By John Weston Parry, J.D.
Three recent news stories illustrate, in different ways, the limits of science and medicine in drawing useful conclusions about mental capacities. When viewed together these stories suggest that in dealing with the potential consequences of impaired mental functioning, it would be wise for governments to act cautiously. The temptation to intervene based on incomplete scientific or medical evidence, which is informed by impressionist beliefs and/or the urge to just do something, is more likely to result in errors and injustices than doing nothing at all.
What can and should be done is to create social and economic conditions and environments that benefit and support people subject to the types of potential mental incapacities and impairments that create concerns. Utilizing that type of broad-based public health approach would substantially reduce the possibility that such incapacities would have negative impacts on the affected individuals and/or others. This would be far more effective in the long run than trying to act based on predictions or presumptions about human behaviors, which overwhelmingly tend to be unreliable and/or prejudicial.
The Implications of Children in Poverty Having Reduced Brain Sizes
A recent study by Kimberly Noble and Elizabeth Sowell concludes that the confluence of social factors that contribute to poverty negatively affect brain development in children as measured by the size of their brains. Poor children have smaller brains than affluent children. This is a startling revelation no doubt, but why this differential exists and what it means remains unclear. Three possible explanatory theories have been presented and others are likely to emerge. Unfortunately, academics already are misusing the results of this study to support their preconceived notions, which may have unsettling and counterproductive policy implications.
So far three theories have been put forward to explain the brain size discrepancy. All of those theories by themselves or in combination appear to be at least plausible. First, is the intuitively satisfying explanation that generally poor children are more likely to have inadequate nutrition and health and mental health care and fewer opportunities for positive educational stimuli than affluent children. The second related theory is that the increased stress and chaos of living in poverty produces unhealthy bodily manifestations in children, including reductions in brain size. Finally, there is the socially uncomfortable theory, which cannot be excluded based on known evidence, that people who are poor tend to marry other people who are poor and thus the trait of having a smaller brain is passed on genetically from generation to generation. The worrisome implication of this view is that it somehow supports the conclusion that poor people tend to be less intelligent and thus less able to learn.
Before discussing the possible social policy implications of these three theories further, it is important to understand that all of these possibilities are based on a presumption that a statistically relevant difference in brain size has a substantial negative impact on intelligence, the ability to learn, or other aspects of mental capacity or functioning. Yet, that may well not be the case, since the statistically relevant brain size differences that have been found are small as compared to a whole brain.
There is little persuasive evidence to support the view that small brain size differences would have any meaningful functional consequences, unless what is missing is part of a specific area of the brain. Moreover, what we do know is that brains can be highly adaptable when parts are missing or not functioning properly, and even the smartest people only use a fraction of their brain capacities. Thus, how we care for, train, educate, and use the brain are far more likely to be significant factors in learning and brain functioning than small variations in size, no matter which theory or combination of theories is used to explain this phenomenon that has been linked to poverty.
No matter how the science turns out in the empirical realm of testing and retesting the results and the theories associated with those results, the ultimate conclusions are not likely to be significant in terms of their social policy implications. What should be done with respect to the negative educational impact of poverty on children would remain largely unchanged no matter what we learn empirically. There might be some recalibrations and better targeting, but the basic thrusts would be the same. Reduced brain size, whether or not it is more symbolic of the learning disadvantages of poverty on children or it is an additional significant contributor, the social solutions remain clear, regardless of why this brain size differential exists.
Begin first with the more controversial and socially uncomfortable genetic theory. Even if the best explanation for brain size differentials in children based on their relative income turns out to be that it is an inherited trait, the social and governmental response, both now and then, should be the same: improve the learning environments for poor children by ensuring that the vestiges of poverty are addressed. This means providing those children with good nutrition, health and mental health care, and educational stimuli, which approximate what more affluent children receive, and taking steps to minimize the stigma associated with poverty or its vestiges.
On the other hand, if, as the first two theories suggest, the reduced brain size reflects or is a symptom of the more obvious consequences of poverty—lack of nutrition, health and mental health care, and educational stimuli, and/or increased environmental stress and chaos—the two prescribed antidotes of improving essential social services and reducing stigma would also be highly beneficial. Logically, the most reasonable courses of action, no matter which theory proves to be the best, would be largely the same. Whatever happens, however, the study should not be used to diminish or elevate the value of people based on perceived differences in their mental capacities.
