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					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!

				
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