The Consequences Of The “Constitutionality” Of Obamacare


IMG_7667Dr. Michael Keane looks at the long-term effects of "Obamacare" on conceptions of personal identity and mental health:

This week the Supreme Court heard oral arguments related to the constitutionality of Patient Protection and Affordable Care Act (aka the PPACA or Obamacare). The pivotal issue is that of the mandate for individuals to purchase health insurance. If the mandate is found to be constitutional there will be consequences for the Federal Government’s ability to regulate private citizens’ lives far in excess of the power to compel the purchase of a private product.

The Essential Health Benefits package in the PPACA outlines the broad classes of conditions that must be covered in order to satisfy the mandate. It is the requirement for coverage of mental health and substance use disorder services (including behavioral health treatment) that has the potential, when taken to its logical conclusions, to open the whole scope of human behavior to regulation by the Federal Government.

The Government is arguing that the Commerce Clause of the Constitution gives it the power to enforce the individual mandate. The rationale is that health care has a significant effect on interstate commerce and that everyone will need health care at some stage. Therefore, the individual mandate is conceptualized as merely being a way to regulate WHEN payment should be made for the inevitable consumption of health care. This inevitability-of-health-care argument is thus used to justify the Government’s ability to compel individuals to buy an insurance product. The inevitability argument is untenable on a number of fronts when put in the context of accepted clinical, biological and ethical principles as is outlined in the accompanying article in the Mayo Clinic Proceedings http://www.mayoclinicproceedings.org/article/S0025-6196(12)00198-X/fulltext

Firstly, we have to be aware of what the term mental health and has become. Most are comfortable conceptualizing, for example, schizophrenia, major depression, bipolar disorder or incapacitating anxiety disorders as illnesses. However, the concept of “mental health” has morphed and expanded and now concerns itself withevery imaginable dysfunctional, odd, eccentric, antisocial and criminal behavior. Absolutely anything you can think of can be coded as a mental illness, especially with the catch all code of Not Otherwise Specified (NOS). It is furthermore likely that as we discover the neuropsychological basis of some behavioral problems it may well be appropriate to conceptualize them as mental illnesses. On this front, many people are already understandably frustrated when certain behaviors, especially the dysfunctional behavioural components of addictive disorders, are classified as brain disorders; thereby removing personal responsibility from the individual. “It’s not my fault, it’s my disease”.

For the sake of this discussion, we also have to be aware of the ideological underpinnings of mental health. I say this with no prejudice but merely attempt to indentify a reality in order to give readers some context. If you were to look at a distribution curve of the political and ideological leanings of academics and activists within mental health it would be centered on the left of the spectrum. The prevailing ideology has become one of the informed elite having a moral duty toregulate and control the lives of we, the people; the very opposite of rugged individualism. We just have to be realistic about the direction in which mental health is being driven, especially now that everyone will be forced to be covered for mental health services.

It has been uniformly accepted that the Government is not justifying its use of the Commerce Clause for the sake health INSURANCE per se. It is the underlying health care consumption that is being used to justify the mandate to buy health insurance. It is the underlying illnesses and diseases that force people to consume health care; or as one Appeals Court Judge summarized "No one can opt out of illness, disability, and death."  Thus, if the individual mandate is found to be constitutional, it will mean that all the diseases and illnesses for which coverage is mandated are in fact the elements that affect interstate commerce; because it is health care consumption, not insurance consumption which justifies the Governments mandate.

This will have a number of far reaching consequences. Firstly, it will bring almost the entire human condition under the reach of the Commerce Clause. Remember that virtually every dysfunctional behavior can be coded as a mental illness. Therefore every dysfunctional behavior can be said to affect interstate commerce.

Since the utter absurdity of the Twinkie defense, legislatures have attempted to reduce the opportunity for criminals to avoid punishment by the use of obscure and marginal mental illnesses. However, this current situation would represent a completely separate matter. Currently, to avoid prosecution for a crime you have to demonstrate that a mental disorder affected your capacity to know that what you were doing was wrong; the presence of a mental illness per se does not excuse criminal behavior. However, if the mandate is allowed to stand the mere presence of a diagnosis of a mental illness would categorize a person as being open to regulation by the Federal Government under the Commerce Clause.

This would represent a stark reversal of opinion by the Supreme Court. Previously, it ruled that criminal behavior per se could not be regulated under the Commerce Clause. The Court reasoned that in order to connect criminal conduct with interstate commerce, inference upon inference would be needed to make the connection. Not so if the individual mandate is found to be constitutional. With or without the need for the “Not Otherwise Specified” code, it is possible to code mostcriminal acts as components of mental illnesses. And as mental illness would now be considered to affect interstate commerce, the Federal Government could legitimately enact laws to regulate the manifestations of that mental illness.

