-- an unofficial transcript --

R. Chris Barden, J.D., Ph.D.

gives an overview of legal issues raised by the False Memory Syndrome.

Was presented at the 1997 "Memory and Reality" conference. – 1 Hour.

[INTRODUCTION] R. Christopher Barden, an attorney, psychologist . . . [applause] . . . I can tell by that you already know him and there’s no reason for me to read the rest of this, but I’m going to anyway.

Chris has been introduced as probably almost certainly the only licensed a psychologist and licensed attorney in history to receive two national research awards in psychology, and a law degree with honors from Havard Law School.

Dr. Barden received his training at the University of Minnesota, University of California Berkeley, and the Palo Alto VA/Stanford University Medical Center. As an attorney, he has a national consulting practice in cases involving complex science issues. As a psychologist, he has testified in courtrooms across United States as well as legislative hearings. He also conducts national seminars in law and psychology and is an adjunct professor at the University of Minnesota and [at] the Hamline University Law School.

He has been interviewed regarding complex legal issues by CBS 60 Minutes, Time Magazine, BBC, New York Times and others. And besides all that, if I were involved in a lawsuit, I’d want Chris Barden on my team. And if I needed someone to cross-examine an expert witness, I’d want Dr. Barden to do it. . . . Dr. Barden.

------------

My goodness, what a wonderful weekend this has been. We have lots to do and we have only about one hour to do it. I teach seminars across the country to therapists and teach other seminars to lawyers. They are both eight-hour seminars so we’re going to have a slight touch of both of those in the next (one) hour.

What I’d like to do is talk about where we've been in the last few years in terms of the litigation strategies, what the legal system is doing to fix this system, then I’d like to talk a little bit about what I think will be the future of the mental health system. I think that the false memory problem has been such a powerful force in the mental health system that will change it forever. And I also think, and this is something that was not expected three years ago, I think that the nature of the way we have tried these cases will change the litigation system also -- forever, certainly with the way that complex scientific issues are treated and litigated within the legal system.

Okay, my first talk on this issue was 1993, I guess, and I’d just like to read you a sample of what was said there. These were thoughts at that time. It was not clear what the legal system would do with any of this. Child abuse of all forms is a serious and devastating social problem. All citizens should support responsible efforts to eliminate this heinous crime.

Properly convicted child abusers should be severely punished. Victims of abuse should be treated with sensitivity, dignity, and compassion in dealing with a serious problem of child abuse, society should rely on valid and reliable scientific and policy arguments, not pseudo-scientific theories or radical political propaganda. The deliberate or reckless creation by psychotherapists of false memories of child abuse constitutes a serious threat to the public, and reckless therapy should be punished. Members of the relevant scientific committee agree that the creation of fervently believed yet false memories is a reliable and foreseeable consequence of memory retrieval therapy. To protect citizens from the excesses of memory retrieval therapy, therapists who negligently, willfully, or recklessly induce false memories of abuse should be held liable for the harm they cause to patients, families, and to society.

The enforcement of simple yet powerful legislative measures, and the enforcement of rules of ethical conduct for psychotherapists would greatly reduce the harm caused by inappropriate therapies and therapists as well as reduce the probability of pseudo-scientific testimony regarding social science issues in the legal system. State, federal, and private funding sources should require rigorous and reliable empirical proof of the effectiveness of any form of psychotherapy procedure before permitting such treatment to be offered to the public and before using public funds as reimbursement for such procedures. Informed consent requirements should be enforced, thus requiring mental health professionals to fully and fairly inform patients of risks, benefits, and alternative treatments.

Patients have the legal and moral right to be fully informed, and to select treatment options before the treat-ment begins. Federal, state and local governments should express concern for the true victims of child abuse by committing additional resources to programs with demonstrated effectiveness in preventing child abuse while punishing actual perpetrators. In contrast, basing societal responses to abuse upon controver-sial and unproven theories of repressed memories or other controversial and untested concepts creates incentives for insurance fraud, and patient abuse within the mental health industry.

Failure to enforce informed consent protection for mental health patients will reduce the time, attention, and resources available for actual victims. Well we have come a long way since 1993. Let’s start by putting this in a major context. Some people think this issue is about child abuse, it’s not, everyone hates child abuse, everyone wants to prevent child abuse. This is an issue about how cultures and society define what is true; one of the greatest achievements of civilization in the last 1,000 years. I nominate for you the Constitution-ally-based legal system of the United States, which is, as Churchill said, ‘the worst in the world except for all the others.’ Just look at those societies that don’t enjoy the individual liberties that we do, that don’t enjoy the Bill of rights, that don’t enjoy the protection of a legal system that’s based on truth, and you will see what a great blessing this is to us and to our families.

Secondly, the greatest achievement of the last 1,000 years is science. And science is nothing more than a system of methods, it’s a methodology for arriving at reliable and valid truth. The content of science will change over time constantly, the methodologies of science, the finding of reliable and valid evidence, should not change every week, every month, every year. These methodologies have been tested for many, many years and found to be useful and very effective. Look at the societies that have allowed pseudo-scientific ideas to gain the force of law. I give you two examples from the twentieth century. Nazi Germany and the Soviet Union under Lenin. When pesudo-scientific false ideas gain he power of the legal system, every citizen is in danger.

