Explain Yourself! Stephen Leeder Medico-Legal Society of NSW Annual Dinner. 4 August 2000 Thank you for inviting my wife and me to be with you on this happy occasion. My first attendance at a meeting of the Medico-Legal Society was about 12 years ago and I recall that the Master of Ceremonies for the evening was the Hon. Justice Michael Kirby. Michael Kirby began with a story to impress on us how important it was to get the title of the presentation correct in every detail. While I have forgotten the presentation for the evening, I have not forgotten the story Michael told! Some of you will, I hope, recognise it! The story concerns the British journalist and writer Auberon Waugh. Mr Waugh received a telephone call late at night from French West Africa. The call came from the President of the Senegal Press Association. The phone line between Senegal and England was not clear and the President spoke with a heavy French African accent. He invited Mr Waugh to address the annual meeting of his association in three months and suggested to Mr Waugh that he should speak on the subject of breastfeeding. Although the topic did seem odd to Mr Waugh at the time, he had not visited French West Africa and so accepted the invitation and promptly went back to sleep. The next morning, when he awoke, the unusual nature of the request struck Waugh. However, being a journalist of generative and imaginative capacity, he felt flattered to be given such an unusual topic. In the following weeks he set about his task with enthusiasm, preparing a speech which referred to the psychological benefits of breastfeeding, breastfeeding through the ages, breastfeeding as a contraceptive (confining his remarks to its effect on the endocrine system), breastfeeding in the Bible and other literature. After several weeks of what he found to be quite stimulating and entertaining research, Mr Waugh had his paper ready. He had it translated to French and practised giving it. His ticket arrived for his visit to Dakar on Air Senegal. The day of his appointment after a bumpy flight he arrived at the airport in Dakar. There he was met his host and escorted to his hotel. That evening he was the guest of the Senegal Press Association at its annual dinner. After the meal, the President introduced Mr Waugh, "Ladies and Gentleman, it gives me great pleasure this evening to introduce to you Mr Auberon Waugh. He will address us now on the subject of press freedom". It is difficult to know at this distance who was more surprised, Mr Waugh at that moment or his audience when, following cessation of applause, he presented his set speech on the subject of breastfeeding. So recalling Michael Kirby’s injunction, I selected a title for my remarks to you this evening which I hope is capable of sustaining no ambiguity. It is: Explain Yourself! I want to explore four reasons why we need explanation within the medical and legal professions: first, to inform and build the community; second, to assure the survival of the professions as valued social institutions; third, to explore the richness of one another's profession through dialogue; fourth, in our own personal development and that of our clients and patients. First, professions including medicine and the law have the capacity to add greatly to future society by entering into discussion, or dialogue if you prefer that word, with society. This is much more than a teacher-student relationship - it is genuine discussion about all sorts of things - as I shall explain! Society needs us as professionals to explain ourselves, what we are doing, what is happening in the knowledge worlds in which we in both law and medicine operate, to make crooked things straight, to make things comprehensible that otherwise remain confusing and mysterious. This is not parentalism, but professional sharing. I believe the public has paid for my education and training and gives me a handsome salary from their taxes with a specific goal in mind – that I contribute to the improvement and maintenance of the public’s health through the application with my colleagues and the community of the professional skills that I have acquired. Those skills and insights convey some authority that I regard as legitimate. But I do not exclude the possibility of renegotiating public expectations of me from time to time, as I shall address further in a moment. I consider myself capable of contributing to the achievement of social justice and I do this through my professional insight with due reference to evidence in the struggle against erroneous, historically inaccurate policy and professional practices that are dangerous or useless. In fulfilling these goals, I must explain myself to the community. The need for leadership by our professions is urgent and this leadership can best be exercised by our professions assuming a responsibility for explaining our role in terms that can be readily understood. For example, in relation to medicine, where every day we are increasingly impressed by how robotics can take over technical aspects of surgery, even at long distances, and where information once held in trust by the profession is now freely available to anybody who can access it on the internet, serious social questions