Even aside from frank criminal behavior, any sort of subjectively anti-social, coercive or manipulative behavior would be fair game to regulate under the Commerce Clause. There are also many categories within mental illness classifications for behavior which is odd, unusual, eccentric or merely out of the mainstream. The unkempt hobo could certainly be controlled by the Federal Government for the effect s/he was having on interstate commerce. You can beconfident that creative politicians, lawyers and psychiatrists will use this to advocate for regulation of ever more parts our lives, especially now that any excess behavior can be labeled as an addiction (I have even heard of someone being clinically diagnosed with heavy metal addiction!) In this context, we have already seen the first generation of attempts to associate political leanings with brain function. In the future it is feasible, if not predictable that attempts at politicalregulation will be advocated for.

These are the consequences of accepting that mental illnesses affect interstate commerce; the inescapable logical consequence of accepting the Government’s rationale for the individual mandate. If the cost of treating mental illness is an INEVITABLE phenomenon that affects interstate commerce, then the Government has a legitimate stake in regulating those sufferers of mental illness as they directly affect interstate commerce.

There is another consequence of accepting the Government’s inevitability-of-health-care-argument. If the legal precedent is set that the manifestations of illnesses are inevitable, then what does that say for all the aberrant behavioral problems that can be coded as a mental illnesses? The abrogation of personal responsibility that might arise from such a legal precedent is mind boggling.

Aside from the immensely complex ramifications of mandating insurance for mental illnesses, the consequences of accepting the inevitability-of-healthcare-consumption argument are many. For example if the mandate is found to be constitutional, the Supreme Court, in one fell swoop, will be rejecting the very basis of lifestyle medicine, preventive medicine and much of public health.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

Would Justice Bromberg ban Southpark?


IMG_7667Dr. Michael Keane examines the implications of the decision in Eatock v Bolt:

Incongruity is a tool of the comedian. When something just makes no sense at all and a concept is proposed that completely lacks internal consistency we often laugh as a sort of defence mechanism to deal with information that simply does not compute. In this context it is difficult to know whether to laugh or cry at Justice Bromberg’s incongruous decision in the Andrew Bolt case. Whether we laugh or cry, we should be deeply concerned with the consequences of the judgement. Much has been written in regards to the precedent this case sets in regards to free speech. Conversely, politically-correct apologists for the judgement of the Federal Court counter that this case merely represents a sanction against an article that got certain facts wrong and was supposedly written in a sarcastic tone. However, in order to appreciate the reason that this judgement most certainly restrains legitimate political discourse it is necessary to scrutinize what is a glaring contradiction in Justice Bromberg’s justification for his decision.

The intent of this current article is not to explore the significance (or lack thereof) of the nominated factual errors in Andrew’s article, which, in the context of the extremely important political point Andrew was making, are arguably so peripheral that it is surprising that the Justice could make much of them at all. Furthermore, please Justice Bromberg, watch an episode or two of Southpark. The creators of Southpark have been amongst the great political philosophers of our age. The benefit they have brought to society is immense. However, they most certainly use sarcasm and ridicule. Sarcasm is used devastatingly to highlight their incredibly sophisticated political insights. For those not familiar with his ruling, Justice Bromberg stifles free speech on the basis that, amongst other things, Mr Bolt might have used a little sarcasm. But let’s get back to the contradictions in Justice Bromberg’s ruling.

In his summary, Bromberg writes “Finally, in dealing with the formulation of the orders to be made by the Court, I have observed that it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people.” Justice Bromberg gives this overriding disclaimer that he is not attempting to hinder legitimate political discourse. Interestingly he charges Mr Bolt with using an exculpatory disclaimer when Andrew wrote “I’m not saying any of those I’ve named chose to be Aboriginal for anything but the most heartfelt and honest of reasons. I certainly don’t accuse them of opportunism, even if full-blood Aborigines may wonder how such fair people can claim to be one of them and in some cases take black jobs.” The Judge was literally dripping with disdain for the legitimacy of Mr Bolt’s disclaimer. However, Mr Bolt’s disclaimer was entirely consistent with what he wrote. Furthermore, Mr Bolt in his writing has consistently demonstrated that he is fair, compassionate, kind, reasonable, genuine and incredibly non-racist. Contrast this to the Judge’s exculpatory device which is thoroughly inconsistent. Let’s explore.

The Judge writes “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. [Emphasis added] Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.” He later concludes “I have also found that the conduct was reasonably likely to have an intimidatory effect on some fair-skinned Aboriginal people and in particular young Aboriginal persons or others with vulnerability in relation to their identity.”  

To give some context to Justice Bromberg’s comments, let’s use the example of affirmative action. It is completely legitimate to be morally and politically opposed to affirmative action. One legitimate (and more likely than not enlightened) view is that affirmative action represents racial separatism par excellence. It is NOT reverse racism. It IS racism in every sense of the word. It is a leftover from the heyday of political correctness, unopposed due to intellectual cowardice of people who could and should have challenged it every step of the way.

