Does Freedom of Speech allow Rejection of a Court's Findings?

In June I wrote about David and Collet Stephan being sentenced to jail for the death of their two year old son Ezekiel. David and Collet treated him with naturopathic remedies and did not respond to clear indications that Ezekiel was developing dangerous meningitis until it was too late. The judge acknowledged that they loved Ezekiel and were trying in their way to help him, but concluded that they did not have a right to choose their own beliefs over mainstream health care. He sentenced David to four months in jail, but allowed Collet to serve a three month sentence under house arrest.

The aftermath so far is fascinating. Both sides are appealing The "Crown" (Canada's term for the "state") is appealing the sentence as too lenient, on the following grounds:

 - The sentence is not proportionate to the gravity of the offence or to the degree of responsibility of the offender, and is unfit.

 - The Sentencing Judge gave insufficient weight to denunciation and deterrence.

- The Sentencing Judge underemphasized, or failed to give weight to, relevant aggravating factors.

- The Sentencing Judge overemphasized mitigating factors, or gave mitigative weight to factors that are not mitigating. 

- The Sentencing Judge misinterpreted the legal doctrine of wilful blindness.

"Wilful blindness"is a legal term referring to motivated ignorance. The Crown is alleging that the Stephans chose to ignore the obvious fact that Ezekiel needed urgent medical attention because of their cult belief in "natural" remedies.

The Stephans have appealed their conviction. A friend from Canada told m that the appeal is based, at least in part, on free speech grounds. According to my friend they argue that the judge's requirement that they post an unedited copy of his ruling on their website infringes on their right to freedom of speech. (I haven't been able to find the details of their appeal.)

David Stephan's two "letters from jail" (here and here) show him to be a principled believer in a false doctrine. He is convinced that he is taking a stand for justice, to protect other parents from intrusions of the state.

I believe, however, that the judge threaded his way between punishment and mercy in an admirable manner. The judge and jury concluded that David and Collet were guilty of failing to protect their son from preventable harm. From my reading of the media reports this was a correct finding. But the judge recognized that the Stephans were loving parents, acting on their longstanding beliefs. They meant well for their son, but they did him the ultimate harm.

The judge gave David, who he saw as the leader of the belief system, a short jail sentence, but allowed Collet to serve on home detention so that she could care for the children. I supported and continue to support his requirement that his findings be posted on the Stephan website. While the Stephans totally disagree with the findings, they have been convicted under the law. Their website promulgates the cult beliefs that led to their son's death, and could do the same in another family. Posting the judge's findings does not abridge their speech rights. They can, and will, continue to disagree the the judge and jury and to speak up for their false naturopathic doctrines. This is their right in a democratic society.

But if they persist in refusing to post the  judge's findings I would favor requiring Collet to serve her sentence in jail once David is out and could care for their children. I do not know the Canadian precedents for contempt of court, but it would seem that a substantial fine and an extended period of probation would be warranted.

I believe the Stephans deserve respect for the principled way in which they assert their beliefs. In their view they are standing up for truth and justice. David is careful to say that he discourages his supporters from anger or hatred. This is admirable. But in the democratic society of Canada, the Crown is the legitimate authority for ruling on the situation. If David can persuade the public to change the law, the situation will be different. But under the law, the judge has ruled correctly.

Using Social Media for Patient Care and Population Health

I'm very interested in the ways we can use digital technologies to improve clinical care and population health. Over the years I've written a number posts on the topic (if you want to see them, the Facebook and Social Networking links will get you there). 

Digital technology in health care is a booming area - a form of the wild west, with some terrific innovations and a lot of hype and racing to make a quick buck. Next week the Harvard Pilgrim Health Care Ethics Advisory Group, which I have the privilege of chairing, is discussing the ethics of telemedicine. It's going to be a standing room only gathering with more than 40 participants.

