COMMENTARY]
When the Shrinl{s Ignore Science,
Sue Them
JAMES D, HERB ERT and RICHARD RED DING
n 1793, there was an outbr ak ot yellow fever in
Philadelphia. Benjamin Rush, a leading colonial physician and signer of the Declaration of Independence, accepted the conventional wisdom that the condition should
be tr ated with bloodletting. This treatment contributed
to the demise of many of his patients. Nevertheless, as the
epidemic waned, Rush was more convinced than ever of
the efficacy of his methods, When Rush's patients r covered, he attributed their recovery to his intervention. When
they died, he chalked it up to the inevitable course of the
disease.
James O. Herbert, PhD, IS
flrofessol of psy cholog~
and associate dean of th
l ollege of Arts and Sci·
ences at Drexel Univers it y
In Phlladelpll ia
-~---...
Richard E. Redding, JD
and PhD, IS profe.,sor and
aSSO\iate dea n at Chap·
man UniverSit y School of
I aw and professor of psy·
chology at Chapman Uni·
verslty.
MediGll practice has corne a lung way
since Rush . A ntibiotics and vaccines, to
name two obvious examples, have been
transformativc. \Nithout exception, the~e
advances have been driven by the application of science to health care. Science
substi tu tes conu·oiled scientifiC data and
statistical predictions for the pra titioner',
intuition and clinica l Ion:, which are
prone to biases in decision making, as
Rush ilJustrated.
By promulgating practice guid lines,
institu tio ns like thl: U nited Ki ngdom's
. ational ln stitu t for C linical E ffec tiveness and the United States' Comparative Effective Institu te work to codifY medical practice based on the best
availa ble scientific evidence . But not
everyone is sanguine about Jethroning
practitioners' judgment in favor of , cience, ilnd spirited defenses of clinician
autonomv have emerged in both the profCssional literature (Hagemoser 2009)
and the popular press (Green1:1eld 2010).
But consider recent cases involving
mental health care. A father lost custody
of his child because the me ntal health
evaluation of the parent relied upon the
scientitlcally unfounded Rorschach "inkblot" test. A depressed patient experienced severe side effec ts from an tidepressant medications but was never
informed about the uption of equally effective treatments like cognitive-behavior therapy. nd a number of therapists
promi se that repeatedly tappin g (yes,
tappingl) on their patie nts will cure erious disorders and addictions by adjusting
the body's invisible "energy field" (Gaudiano and H erbert 2000).
One of our own patients suffered
frum seve re obsessive com pulsive disorder. H I:: would spend hours each day
showering and washing his hands until
they bled. I Ie sought treatment from a
psychoa nalyst, who insisted that hi s
sy mptoms reflected unconscious drives
that he must "work through ." A fter
his symptom s g radually worsened over
S kc pli('llil nquircr i September I Octob.r 2011 13
several years of this analysis, he even tually sought behavior therapy and
within weeks was completely cured of
his condition.
Although many psychological interventions may be ineffective but otherwise benign, research has demonstrated that others can be quite harmful
(Lilienfeld 2007). Crisis debriefing is
promoted to decrease post-traumatic
stress re,lctions following a trauma, but
in fact it actually incrcase s the ri sk of
such problems (Md'\ally et a1. 2003).
So-called "attachment therapies" have
led to the death of several children
(Mercer et a1. 2003). Facilitated communication, ,l technique prolilOted as
allowing otherwise severely impaired
individuals with autism to communicate fluen tly via typing on a keyboard
while a facilitator supports his or her
hand or arm, has led to parents being
falsely accused of sexual abuse (Herbert
et a1. 2002; Romanczyk et a1. 2003).
These are only a few potentially harmful interventions. Despite data illustrating their poten tially harmful effects,
they remain surprisingly popular and
continue to be used.
Such practices represent the tip of the
iceberg ofa persistent problem in mental
health care: the chasm between science
and practice. To close that gap, several
steps must be taken. Of course we need
malpractice reform, but not as it is usually conceived. T he pernicious effects of
frivolous malpractice suits in encouraging unnecessary diagnostic and interventio n procedures are widely discussed.