To think that in the 21st century, official policy judges you on the colour of your skin – your race – independent of your ability or your character. So the colour of your skin is green?  Sorry this position is only for people with purple skin. You’re the best person for the job, but your skin is green not purple…. sorry! Not only do many consider this philosophically utterly repugnant, many also argue that it ultimately makes the situation for the “affirmed” race even worse as it (i) causes great resentment and (ii) shifts the equilibrium of behaviour and removes incentives. These points are of course arguable. There is no ultimate right or wrong.

OK, so if you believe that affirmative action is wrong (some legal observers believe that the Supreme Court in the US is tantalizingly close to sending affirmative action to the dustbin of racist history) it is reasonable to contend that beneficiaries of this racist instrument have unfairly been advantaged due to their race; i.e. racism. So you want to change the system? If the public becomes increasingly aware of the racist underpinnings of the system they may, completely rationally, resent the patronage that beneficiaries have received. If that resentment increases, the people from the “affirmed” race may feel that their achievements are not respected. Maybe the public might start to exhibit signs of “disdain”. By definition affirmative action means that someone of the affirmed race receives a position, grant, reward or award that the individual did not receive purely on their merit.

If beneficiaries of affirmative action do feel that their achievements are denigrated by the population they might feel disinclined to accept such racist patronage. Furthermore they may be disinclined to actively oppose political movements to remove affirmative action. It is a completely reasonable, fair, rational, compassionate and enlightened objective to want to end affirmative action and therefore it is also morally decent to want to delegitimize achievements that are based on racial separatism. Maybe then, there are some situations where it is morally enlightened to want there to be “disdain or loss of esteem for so identifying”. Maybe or maybe not? That’s where the free contest of ideas comes to play.

To be sure, I’m in no way arguing that it is not legitimate to argue the merits of affirmative action. There is a rationale for affirmative action and it is perfectly legitimate to argue the case. Free speech is a wonderful thing! Now, remember that a legitimate defence to possible racial vilification is the furtherance of legitimate political discourse.

However, Justice Bromberg has unilaterally and without any justification declared that only political opinions that he believes in are allowable.  Why does he even mention his beliefs about the unacceptability of “disdain”? It is irrelevant. If this case is not about, as he argues, the unlawfulness of “a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people” then his beliefs about disdain and loss of self esteem are irrelevant and should not be entered in to the Court’s record. Sometimes political correctness can just drool down, soaking shirt and robes alike. I wonder what colour shows up in a urine test when someone is chronically intoxicated with political correctness? Note the sarcasm. Yes a little sarcasm. Is that how political prisoners were tortured by the likes of the Khmer Rouge? “Right now, renounce your political beliefs or we are going to use sarcasm on you!” No, no, no not sarcasm…. I’ll do anything you want just don’t use sarcasm!”

So the question becomes, what if you want to argue that we should show peaceful disdain to people who have gotten ahead because the colour of their skin, not their talent? So not withstanding his exculpatory disclaimer, Justice Bromberg, necessarily contradicts the statement that this is not about “challenging the genuineness of the identification of a group of people”. If the CONTENT of political speech is legitimate why is it necessary to even raise such issues as the “intimidatory” effect it might have on some people.

What are the limits of this? Can an ordinary citizen, who does not possess significant financial resources, really leave him/herself open to the arbitrariness of this process (which might end up costing hundreds of thousands of dollars)? This is the insidious nature of this judgement. Is it legitimate, for example, to argue that we should reduce government funding for certain aboriginal cultural activities? Would this then belittle those activities as unnecessary and therefore lead to a loss of “self esteem?” Would it be legitimate to argue that the aboriginal culture is a failed culture and we should stop trying to artificially prop it up with inordinate amounts of government funding?

So here’s the test. If someone did want to argue that people SHOULD feel loss of self esteem for identifying with a particular group, should that person be banned by the State from arguing the case? Would Justice Bromberg have banned the Southpark episode which ridiculed Tom Cruise and people identifying with the “religion” of the Church of Scientology? I can assure you there was no holding back on the sarcasm in that episode! The overwhelming common expectation is that we can, at times, appropriately ridicule people for identifying with a particular group. Of course, Tom Cruise and the Church of Scientology do not come under the Racial Discrimination Act. But this case is about whether Mr Bolt’s comments were defensible under the construct of legitimate political discourse. Furthermore, there is a strong case that we SHOULD actively promote ridicule if people identify with certain groups. It would be a failure of moral leadership if we didn’t ridicule people who associated with NAMBLA. Who decides which associations should be allowed to be ridiculed and which shouldn’t? The Supreme Guardian of Morality, Judge Bromberg?

Judge Bromberg seeks to arbitrarily mandate that everyone agrees with him. That is unacceptable. This judgement was an absolute shocker on so many levels. If a surgeon had botched a case so badly it would not be unexpected to be sued. If an AFL umpire made such a woeful interpretation of the rules s/he would not be in the big league for long.

