Therapists Lose :
The Hess Case
"This craziness was not her fault."
Wausau, Wis. (AP) - A jury awarded a family about $850,000 Thursday, finding that a psychiatrist negligently treated a woman who accused him of implanting false childhood memories of sexual abuse and sex with animals. A 15-person Marathon County Jury deliberated about 25 hours following five weeks of testimony from some of the country's leading psychiatrists in a trial that focused on repressed-memory therapy, including the use of hypnosis and the diagnosis of multiple personality disorder.
"In my view, there is no defense for this kind of therapy. If that means that this is now a message that this stuff has to stop, I hope the message is delivered," said William Smoler, an attorney for Joan Hess and her family. "This is a vindication. This craziness was not her fault," he said.
Mrs Hess and her family accused Dr Juan Fernandez III of implanting false memories during hypnosis, leading her to believe she was sexually abused by her father, that she had more than 75 personalities and that her parents were members of a cult that forced others to have sex with animals and witness babies being killed and eaten.
Fernandez's attorney, Tom Rusboldt, called the verdict disappointing and said he was unsure what the decision would mean to Fernandez's career. "The state agency that licenses doctors will be notified of the verdict," Rusboldt said. Fernandez, who started a private psychiatry practice in Wausau in 1991, declined to comment, as he left the courtroom wearing a necktie that featured Daffy Duck.
"A decision will be made later on whether to appeal the verdict," Rusboldt said. The jury answered eight questions, finding Fernandez was negligent in his diagnosis of Mrs Hess' emotional problems, in his failure to explain the riskiness of his treatment of her, including that any memories that were recovered could be false, and in getting her consent for it. Repressed memory therapy contends victims of childhood trauma can forget the abuse for decades and later be cured of adult disorders by recovering their memories of the trauma.
Fernandez began caring for Mrs Hess in 1991, by monitoring the medication she was taking to treat depression, while she was getting counselling from another therapist because of stress in her marriage and at work. Fernandez eventually authorised several hospitalisations for Mrs Hess because she was suicidal and he took over her care, including hypnosis. The care continued until 1994. The trial featured more than 1,000 exhibits, including thousands of pages of medical notes by Fernandez and writings by Mrs Hess in a journal. Smoler said some managed health care companies now refuse to accept psychiatrists who use recovered memory therapy, do hypnosis and have patients diagnosed with multiple personality disorder. "You ought not to do this kind of therapy. Period." he said.
Far-Reaching Effects for Therapists
The jury's finding of Fernandez's negligence in treating Joan Hess for multiple personality disorder could have far-reaching effects for therapists. "It's been pretty clear that that's a very dangerous thing to do," said Dr Sionag Black, a three-year member of the American Psychological Association's Ethics Committee and a member of the State Ethics Committee. "It opens (therapists) up to exactly what happened to this man."
"Although the amount awarded the plaintiff in the case was not substantial, the suit itself adds reluctance to the already controversial use of hypnosis in the field of psychology," said Black, a therapist in private practice in Beaver Dam. "Hypnosis itself can be a very valuable tool in other areas," Black said, referring to relaxation and discipline over bad habits. "But to use it as a form of, 'Let's use it to see what your past is,' is a very risky thing to do. This is another scary case that shows us that."
"Psychologists have watched these lawsuits unfold across the country, and the liability has led them to reconsider treating patients in which recovered memories might be involved," said Sarah Bowen, Executive Director of the State Psychological Association. Dr Terence Campbell, a Michigan psychologist and member of the Professional and Scientific Advisory Board of the False Memory Syndrome Foundation, said that malpractice insurance carriers now send therapists questionnaires about whether they use any form of repressed memory therapy, because of lawsuits like the Hess family's. "The lawsuits aren't done yet," Campbell said.
The verdict likely will influence how some therapists practice psychology. "Diagnoses of multiple personality disorder, also known as MPD, will likely drop," he said. "It is clear and evident that MPD is being over-diagnosed," Campbell said. "There are profound changes in the behaviour of all of us depending on the situation in which we find ourselves."