This is the great lesson of the witch trials. It is a lesson that the founding fathers learned very well, and they designed a legal system that is designed to prevent this from happening. Even the most brilliant and well-intentioned individuals come up with utter nonsense in trying to understand a complex world when their thinking is not constrained by the methodologies of science. I give you several famous examples from history. You all know who Aristotle was, a brilliant person. Aristotle had a theory of physics which involved four parts to the universe; earth, wind, fire, and water. Aristotle tried to explain why rocks accelerate when you drop them from a high place. Perhaps you’ve heard this theory. The theory is that the rock is made up of earth, and the earth is made up of earth, and the rock accelerates because it is happy and excited to be going home. Now this sounds quite ignorant to us, with the benefit of the centuries of hindsight into scientific method. It’s very important to remember that this is one of the most brilliant and educated persons in the world. Let’s move forward to the world in the Middle Ages, known as The Dark Ages. And knowledge during the Dark Ages remained as it was in the time of Aristotle, mostly by authority. If a famous and important person said it, it was thought to be true. This is a very dangerous process.

In the Middle Ages we have a new process, which is dangerous, we’ll call it clinical experience. And what happened in the Middle Ages was that the number one medical treatment was bleeding and leeching. If you look at the import-export documents from France in the Middle Ages, their largest export was for medicinal leeches -- thousands of tons of these leeches. And of course, the doctor would apply, [the physician, the barber], would apply the leech, let’s say, to a patient who had the flu. And lo and behold, after a week they got better. So obviously, clinical experience demonstrated that bleeding and leeching was a very effective treatment, and for this reason, it lasted for centuries. These were brilliant people. These are not stupid people committing these mistakes. Once again we see that the most intelligent and deeply committed, and sincere people, come up with utter nonsense if their thinking is not constrained with the methodologies of science.

In the 20th-century we have more remarkable examples of this. And yet we have examples of the proper use of the scientific method. Albert Einstein created a theory that was enormously abstract yet predicted very specific things. And he demanded that people test his theory, and if the theory was found to be false, it should be discarded. On the other hand we have two other major theorists, one named Karl Marx, the other named Sigmund Freud, who gave society reams of ideas which were either non-testable or when tested were found to be false and have produced much damage.

The legal system of the United States has been very concerned about false information the specter of Salem haunts judges everyday. The United States Supreme Court created a ruling in the 20s called the Frye doctrine, and it was to analyze whether lie detection, early lie detector tests should be admitted in court or not. Think of the harm a lie detector could do in a criminal court if it was an unreliable and invalid source of information. The Supreme Court ruled that it would permit only expert witness testimony if the relevant scientific community found it to be a valid and reliable theory and method -- a very important protection for the rights and liberties of citizens in this country. That standard has remained for many years until very recently.

In what I believe to be one of the most important Supreme Court decisions of this century, and I think legal commentators do not understand the importance of it because they are not scientists, in general. In the Daubert case, the Supreme Court defined what science is. And it did it by relying on a brief written by a number of Nobel Prize-winning scientists. And it’s a definition of science that all the scientists in this room would agree with. And it involves theories that are testable, or falsifiable. And it involves whether that theory has been tested in a valid and reliable manner, whether that information has been published in a peer-reviewed scientific journal. Whether the error rate for that theory of method has been calculated, and whether that theory or method has been accepted as reliable and valid by the relevant scientific community. Those words are very important. It doesn’t say relevant clinical therapy community, because they are aware of the dangers of clinical judgment, that gave us lobotomies, and bleeding and leeching, and rolfing, and primal screaming, and now UFO memories, and past life abuse memories, and all the rest of these things that have come from clinical judgment and experience, without regard to the scientific method.

This definition of science by the legal system is going to have ramifications that are going to go on for many decades, because in the coming years, the Congress is going to have to define what is a valid and reliable

Health care treatment because they’re going to need that to figure out what to pay for. And so the scientific rules created by the Supreme Court are going to be a very powerful driving force in the mew health care system. This is happening even now, and the process is going to accelerate.

All right, let’s move from the importance of science in the legal system to what I call multi-diciplinary ways of looking at complex social problems. There are a number of things in the FMS problem that I think are role models for ways to solve complex social problems. One, as I was telling Pam the other day, is that the era of big government is over. And many of these complex problems are going to be solved by groups just like you, committed, dedicated citizens, banding together with scientists and other people to educate society, and to solve problems that are complex. The best way to do this is in a multi-disciplinary fashion. There are many complex issues in society that are difficult to solve because of the dangers of what we now see as the higher educational system. It teaches people to think much too specifically, in much too narrow a way. And I never appreciated this until I left the PhD science world and went to the legal world. There are very different ways of analyzing complex social problems, and unless different professionals will sit together to do this, many of these problems will remain unsolved.