Suicidal and Homicidal Behaviors of Airline Pilots
What should airlines and national governments do now that a co-pilot with a history of depressive symptoms and behaviors deliberately crashed a commercial airliner full of passengers killing everyone on board including himself? Retrospectively it appears—from a New York Times investigation by Nicholas Kulish and Nicola Clark—that the co-pilot had been reinstated into the airline’s pilot training program after a month-long absence without having to undergo anything more than the airline’s normal medical screening and testing program for applicants who want to become pilots. Yet, during a two or three month period before the crash, he apparently sought or received treatment from many different health care professionals for undisclosed ailments that later were presumed to be psychological problems. In addition, among his possessions, found after he had died, were notes indicating that more than one of those professionals had concluded the co-pilot was unfit to work at the time they had examined him. How long it would take him to recover was not addressed.
Unlike most of the individuals who have committed mass murders in American public schools, this co-pilot had access to mental health care, used that care on multiple occasions, and was subject to mental health screening by the airline. The key missing link appears to have been fact that because of strict confidentiality laws and rules in Germany, which also would be present in the United States and elsewhere, the onus was on the co-pilot to either inform his employers about his emotional problems, or decide on his own he was unable to fly. There has been no evidence presented to date that the co-pilot in his confidential sessions with his health care providers threatened to harm himself or his future passengers. In the United States such a threat would be the minimum required to allow or compel a health care professional to breach therapeutic confidentiality.
The reason confidentiality remains important is that many and perhaps most individuals needing mental health care will not obtain such treatment unless their privacy is preserved. It is far more likely that a threat to do harm will be quelled in an environment in which quality mental health care is readily available and valued, than in an environment in which it is not, but mental health providers are encouraged or compelled to make unreliable predictions about which of their patients they believe are likely to be suicidal or homicidal. Unfortunately, whatever approach is used, there are no reliable means to prevent such awful occurrences. What can be done is to contain and further reduce their prevalence.
Even if governments were to take the draconian step of banning anyone from being a pilot who has ever had a severe episode of depression, mania, delusions, or other indicated psychotic symptoms this would only capture a small percentage of pilots and potential pilots who might conceivably be capable of deliberately crashing a plane due to some mental disorder. It certainly would not capture those applicants who had such an episode and/or developed symptoms after becoming a pilot, but chose to keep it to themselves. Every potential solution will have significant gaps, but only some options would unnecessarily harm the vast majority of pilots and potential pilots with mental health issues who could lose their jobs or potential employment as pilots based on mental health concerns that never would have materialized into suicidal or homicidal actions.
Pilots deliberately crashing their airplanes are highly extraordinary events, representing what in recent years has been described as black swan scenarios with catastrophic outcomes. Given the statistical parameters involved, in forging a future policy the following questions should be asked and answered: What percentage of false positives should we tolerate in attempting to reduce the number of these extraordinary events, if the result of an incorrect forecast is to seriously harm or ruin a person's livelihood? Is it 10%, 25%, 50%, 75%, or 90% false positives? Assuming an acceptable level of tolerance could be agreed upon would it even be possible to reliably achieve that level? Probably not.
Unfortunately, those inquiries represent only part of an extremely difficult decision-making process. The other important question is what percentage of false negatives are likely to result, given the lack of reliability of the leading prediction tools, especially as applied in a corporate management environment? In other words given the criteria that are established, what percentage of current pilots and applicants to be who should be identified as potentially suicidal or homicidal, would be undetected?
The impressionistic reactions of most of the commentators who have spoken out on the need for more interventions to prevent pilots with mental disorders from flying appear to be based on a belief that making such a judgment is a matter of common sense and thus easily made. Yet, their reactions are terribly misleading. Predictions of human behaviors involve a complex calculus, which is notoriously unreliable, unless they are based on verifiable empirical data. This is particularly true with regard to either suicidal or homicidal behaviors, much less the two in combination. No amount of impressionistic expertise or degrees can overcome the need for verifiable empirical data that can ensure only a reasonable percentage of false positives and false negatives result. In many ways such calculations are far more complex than so-called “rocket science.”
What does this all mean with respect to substantially reducing the already rare incidence of airline pilots with mental disorders killing themselves and their passengers? The best approach is to reduce the prevalence of such occurrences further without having to use highly unreliable predictions of human behaviors. Instead, sound public health principles and other positive human incentives should be applied as follows:
· require airlines to provide pilots and potential pilots with fully subsidized access to high quality and comprehensive mental health care;
· encourage pilots and potential pilots to use that care when needed by reducing stigma and ensuring confidentiality; and
· require airlines to provide generous disability payments and/or pensions comparable to the pilot’s salary, if that person is directed to stop flying temporarily or permanently due to a mental impairment.
