally; examples are fraud, harassment, and libel. When a proposed therapy poses a danger to the public, its promotion may well be vulnerable to regulation. This is particularly true when proponents are making money from the UT in question. If promotion of a therapy is deemed to be “commercial” speech, it enjoys somewhat less protection than is accorded to other types of expression. And of course, UTs that use dietary supplements or involve alternative uses of drugs that are regulated by the FDA may give rise to substantial civil liability or even criminal penalties. Finally, and most importantly, the First Amendment does not protect those who make fraudulent or misleading statements—who falsely cry “fire” in a crowded theater.
Commercial SpeechAn attempt to “sell” a particular nostrum or to charge for services connected with a particular therapy, as opposed to discussion of its purported merits, is commercial speech. Extension of constitutional protection to commercial speech is a relatively recent phenomenon. As recently as 1942, the Supreme Court declined to restrict government interference with “purely commercial” advertising. Valentine v.Chrestensen, 316 U.S. 52 (1942). The Court was subsequently faced with situations involving “advertising” that clearly merited First Amendment protection. In New York Times v. Sullivan, 376 U.S. 254 (1964), the “advertisement” in question protested the treatment of civil rights leaders in Alabama. While the Times had been paid to run the advertisement, it was clearly political speech entitled to full First Amendment protection. In 1976, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the Court invalidated a state statute prohibiting pharmacists from advertising the prices of prescription drugs. The Court held that protecting the free flow of information about products serves as “an instrument to enlighten public decision making in a democracy.” In a classic statement of First Amendment philosophy, the Court held,
“[P]eople will perceive their own best interests if only they are well enough informed, and … the best means to that end is to open the channels of communication rather than to close them.” (770)
As Margaret Gilhooley has recently noted, the courts view bans on commercial speech as worse than restrictions that limit conduct or access to products. (Gilhooley, Margaret. “Constitutionalizing Food and Drug Law.” 74 Tulane L.Rev.815 (2000).)
In Central Hudson Gas & Electric Corp.v.PSC, 447 U.S. 557 (1980), the Court made it clear that any restriction of commercial speech must be narrowly tailored to effectuate an important governmental interest. “A government body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” While the test enunciated in Central Hudson was relaxed somewhat in a subsequent case, Board of Trustees of State University of New York v.Fox, 492 U.S.469 (1989), it continues to be the basic standard for evaluation of proposed government regulation of commercial speech. (Melinda Ledden Sidak. “Dietary Supplements and Commercial Speech.” 48 Food & Drug L.J.441 (1993).
While regulation of commercial speech may pass constitutional muster, claims about the efficacy of UTs will not automatically be considered “commercial” speech. Such a categorization will be heavily dependent upon the type of therapy being promoted, the danger posed, and the manner in which its advocates are communicating. If no books or services are being sold, no fees being charged, nor products being recommended, it is unlikely that the advocacy will be viewed as commercial. In many cases, proponents of these therapies are themselves sincerely convinced of their merits; they are not engaged in intentional fraud, and they are not selling anything. They simply want others to believe in the efficacy of their particular nostrum or behavior. Furthermore, as the foregoing brief discussion of the law demonstrates, even if the messages are deemed commercial, they are entitled to a broad measure of First Amendment protection against government regulation.
That said, the First Amendment does not leave the professions helpless against those who would peddle dangerous snake oil to unsophisticated or desperate people. Deceptive communications give rise to liability under a number of state and federal statutes. Even in the absence of a specific statute, however, the common law has always recognized a remedy for the tort of fraud. The difficulty in prosecuting such suits lies in the very reason so many UTs are dangerous—the lack of empirical evidence to either validate or rebut the claims being made. Efforts to prosecute sponsors of UTs under laws prohibiting deceptive practices will require credible and probative evidence that the claims are false, not just a showing that they have not been proven to be true. And if harm is claimed to result, it will be necessary to demonstrate that the harm involved resulted from the therapy. That will not always be as obvious as in the cases of death or injury involving attachment therapy.
It is also important to note that the same First Amendment principles that constrain government’s ability to legislate against these therapies will protect professionals and their organizations when they engage in public education efforts to combat them.
Professional Ethical Responsibilities and UTs
To become a professional is to freely assume a role and the rights, duties, and responsibilities commensurate with that role. A professional’s responsibility creates legitimate expectations about how that professional ought to behave in exchange for certain rights. These elements of rights and responsibilities can be said to constitute the professions’ contract with society (Sokolowski, 1990; Kultgen, 1988).
Professionals have a privileged status with respect to individuals outside that profession. This status is privileged by virtue of the professionals’ possessing what those outside the profession do not have– specialized knowledge (Sokolowski, 1990; Kultgen, 1988; Freidson, 1986). Thus, in accepting the privileges and benefits of a profession, members assume the obligations inherent in being a professional.
For health care professionals, those obligations involve promoting health, preventing and treating disease, ensuring maintenance of the highest standards of competence, and protecting the welfare of patients or clients. These obligations have beneficial consequences to society by way of reducing the extent and burden of morbidity, assuring standards of practice, and preventing or reducing the consequences of incompetent and unethical, or harmful practices. These obligations are a direct extension of the fiduciary ethic and are essential to the full performance of the professions’ social contract duties (Kultgen, 1988; Sokolowski, 1990).