I’ll give you a quick example. Years ago the FAA was considering putting child safety seats in airliners. Lawyers agued very forcefully that children had a right to such safety seats. If children in cars going 30 miles an hour should be protected, how about airplanes going 600 miles an hour? That law was on it’s way to being passed. But people said, "wait a minute," let’s talk to some other professionals. So they talked to a safety expert, and they said “what’s the increase in safety to a person strapped in a plastic seat when they’re planes is going down at 600 miles an hour?” And you know it’s not much. And they talked to the epidemiologists and said, “how many children will this save?” Most years there few if any children killed in plane wrecks, thank goodness. So what’s the benefit of this rule? Then they talked to economists and psychologists and said “this is going to greatly increase the cost of families going to see their grandparents for Thanksgiving. And they’re not going to stay home, they’re going to drive.” And so hundreds of children will be strapped in their car seats and will be driven hundreds of miles that otherwise would have flown. They went back to the epidemiologists, “well what is the risk to the children of death from driving a mile vs. flying a mile?” It’s about 30 times greater.

So putting all this evidence together, you can sit down and in a nice actuarial way, and can calculate how many children will be killed by mandating safety seats on airliners. And that’s why when you fly you see children sitting on the laps of their parents, because it’s far safer than the alternative. This is an excellent example of how a very complex and contentious issue gets very simple if you deal with it in a multi-disciplinary fashion. We’re going to talk about how this has happened with the FMS issue.

By looking at informed consent, and using Frye/Daubert rules, these cases become much more simple. They are not this huge and enormous battle over what is a memory and what is a true memory, they become simple questions of civil rights, human rights, where is the document, where is the evidence? That type of procedure would have proven to be very, very useful.

Okay, let’s talk about problems with the mental health system that we can then look at in this historical perspective with the importance of science, the importance of the legal system, and using a multi-disciplinary look. There are lots of problems in the mental health system. The false memory problem is an enormous one, and it is one of the most important ones in the history of the mental health system, because thanks to Pam and to you, it gained the attention of the national media. Even more importantly, because of the false lawsuits that were filed, it gained the attention of the United States legal system. Throughout much of the twentieth century there has been a constant ongoing battle between the clinical world and the scientific world in the field of psychology. This conflict has gotten so out of hand that three times, the scientists have walked out of the APA. It happened most recently when the APS was formed.

So from time to time throughout this century, we scientists are fed up with what you clinical people are doing we’re getting out and starting our own professional society based on science because we’re so disgusted with what you’re doing. The problem is that this conflict has continued unabated throughout the century. This conflict is about to end, because the legal system is now entering the conflict on the side of the scientists. This is not just going to happen in false memory instances, it’s going to happen in many instances. Let me give you a few examples. There are tests that are given in psychology. Some of the tests are valid and reliable. Some of them are utter nonsense. A good example is something called the ‘draw a person’ test. A mental health professional will have a child or a family draw people. This is supposed to tell something, something important about this person – it’s nonsense. We’ve known that for 30 years. World experts can’t tell the difference between psychotics and normal children [by] looking at these test protocols.

Yet every week I see a transcript in a family court case where an expert will testify, based on the draw-a-person test, as to which parent should get custody of the child. This is a direct attack on the fundamental Constitutional liberties of American citizens, and the lawyers don’t do anything about it, because their education has not prepared them to think like a scientist. If there’s anything we’ve learned from all these problems, it is that the most important component of a modern education is to learn to think like a scientist, even in the most rudimentary ways. This is a tremendous transformation in the legal educational system that this problem is going to generate, and we’re going to talk about why in just one moment.

So we have memories of UFO abductions, and past lives and all these false memories of abuse, and we have the use of these draw-a-person tests, we have dream analysis, I’ve seen experts testify about that. We have facilitated communication, you all know about that little fraud. We have anatomical doll interviews which were done for years, convicting many people until the most recent scientific evidence indicates that high percentages of normal children will accuse people of felony acts, just by being interviewed with those dolls.

We have experts relying on their clinical judgment in testimony all over the country. Yet we have 30 years of research indicating that clinical judgment in the mental health profession is not improved with experience. Of course it’s not, this is freshman psychology. If you’re learning to shoot baskets in basketball, if you miss to the left or the right and you can’t see the basket, you’re not getting any accurate feedback, you don’t get any better. Mental health professionals sit in a room, and I’ve done this, I’m also a therapist, I’ve done therapy for years, I trained therapists. You don’t get any accurate feedback, you don’t get any better. Knowing that, everyone would predict that anyone who did a research study on this would find that secretaries and taxicab drivers and bartenders and first-year graduate students and 30-year psychotherapists are equally bad at making lots of clinical judgments that they make, and that’s exactly what the research shows. And yet the lawyers never stopped this, they’ve testified this way for years they just get away with it time after time after time.

I have never seen transcript in which it family lawyer, even though they may have been a 30-year family lawyer, even though they have deposed a hundred mental health experts, has even read the APA Code of Ethics. That’s a different kind of malpractice isn’t it? We need to have the science system and the legal system operating together in sync, or our society is in danger. This problem is a major catalyst for having that happen.

You can imagine how judges feel when we finally get to court and we finally expose these witnesses for what they are, the judges have been sentencing people to hail for years, based on anatomical doll interviews. They’ve been separating children from their families for years based on the draw-a-person test. The judges get very upset, very upset, and they should be. That witness, once those kinds of ethical violations and major flaws are documented in a court transcript, they tend never to testify again, which is very helpful. Unfortunately, this system has been going on for decades, it’s time for it to stop.