Ironically, Bromberg’s judgment has probably increased the total amount of intimidation and loss of self esteem in the society. The decision has caused enormous intimidation to those who are left wondering whether their political opinions will be rendered unacceptable by the Supreme Council of Political Correctness. This most certainly will make people feel intimidated into not expressing legitimate political positions. The devastating feelings of disenchantment that many feel at the thought that their society is no longer one where we tolerant free political discourse is arguably far more potent than any distress caused to the plaintiffs in the case at hand.

Judge Bromberg declares in regards to Mr Bolt’s writings that “There is a liberal use of sarcasm and mockery. Language of that kind has a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines, but to also read between the lines.” Once again, Justice Bromberg demonstrates the disingenuousness of his exculpatory device that this is not about limiting free speech. What does it mean if language conveys implications beyond the literal meaning of the words? The final implications are still implications? You should still be able to argue those same implications. So it shouldn’t matter how people arrive at the same conclusion; whether it be from reading between the lines or whether it is overt and in your face. In other words, the Judge himself is attempting to “convey implications beyond the literal meaning of the words utilised”. And the clear implication is that the CONTENT (not the just the form) of the argument is not allowable if it doesn’t accord with his view of the world.  This is a clear contradiction to his exculpatory statement that this is not about prohibiting challenges to “the genuineness of the identification of a group of people.” If you wanted to challenge the “genuineness of the identification of a group of people” and you did it by using the technique of having people read between the lines, then so be it. That is ultimately what you are arguing.

Bromberg goes into a facile, feeble, self serving and profoundly masturbatory outline of the legal concepts of free speech as he understands them. At the end of the day the question has to be asked, would Mr Bolt be allowed to say what he said if he wrote it in the United States of America? If yes, then all Justice Bromberg’s ramblings about free speech are worthless. We obviously don’t have the freedom to engage in legitimate political discourse in Australia. It’s not about being defamatory to the plaintiffs. If so it would be sorted in a defamation case.

Judge Bromberg, your decision has now brought untold intimidation to people who want to legitimately challenge the politically-correct ideas you believe in. You have deprived everyone in the society of the opportunity to hear opinions we don’t necessarily agree with. I want to hear different viewpoints, not have them banned. The contradictions in his decision have lead to a set of precedents that, to borrow a phrase from a Court in the US, are breathtaking in their expansive scope.  

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

I want to consume this product, public health experts shouldn’t stop me!


IMG_7667Menzies House contributor Dr. Michael Keane writes in the Medical Journal of Australia critiquing the public health movement for imposing government lifestyle mandates on the population:

In Melbourne, a prominent billboard summarises: “Alcohol does not cause violence. Blame and punish the individual”. Ironically, this simple message articulates a far more comprehensive understanding of the complete body of relevant knowledge than many public health academics who advocate reactionary, prohibition-like controls on the voluntary consumption of ever more products.

Public health traditionally focused on the health consequences of unwanted phenomena. Nobody wanted to drink faeces-flavoured water, but they did want convenient disposal of sewage. In contrast, today’s public health focuses increasingly on restricting the active and deliberate consumption of desired products and services, thus imposing government lifestyle mandates (GLMs) on the population.

Alcohol, fast food, cigarettes, shopping, soft drinks, gambling and other “vices” unquestionably bring utility as well as harm. What price for the enjoyment of, say, a night of alcohol intoxication? Only the individual knows the answer. The long-established principle of autonomy acknowledges that only the individual can apportion the appropriate weighting to each of the myriad factors in any harm–benefit calculation.

GLMs are health interventions, and, like any intervention, need to be consistent with contemporary medical ethics. Sensationalist studies of harm are inadequate to justify enforcing health interventions against peoples’ will. Political scientist Eli Feiring summarises: “Given that respect for the autonomous choices of patients runs deep in modern healthcare, there are strong reasons to value the claim that competent and well-informed individuals are the best interpreters of their own interest and that they should be free to make choices others would regard as non-beneficial to them”

Furthermore, it is meaningless to present the sum of harm resulting from a product without reference to fault. A fully established societal and legal principle is that harm caused to oneself is treated differently from harm caused to others. There is certainly no academic basis to nihilistically accept that people who are “glassed” in the face or killed by drunk drivers are merely victims of alcohol-related harm. The solution is not to apply prohibitionist measures to collectively punish everyone. Unfortunately, it is this same failure to rationally distinguish between responsible and reckless use that frustratingly perpetuates the stalemate in the war on illegal drugs. Internationally, challenges to the limits of restrictions (of even smoking) are being countenanced, when the harm is only to the user. Similarly, the “freedom to endanger others behind a car wheel with a lead foot or a skinful” cannot be equated with the volitional use of products that harm only the user.

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Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

Asylum Seekers and People Smugglers


IMG_7667 Dr. Michael Keane argues that people smugger's aren't the real villians: 

It goes without saying that there is no easy answer to the asylum seeker issue. However many try to have it both ways. In order to avoid what would otherwise be a logically incoherent position many people end up using the “people-smugglers” as a scapegoat. But are the smugglers evil dealers in human misery who take advantage of desperate refugees, or are they in fact noble enablers helping desperate refugee avoid persecution and torture? Of course there is no right answer.

