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Judicial Knowledge Based on Questionable Notions of Mental Disorder*

Published online by Cambridge University Press:  12 February 2016

Charles Boasson
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Extract

In every system of law there exist formalized rules of evidence, according to which facts have to be proven.

A party in court may be required by his opponent to prove all the facts on which he desires to rely.

Yet there must be a limit to the legal uncertainty of an endless chain of facts for which, otherwise, an equally endless chain of proofs might be demanded.

Judges have a proper and powerful way to prevent superfluous debates as to the existence of what they deem to be generally known, or to have been already sufficiently established in a number of previous cases. Such facts can be declared to have become “public”, “judicial” or “common knowledge”.

A fact so declared may, actually, be of a very complicated nature, such as a generally accepted scientific theory. The danger is, that no scientific theory is completely static, and widely accepted theories may, with justification be undermined by newer and more refined insights, but it usually takes some time until the new—and perhaps better—theory becomes generally accepted.

For that reason, theories which are in a flux, or are being competently questioned, cannot be easily declared to have been solved one way or the other. Predilection towards a particularly emphasized conception to such extent as to declare that conception not merely preferred, but “public knowledge” may foreclose for a considerable time the prevalence of better conceptions.

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Articles
Information
Israel Law Review , Volume 11 , Issue 1 , January 1976 , pp. 77 - 87
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976

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References

1 Labelling persons “mentally ill” may have started as an attempt to save victims from the Inquisition. It also makes countless victims. See: Sarbin, Theodore R., “On the Futility of the Proposition that some People be Labelled Mentally Ill” in Shean, Glenn D. (ed.) Studies in Abnormal Behaviour (Chicago, Rand McNally, 1971) 35–47.Google Scholar Also (forthcoming) Schef, T.J.: Labelling Madness (Englewod Cliffs, Prentice Hall, 1975).Google Scholar

2 Where in recent psychiatric literature the expression “precipitating stress” has been used, “precipitating” is used in the sense not of “hastening”, but of “bringing on”, “producing”. Beck, J. and Worthen, K., “Precipitating Stress, Crisis Theory and Hospitalisation in Schizophrenia and Depression” (1972) 26 Archives of General Psychiatry 123–129.CrossRefGoogle ScholarPubMed

3 See, Paul E. Meehl, “Schizotaxia, Schizotypy, Schizophrenia”, in Glen D. Shean, op. cit. supra n. 1, at pp. 202–220: “…if one postulates a genetic mutation as the specific etiology of schizophrenia…” then… “specific etiology means the sine qua non – the causal condition which is necessary but not sufficient for the disorder to occur.” Compare also: Kolb, Lawrence C., Modern Clinical Psychiatry (Philadelphia, W. B. Saunders Co., 8th ed., 1973) 313Google Scholar, who writes: “Genetic contribution to the schizophrenic complex now appears well established. The manner in which that contribution is expressed in the biological make-up of the individual remains unclear as to the environmental processes which lead to its clinical presentation.”

4 (1972) (I) 26 P.D. 650 at p. 651 per Berinson J.

5 The leading judgment opening this line was Bossani v. Pensions Officer (1970) (I) 24 P.D. 217–222, judgment dated 24 February 1970 and second judgment by a Court of five Justices, dated June 1970, id. at pp. 637–644. There was no battle experience involved but great strain and stress in the conditions of service. Sussmann, Kahn and Cohn JJ. all agreed to grant the pensioner's rights although for different reasons. Cohn J. held that when a man is admitted to the Army with a clear bill of health and leaves it a sick man, the onus passes to the State to prove that his service is not the cause of his illness. This principle, prevailing in England, has, however, not been accepted here as law. In Itshak Saltz v. Pensions Officer (1971) (I) 25 P.D. 533–538, the more liberal view did not prevail at all. In 1969 a panel of psychiatrists had upheld the Falik doctrine and the Justices felt obliged to bow to them. The latest judgment at the time of writing (August 1974) is Shlomo Lazrov v. Pensions Officer (1974) (I) 28 P.D. 25–28. The judgment says: “it is public knowledge that schizophrenia is a constitutional illness with which the patient is born…” “Aggravation”, however, was deemed to have been proven.