I'm a big fan of Leslie Kernisan, a geriatrician in the Bay Area. I've only "met" Leslie via email, but I follow her terrific GeriTech blog. Last week she wrote a post on geriatricians and social media, in which she spoke in very practical terms about whether, why, and how geriatricians should make use of social media technologies. With Leslie's permission I'm republishing her post here:

Patricia Bach, a geriatric psychology colleague who is active in social media, recently emailed me a question: how to encourage more clinicians in geriatrics and long-term care to use social media?

In particular, she asked me “What do you feel is the ROI for geriatricians to use social media/networking in their professional roles?”

This is an interesting question to consider. After all, we have a limited number of geriatricians available for a growing older population. We also each have only so much time and energy in every day. 

So how should each of us be spending our time? How much should be on social media, and do we all need to be using it? 

I myself really like blogging — obviously — but was a reluctant adopter of shorter-form social media. To this day, I have a minimal personal social media presence. I only got going on Twitter because I started this blog in the fall of 2012. For me, Twitter was a good way to learn about digital health and connect with others interested in tech and aging. 

Then I started using Facebook in 2014, mainly because I was focusing more on my geriatrics content for the public, and at that time Facebook seemed to be a better platform for interacting with the general public, compared to LinkedIn or Twitter. (I would say this is still true. 

In adopting social media for these reasons, I was manifesting something that is very important to consider when it comes to physician behavior — or really any person’s behavior — with a respect to engaging in a certain activity:

• What are the most important motivators and interests for the person? What are they most eager to accomplish? How does the activity address those?

• What are the demotivators? What are the downsides to engaging in the activity?

• How much friction or difficulty is involved in engaging in the activity?

You can also consider an activity in terms of “Return on Investment” (ROI), however, this term doesn’t usually take into account how soon the return is going to arrive. And we know that people are much more motivated by concrete returns that happen fast — and are related to something currently of great interest/appeal/fear to them — whereas they discount returns that are coming way off in the future. 

Social media is about communication and networking

Back to social media itself. It is fundamentally about communicating and networking. So to use it sensibly, I recommend individuals — or larger entities — consider the following:

• Who do you want to communicate with?

• What is your purpose in doing so?

• What actions do you hope the audience/people you connect with will take?

• What short-term and long-term results are you hoping for?

• How will this communicating and networking help you advance your most important goals?

• Which platforms are well-suited to your purposes?

• What non-social media methods could you use to achieve your goals, and would that be a better fit given your time/resources/purposes?

It is also important to consider the learning curve of whatever platform and communication strategy one is embarking on, as well as any risks or downsides.
For instance, most social media platforms generate a torrent of information. So one downside is that doing social media takes time and energy, and if you aren’t careful or disciplined about your approach, it can swallow up a lot of time and energy. 

Should geriatricians use social media? 

To answer this question, we should consider it from the perspective and interests of various involved entities. At a minimum these would include:

• The individual clinicians

• The organizations that clinicians works for in some way, such an employer or even an association that a given clinician feels a duty to serve

• Entities representing the welfare of the public, such as government agencies, large non-profits and foundations, and others who try to shape the healthcare environment so that the activity of clinicians benefits society.

Each entity has their own motives, interests, and particular priorities. Needless to say, there is often imperfect agreement between what the clinician is most interested in, the employer is most interested in, and other larger entities are most interested in. 

Whenever I hear someone — we’ll call them the “Suggester” — say “Doctors should do this!” or “Doctors should do more of this!” I certainly think about who is saying it, and what’s in it for them. 

And then I think about how to align that with what those individual doctors are interested in doing. Does this request fit in with the doctors’ interest and motivations? How feasible and easy to implement is it? Is the Suggester in a position to influence the doctors’ work environment or motivating factors? 

If you want people to do something, you need to understand how it fits in with what they are most interested in doing. And then you need to help make it possible and appealing for them to do it. 

An example from the published literature on healthcare social media: 

Here’s a quote from the abstract of a 2015 article titled “Social media is a necessary component of surgery practice.” 