Was Nancy Wake (who helped Jews flee the Nazis) an evil people-smuggler, or was she a hero? How people conceptualize the people who facilitate the movement of refugees to Australia (the people smugglers) must be logically consistent with their position on the relative need to accommodate asylum seekers. If people are really arriving as asylum seekers in Australia to avoid torture and persecution, then the people who “smuggle” them are helping people avoid being tortured; how can that be considered bad? If, on the other hand you define the activities of the people smugglers as bad/evil/negative then you must believe that what they did was not necessary; that is, it could not be reasonably considered that the refugees were in imminent threat from staying in Indonesia.

People often invoke the concept that the people-smugglers take “advantage” of “desperate” refugees.  It would be instructive to examine other societal norms as so far as where people are considered to be taken “advantage of” versus people taking responsibility for choices that they actively make. There are examples of similar ethical and moral quandaries in health and the legal system. What is desperate? What are they desperate for? There is no question that the vast majority of asylum seekers arriving by boat are refugees from their homeland; there is no dispute about that. But that is not the question that many in Australia feel needs to be answered in order to make sense of the asylum seeker issue. What is their situation in Indonesia? What parallels are there in our society to determine whether refugees “desperation” to come to Australia meets our collective standard of compassion? Are the people who decide to pay to come on a boat in a worse situation than those who decide to abide by the legal process or are they just more willing to flaunt the rules?

Yes, the “people-movement-facilitators” get paid for their services. But if the service they provide is really helping people to escape torture or imminent threats to life, then being paid for that service does not render their role as being criminal. The over arching argument then becomes: receiving payment for an otherwise noble, morally courageous act (helping people escape torture and death) then defines that act as being criminal. Similarly, if the receipt of payment identifies the service as being a predatory act in which the people-smugglers take advantage of asylum-seekers, then that defines the service as non-necessary and then one must assume that the refugees don’t need to arrive in Australia to seek asylum.

Australians have always been fair and, in general, are some of the most fair, reasonable and non-racist people in the world. Let’s be fair, but fair-dinkum.

There are no right answers, but activists, politicians and opinion makers must be consistent in their position. Blaming people-smugglers is merely a way to try to have it both ways.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

Ending Political Correctness & Reforming Our Justice System


IMG_7667 Dr. Michael Keane write about the justice system, inadequate sentencing and the neuroscience of what happens to victims when the justice system fails them: 

To paraphrase a line from former US President Bill Clinton’s campaign, “it’s not the alcohol, stupid.” The confluence of a number of recent phenomena should serve as a catalyst for a complete policy overhaul of criminal sentencing in order to return justice to the criminal-justice system.

Firstly, whether or not the number of serious offenses is actually rising, the public perceives evermore intimidation. People are genuinely afraid for their safety in public and are avoiding certain areas; something that should be an anathema in a civilized society. 

Secondly, there is growing dissent against the theory that crime is a function of social disadvantage. For decades the prevailing group-think has lead the academic and cultural elite to the solidly entrenched belief that violent crime can be remedied by social engineering, social intervention and more "services" to help those “vulnerable” people who are susceptible to criminal behaviour; in other words it is all society’s fault.

Within the current pervasive academic and legal ideology, there is a systematic inability to attribute blame for even the most despicable behaviour.  Indeed those who raise concepts such as individual responsibility and blame are spurned as being simplistic, Neanderthal-like reactionaries.

Violent crime is excused amidst impressive phrases such as alcohol use disorder and random acts of life-ruining aggression are medicalized with reference to terms such as anti-social personality disorder and intermittent explosive disorder.  While it is legitimate to study and further our understanding of human behaviour it is hopelessly naive to think that we can simply understand the causes of crime and prevent it by appropriate intervention.  This approach, far from being sophisticated, is more akin to an expression of superstition.

Yes, you can indentify differences in brain chemicals and yes there are differences in psychological profiles and, yes, scans can most certainly demonstrate differences in the brains of violent criminals. But that also goes for every aspect of the human condition such as love, hope, despair, artistry, complex thought etc. In a free society, there are almost infinite combinations of factors that can contribute to any act of criminal violence. Ultimately, however we need to identified the perpetrators of such violence for what they are: criminals.

The very essence of being human is the capacity to experience terrible suffering. As a society, we should be ever willing to help those poor souls who are biologically and psychologically afflicted with the capacity for dysfunction. But to give a free pass to a thug and excuse violent behaviour on things such as substance abuse and anger management dysfunction is to do a terrible disservice to the vast majority of people in similar socio-economic circumstances who don’t commit assault, rape, murder and the like. In other words "it's not the alcohol, stupid."