6 See also Saltz v. Pensions Officer, supra n. 5. I want to stress, that not only judges and legal scholars, as is natural, have taken some time to take notice of the downfall of the old “constitutional” schizophrenia school, but psychiatrists in Israel have also been slow to do so. See also infra n. 12. In (1975) 13 Israel Annals of Psychiatry 48–57, the newer insights are well represented. Rita Landau, Ya'akov Daphne, Clara Luchtman and Vardit Aveneri, “The Development of Children of Psychotic Parents Reared Away from Home”.

7 See nn. 14, 15 and 18.

8 Grinker, Roy R. and Spiegel, John P., War Neuroses (Philadelphia, Blakiston, 1945) 4Google Scholar: “Severe anxiety states produce an intensely striking, unforgettable picture… such patients frequently return from the front with the erroneous diagnosis of schizophrenia on their emergency medical tags.” Grinker, Roy R. and Spiegel, John P., Men Under Stress (Philadelphia, Blakiston, 1945) 370CrossRefGoogle Scholar: “The cost of so-called ‘shell-shocked’ war veterans of the last war in money, crippled lives and broken homes, and the unfortunate effects on their children, are effective illustrations of the permanency of war neuroses, unless they are treated adequately and early.” Id. at p. 371: “Combat leaves a lasting impression on men's minds, changing them as radically as any crucial experience through which they live.” Dreyfuss, Daniel K., “Delayed Effects of Traumatic War Neurosis, and Freud's Death Instinct Theory” in Max Eitington: in Memoriam (Jerusalem, 1950) 184–221.Google Scholar

9 Guide to the Netherlands State Assistance Scheme for the 1940–1945 Victims of Persecution (1971) 13 “….consequences which, although they may not show themselves until many years later, can have a serious effect on health…”

10 Moreover, the psychiatrist of the Ministry of Defence, Dr. Falik, has declared a person schizophrenic without ever having seen him, and without having received as much as an anamnesis from a qualified physician. If a patient actually appears before him, the situation is not much better, since he feels qualified to declare a person schizophrenic after an interview of not more than an hour or so, without any accompanying psychological tests. An impartial psychiatrist, Dr. Gillis, consulted at the Tribunal's instigation in the aforementioned case has tested the applicant during three consecutive days together with a competent team under his guidance at a hospital. Such a thorough observation enabled Dr. Gillis to state that he found “no symptom of schizophrenia”. Amongst Dr. Falik's arguments for his diagnosis of schizophrenia were the patient's “bitterness about injustice in this world” and the patient's “taking things very seriously”.

11 Haring, Claus and Reickert, Karl Heinz, “Wörterbuch der Psychiatrie und ihre Grenzgebiete” (5th ed., 1968).Google Scholar

12 “Aus Anlass einer starken affektiven Erschütterung”. It is true that some writers desire to indicate what kind of schizophrenia is of a schizo-affective nature (not necessarily resulting from one particular traumatic event). In that case however the indication needed such particulars as Dr. Falik has not given in his certificate, which in this respect deserves the criticism of Judge Bazelon (see infra n. 13 and text thereto) who accuses some psychiatrists of “hiding behind their jargon”.

13 Bazelon, David L., “Psychiatrists and the Adversary Process” (1974) 230:6Scientific American 18ff.CrossRefGoogle ScholarPubMed

14 The protocol of the Tribunal (A.S. v. Pensions Officer) recorded neither question nor answer. A written question was submitted as to whether the witness had referred to the last edition by Mayer-Gross himself (2nd) which indeed still (1960) supported some of Dr. Falik's views. How great were the differences between the 1960 and 1969 editions, was already well-known in January, 1973.

15 Mayer-Gross, W., Slater, Eliot and Roth, Martin, Clinical Psychiatry (London, Cassell, 1st ed., 1955)Google Scholar, (2nd ed., 1960). Slater, Eliot and Roth, Martin, Clinical Psychiatry (London, Bailliere, Tindall & Cassel, 3rd ed., 1969).Google Scholar At head of title: Mayer-Gross, Slater and Roth.

16 Freeman, Thomas in (1955) 28 The British Journal of Medical Psychology 194–196.Google ScholarDavidson, Henry A. in (1955/1956) 112 The American Journal of Psychiatry 554Google Scholar “…although this book is dated 1955 it reads like something written half a century ago…”.