Hess' attorneys also hope the verdict sets a financial standard for MPD cases. "That's what the defense wants," attorney William Smoler said. "They chose this case, I think, because it had one of the lower apparent damage amounts. The bottom line is, we have a range now. I certainly wouldn't want to see any juries go below this ($862,000) figure. The jury did not award the Hess family the multimillion-dollar figures that have been the result of other MPD cases, but the circumstances here were different," said Elizabeth Loftus, a Washington State psychiatrist. "Hess was out on her own, telling her own story without corroboration from other patients," Loftus said.
Some who have been through the same trauma as Hess don't think the award was enough, but they're pleased with the verdict because it likely will influence the way psychology is practised and the type of therapy patients choose. "That sends a message to other therapists and doctors who are doing this type of therapy to stop it," said Appleton resident Nadean Cool, who settled out of court in 1997 for $2.4 million in a similar suit against Montana psychiatrist Kenneth Olson. "For other families, it helps them to understand the whole process of this kind of therapy and to stay away from it." Cool's action against Olson induced several similar lawsuits, including more against Olson.
The Hess case could do the same. "This is a way of holding therapists and doctors accountable for their actions," Cool said. "They go into the most intimate part of your self, and that's a lot of power. They have to be held accountable for their actions. This kind of therapy is just wrong and destructive."
Katie Spanuello, who is the Wisconsin contact for the Philadelphia-based
False Memory Syndrome Foundation, called the verdict a victory.
"Finally (therapists) are going to have to stop using this
therapy or they're going to find out they're negligent, too,"
said Spanuello, whose daughter accused Spanuello and her husband
of sexual abuse. [Wausau Daily Herald reporters Nikki Kallio,
Rebekah Gradinjan, Peter J Wasson and Amber Paluch contributed
to this story.)
Two outstanding speakers, David Millikan and Donald Thomson, set the tone for the two-day Conference. Both are members of AFMA's Professional Advisory Board. (See page 17).
David Millikan asked the question "What makes rational people turn to absurdity?" He discussed the similarities between victims of cults and recovered memory victims. Often these victims are the better educated, strong, creative, adventurous people; people who are prepared to make sacrifices in pursuit of ideas. Often, by comparison, the church had previously asked nothing of them, but the group consumes everything of them.
Evil - why was the twentieth century the most advanced, yet the most barbaric in history? Individuals become diminished in the power of evil. A cult is a group that has lost any sense of belonging; it cuts itself off and lives a life of its own. Secrecy reigns. Pre-occupation with thoughts of Satan or good and evil set people up for false memory therapy.
We should develop an advocacy role that is broadly based, dealing with the whole difficult phenomena of false accusations and Recovered Memory.
It's time to be on the offensive against this madness.
Three suggestions were made :
Advice was also given to those receiving retractors. These people have a love for the group, and feel a great sense of sorrow in leaving it.
Parents - don't say "How could you ever get caught-up in such stupidity?" Don't bad-mouth the group. Don't force a decision between you and the group. Affirm the good things. "Tell me about the relationship. Tell us what it was like." Be wary of stepping into the sacred territory. Be extraordinarily gentle. Talk, forgive and find ways of communi-cating that aren't frightening.
Love is more powerful than anger and hatred. Be endlessly patient. Be endlessly forgiving and always gracious.
Christianity offers grace, love, forgiveness and assurance.
The second speaker, Prof. Donald Thomson, has made MEMORY his main avenue of research. In his lecture, he first pointed out the subtle erosion of people's rights. The tenet that people are innocent until proved guilty is being turned around. The innocent person has to prove his innocence. In common law, the barrister could confront the accuser and the jury examine the evidence. But in sexual abuse cases, cross examination is restricted. Evidence can be pre-recorded. The Appeals Court has pointed out that this is the removal of common rights. It's now up to the Court to direct the jury to the weaknesses. As for the weaknesses, an attack has to be made at many different levels.