arise. Dr Don Cameron, President of the Royal Australasian College of Physicians, offered a view in the Medical Journal of Australia that physicians would, before long, not actually have to perform any kind of procedures. Their role would be as reflective thinkers, taking a particular medical problem and massaging it intellectually. Such a vision of the future of physicians will doubtless excite the disgruntlement of surgical colleagues who have for years felt that surgeons are the doers while physicians are thinkers but not doers. Yet Dr Cameron’s view is a thoughtful one and, who knows, possibly correct. In that case, medical doctors must offer to society a clear explanation, as reflective practitioners, as to what medicine of tomorrow will be like and how it will still allay anxiety and fear over health and suffering and relieve pain. Explaining risks, associated with treatment or, say, immunisation makes excellent sense. Explanation and apology when adverse clinical incidents occur can reduce anger, misunderstanding and litigation for negligence. In the law there are challenges generated by transnational, global corporations, the impact of new technologies like the internet, and new challenges to privacy, including genetic privacy, that we, the public, need you to explain and help understand. Sustainability of medical care in society, as a social good, will necessitate doctors explaining to the community the meaning of limits, that we can’t have it all, that medical technology could bankrupt us before we satisfy everyone. We do not have a view to impose, but we do have knowledge to share and insight to offer in guiding societal attitudes and policy to such matters as health service financing. We, too, like those of you in the law, for different reasons, have to explain ourselves, explain the issues, not simply communicate, but engage with the community for its long-term benefit. My second suggestion to you this evening, is that for those of us who believe passionately in the value of the professions to which we belong, the survival of our professions depends largely on our ability to explain them to the society in which we live. In explaining ourselves we adapt, remembering that species that do not adapt perish. HG Wells, who was among other things a lecturer in biology and a graduate of the Royal College of Science wrote in his 1936 book, The Fate of Homo Sapiens, ‘adapt or perish, that is and always has been the implacable law of life for all its children’. This implacable law has been recognised as a cornerstone for all biological species - including lawyers and doctors! For simpler biological forms adaptation can be achieved by natural selection of the fittest for changes in the environment. For us humans, with our problem-solving skills and language, adaptation means not enforced radical reinvention, but deliberate change in response to a changing environment. If we explain ourselves, our values, what we stand for, to a changing world, then their responsive signals can give us clues as to how we might constructively adapt. Of course, engagement with the community and attempts to explain ourselves can be dangerous! Andreas Vesalius of Padua in 1542 explained the circulation the circulation of blood using blood-going-round-the-body diagrams based on dissection and deduction, but deeply offended prevailing community values. He judged the task of explanation to be a health hazard. So he burnt his books and took himself to Rome, and then Spain, where he specialised in diseases of the privately insured. By contrast, Michael Sevetus in Spain in 1553 would not give up his explanations about the circulation. He offended John Calvin. His explanation was considered to be an insult to the Holy Trinity and so Sevetus burned. That’s the risk. But more generally explanation of our professions is important for our survival. I am not meaning a slippery spin-doctoring approach although a little of that may not go astray. But when I look at the decline in public funding for universities in Australia, however worthy and justified the ambitions of ministers and others may be to induce managerial reform within them and to create a more alert relationship with industry in both education and research, I see institutions that have not explained themselves well to the community. They have not done so compared to hospitals, and the image of academics as strange people who arrive at work late, driving an old Peugeot, generally male-dressed in odd clothes, given to extended lunches and general social debility, does not help. Nor does arrogance. Last year when the GM food debate was raging Robyn Williams interviewed a series of scientists, perhaps selected for their arrogance, I cannot say. In any case the inference was that society should trust them without further explanation, even though none of those interviewed had any expertise in population health. But most fundamentally, they were dismissive and non-explanatory. The contrast with the late Carl Sagan, or David Attenborough or Gustav Nossal, Fiona Stanley, Michael Kirby, Norman Swan, James Spiegelman or Geoff Shaw - all of whom take time and invest energy to explain their profession in interesting and generally non