17 Hill, Lewis B., Psychotherapeutic Intervention in Schizophrenia (Chicago, 1955).Google ScholarFromm-Friedmann, Frieda, Psychoanalysis and Psychotherapy, Selected Papers (Chicago, 1959).Google ScholarBenedetti, G. “Möglichkeiten und Grenzen der Psychotherapy Schizophrener” (1955) 11 Bulletin of the Swiss Medical Academy 142–159.Google Scholar

18 Third edition, 1969, from the Preface (p. xv): “It has been necessary to alter thoroughly the chapters… IV. Affective Disorders, Schizophrenia… etc.” Indeed, not a “jot” of Dr. Falik's theories has remained in that edition.

19 Kristal, Henry (ed.) Massive Psychic Trauma (New York I.U.P., 1968), ch. VGoogle Scholar, “Forensic Psychiatry of Schizophrenia” 105–146 at p. 110ff.

20 Baeyer, W. Von, Haefner, H. and Kisker, R.P., Psychiatrie der Verfolgten (Berlin, Springer, 1964) 362, 311.CrossRefGoogle Scholar

21 Eitinger, L., Concentration Camp Survivors in Norway and Israel (Oslo, Universitetforlaget, 1964).Google Scholar Compare Kristal (ed.) supra n. 19, at pp. 117, 118.

22 Von Baeyer, supra n. 20, at pp. 293, 294.

23 Kristal, supra n. 19, at ch. VI (147–167) on Carter v. General Motors Corp. 361 Mich. 577 (1960) 106 NW 2d 162.

24 See supra n. 2.

25 See supra n. 5.

26 See in particular Mednick, Sarnoff A., “A Longitudinal Study of Children with a High Risk for Schizophrenia” (October, 1966) 5 Mental Hygiene 522–535.Google ScholarRogler, Lloyd H. and Hollingshead, A. B. reported similar findings for a Puerto Rican slum in their Trapped: Families and Schizophrenia (New York, Wiley, 1965)Google Scholar, but their study did not cover such a lengthy follow-up procedure (see the enthusiastic but critical review of their book by Brody, Eugene B. in (1966) 142 The Journal of Nervous and Mental Disease 583–585Google Scholar). Mednick found the population in the U.S. too often on the move and for that reason inter alia carried on his research in Denmark.

27 See supra n. 5.

28 Judges and attorneys dealing with schizophrenia should be aware of the informative survey by Prof. Manfred Bleuler of Zurich: “Conception of Schizophrenia within the Last Fifty Years and Today” in (1963) 66 Proceedings of the Royal Society of Medicine 945–952Google Scholar, also printed separately. The moving and highly instructive inaugural lecture of Hans Heiman, held at the University of Berne on 4 June 1955: Prophetie und Geisteskrankheit (Prophecy and Mental Illness) (Berne, Paul Haupt Verlag, 1956) deserves to be translated into other languages – certainly into Hebrew.

29 The prevailing uncertainty as to the etiology of schizophrenia is elucidated in the Preface (pp. xvii–xix) by Kaplan, Arnold B. in the book he has edited Genetic Factors in “Schizophrenia” (1972).Google Scholar In view of what happened in Israel's many wars, particularly in 1948 and 1973, it would be helpful if a much wider public were aware of the contents of the books by Grinker and Spiegel (supra n. 8). War Neuroses requires no specialist medical knowledge.

30 See the First World Congress on Twin Studies (1969) held in Rome in 1969, (1970) 19 Acta Geneticae Medicae et Gemellologiae (Session 17 on Psychiatry and Neuro-pathology: 299–330). William Pollin, “The Unique Contribution of Twin Studies to the Elucidation of Non-genetic Factors in Personality Development and Psychopathogenesis” ib. 299–302. Slater, Elliot and Cowie, Valerie, The Genetics of Mental Disorders (U.P., Oxford, 1971).Google Scholar

31 Wyatt, Richard J., Saavedra, Juan M., Belmaker, Robert, Cohen, Stephen and Pollin, William, “The Dimethyltryptamine — Forming Enzyme in Blood Platelets: A Study in Monozygotic Twins Discordant for Schizophrenia” (1973) 130 Am J. Psychiatry 1359–1361.CrossRefGoogle Scholar

32 Stabenau, James R. and Pollin, William, “Early Characteristics of Monozygotic Twins Discordant for Schizophrenia” (1967) 17 Arch. Gen. Psychiatry 723–734 at p. 732.CrossRefGoogle Scholar