But when mental health practitioners
use methods that are totally lacking in
scientiflc support, particularly when the
treatment has bcen dcmonstrated to be
harmful and evidence-based alternatives
are available, they shou ld be liable for
malpractice.
Yet unlike lawsuits against other
medical professionals, lawsuits against
psychiatrists and psychologists have
been exceptionally rare--and successful
suits even rarer. M ental health practi tioners have been able to escape liability
by relying on prevailing community
practices- no matter how misguidedto detlue the permissible standard(s) of
care . A defendant can always round up
some likeminded community practitioners who will testifY that the procedure in question is widely practiced,
even if it is scientifically unfounded.
Nthvugh suits against mental health
professionals remain uncommon, litigants can and should make use of a
Supreme Co urt case to make their
When mental health practitioners use
methods that are totally lacking in
scientific support, particularly when the
treatment has been demonstrated to
be harmful and evidence-based
alternatives are available, they should
be liable for malpractice.
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Volume 351ssue 5
Ski..'ptit;!1l1l4UireI'
claims viable. In Daubert v. JVlerrell Dow
Pharmacmticals (1993), the Court ruled
that expert testimony must be based
upon reliable "scientific knowledgl:"
rather than common practice. Thus,
when a mental health professional is
sued for treating a patient with harmful
or unscientific techniques, expert witnesses called upon to describe the prevailing standard of care must base their
testi mony on science. 0 longer can defcndants argue that they met the standard of care merely because they employed techniques often used by others
in the profession.
We acknowledge that clinical practice
is complex and often does not lend itself
to a simple applica tion of scientiflCally
established treatment protoco ls. For example, patients do not always flt neatly
into diagnostic categories; this requires
clinicians to use interventions established
for closely related conditions. Patients do
not always respond to first-line evidencebased interventions, therefore modiflcations of an established treatment or even
a different approach may be necessarv.
Evidence-based treatments may not yet
be established for some disorders or
symptoms, so modifications of established treatment strategies or even a
novel or experimental approach may be
required .•\10reover, in the case of psychotherapy, even relatively straightforward cases nece ~ s arily involve some degree of tailoring of the treatment to each
individual's unique circumstances. Eadl
of these scenarios requires judicious clinical judgment. But such judgment shoul
always be informed by the best available
scientifiC evidence . Clinical judgment
does not represent a carte blanche to e,·
cape scrutiny or legal liability
A related issue is informed consent
D espite being ethically mandated, men·
tal health practitioners rarely obtair
fully informed consent from their p~
timts for their interven tions. An inter
esting issue centers on the question ,
whether clinicians should be permittl\
to offer services that are completely de
void of scientiflc support as long as tt
patient is fully informed of this fact, is
informed of any kn own risks associated
with the treatment, is informed of alternative options, and is paying out-ofpocket rath\:[ than through a private or
governmental insurer. W ithout resolving this particular iss ue, it is clear that
cLnicians should always obtain fully informed consent, and such consent becomes even more important the further
one deviates from scientifically estabLshed practices.
It will take timc fo r case law to sort
through the nuances of these realworld complexities In the meantime,
clinicians can minimi ze their ri sk of
malpractice liability by using scientiflcally supported pro cedures whenever
possible, ensuring that modifg;ations to
estabLshed treatments are scientifically
informed, avoiding interventions that
have been shown to be h armful while
providing little or no benefit, and obtaining fully informed consent , especially for experime ntal procedures.
In contrast, by seeking relief through
the courts, not only can consumers who
have been harmed by unscientific mental
health practices seek appropriate dam ages, but they can also exert a positive influence on the field as a whole by enco uraging scientifically based practice.