When fiduciary obligations involve protection of particular clients or patients from incompetent, harmful, or unethical acts, they involve a limited number of parties. When they involve protection of people in the aggregate, they necessitate a coordinated collective effort beyond the scope of an individual practitioner (Muyskens, 1991). The question is not whether professionals and professional organizations are justified in speaking out against potentially dangerous situations; the question is when are we ethically required to do so? To put it in another way, when does “do no harm” become “let no harm be done”? When are medical professionals morally required to act as advocates for actual and potential victims of unvalidated therapies on the one hand and against the practitioners of unethical, incompetent, and harmful treatments on the other? And how are such requirements to be met? Advocacy designed to protect the public has been posited to have its foundation in the principle of non-malfeasance, or the duty to prevent harm, whether that harm is intentional or unintentional (Quinn & Smith, 1987; Chambliss, 1996). Clearly, by not speaking out about practices that have a significant potential to harm patients because of their unscientific or unsubstantiated nature, professionals fail to discharge their duties under the social contract (Bok, 1989).
The advocacy effort required may present professionals—particularly individual practitioners—with a difficult moral challenge. Negative consequences may result from such advocacy efforts; for example, there may be unfavorable publicity or litigation. Lawsuits can serve as a retaliation or punishment for action or as a deterrent to future advocacy or action (Morreim, 1993). While all decisions have costs, the financial and emotional burdens imposed by litigation may seem an excessive cost for taking a position against a harm to the public that is potential and general rather than imminent and particular. Indeed, the very threat of litigation can be an assault upon the moral autonomy of the profession. Not only are professionals coerced into silence and prevented from reacting to improper conduct by their colleagues and others, but by that coercion they are forced to take part in a project that may result in harm to a vulnerable public. This is at the heart of an enduring moral concern known as the “dirty hands” phenomenon, wherein professionals’ principles and values are betrayed by situations that are essentially beyond their control. By virtue of the “dirty hands” dilemma, professionals are morally compromised in doing what is morally justified, perhaps even morally required (Stocker, 1990; May, 1991; Chambliss, 1996).
For that matter, the very ethical standards we seek to uphold may sometimes make effective advocacy against UTs problematic. Increasing protections for research subjects (especially children) are making it more difficult to test certain theses systematically, and to confirm or rebut the efficacy of proposed treatments or interventions. Proponents of UTs, of course, labor under no such ethical constraints.
Nevertheless, self-regulation is part and parcel of the social contract between a profession and the society in which it exists. The professional autonomy we demand, our insistence upon freedom from intrusive and inappropriate government regulations, carries with it an implied undertaking to police our own, even when the social or financial cost of that policing makes of it an onerous obligation.
We are thus faced with a situation in which professionals confront a number of undocumented therapies, some of which are harmless and others that are or may be extremely dangerous. Seldom are members of the general public in a position to evaluate these therapies, and relatively few practitioners have the necessary time and/or background to do so. Government action to restrict advocacy of UTs will generally be unavailable or unwarranted, and those in the professions who are in the best position to speak out on these issues run the risk of being embroiled in litigation, at a considerable cost of time, energy and money, if they speak out about specific UTs. Furthermore, the reality of snake oil in the age of cyberspace is that it mutates—when one “remedy” is discredited, two others appear in its place.
What, then, is the answer? If we accept that professionals have an ethical obligation, how should that obligation be discharged?
First, what is needed is a credible, reliable and (insofar as possible) comprehensive approach to public education on health matters, an approach that would allow for appropriate, effective and proportional responses to the ever-changing range of nostrums, remedies and therapies that have always been and will probably always remain a part of the medical and psychological landscape. We propose that professional organizations, (individually or, as appropriate, jointly) create and fund standing committees charged with educating the public and disseminating the type of information that will allow consumers to identify and avoid those out to sell them ever newer varieties of snake oil.
Such committees would engage in broad-scale public education efforts to alert the public to the danger of accepting claims uncritically, would list the attributes of sound therapies, and provide a clearinghouse for further information. Public education would be accomplished in a number of ways: a web site, periodic press briefings and other attempts to educate the media, talk show appearances, perhaps a recurring column in an appropriate journal. If this seems somehow “unprofessional,” those raising that objection should consider the thousands of websites that hawk a wide variety of UTs as valid and effective therapies. In our AT example, a repeatedly-shown made-for-TV-movie already presents AT as a valuable and desirable treatment. Professional responsibility requires that balancing information be made available.
A public education program of this sort should attempt to raise public awareness of the difference between science and other disciplines, and to increase understanding of, and respect for, empirically acquired knowledge. The goal should be to differentiate between the quality of information and the quantity of it. This larger effort will become more critical as the Internet continues to facilitate distribution both of high quality information and utter hokum to millions of citizens unable to distinguish between them. While professionals should abandon the notion that their authority alone will suffice to educate the broader public to recognize reliable information, we do need to recognize that “dissemination [of research] requires repackaging the information into a format that fits the needs of the audience, and these formats often do not permit communicating the kinds of information and ….detail that scholars typically require…The general public wants information that relates to their experience even if it is not directly applicable, and it must be engaging if not entertaining” (McCall & Groark, 2000, p.201).
A second approach that the professions may employ involves the development of information for all of the “three P’s—Practitioners, Policy-makers and the Public” (McCall and Groark, 2000, p.199). One reason for public susceptibility to UTs is the research community’s general disinterest in applied work. If we put more research energy into the problems that most engage and trouble the public, citizens will be more likely to attend to our results. It is possible that attachment therapy, for example, has achieved its current level of acceptance in part because competent scientists and practitioners have not sufficiently researched the problems it purports to solve. But increased consideration of such problems will require a corresponding increase in interdisciplinary and transdisciplinary efforts. Real world problems rarely fit into neat academic categories (McCall and Groark, 2000, p. 201). Other disciplines may need to follow the example of public health, and work with popular television programs (“E.R.” for example) to present accurate information on specific problems and treatments.
Without these or similar efforts, UTs will continue to be addressed in a highly ad hoc and ultimately ineffective fashion. The same First Amendment freedom that allows advocates for these therapies to promote their use offers the professions an effective avenue for their rebuttal—a rebuttal that is, when all is said and done, an ethical imperative.