Okay, so how should the system be reformed? Looking at it from a multi-disciplinary perspective, what we’re trying to do is find ways of analyzing this problem that everyone will agree with, everyone. The usual procedure we learned at Harvard from one of my professors there named Steven Breyer. He’s now known as Justice Breyer. What he challenges to do is to try to fix something, and I’d worked in hospitals for children and families for years, that’s my whole career, working for children and families and helping them to cope with terrible stresses, facial deformities, birth defects, major mental illnesses, and I knew that the emergency medical system for children is badly deficient, it was created in wartime for adults. It doesn’t work for children, the death rates do not go down for children when you institute full medical services, believe

that or not. So we wrote a law, with a number of people, with economists, and medical people, and legislators, and that law, without any lobbying group and without any fundraising, has been passed unanimously in seven states. C. Everett Koop says this will save the lives of thousands of children.

This is a model of how this can be done if we have a multi-diciplinary analysis of how to solve the problem. In the FMS case, the multi-diciplinary analysis comes up with this: there are a number of issues that it’s impossible to argue with; the first one is informed consent. Every citizen of this country has a fundamental human right to decide what kind of treatments are going to be done to them by health care providers. These rights stem from the Nuremberg Code, and have been incorporated in law since the 1960s by various court decisions. Most states have a Bill of Rights that incorporates these same protections. I assure you, because I’ve done this, and talked to many juries, juries like to enforce this. They appreciate the opportunity to enforce this. They all agree on this, every juror I’ve ever talked to said the one issue we never debated was informed consent. We all agree that the right to informed consent was violate in this case and that it was a very major problem, and that the therapist should be punished for it.

Let me read you what the Nuremberg Code says about informed consent, this is Burke’s experimentation on human beings: “Any form of psychotherapy (and this is something else that we can all agree on – any form of

Psychotherapy that has not been proven safe and effective, has valid and scientific means, those determined by the Supreme Court of the United States) is an experiment on a human being.” Again, I assure you, juries love to enforce this. There should be no disagreement about this because the legal system will make that happen, will make that definition work. The military tribunal’s final judgment on August 19, 1947, in the case of United States vs. Karl Brandt, includes what is now called the Nuremberg Code. The code, a 10-point statement, delimiting permissible medical experimentation on human subjects is recounted below: I will read it, I will change the word ‘experiment’ to ‘psychotherapy,’ because that’s the way juries read this.

“The voluntary consent of the human subject is absolutely essential,” (this means that the person involved should have the legal capacity to give consent – that’s not psychological consent, that’s legal consent – and the only way you don’t have legal capacity is if you have a document from a court saying you do not) to be so situated as to exercise free power of choice without the intervention of ANY element of force – fraud, deceit, duress, overreaching or other ulterior forms of constraint or coercion, and should have sufficient knowledge and comprehension of the elements of the subject matter involved, as to enable him to make an understanding and enlightened decision.” (This latter element requires that before the acceptance of an affirmative decision by the psychotherapy subject, it should be made known to him the nature, duration, and purpose of the psychotherapy; the method and means by which it is to be conducted, all inconveniences and hazards reasonably to be expected, the effects upon the health of the person which may possibly come from his participation in the psychotherapy).

In trial, we go through what a proper informed consent for recovered memory therapy would have sounded like had it been done. There are very good treatments for depression and anxiety, which is what you have, but we’re not going to use any of those. We’re going to use a radical new experimental treatment, which has never been proven safe and effective for use on human beings, in fact, there’s decades of evidence that this kind of suggestive and leading questioning will produce utterly believable and utterly false memories in you. As a result of these memories, your mental health is going to deteriorate dramatically and you’re likely to sue your parents and destroy your family -- now here – sign here. [Laughter] That’s funny -- juries have the same reaction.

The more I learn about the American legal system and the jury system, the more respectful I am of it.

Okay – informed consent and multi-diciplinary analysis gives us that, no one can dispute that. The APA is disputing how to do this, but I’ve talked to them and they agree with this, and they’re telling their clinical programs to start training in this, and I’ve been invited to go and teach in APA clinical training programs how to do this. They know the writing’s on the wall, the cat is out of the bag -- for some reason -- we’ve now noticed that psychotherapy is part of the health care system, and requires informed consent.

The last call I got was two nights ago to come and do one of these talks. It was from the National Institute of Mental Health. So this is having an impact – what you’re doing is changing things.

What else? The other thing is an economic argument; let’s look at this from an economic point of view. Is it fair that citizens of the United States would get up in the morning and toil, and work hard, and send their money to Washington so it can pay for UFO abduction therapy? I don’t think so. Is this something people want to debate, would anyone want to disagree with this? Is it proper for a Congressman or a Senator to vote for funds to be spent for a form of therapy for which there is no evidence that it’s safe of effective? I have never had anyone have a counter-argument to that which makes any sense at all. With multi-disiplinary analysis you can come up with ideas and solutions that are virtually unanimous. That’s another one – that no government money, and all insurance money is tax-exempt, so it falls under many of these same rules – no health care insurance money should ever be spent for a form of psychotherapy until it is proven safe and effective by valid and reliable scientific methods, as defined by the United States Supreme Court.