“Each surgeon must embrace the power and potential of social media and serve as a guide or content expert for patients and other health care providers to facilitate and share responsible use of the various media available.” 

The abstract goes on to describe the potential power of social media to “improve consultation and collaboration, facilitate patient education, and expand research efforts…[and] to disseminate campaigns to increase disease awareness and communicate new research findings and best-practice guidelines.” 

I would not dispute the description of the potential power of social media. But it’s not at all clear to me that every surgeon must hence be on social media in a professional capacity. 

Instead, I would say that organizations that represent surgeons and surgical expertise should certainly have a social media presence. Certain individual surgeons may also find it serves their primary interests to be active on social media, either because they are doing it on behalf on an employer or professional association, or because the activity serves their personal projects and aspirations. 

Now, some will say that social media is important for maintaining your professional reputation. I’d say this really depends on what kind of work you are doing as a doctor. If you do research, then it can be good to have a social media presence that enables you to connect with colleagues and the media. If you are in private practice and are having trouble recruiting patients then yes, the right social media activity could help you raise your profile and find more work or patients. 

But most doctors I know are busy, and their biggest concerns relate to their working conditions and their ability to perform what they see as their core work. Usually, this is caring for patients and perhaps maintaining financial viability. For some physicians, it’s getting grants and other forms of academic success. 

Only rarely is it providing health information online to as many people as possible (that’s my project but I’m hardly representative of my colleagues) or even raising the visibility of the clinic or organization they work for, unless they are a designated social media ambassador (or trying to become one). 

Social media IS important to geriatrics and to the cause of improving the health and wellbeing of a growing older population 

To return to the question of whether there’s an ROI on geriatricians participating in social media: 

I absolutely believe that social media platforms can and should be used by geriatricians and related organizations, to help promote better health and healthcare for older adults. 

To begin with, in recent years social media endeavors — such as the Geripal blog — have played an important role in enabling geriatricians to connect with media influencers, which has helped the public become more aware of our field and expertise. The more often geriatric expertise is incorporated into the work of health journalists, the better. 

Then there is providing information more directly to the public. Digital platforms are now the primary way that most adults access information and certain forms of support. Older adults use digital media less than younger ones do, but their use of technology and digital communications is increasing rapidly, as noted by Pew. Pew has also found that family caregivers are often “wired for health.” 

As clinicians providing hands-on care, we should be familiar with the most commonly-used resources our patients and their families are using. These are increasingly digital, although the extent to which they are based on social media seems variable. (I find it depends on topic, niche, patient and caregiver population.) 

If an individual clinician is considering social media, I recommend considering the intended purpose and audience. Especially for those clinicians who mainly provide hands-on clinical work, social media may not be very useful to them. (You can network with colleagues at conferences and keep up with medical news via a few choice websites or journals.) 

However, most organizations should have a social media presence, which means some individuals will spend time maintaining that presence. Having a few clinicians participate in this can be nice, but they should be given time and resources to do it, and to keep up with the ever-evolving social media landscape. 

Social media for health and education 

I don’t have time to review the literature on this topic, so instead I’ll share my perspective as someone who has been creating geriatrics content online since 2008.
For educating and communicating out to the general public, I have found that writing longer content is far preferable to tweets, blog comments, or short Facebook posts. Create something that is more than a blip in a person’s attention, and that really tries to address a question or need. (I don’t personally produce videos but those can be great too. I am now going into audio and podcasting.) This content can be produced for one’s own website, or can be guest-posted to a bigger site with a larger audience. Interactive events like webinars with Q&A capability also have good potential. 

Otherwise, short-form social media (e.g. Twitter, Facebook) can and should be leveraged for dissemination. Such platforms allow clinicians and their audience to share longer content, or to share the notification of an upcoming event or opportunity. 

