Wednesday, 22 January 2014

Day 202: Not Corporately Responsible?

Forensic psychiatrist Dominique Bourget has been involved in more than a few news-grabbing trials during her career as an expert witness on behalf of people who wish to be found "not criminally responsible" or otherwise escape full penalties for the crimes that have brought them before a court of law.

Psychiatrist and
tobacco-industry witness
Dominique Bourget
There was the priest Aime Bergeron who sexually assaulted young boys. The Nova Scotia coke-head,  Paul Rocheleau, who burned and dumped a fellow party-goer. The French language student, Iago Marcu, who shot the teacher who spurned his offers of romance. And, most recently, the Quebec cardiologist, Guy Turcotte, who stabbed his two children.

But in the "hundreds of times" that she has testified in court, this 54-year physician has never once been asked to speak about addiction or smoking, the subjects for which JTI-Macdonald commissioned her expert report for the Montreal tobacco trials.

Her questionable qualifications to do so were the focus of an animated and spectator-friendly hearing this morning. They may also result in Justice Riordan giving little credence to her testimony that, while presented as an independent medical opinion, reads very much like tobacco industry propaganda.

Voir dire? Oh, dear.

Before a judge decides whether a paid consultant can act as an expert witness, lawyers for all sides are given an opportunity to say why this accreditation should or should not be granted.

The task of presenting Dr. Bourget's qualifications today fell on JTI-Macdonald counsel, Kirsten Crain. (Ms. Crain has, as far as I can remember, only been at the trial on one other occasion - which was during the testimony last April of the plaintiff's expert witness on addiction, Dr. Juan Negrete.)

Ms. Crain introduced Dr. Bourget's quailfications to the judge in a text-book - read flavourless - way. She highlighted the professional accomplishments in the curriculum vitae (Exhibit 40496), and invited the 54-year old Dr. Bourget to link her work at the Royal Ottawa Mental Health Centre to tobacco use.

We learned that about one-fifth of Dr. Bourget's patients smoke, and an unspecified percentage of those are diagnosed with "tobacco use disorder," the term newly adopted in the May 2013 version of the Diagnostic and Statistical Manual of Mental Disorders (DSM V), (Exhibit 40499).

Dr. Bourget said she didn't know any psychiatrists who specialized in substance abuse/nicotine, and that treatments for smoking were generally provided by family doctors or addiction counsellors. (I know of at least two psychiatrists who have specialized in nicotine and smoking, but perhaps I get around more.)

We were also told about Dr. Bourget's deep experience in the "application of psychiatry to legal issues," especially in assessing the mental capacity of people to stand trial, to be charge of their own finances, to be in charge of their medical treatments.

With this short introduction, Ms. Crain asked Justice Riordan to qualify Dr. Bourgoet as "an expert in diagnosis and treatment of mental disorders, including what is now called tobacco use disorder as well as an expert I the evaluation of mental capacity." 

It was at this point that the fun began.

La médecine d'expertise

From his first question to Dr. Bourget, Bruce Johnston made clear that he did not think this woman was appropriately qualified. This is, I think, the first time that the plaintiffs have used the voir dire process to cast doubt on the basic competency of their opponents' consultants, instead of casting doubt on their conclusions.

Mr. Johnston challenged Dr. Bourget to explain how her acceptance of the role was consistent with her obligations under the guidelines for such work that have been established by the licensing board for Quebec physicians. (Exhibit 1681). As the rules were displayed on the overhead screens, there were more than a few areas where her actions seemed inconsistent with these professional standards.

His second approach was to speak about what was plain and obvious from Dr. Bourget's resumé - that she has an impressive record of research, publications and work in criminal issues, but has essentially no record of work on substance abuse or tobacco. She had no expertise to offer.

Surprisingly, given her long experience in court, Dr. Bourget seemed ill-equipped to answer. With her refusal to give direct answers, and her stubborn refusal to acknowledge the obvious, she seemed determined to paint herself further into the corner of prevarication. 

She said the College's standards were "non compelling." It took repeated questions, including from Justice Riordan, before she would admit the obvious fact that she had more acknowledged expertise on homicide and other violent crimes than she did on substance abuse. She would not elaborate on her qualifications, other than to appeal to the general expertise of psychiatry. She was unable to give a clear explanation of when she was hired, how the focus for her work was established, or what type of instructions she received from the law firm which engaged her. (She was recruited Mr. Mr. John Still)

She did not do well on the very simple pop quiz Bruce Johnston added to the end of his questions. When asked to identify "one scholar" in the field of nicotine she scrabbled through her notes. When asked about Neil Benowitz, she had little to say except that she had heard of him.