arrogant ways - could hardly be greater. Explaining ourselves is critical to the future of our professions. My third support for my exhortation to explain yourself is that there is value in one profession explaining itself to another. On an evening such as this, where one profession meets easily with another, opportunities for such explanation abound and are both agreeable and important. Of course, there is a rich tradition of interaction between the two professions on a host of topics, but the way in which we collect, use and even define evidence is one of great immediate interest, especially in such fields as negligence litigation. The establishment 10 years ago by Canadian clinical epidemiologist David Sackett and others of evidence-based medicine has affected not only on medicine but also the law. Both professions have always combined authority and empirical evidence in various ways in doing their work. Why then should there be any need for the two professions to get together to compare notes on the nature of evidence? Are we not agreed on what evidence is? In fact, there is a surprising amount that differentiates the professions in relation to this basic commodity. I attended two colloquia last year - a workshop on evidence-based health advice organised by the Menzies Foundation and the Health Advisory Committee of the National Health and Medical Research Council and a symposium at Deakin University on causation and law in medicine – where the nature of medical evidence was viewed through the lenses of the law and medicine. A lawyer speaking at the first of these colloquia offered the following comments: As a practising lawyer I have found the discussion over the last one and a half days really interesting. One of the things that has struck me the most is the very radical difference between the methods and the ways in which you [medical people] are trying to determine appropriate patient management and the way in which courts, in practice, determine what is appropriate patient management. You’re trying to draw together all the available evidence, come up with some sort of synthesis and determine a way forward by using that methodology. In fact, what currently happens in medical negligence litigation is almost exactly the opposite. Far from trying to identify all the studies and find some synthesis, each party presents the reports that are quite deliberately selected, and the system requires you to select them, they’re reports that are most supportive and favourable to that party’s case, and the court is presented with this body of conflicting expert opinion and somehow has to make a decision between these two conflicting views. Now, I have to say that very often I think there is quite a satisfactory outcome, in that I think that once you have the expert witness coming into court and their evidence is tested by cross-examination and so forth, that you will find that the experts on one particular side simply are more authoritative, more impressive, their views are more considered and can withstand better being tested by the system of cross-examination. So the outcome is not one that I think causes any concern. However, there are cases where you will have conflicted expert opinions that simply cannot be reconciled by the judge very satisfactorily, and where the process of reconciling those opinions will bring in all sorts of other considerations. I mean, very often in medical negligence cases you have a plaintiff who has suffered a very genuine tragedy, and there is a natural sympathy in favour of trying to find some way of providing compensation. What this leads to in practice, are results that are at best idiosyncratic, and at worst, abhorrent. The reflection that I’ve had over the last couple of days is that it does seem to me that there is a potential for the evidence-based medicine movement to assist in somehow bridging the gap that so often exists between the two competing bodies of expert evidence in court cases, because there is a possibility that it could provide a new way for the courts to test expert evidence and by requiring expert witnesses in the court to be accountable according to evidence-based standards, because at the moment, frankly, they simply are not accountable in that way, but I can certainly see that happening. It is this collision between authority and evidence derived from reductionist studies that is proving to be provocative inside medicine at present and which also sets evidence-based medicine on a collision path with expert opinion at law. Yet the law is not unresponsive. Indeed in some courts now there is an insistence that expert opinions be supported by argument, although less emphasis than one might expect on the quality of that argument. This may, at worst, simply remove by one step the acceptance of opinion as the basis of authority, rather than challenging authority head on. So a great amount remains to be explained, by law to medicine and vice versa, in relation to evidence. My final challenge to explain yourself I address to you personally, and myself. Our identity, our selfhood, roll out like stories and the explanation that we offer of our lives and what befalls us is our story. Sometimes these stories are so