The public, despite instincts to the contrary, have felt compelled to defer to the politically-correct elite. Surely they must be right, aren’t they the experts? There must be science and data to justify giving a violent thug a social worker rather than a ten year sentence?

It is important that the public understand that this current fashion is in the realm of belief, ideology or even pseudo-religious superstition. Concepts such as rehabilitation, restorative justice and “the vulnerable” are merely emotional expressions of an ideology. To be sure, appropriate sentencing cannot be a matter of simple reference to science or objective data. A sentence is always a trade off between multiple opposing issues. Therefore sentencing is a matter of opinion and philosophy and depends on the weighting society gives to the well being of victims versus criminals. Observation and objective data can inform but never dictate such matters. No study can demonstrate whether it is prudent or not to impose tough sanctions against criminals. As part of my job I regularly see the misuse and politicising of “the evidence”.

In the context of reference to science and objectivity there is an ongoing debate about whether punitive sentences reduce violent crime. There are many issues at play here. One is the distinction between whether the threat of a long prison sentence deters a criminal on any given occasion versus whether incarcerating the small minority of the population who commit the majority of violent crime for long periods reduces the crime rate by taking them off the street.  The current establishment ridicules the concept of being “tough on crime” as being ineffective. However, studies that would need to be done to adequately address this question are several orders of magnitude more complex than the sort of inadequate surrogate data that is provided by the elite. So the answer is elusive, however readers need to understand that there is no evidence to prove that these strategies don’t work and if anything there is data to suggest that tough sentencing does reduce crime.

However, regardless of whether tough sentencing reduces crime there needs to be an acceptance of what has been obvious throughout the ages; that there is a real tangible benefit to the victims of crime in punishing the criminal. We must acknowledge that injustice can be one of the most potent causes of emotional and psychological carnage. No reasonable person can argue against that. Why do people scream with joy when a criminal is convicted? Why do we glorify people who devote their lives to bringing criminals to justice? Why do victims’ relatives lobby so vigorously to prevent murderers receiving parole?

Injustice can lead to life-long suffering including chronic anguishing flashbacks, torturous obsessive thoughts about the incongruity of the justice system, recurrent sleep problems, morbid depression and even psychosis. We know that these symptoms are representative of changes in the structure and function of the brain. Nerve buds (synapses) grow and others regress; chemical mediators and receptor proteins change; the fundamental milieu of the brain cells is altered. This is basic neuropsychology 101.

 The current establishment dismisses the relevance of any such psychological phenomena with accusations that the victims are merely seeking “revenge” or “retribution.” Call it what you like, but these phenomena are real and cause great suffering. Indeed the more egregious followers of the current politically-correct cult make victims feel guilty for having such “primitive” responses.

Recent peer reviewed work has highlighted the need to conceptualise injustice in terms of the physical damage that it causes to the brain. Regardless of the suffering that the initial crime causes, inadequate punishment of the criminal causes a secondary brain injury to the victim.

We accept that a blow to the head may cause a brain injury. A mild injury might, for example, cause some weakness of the leg and some minor problems with remembering names. Would you rather have those symptoms or a lifetime of miserable intrusive thoughts, despair, lack of sleep and total loss of ability to function. Both are representative of brain injury. That is simply the reality of the science. To argue otherwise would be to repudiate the accumulated knowledge of neuroscience. Whether or not to inflict such a brain injury on a victim by handing down an inappropriately light sentence is, however, a matter of opinion. We therefore have to put in perspective the reality of sentences that don’t punish the criminal. When a judge who is intoxicated with this trendy political-correctness gives a criminal a free pass with an inadequate sentence, they are doing the equivalent of getting off their bench, walking up to the victim and hitting them over the head with a baseball bat…whack… take that! Adequate justice CAN restore some of the damage that the original crime has caused. We have to repudiate the tired old cliché that the crime can’t be undone so punishing the criminal won’t help.

Violent crime especially causes an affront to the senses. Some non-violent crimes can also cause extreme feelings of violation for which justice needs to be served (such as crimes which take a person’s life savings from them). On the other hand, so called victimless crimes do not produce an obvious immediate victim in the same psychological sense. Therefore the rationale for giving someone a long prison sentence for a random sadistic knife attack is not relevant for non-violent personal use of, say, marijuana. Now I realise that I may have turned a lot of people off at this time by not being tough on, for example, drugs and prostitution the same way that I have argued that we need to be tough on violent crime. That is a separate debate about personal responsibility. But from a neuropsychological perspective there seems to be a difference between victimless crime and other crime.

In summary, we need to challenge the fashionable cult that has established control over the criminal system and to consign the prevailing ideology to the dustbin of history before countless more victims and their families are tortured by lack of justice.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

Medical Research Funding in Australia

Photo Dr. Michael Keane argues that government cuts to medical funding might lead to better outcomes:

Mum, apple pie and medical research funding. How could anyone sacrifice the noble efforts of dedicated, selfless scientists who are finding cures for cancer and heart disease? Amidst all the protests and indignation, there is a counterview. I am a clinician and researcher who has been funded by the National Health and Medical Research Council. There is an argument that Government cuts to funding may be entirely appropriate.