Consent for Sexual Relations Given By a Person with a Mental Impairment
Individuals with intellectual or developmental disabilities, dementia, or some other mental disorder that significantly affects their mental capacities may be prevented from engaging in healthy sexual activities by people who do not fully understand the situation, or understand but object because it conflicts with their personal sensibilities or biases about people with mental disabilities. For many decades there have been countless examples in which the rights to self-expression and self-determination of people with mental impairments have been unfairly or unjustly limited or denied based on: (1) misperceptions about their mental capacities; (2) moral or religious beliefs of others; and/or (3) unscrupulous people who have used the courts for their own personal gain at the expense of those unprotected individuals.
One of the most contentious life choices for people with mental disabilities has been the right to engage in sexual relationships. For years many state and local governments would forcibly sterilize women and girls with severe—and sometimes not so severe—mental incapacities so they would not become pregnant and have children. Today, these types of draconian restrictions on sexual rights are rare. The abuses tend to be somewhat more nuanced. They tend to arise when people in authority interfere based on their own personal agendas, which may involve religious intolerance, self-serving political correctness, or good old-fashioned American prejudice.
Since the 1960’s, protocols have evolved in the law that allow people with diminished mental capacities to make personal decisions about their lives, which do not necessarily conform with what other people think they should do or believe is in their best interests. The basic idea is to allow individuals to make the decisions themselves if possible, or have decisions made for them that conform to their own beliefs, values, and preferences. The legal mechanism involved is known as substituted consent or judgment, which has worked well using a four-step analysis.
The essential first step is to determine whether there is clear and convincing evidence that the subject has a mental condition or disorder that substantially interferes with his or her decision-making capacities, and if so whether that incapacity precludes the person from making the specific decision in question. If the person cannot make the decision at that moment, the second step is to determine whether the individual is likely to have lucid intervals in which the decision can be made in a reasonable amount of time later. With many types of mental disorders lucidity is variable rather than a constant condition. The third step, assuming the person is not be able to make the decision now or later, is to determine whether that person has provided clear indications about what his or her preference would be with regard to the specific type of decision at issue. Clear indications may be found in a living will, any other type of written or audio communication, or what the person has said to other people in the past that can be verified.
Finally, if there are no clear indications of what the person would have wanted, then—and only then—a decision should be made by a substitute decision-maker from the point of view of the subject involved. Ideally that person should be someone who has been selected by the subject in advance or who otherwise has a close relationship to the subject, such as a spouse or close friend or family member. The decision should be based on what is known about that individual, which would help ascertain what decision that person would be most likely to make with regard to the specific type of question at issue.
In arriving at that answer it is irrelevant what the substitute decision-maker, the judge, or anyone else might think the decision should be. The best interests of the individual should be reflected in the values and preferences of the subject for whom the decision is being made. The overriding concern is to remove—or at least substantially minimize—prejudice and religious and moral values of others from the equation. The only exception would be if the subject never had the capacity to indicate what his or her values and preferences were, such as a person who was born with profound mental impairments that never improved.
Unfortunately, in a widely reported Indiana criminal case against the husband of a nursing home patient who had Alzheimer's disease, the facility, the woman’s care givers, the local community, and the prosecutor all failed to engage in any type of systematic analysis of what the woman would have wanted and whether her spouse was best able to represent her interests. For a variety of reasons, all of the people involved in investigating and prosecuting this already distressed husband decided to justify their actions with what appears to have been some kind of distorted political correctness involving lack of consent by women who have been sexually assaulted. The actions of the defendant, who had sexual relations with his wife of seven years while she was confined in the nursing home, apparently were equated with sexual assaults in which women are rendered unconscious or immobile by drugs or alcohol or compelled to participate by force. Making matters worse, the case was prosecuted shortly after the so-called victim had died and the husband was still grieving over the loss of his wife.
The jury acquitted the husband of sexual abuse charges, which otherwise could have resulted in a ten-year prison term. The evidence proved that the sexual encounter being prosecuted was a mutually-pleasing sexual exchange between two married individuals who by all accounts loved each other very much. The best decision, however, would have been—in the absence of any observable signs of actual abuse—for the nursing home, its care givers, and the community to have resisted the temptation to investigate and prosecute the husband.