Third: Telling the truth in court. Anyone want to argue against that? The APA has very good ethical rules for forensic witness work – they’re never enforced. Worse than that, lawyers don’t even know they exist. So the lawyers, who are supposed to be the ones enforcing these rules, don’t enforce them. It’s truly amazing, I take depositions and cross-examine expert witnesses who have testified in dozens of cases all over the country and they don’t even know the ethical rules that limit their testimony. One of the rules is that they have to know the rules, so we have them in an ethical violation right there. Then we blow up the rules in a big screen and we set it right next to the witness and we go through all the violations -- and we find lots of them. Then we get to their testimony, and they agree with everything we say. And the jury laughs at them and they leave and then we send a transcript to the licensing board and then they never testify again. This is a very powerful procedure. It is just a shame that it has taken this long for this to happen.

I’m training this year probably a thousand lawyers in how to do this. People in the mental health system who know the long-term implications of this are very happy, because the problem is that when the health care system is re-invented, as it will be every year for the next few years, only treatment proven safe and effective will be paid for. And only professionals having some credibility in the public eye will be included in the health care system, so the bogus and fraudulent testimony of mental health professionals is very damaging to the economic viability of that system. The use of inappropriate and bogus and fraudulent treatment is very dangerous to the long-term economic viability of that system. Everyone is beginning to recognize this. Now we have two major forces that are going to start to enforce these rules on the mental health system; the legal system and the economic system are going to work together to change the mental health system. The FMS problem is a major catalyst of this.

We have informed consent, we have no payments unless proven safe and effective, and we have telling the truth in court -- and that is the “Truth and Responsibility in Mental Health Practices Act.” Those are the three components of that law. The APA and all of these other organizations can send out any kind of false information about this law that they want, and they typically do, because they can’t argue with the actual law.

Try it sometime, try to come with an argument against those three principles – it’s very difficult. There’s lots of false information spread about this law. There’s book out now called Manufacturing Victims, by Tana Dineen – this law is in that book in the appendix. Send it to your legislators. There can be no mistake now about what this law says, it’s right in the book. There’s also a letter written to Congress in there. It’s written by myself and signed by many of the most famous psychologists of the twentieth century. The APA always refers to only signed just by me. It’s very interesting how they distort that. Some past presidents of the APA also signed it – it’s very interesting that they leave them out. [Calling for Congress to stop paying for any form of psychotherapy that isn’t proven safe and effective.]

What are the ways we’re going to reform the mental health system and what is the future mental health system going to look like? First of all, education is an important component of this. I fly around the country talking to groups of therapists like this, and at the end of the day, they all agree that informed consent is necessary. It’s not just legally necessary -- it’s morally necessary. It’s not just morally necessary, let me talk to you as therapist now, it’s clinically necessary, because one of the basic problems you face in clinical work is unrealistic expectations by the patient that every thing’s going to work out fine. The way to deal with that is to talk about risk and benefits. You also have the problem that they don’t trust you and so you have to give them the idea that you regard them as a human being with rights and you respect their rights. There’s no better way to do that then informed consent. It’s therapeutically required it’s legally required, it’s morally required, and all these therapists begin to appreciate that. They simply haven’t been trained in this way because they’ve had this hyper-specialized training that the higher educational system has been using for too long.

Education – the FMS Foundation is the best example of how this works. This foundation -- you all have educated the entire country in a very complex scientific issue. There’s an astonishing professional advisory board, one of the most stellar collections of professionals in mental health ever to do anything. [Applause] This is a role model of how these problems should be attacked in the future, [and lots of other ways and] I encourage you, if we solve this problem tomorrow, go after the family law system please, because that is the next target of this [?????].

Seminars are being taught by all of us, all the people on the professional advisory board, those of us in the legal system that understand this – thousands of therapists will be educated in the next few years on these topics. You know what? They’re going to comply because of the lawsuits, which we’re going to talk about next. The educational effort involved books and programs and movies and videos – you see all throughout this room, these books that are written by dedicated people who stay up late at night producing this material, and keeping it up to date. Very, very helpful. But without the other components education would be worthless because, you see, these therapists were trained in graduate school about reliability and validity. They were trained in graduate school about the use of scientific method – it’s never been enforced. They get out in the clinical world and they forget these things, they don’t use them because there’s no incentive. Incentives come from regulation, litigation, and legislation.