Firstly, where does the funding come from? It comes from peoples' taxes. Why not give the taxes back and let people voluntarily donate to medical research? Surely, if everyone is in agreement that the sorts of projects currently funded are so vital, the majority of people would voluntarily hand over their hard earned cash. If we accept the arguments of vocal researchers, it is a lay down misère that people will continue to support medical research; so surely there's no worries there? Wait. What if for some reason people don't want to donate their money voluntarily?  Well that should tell us something about how important people really think this expenditure is. How should capital be most effectively distributed? Do we have to re-invent the economic wheel about resource allocation? What is the benefit to an individual of investing in research that has a far off benefit that might not ever be utilized by that person. For example donating to a project that might contribute a drop in the ocean to finding a cure for cancer has to be weighed against other expenditure the person might make; such as updating their home IT infrastructure which might bring the more immediate benefit of increased work efficiency. Or even, dare I say it, a trip to the football with the family.

There is no ultimate answer as to what is the best way to allocate resources; the question is answered by the billions of interactions and decisions that individuals collectively make in their lives. Maybe people value short term gratification more than the long term benefits that research may  bring. We don't forcible make someone undertake a course of action in order to further someone else's health. That would immediately be recognized as contravening basic medical ethics. But can we trust "ordinary" people to understand how important  research is. They might be too "stoopid" to effectively allocate their resources. The "elite" believe that they must make those decisions as the "ordinary folk" might not make the right choices! While that rationale may sound utterly condescending, it is, unfortunately, at the very core of those arguments that call for ever more Government funding for research.

The second reason that it would potentially be a good thing to slash Government funding is that many of the projects that are funded are complete rubbish! But how do we decide which projects are worthy and which are not.  People will tend to donate to projects that are seen to be more relevant. How will people know which are more relevant when they don't have expertise in the area? It will happen the way resources are always allocated. People will develop confidence and trust in certain institutions and will be likely to follow their recommendations. 

Conversely, the current system is probably the worst way to effectively allocate scarce resources. That is, having "experts" undertake the sometimes farcical exercise of determining what is a "better" project. This bureaucratic "Yes Minister" approach flaunts everything we know about the human conditions and decision making. We accept that judges, economists and politicians make decisions on the information presented to them based on their pre-conceived ideas. Committee members deciding on which grants to fund are no different. Researchers and clinicians can spend decades debating the effect of a single drug. Yet there are impossible combinations of indices to consider when judging the worthiness of research grants. Thus, it is unrealistic to believe that some system of objective measures can simply be applied to work out which are the most important projects. In this regard, opinion is always going to be the dominant factor.

While invoking the concept of Yes-Ministeresque, strangulating bureaucracy, it would be naïve to think that which grants were funded was not a function of who the committee was stacked with. Like every industry, there is certainly an in-crowd. With peoples' careers, reputations and livelihoods on the line depending on funding decisions, it would be somewhat unbelievable to think that the right connections are not important. This may play out at either a conscious or subconscious level, but we know that this is an inevitable part of such a system; i.e. any system that involves deciding how to spend other peoples resources. Ideology plays an important part. Should we, for example, be funding more or less indigenous health projects. I study (amongst other things) the effects of illicit drug use. I accept however, that many people think less money should be spent on that and more on cancer. The question entails fundamental value judgments including consideration of where peoples' individual responsibility should be in respect of things that they can and can't change. But at the end of the day, let people vote with their hard earned. Otherwise we merely have an entrenched, narrow, ideologically based system which is immune from community expectations. If you drew a distribution of the ideology and political persuasion of health academics and that of the general population it would probably not be the same.

The current, insulated in-crowd-oriented system of medical research funding has incredibly inefficient practices entrenched within it. Every other field of human endeavor has realized that such bureaucratic systems actually cause a decrease in productivity. Maybe it's time for a clean out of the system.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University. 

Rethinking Australian Health Care Policy

Photo Dr. Michael Keane argues for a radical rethink on health policy, and a move away from third-party-payer funding to allow price signals to install market discipline:

With healthcare reform continually on the political agenda, debate typically centres on ways the government can increase funding and services.  In this regard, concepts such as Medicare Locals, local hospital boards' involvement and state-commonwealth funding arrangements make Monty Python's classic piece about the People's Front of Judea seems especially relevant.

The relevance being the folly of believing that committees can efficiently run such a complex system without being bogged down in unsolvable squabbles, politically and ideologically driven turf-protection and strangulating bureaucracy. What is so desperately needed, but rarely discussed, is a move away from reliance on third-party-payer funding and allow price signals to install market discipline.