For learning from the audience — which essential to being truly helpful and to figuring out how to serve your audience — you need to spend a certain amount of time observing/listening, when it comes to what your audience says, does, and asks. Pay special attention to what they ask each other, and what they ask people who are not you, or not in your particular role. It’s also good to invite questions and participate in interactive events. 

Last suggestions for presenting to clinicians about social media 

Walk them through a process for thinking about their needs, their purpose, and how social media might fit in. 

Don’t conflate the needs/motives of the employer or society with the needs/motives of the individual clinicians. 

Provide education to make it easy for clinicians take the next step, if they’re interested.
Provide case studies and examples illustrating how different clinicians and organizations have used social media to achieve their goals. Tailor those case studies to overlap with what is likely to be the interests and goals of the clinicians you are presenting to. Some will be very interested in raising the brand and visibility of their clinic, but that may not be of interest to many geriatricians.

Should a Student be Disciplined for Being Disrespectful on Facebook?

In discussing ethics with medical students and physicians, it's common for someone to ask: "What does the law say?" I typically respond: "Let's first figure out what we think the right thing to do is. Then we can ask how to do it within the law. If the law says we can't do it, we should check to see if we got our reasoning right. If we still think we got it right, we can consider whether the law can be changed, or if civil disobedience is the path to follow."

On July 11, 2011, the Minnesota Court of Appeals ruled against Amanda Tatro in the fascinating case of Tatro v University of Minnesota. The decision is a heartening blend of law and ethics.

Amanda Beth Tatro was a student in the University of Minnesota mortuary-science program, which prepares students to become funeral directors or morticians. The laboratory courses use cadavers that have been donated to the university.

In November and early December 2009, Ms. Tatro posted the following on her Facebook page. I've added some notes in italics:

Amanda Beth Tatro: Gets to play, I mean dissect, Bernie[this is the name she gave to the cadaver. The name comes from the film "Weekend at Bernie's."] today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve . . . .

Amanda Beth Tatro: Is looking forward to Monday‟s embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar.

Amanda Beth Tatro: Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though.[Tatro testified at the Campus Committee on Student Behavior that she was referring to a man who had just broken up with her. But at the campus hearing, faculty members testified that they feared she was referring to them.] Hmm..perhaps I will spend the evening updating my “Death List #5” and making friends with the crematory guy. I do know the code . . . .

Amanda Beth Tatro: Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.

On April 2, 2010, the Campus Committee on Student Behavior ruled that Tatro should receive a failing grade in the anatomy laboratory class, that she should enroll in a clinical ethics course, that she should write a letter to the mortuary-science faculty on the issue of respect in the profession, and that she should undergo a psychiatric evaluation. Tatro appealed to the court.

Here's the section of the court's decision most relevant to professional ethics:

The university found that Tatro violated rules 6 and 7 of the anatomy-laboratory course rules. Rule 7 states, “Conversational language of cadaver dissection outside the laboratory should be respectful and discreet. Blogging about the anatomy lab or the cadaver dissection is not allowable.” Tatro argues that the evidence does not support findings that she violated these laboratory rules.

..As the university asserts, public comments about “playing” with or taking “aggression” out on a cadaver are inconsistent with the notions of respect and dignity whether they occur in person, on Facebook, in a blog, or via other media.

I believe the court was entirely correct that the university had not violated Tatro's right to free speech. A core component of the profession she was preparing for is respectfulness and discretion. Whether or not the ostensible threats she made should have been taken so seriously (the court concluded that the university was correct to do so), her comments about "Bernie" violate the ethics of her profession. The academic penalty imposed by the Campus Committee on Student Behavior was appropriate. (I don't favor requiring a psychiatric evaluation unless there was a medical reason for doing so that the court record does not convey.)

In entering a profession we "profess" our commitment to the ethics of the profession. The first amendment gives Ms. Tatro the right to speak disrespectfully of "Bernie." But it doesn't give her the right to enter the funeral director profession at the same time!