Let’s talk about regulation. I just finished four years on the board of the Minnesota State Board of Psychology, a wonderful group of people. They are underfunded, they are understaffed, they know all these things, it’s very difficult for them to police 3,000, 3,500 or so psychologists, with a very tiny staff. So licensing boards are never going to be a very powerful component in this process. However, if they start o enforce their own rules, they could be. One way to get that happening is to bring lawsuits against the boards themselves, and that’s something we’ll be looking at in the next few years. Any system where you have the very professional members of the same group, supposedly regulating their fellow professionals is not a good system. It has built-in conflicts of interest that are very troublesome. Complaints written to boards must be written in a very particular way, and I’ll tell you this right now, when you become a public official, you take an oath of office – to uphold the Constitution and to obey the law. The boards of licensing have statutory requirement that they must comply with. Any complaint to any board must be written in terms of the statutory rules that were violated. You probably cannot do this without assistance, but it is very important that it be done. Those kinds of complaints that come to boards written as a narrative letter or as a long post card, they are not very powerful. If the complaint actually has the rule, the number of the rule, the citation to the statute, the board is on notice that hey have taken an oath to uphold that statute and enforce that rule. It’s very powerful – it makes a night and day difference in the way the boards treat these things. It’ll also make it easier to sue them if they don’t – because they are on notice.

Next -- litigation. This has been the main engine of change, I think – along with the education process, as we’ve seen in this foundation, and the wonderful work that you have done. Again, this clinician-scientist battle has been going on for decades. It’s going to end now, because the legal system is going to end it. I use the visual image for the therapists, of the Tyrannosaurus Rex in the movie Jurassic Park. The T-Rex is much like the legal system; it is very large and very powerful. Unfortunately, it only sees things that move. And the legal system is very old, and it has a very long-range view. The mental health system is 30- years old. Prior to the 60s, there were very tiny numbers of people doing anything called psychotherapy. The entire system has grown up in a very hodge-podge, unregulated, almost overnight, fashion. And the legal system hasn’t had time to adjust to it. The same problem with family law. The legal system, because of FMS, and because of the murder trials and the lawsuits, and because of the work of this foundation, is now awake and alert, and it’s now looking at the mental health system, because FMS is like someone with flares waving in front of the eyes of the T-Rex. And the T-Rex is coming over, and it’s paying attention now, and it’s going to do something about this problem.

The nature of the litigation system itself may be changed by this problem, because what we have done is institute what I have called science-intensive litigation – this is a very different way of trying these cases. What I do when I cross-examine someone, Bob mentioned this as we go in, is we make about 15 volumes of 3-ring binders, with hundreds of research articles in them. If the witness says something that is contradicted by the literature, we get them with it. If they say something that’s an ethical violation, we get them with it. We have this ongoing debate about the science of this, and you know the nice thing about that is that most of the so-called experts on the other side of this matter are incredibly poorly educated – in basic science – and basic methodology. Many of them don’t even read the literature in their own research field. They read a lot of clinical, narrative, novel-type journal literature, which are not very helpful in court, because the Supreme Court has decided what is science, and it’s not clinical chit-chat novels.

These people are in for a very bad time, in all the legal books it says ‘never cross-examine an expert,’ they know too much, they’ll embarrass you, they’ll just testify again. We usually cross-examine people one to one-and-a-half times as long as they testify, because it takes that long to document all the ethical violations, all the methodological flaws, all the errors that they’ve made, but it works very well. Most people who go through this process as experts do not ever testify again. We’re actually done to a very few people who will testify on the other side in these cases.

What other major ways will the legal litigation system move to change the mental health system? One, that I think will be happening in the near future, is qui tam suits. Abraham Lincoln started a theory called “qui tam.” In the Civil War, people were selling bad things to the government, defrauding the government, taking the government’s money. Lincoln didn’t have enough lawyers to go out and get the government’s money back, so he authorized private attorneys to sue these fraudulent providers and to recover the money and to keep a nice percentage for themselves. It worked very well. It hasn’t been used for a long time. This law is being used more and more in health care fraud investigations. As you and I well know, anyone who billed Medicare/Medicaid for a form of treatment that has no evidence of effectiveness, and violated the patient’s informed consent rights, and didn’t advise them of alternative treatments that are safe and effective, has committed a fraud, and can be sued and all the money paid back, and the entire MPD hospital-clinic can be recovered, and given back to the taxpayers, and the lawyers will keep their share, which keeps them interested. The T-Rex is awake and alive. [An “aside” comment]

Any business executive has a fiduciary duty to the shareholders of that business. They have to spend the money wisely. The insurance companies are businesses, and they receive a lot of money from premiums and from shareholders. And if they’re spending their shareholder’s money for bogus psychotherapy treatments they should be sued for that. They should be forced to institute a very simple program to investigate whether the money they are paying out for so-called psychotherapy is for methods proven safe and effective, and with reliable methodology. If it’s not, the insurance company will stop paying for

it. This is already happening. HMOs are slashing these types of therapies right and left, and they’re only paying for cognitive, behavioral, and other short-term, practical, scientifically based treatments.

Let me talk to you briefly about the litigation aspect of this. I haven’t talked about this in public much, but there are some facts in there that I think are kind of interesting. I went to Harvard Law School to write legislation for children’s health care, which I did with the Emergency Medical Act bill. My training had been fairly broad in psychology, I learned about hypnosis and influence from Margaret Singer In Berkeley, I learned about coping and resiliency in children from Norman Donaghey at Minnesota, I learned methodology from Steve Meehl, abnormal psychology from James Butcher, child psychology from Bill Hardup, and CDT from Bill Holland, those of you in psychology will recognize every single one of these people is the expert. Steve Holland and Aaron Beck, of course, worked with each other for years.