Listening to health experts, it is tempting to accept that impartial analysis of objective data inevitably demonstrates the necessity for increased government funding as the answer to our failing healthcare system. However, the reason healthcare reform is framed almost exclusively in terms of government funding is a function of the prevailing ideology within academic medicine in Australia; an ideology of staunch collectivism.  Appeals from academics for more government programs are predicated on the questionable assumption that committees of experts can effectively allocate resources.

The doctrine of “universal health care” (or waiting until the end of the universe to see a doctor or have your operation) is held with such absoluteness that it is considered unpalatable to even consider the concept of the more you consume, the more you pay. The retorts are predictable and extreme; people will be dying in the street because they can’t afford to see a healthcare provider.

No, people should not be expected to cover all of their health care costs and, of course, expensive treatments for catastrophic illnesses need to be heavily subsidized. But EVERYONE should be expected to contribute to the cost of  their own healthcare;  for example, by paying $50 for attending the Emergency Department. It wouldn’t have to be paid before treatment commenced but could be taken out of tax returns or welfare payments. Considering what a hair cut, a meal, a case of beer or a packet of cigarettes costs a small contribution should be mandatory. For those extremely rare cases where someone cannot contribute ANYTHING to their own healthcare costs there could be recourse to a statutory panel which could waive the fees in exceptional circumstances.

How often do you need, for example, your gallbladder out? Surely this should warrant a contribution for the service that is provided. The ability to have a minimal reserve for life's contingencies should be considered part of being a responsible adult. But the elites warn us that some people are too dysfunctional to have such capacity to save. Surely, however, we shouldn’t perpetuate this incredibly inefficient system because we might offend the sensibilities of a small number of people who refuse to act responsibly. If certain people prioritise their spending to booze, cigarettes, fast food, movies, and other recreational pursuits above healthcare, then it is not unreasonable to ask for a contribution by taking small amounts from their tax returns of welfare payments.

Reforms must not only mandate co-payments but also include the principle that the more healthcare you consume, the more you pay. It might only be a fraction of the actual amount in certain circumstances, but there must be an incentive to maximise healthcare value. Do you really need that medicine, device, operation, counselling session or health care program that costs ten times the price but which gives marginal, if any, benefit compared to better-value alternatives?

We must unleash the inherent ingenuity of the human condition to maximise efficiency. An impressive level of sophistication can be seen in many online forums where people discuss strategies to optimize the effects of biological interventions not funded by governments. Conversely, lack of a proportional contribution means people are less likely to scrutinize the effectiveness of health interventions.

Understandably, people with chronic diseases are rightly concerned by the prospect of unreasonably burdensome healthcare costs. It might be reasonable to only ask for a tiny fraction of their ongoing costs. But there still must be a link between healthcare consumption and payment. Removing any financial incentive to maintain one’s own health merely fosters a culture of lack of responsibility and increases the total burden of disease across the community.

It’s quaintly naïve to think that healthcare resources are allocated on the basis of unambiguous analysis of cost and effectiveness. Whether it is through genuinely held health-beliefs or flagrant rent-seeking, self interest groups lobby to have more funding for their programs. This is a pivotal issue that needs to be understood within our society. Ingrained within our culture is the belief that, in regards to mainstream medicine, there is a definitive "science-based" answer as to what healthcare resources (drugs, operations, procedures, physical therapy, psychotherapy) are needed in a particular situation. In some circumstances there is often a most-likely option that most would agree on (such as having your appendix out), but in many situations, if not the majority, there is often extreme ambiguity. Highly specialised practitioners in the relevant field can argue and debate for decades about what the "evidence" really shows. Ultimately, the person who will receive the benefit and harm of a treatment must take some responsibility for what happens. There needs to be a pressure to scrutinize the options more closely. This may involve a simple matter of seeking out the advice of trusted and proven practitioners and institutions; or it may involve extensive searches and talking to other patients. Often there is no ultimate answer within the immense complexity of medicine. The treatment that wins out may not necessarily be the "best", but the one that most people opt for and have the most satisfaction with. This concept of free floating competition between treatments is very difficult for many within academic medicine to accept; many are of the ilk that believe that there must be an answer which they, as experts, can decipher by scrutinizing the "evidence." Inherent in this ideology is a distinct distrust that ordinary people (non-experts) can be allowed to determine resource allocation within a market system. However, the notion that committees can review the "evidence" and prescribe best practice for everyone ignores what we know about the human condition. Although the dominant and vocal lobby with academic medicine has an antipathy to the concept of markets, market discipline is what is so desperately needed. History is full of attempts by experts to organize the natural world and social order; all of which utterly failed.

Far from compassionate, it is recklessly naïve to expect a system of third-party-payer allocation of resources will efficiently meet demands. The inefficiencies arising from the current system lead to far more death and misery than would the introduction of a small price incentive to maximise one’s own health. Maybe those relatives of people who have died of a heart attack while waiting for their coronary bypass, those suffering agonizing pain while waiting for an operation, or those waiting months to see a specialist should start to push back against the misguided elites who are phobic of simple market based reforms.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University.