complex that even we, as central players in our own stories, lose the plot and we need help in recovering the skill to explain ourselves, even to ourselves. Explanation of the three varieties that I have described already can encourage subsequent conversation. Indeed, part of the goal of explaining ourselves and ideas more generally is to provoke social reflection through conversation on those things we hold to be valuable - health, justice, equality, equity and others. Conversation that follows from explanation can be constructive and constitutive, creating bonds and relationships that are the very fabric of society and strengthening our professions through adaptation and better understanding. But not all explanation need lead to a conversation. In both our professional worlds, there are times and places where we help others to explain themselves, which terminates subsequent conversation with us as professionals. This may take the form of mediation before formal legal process, or of therapeutic intervention through listening or more formally in psychotherapy, which reaches its endpoint when that conversation ceases. The client or patient walks free, with a clear explanation of their self. Let me tell you a story. He was Polish emigre, in his early sixties, whom I saw in 1988 in my chest clinic at Westmead Hospital. He was my last patient for the morning and I sank when I saw the thickness of his file: he had come to me as a last resort. He looked like Lech Walesa - thick moustache, heavy eyebrows - and spoke with a rich accent. It was winter and recently he had presented to Westmead Casualty twice on different evenings with a tight band of pain across his chest. Naturally enough those attending him worried about a heart attack, yet his ECG was normal. Subsequently he had coronary angiograms, tests for oesophageal spasm and spinal x-rays CT scans. All were negative. I was now to check his lungs. I had employed a Polish babysitter for several years and had a love of the accent and so was well primed to listen to him. I took a conventional medical history which was unrevealing. I then said to him, ‘Tell me about yourself’ or in the vernacular of this evening, ‘Explain yourself’. He was surprised by my request and checked to see that he had it right. Did I have time, he asked? He began falteringly, checking after ten minutes to see if I could understand what he was saying because of his accent. He was, he told me, a difficult man. His wife had left him recently, about the time the chest pains began. He then took me back in time. He had been in the Polish navy before World War II and escaped from Poland as the Nazi panzas invaded his home country. He trekked across Russia, to Shanghai, then by sea to Tel Aviv, and then by a series of ocean freighters to London where he was reunited with some of his naval friends and seconded to the British navy. His British warship ship was attacked and sunk in the Baltic in 1941 and he was taken prisoner. He was put to work in a northern German coal mine. Conditions were cruel and many of his fellow prisoners died. `They gave us no new clothes,' he said, `and so as months passed, we repaired what we had sewing torn remnants with bits of string and wire. Our pants and shirt sleeves grew shorter and shorter with each repair. You can imagine what it was like in the mine in winter. `By the time we were liberated all I had left of my shirt was no more than filthy bits of cloth tied together in a band on my chest. The sleeves had gone long ago'. `Where was the band on your chest, I asked?' `Here' he said, indicating exactly where his recent chest pain had occurred. In the ensuing silence we simply looked into each other's eyes. He had been talking for an hour. The unspoken recognition of the meaning of what he had just said, explaining himself, took some moments to accept. He then smiled, got up from his chair, embraced with the kind of energy that one would expect from a Polish sailor (I developed a sudden band of pain in my chest feeling as though I had been hugged by a bear) and went on his way. I did not see him again. Explain yourself. As Socrates, the first great teacher, showed, explaining ourselves as we talk with others is the very essence of learning – ours and theirs. First, explanation can refresh and encourage communities and strengthen their faith in the professions to contribute to the development of rational and interpretive stories of life from their rich store of knowledge and insight, stories that make sense amidst confusion. Second, by explaining ourselves in the world - what we do, what we believe in, what we value, what we see and why - we can help professions such as ours adapt for a strong and vital future. Third, we can enrich our professions as we explain ourselves across professional boundaries. Fourth, sometimes the recovery of a coherent explanation of selfhood in some of our clients and patients who have this as their greatest need can liberate them from the freezing mines of misunderstanding in which they stand imprisoned. What to say as I conclude? I leave you with this thought. If we are to explain ourselves clearly and effectively to the community there is one thing we simply MUST have: press freedom!