In addition to malpractice suits,
other changes arc needed to place routine clinical practice on stronger scientifIC fo o ting. We need ,ll1 unequivocal
commitment to scientific practi ce by
professional organizations, third - party
payers, and state licensure boards . O rganizations such as the AIllt:ric,lll Psychological Association pay Lp service to
scientific standards, but they leave gaping loopholes that allow psychologists
to prac tice all kinds of pseudoscientific
nonsen st: . All too often psychi,ttrists,
psychologists, and other mental health
clinicians usc unproven and even
demomrrably hcumful assessment ,lOd
ueatment procedures, even when alternative scientifIcally supported methods
are available. A key principle inherent
in health- c ue reform is th,t[ in ord er w
Organizations such as the American
Psychological Association pay lip
service to scientific standards, but they
leave gaping loopholes that allow
psychologists to practice all kinds of
pseudoscientific nonsense.
save cos ts and improve outcomes, medical practi ce should be driven by the
best scientific evidence (The H astings
Center 2009). That principle should
also be appLed to mental health professionals, particularly because research
has found a number of psychological
and psychiatric illterve ntions to be effective (some times more so than treatmen ts for physical disorders).
N ext, we need user-friendly practice
guidelines that are based on the best
available scientific evidence and are free
of undue influence from interest groups.
Reflecting the influence of the pharmaceutical industry, the American Psychiatric Association's g uidelines for the
treatment of depression are heavily
skewed toward drug therapies despite
many scientific studies showing that
certain form s of "talk therapy," such as
cognitive behavior therapy, yield longerlasting effects with fewer complications.
(Of course, the best guidelines are not
overly rig'id but allow the practitioner to
tailor them to an individual patient's
unique clinical picrure.)
Finally, we must improve consumer
education. Paradoxically, the g rowth of
the I nternet and advertising of phannaceutical~ rn<lkes information m ore available to consumers but also makes it more
difficult to futer good science from potentially harmful pseudoscience.
Each of these strategies has an important role to play, but llulprac tice suits
against mental health professionals may
become the critical motivating force bc:hind change, so that the shrinks, too, are
guided by science rather than their modern-day versions of bloodletting.
References
1)"11/1,1'1 -v. fYi,:rrd! 1)ow Ph"rmaceuticals, Illc.
1993 .509 US 579.
G J udiann, B., ;lndJD. Herbert. 2000. C an we really tap o ur problems away' A critical amuy>is
of T hought Field Therapy. SKEf'lIC!\L 11\ QUII{ER 24(4) (July/August): 29-36.
Greentid d, S. 2010. In defense of physician auto nomy. Wall SIr. d joumal (Septem ber 7):
A23 .
H ageilloscr, S. 2009. Braking th e bandwago n:
Se rutini;cl11g the sLienee ano politic> of cmpir ic.d ly supported th erapies. The JOIlI'll"; of
P~'l'"hology 143 : 601-14.
The l-l.lSfl ngs C enter. 2009. Cost Cont rol alld
Health C rll'< Reform: Act 1. Garrison, New
York.
H erbert, .J.D ., Uz. Sh,,,p, and B.A. G audi ano.
2002. Separating fact fwm fletion in the etiology and treatment of autism: A scie nti fic
rc:vle\v o f the evidence. Scientif IC R f'v i/1 7.IJ oj'
Mmtal H ealth Pra<flce 1(1): 23-43.
Liiicntdd, S.O . 200 7. P, ychologiccJ tre atments
that cause harm. Pen pectives 011 PSJ"hological
Srir'lICe 2(1) : 53 70.
M cNally, R,j. , R .A. Bryam, and A. Ehlers. 2003 .
D ocs ea rly psychological intervention pro mote recovery from posttraumatic stress' Psy(halogiwl SciCl/c£' III tb( Public Intert'st 4(2): 457') .
Mercer, J, L Sacner, and L Rosa. 2003. At/ach/IImt I ba flpJ 0 11 i /·Ia!. vVcstport, Connecticut:
Praegc·r.
l{ulllallC'& yk, RG ., L. Arnstein, L. V. Soorya, and
.J. C illis . 2003 . The myriad of controversial
treatments f(>! autism: A critical evaluati on of
djJ(dc}, In S.O . Lilien feld, S,J Lynn, andJM.
L olrr (Et!'. ), SCiW«'all d Pseudoscience ill Clill i,a! P,)" ho!Qg)!, 363- 98. \kw York: Guilfo rd.
!) kep li~lllllq ui\'{ ' 1'
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