Nothing to appeal. No reason for delay

In contrast to the vibrancy of his questions, Bruce Johnston was very low key in telling Justice Riordan that the plaintiffs were contesting Dr. Bourget's qualification. He did not argue the point as though he intended to win it. Nor did he look disappointed when Justice Riordan nonetheless qualified her as an expert.

At this late stage, neither judge nor plaintiff seem to have an appetite for non-important rulings against the tobacco companies. There were hints, however, that Dr. Bourget's opinions may be dismissed at a later stage. "Your contestation goes to probative value," Justice Riordan reassured Bruce Johnston.

An independent medical opinion! ?

The rest of the day folded more smoothly. Ms. Kirsten Crain asked Dr. Bourget questions that repeated or elaborated on her expert report and its addendum. (Exhibit 40497 and 40498). (The conclusions of her report, as she summarized them in the Executive Summary, are pasted below). It was familiar ground, given that the same points had been made during JTI's cross examination of Dr. Negrete last year.

It struck me that the defendants are simultaneously trying to complexify tobacco addiction (by entangling it in the shifting definitions, and medicalizing its diagnosis) and also to simplify it (by emphasizing that anyone who really wants to quit will be able to). 

Dr. Bourget's remarks, and their subtle framing, reinforced the positions historically taken by tobacco companies. She did not identify the harmful health effects of smoking, except to identify it at the bottom of the list of reasons her patients might want to quit, behind the cost of smoking and the pressure of being in a smoke-free facility. When asked what motivated smokers, she did not identify cravings or habituation. It was because smokers believed that it gave them "better attention levels," or "because they like to hold the cigarette, like to taste it, like to smell it," that they smoked.  

She stressed that smoking must be associated with a "clinically significant impairment" before it could be medically diagnosed as a disorder. She did not identify any such impairments. To the contrary, she stressed ways in which smokers were not impaired. Smoking did not affect mental capacity, for example.

Anyone and everyone can quit smoking, she said. Withdrawal symptoms last only 2 to 4 weeks, and even these are not experienced by all quitters. It didn't matter how long someone smoked or how much they smoked. She did not agree with Dr. Negrete that smokers are "enslaved", saying they "retain the ability to make other decisions and other choices."

The brain chemistry that is engaged in smoking is no different than for other pleasurable activities. "What we know is that for the brain it does not distinguish whether it [pleasure] comes from tobacco or something else. A rewards is a reward - the same mechanism and same system is activated to different degrees."

She compared smoking to her teenager's fondness of computer gaming. In either case. mind over matter was the solution. "It is the cortex that tells your animal brain to stop."

Dr. Bourget's cross-examination takes place tomorrow. Two additional expert witnesses are scheduled to testify about addiction for the defendants next week - John Davies and Kieron O'Connor.

Executive Summary (from the report of Dr. Dominique Bourque - Exhibit 40497)

• The concept for smoking behaviour (including the definitions of addiction, habit and dependence) has changed over time. None of these definitions separate those who can control their behaviour from those who cannot; nor will it separate those who will experience difficulty in quitting from those who will not;

• Smoking does not adversely affect the executive functions of the brain, and does not impair a smoker's opportunity or ability to understand an issue, to appreciate its significance and to reason. It does not impair cognitive judgment;

• A smoker's capacity to decide to quit and to implement that decision is not adversely affected by smoking;

• Whether a smoker successfully implements a decision to quit smoking is a question of motivation and self efficacy; this can vary over time and depends on circumstances;

• Changing a behaviour, particularly a pleasurable, repetitive behaviour can be difficult for some people but such difficulty does not indicate one lacks the ability to change;

• Regardless of whether a smoker can be classified as addicted or nicotine dependent, smoking does not deprive them of the ability to choose to stop. It remains a voluntary behaviour choice for the individual, for which he/she should be considered responsible from a decision-making perspective. This is so even if, as is common, the decision voluntarily taken appears to others not to be a sensible one or is one that the smoker subsequently regrets;

• A classification of addiction does not (and does not purport to) explain why a smoker continues to smoke, merely categorises the clinical impact of the decision on the smoker at that time. It is not predictive of a smoker's ease of quitting;

• Evaluations of people's ability to reason, appreciate and understand issues must be made at an individual level by a fully trained clinician;

• Whether the failure of an individual to quit could give rise to psychological harm such as a loss of self esteem requires an individual assessment including assessment of all other issues or personality traits that could have contributed to such a loss or harm (if proven).