I just went to law school to write legislation. Something happened at law school. I became friends with my adviser, Alan Stone. Alan Stone is probably the most famous forensic psychiatrist in the world. Former president of the American Psychiatric Association, one of the most famous psychoanalysts in the world, he’s just written a piece in Harvard Magazine, which I recommend to all of you, saying “psychoanalysis failed as a science: will it survive as an art?” This is the kind of intellectual integrity that we need in the mental health system – thank you Alan Stone. Alan Stone got me interested in doing forensic work and I went to the Massachusetts Mental Health Center, where I worked with Thomas Gutheil also, he will be recognized as a national expert in boundary violations and other kinds of violations. At that time the Bean-Bayog case was alive at Harvard. Dr. McHugh [through Bean-Bayog], did us a big favor. I got interested in stopping fraud and abuse in the mental health system at that point. It was very interesting because all the training is so relevant to this in ways I could never have known. The problem was that psychotherapy suits were impossible – that’s what all the lawyers said – you can’t sue somebody for psychotherapy negligence, it’s never been done. You can sue people for sex with patients or felonies or health care fraud, you can sue people if you don’t commit them and they kill some one or jump off a bridge, but you can’t sue them for choosing the wrong type of psychotherapy – it can’t be done. That simply was the state of the fact at that time.

I was convinced that if you used informed consent and these other arguments, that this would change. The problem was convincing law firms to finance such a case because it would be very expensive. What happened at that time was that a woman named Elizabeth Carlson, in St. Paul, MN called the FMSF. Through some mechanism I’m not sure of yet, I think through some friends in psychology or what-not, FMSF had her call me. Elizabeth Carlson had convinced her entire therapy to sue their old therapist, Dr. Humenansky. At this time, again, none of these suits that had ever been won, and there was a great deal of concern about whether they were economically viable. A senior lawyer there named Ed Glennon wanted to do something for society, and he decided to take the risk, and we’re all thankful for him. This large law firm I worked with, 110 lawyers began to finance the beginnings of these cases.

Then came the Ramona case. The Ramona case was glint of sunlight that made it possible for many of us to continue to fund and finance these cases. Unfortunately, the Ramona case is a third-party case, was never going to apply to a massive number of these cases – that was the general legal thinking. It was not an economically viable suit. It did not make a lot of profit, and lawyers won’t take suits unless they do. We had more cases tried, we had Nussbaum in Denver and Halbrooks in Dallas, and they were very definitely not economically viable. The litigation future of this process appeared quite bleak at that point.

I was struggling to get funding to hire experts. What happened at that point was that Vynette Hamanne’s case came to trial. Hamanne vs. Humenansky. That not only became the first Frye-Daubert ruling banning repression in a civil case in the U.S., it became the only multi-million dollar jury verdict in history for psychotherapy negligence. It still today, along with the Carlson case, is the only multi-million dollar jury verdict for psychotherapy negligence. That convinced lawyers all over America that these cases were economically viable. It was very difficult because these cases had never been tried and won, the defense poured enormous resources into it.

After the Hamanne trial they were convinced it was a fluke, they tried the Carlson case, the longest psychiatric malpractice case in American history to this date, over three months of trial, hundreds of thousands of dollars expended on both sides because they knew it was their Gettysburg. They had not had to face this problem for decades and they knew that this was it. The facts were in their favor, this was a very difficult case. They had lined up this national cadre of experts, they paid enormous amounts of money to, and we took them out, one by one by one, using this system that we have talked about. Because the experts didn’t know the [?????] for borderline personality disorder, that’s a statistical measurement of reliability, and their experts didn’t know that the Rohrshalk Test is not in the Mental Measurement [xxx] Book, and their experts didn’t know – and I could go down and down and down the list.

Two weeks after that case, I was talking to 1,500 doctors in San Francisco at the Postgraduate North American Medical Association. These doctors came up and said you know “when my hospital administrator saw that article, our MPD clinic shut down, because they came in and told me that every one of your patients looks like a two million dollar debt to me.” [Applause] Those cases would not have been possible without the FMS Foundation, without the information they generated, the research that they helped to quote, to collate the experts they’ve had together talking to each other for years to put together the science of this – very, very helpful. The Hamanne case, I would note for the historical record, was the first jury trial I ever was in. The theory that science training is much more important than legal training, in these cases, was borne out quite powerfully.

I’m running out of time, I’m going to have to speed up. What started happening, I got calls from insurance companies saying “we need to re-write our policies, how about a little language her.” I just said “re-write your policy any way you want, but I’m telling you right now, if any of your people are doing recovered memory work, we’re going to sue them and you’re going to lose every time.” Within months you see these policies changing now, they exclude coverage for felonies, for sex with patients, and for recovered memory work. This is going to continue because the other insurance companies that do not have this exclusion are now at an economic deficit. They are at a disadvantage in the economically competitive health care world. That’s going to continue and that’s going to expand. There have been a number of cases since that time that have settled in the shadow of the science-intensive litigation method. We’ve worked on this method to prepare questions, and it depends on the questions they see in the deposition. The defense is very much aware that this is coming – questions with Mr. Dyer in Oregon, Mr. Russo in Florida, Mr. Smoler in Wisconsin, Mr. Bugden in Utah, and a number of other lawyers, and when the defense gets an indication that this is the way a case will be tried, it doesn’t last much longer. The other thing is that we’ve never lost a Frye-Daubert case banning repression from courtrooms all over the country. There have been a few cases lost but they did not use science-intensive litigation methods. The other thing that’s happened is elimination of expert witnesses. Again lawyers told me this was not possible, but it’s happening quite frequently now. By documenting all the ethical flaws, methodological flaws, and other mistakes of experts, and by getting that transcript around, you eliminate that expert witness as a factor in any future trial.

