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Dr. Jean Mercer on Her Recent Legal Victory: Ronald Federici lost his case against her

June 22, 2010

Dr. Jean Mercer blogged about her recent legal victory. However as readers who try to click on the link will discover, this link no longer works. Shortly after she posted this, the posting was quashed, so you will not be able to read it on her blog any longer, since Psychology Today has been successfully intimidated. Dr. Mercer, however, has not and neither have I. Dr. Mercer has now posted her article on her other blog. Click here to read it.

The fact is that Ronald Federici, PsyD, lost the case against Mercer in Small Claims. He ruled for the defendants and Federici stated he would be appealing. This is a true, provable fact that I will announce loud and clear. You see, Federici, here in the United States of America, we have something called free speech that allows us to post the outcomes of legal cases, as well as express opinions on anything we wish to. There is nothing libelous about these statements, nor are we violating copyrights. Hence any attempts you make to suppress our rights to free speech will be duly noted and widely publicized to the internet free speech activists as well as people in the scientific community who are very, very concerned about recent attempts to abuse the legal system by people who cannot stand to be criticized.

Jean Mercer was sued for defamation and interference with business, for simply criticizing the psychologist’s practices. She wrote:

A few days ago I appeared in court to defend myself against a suit claiming that I had defamed and interfered with the business of a clinical psychologist in another state. It was true that I had stated in pointed fashion my disapproval of the advice my opponent has given to parents– advice that I consider potentially dangerous and without any evidence basis. I “won” the lawsuit, in the sense that the other person was unable to show evidence that any injury had been done, but did not have a chance to show that my statements had been based on fact.

This experience brought back to my mind an article I co-authored some years ago (Kennedy, S.S., Mercer, J., Mohr, W., & Huffine, C. [2002]. Snake oil, ethics, and the First Amendment. American Journal of Orthopsychiatry, Vol. 72, 5-15). In that paper, we discussed the responsibilities of psychologists, nurses, physicians, and other professionals with respect to speaking out against practices they deem dangerous or lacking in validation.

Professionals have the same First Amendment rights as other citizens, and may exercise freedom of speech within reasonable limits. A common example of boundaries on freedom of speech is that people should not shout “Fire!” in a crowded theater when there is no fire. Neither should professionals say “X treatment can kill you” when there is no evidence that this is true. Although only the situation in the crowded theater is likely to prove tragic, harm can also be done by making unsupported negative statements about other professionals’ practices. There is always a trade-off or balance to be calculated between the rights of the individual and the rights of the community. Even commercial speech is protected to a considerable extent. These matters have been debated at length in the search for some slackening of the tension between individual and group rights.

We often forget that people who have rights also have obligations to their community. The two are alternative ways of looking at the relationship between the individual and the social group. Citizens share obligations like paying taxes and obeying traffic laws. But what about professionals? Do professional groups take on additional obligations to their community, by reason of the unusual rights and privileges they enjoy? Is there something professionals should do in response to those whose cries of “fire” take the form of fraudulent statements and may lead others to avoid conventional treatments or seek potentially dangerous ones?

An initial point to be considered is that professionals have a fiduciary responsibility. This term, although it is often used to refer to financial dealings, actually has a much broader application. A fiduciary responsibility involves any position of trust or stewardship in which one makes decisions for the good of another person. Professionals, who are by definition likely to be much better-versed in their own subject than their clients are, make or contribute to decisions that are intended for the good of the client, who cannot decide so effectively for herself.

This fiduciary role involves a special group of rights and obligations, beginning with the famous “first, do no harm”. But we need to ask the following question: does doing no harm include preventing harm from being done? Does it mean acting in a way that protects the public from potentially dangerous treatments? And, if this is the case, how should that be done? Is it possible for professionals to manage this task without the negative consequences associated with unfavorable publicity or litigation (of the type I mentioned at the beginning of this post–   or worse)? Can the job be done in an effective, comprehensive manner rather than the current case-by-case, ad hoc style, carried out by a small number of concerned people?

It could be done, yes–  but only if large organizations pulled together to support public debate on the question of harmfulness. Such actions would be fiduciary indeed in their protection of the public and of individual professionals too. Yet they do not happen, except in the case of very occasional resolutions vaguely condemning isolated practices.

As a psychologist and student of child welfare issues, I believe I see one problem standing in the way of the comprehensive response that should be organized by national groups like the American Psychological Association. This is the view, almost endemic to the helping professions, that it’s “not nice” to say things that are “not nice”.  On the whole, neither individual professionals nor professional organizations want to get caught being critical of colleagues who are assumed to be well-intentioned and competent. Neither does anyone want to decide how to deal with the professional who proved to be not well-intentioned, or not competent—  unless some form of sexual activity was involved, which leads to a quick decision. Like a defense attorney I came across recently, who argued that abusive treatment of a child was trivial because there was no sexual abuse, professional organizations are (justifiably) quick to condemn sexual contact with a client, but (unjustifiably) very slow to recognize other ways in which harm can be done.

Until mental health and child welfare professionals correct these problems, we are in a position where we may see that the theater is smoldering, but we have no way of evacuating the place before someone gets burned. It’s “not nice” for professionals or the public to get singed just because we have failed to develop an organized response.

PT Blogs has been intimidated because they lost the case on technical grounds — only because they did not show up in court to oppose Federici.  Dr Mercer, however will not intimidated. She is to applauded for her courage and her name has been put forward in nomination for an annual award given by a prestigious professional organization, given to an individual for standing up to pseudoscience.

The legal threats have continued, but parties involved can rest assured, that the scientific mental health professional is becoming more and more tired of these infringements on the freedom to criticize that is so valued in the scientific community. Criticism is necessary to move a truly scientific subject forward. If people are afraid to criticize, the profession will not be a true profession, but will become a dogmatic, guru worshiping pseudoscience. Several of us, myself including, are willing to pay whatever price is necessary, financial or otherwise, even though some of have no money to spare, to make sure this does not happen and will not be silenced. We will not be bullied into silence, rest assured and the more we are bullied, defamed with obvious lies on the internet, and hit with frivolous lawsuits, the worse the bullies will look to the real scientific people in the mental health profession.

Legitimate scientifically based professionals, when criticized, respond directly to the substance of the criticism, rather than suing their critics and engaging in the kind of smear campaigns Dr. Mercer and her colleagues have had to endure.

  1. Mary permalink

    May I post a link to this blog in a blog post?

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