It’s astonishing to me that when sitting and facing these national, international experts in MPD, and repression, and dissociation – they do not know the difference between validity and reliability. They don’t know the research findings of the most basic types. They make freshman mistakes, confusing temporal relationships with causality again and again. I did this wacky thing to them and they felt better next week, so I know my therapy works. I see doctor, and do you have dinner late in the afternoon? Yes. Does the sun go down after you eat dinner? Then, by using your analysis, doctor, you’re eating dinner makes the sun go down doesn’t it? [Laughter] The jury has the same reaction.

Legislation. Legislation is the long-term solution – it’s informed consent, it’s no payments unless proven safe and effective, and it’s truth in the courtroom enforced. It’s the Nuremberg Code, it’s the integrity of the United States legal system, at stake here. These things, these factors, are already happening. The litigation, the FMS Foundation – all these forces – the media, these changes are already taking place. There’s a massive change taking place in the mental health system. There isn’t a day that doesn’t go by that some clinic calls me and says “help us draft some informed consent forms, please,” – I’ll say “no, do it yourself, and this is what it must look like.” Everything involved in that law will either be enforced or the actual laws will be passed, I predict, within five years.

The future of the mental heath system. Let me just tell you some brief stories. The future of the mental health system is in the coping and resilience literature. I work every week with victims of concentrations camps – killing fields of Southeast Asia. Hundreds of people, children, families, adults, who were victimized in ways you can scarcely even imagine. None of them have mental symptoms, none of them have PTSD [Post-Traumatic-Stress-Disorder], they all have jobs and happy families -- they are extremely grateful to live in the United States and to be free. How do they do that? In the hospital I work with massive birth defects, and suffer surgery after surgery after surgery – very few of them have mental problems. How do they do that? We are now focusing in psychology, thanks to Norman Donaghey and to people like him, on people who cope, and on learning skills from them that we can then teach to others. This is the future of the mental health system. Of course there are bio-chemical aspects too, that will always be necessary. But sitting in a room and talking to someone about your childhood -- this kind of life-narrative therapy is on the way out – forever. [Applause] Not just because it’s not effective -- it’s not the most cost-effective -- so the economic system is going to drive it, the litigation system is going to drive it, and consumer systems will drive it when the information is made available to the public. The coaching and education model is the future of the mental health system.

Let me just leave you with what these people are asking to do – what I’ve learned from these people -- there’s a line in scripture that says “be ye therefore grateful in all things.” It’s an amazing thing – how you can turn anything into something you’re grateful for. You’ve seen that in speaker after speaker, who have come up here and talked about how grateful they are to be involved, even though it’s the most difficult thing that they’ve done. When you’re grateful, it’s hard to be depressed, when you’re grateful it’s hard to be anxious. Being grateful is an amazing experience, an amazing protection against stress of all kinds. I encourage you to buy and read a book called The diving suit and the butterfly. It’s by Mr. Bauby, he’s the former editor of Elle magazine. He suffered a massive brain-stem stroke and was completely paralyzed -- he could only blink one eye – his mind was completely intact. He wrote an entire book, dictating letters, letter by letter, with the blink of his eye. The speech therapist would go through each letter, he would blink his eye for the letter, she would write down the next letter. He wrote a 130-page book. It is considered a literary masterpiece – there’s not a smidgen of self-pity, or depression, or sadness in it.

People cope with the most amazing things, and they generally do it by being grateful and by being focused on solving problems – and that’s what you all have done. You all are to be congratulated for taking your grief and pain and turning it into something that will not only reform the mental health system, but it will reform the legal system as well. I am grateful to be a part of this – I am grateful to know all of you. I am grateful to be friends with you, I am grateful to have learned so much from all of you, and from the professional advisory board, and from Pam, and from this entire experience, and to be a part of this attempt to clarify and to protect the methods by which this culture defines truth – and distinguishes between truth and falsehood.

The issue embattled here is not about child abuse -- we’re all against child abuse -- in any form. We all will continue to work our entire lives for children -- to fight to protect children. The FMS question is really a test of a more important issue – how to define truth as a people, and as a culture. History is littered with the remains of societies that failed to make effective distinctions between truth and lies – noble ideas and evil ideas. The battle against junk science is an eternal quest for truth – there will be many more battles. I hope and pray that good people like yourselves will continue to stand up and fight for the integrity of the United States legal system and the liberties that it protects. I hope an pray that good people like yourselves will continue to stand up and fight for the scientific enterprise, because those two must work together. Our children’s liberty and the future of our free civilization will continue to hang in the balance. Thank you. [applause]