One area is in the training of therapists and the training of police. Ideology in police training is a concern. Mandatory sentencing in Northern Territory, 'battered-woman' syndrome and radical feminism are ideologies that have changed legislation and eroded civil liberties. Recovered Memory follows the same route. Legislation has changed as if these ideologies have been scientifically proven, but there is no valid research that supports recovered memories.
Memory is a social construction of events as at the time of
recall, NOT A VIDEO RECORDING!
Course work for social workers, police and therapists must be scrutinised. They are often given pre-packaged packages with no scientific basis at all.
In Recovered Memory Therapy Support Groups believers come together and validate themselves.
After illustrating the points made with a number of case studies, Prof. Thomson emphasised that NO PERSONS SHOULD BE PUT AT RISK TO DEFEND THEIR INTEGRITY.
In civil litigation there is a statutory limitation of time. In recovered memories, although events occurred thirty or forty years ago, the clock only runs from the time the memory was recovered.
If an accuser has made a public statement that you have sexually abused them and there is no evidence, they have to prove it, not you. Switch the onus on the balance of probabilities. The therapist could be sued for defamation.
Issues must be made for politicians. Involve people with power and opinion-makers.
A philosophy of science has to be scientific, not driven by raw perceptions and ideology. Courts must protect the rights of individuals.
Following the powerful keynote addresses, delegates divided into discussion groups : Legal, Administrative, Political, Financial, Media and each group brain-stormed for an attack approach.
The final sessions developed these ideas and set specific tasks for individuals and groups.
With a surge of determination to stamp out this evil that
is the cause of so much needless suffering, the delegates departed
with new inspiration.
What a day! The morning and afternoon, between presentations, were times of 'getting to know you - getting to know all of you', and so many were there to meet, to talk to. Almost all 70 of them had the same problem and had been accused by somebody close to them. There were also a few observers, one lawyer especially stays in mind - he knew very little about repressed memories and came to find out more. He left late afternoon with a new under-standing and fired up to help as much as he can.
Dr Andrew Gibbs, the Senior Clinical Neuro-psychologist from Royal Melbourne Hospital, was an inspiration to us all and made us determined to do our best to work against the many spurious therapists.
Mr Phillip Priest QC, of the Victorian Bar, spoke about various legal aspects.
Heart-rending was the presentation of the two retractors Cheryl and Rachel. It was illuminating to hear their stories. We felt for them and admired their courage to speak in front of the AFMA members. We also felt for the father of Rachel, who was present. It became quite clear that it is vital to open your arms and welcome back a retracting accuser. It reminds me of the parable of the prodigal son whose father was there with joy and gratitude to bring him back into the family fold, without reproaches. The problems can be sorted out later. The first thing is to assure the retractor of your unconditional love and welcome.
The long and, at times, stressful day ended with a dinner attended by so many members. It was a wonderful time of consolidating friendships, chatting, comparing experiences and enjoying a lovely meal.
A special bouquet must go to Thelma Waters, her daughter Jackie and their very hardworking volunteers (including the young granddaughter, Simone) who produced wonderful food all day.
To me the seminar was encouraging. AFMA is made up of a group
of people who all have been deeply hurt. Yet they are prepared
to fight back. It will not be an easy fight, but as a united
group, we will achieve results. The mutual support will strengthen
us. A weak link in times of despondency and despair is upheld
and regains the sense of purpose. Thank you all for giving me
An Important Paper
by Dr Yolande Lucire
Doubert and Expert Evidence in Sexual Abuse Matters - Dr Yolande Lucire, PhD., MBBS, DPM, FRANZCP, Forensic and Medico-Legal Psychiatry
Dr Lucire watched helplessly as "a diagnosed pseudologue alleged she had indulged in sex during sessions with her doctor. Both psychiatrists on the Medical Tribunal warned that the complainant was a diagnosed borderline and not reliable, and, indeed, she had been caught telling lies, but she was believed by the lay member and the judge, who used his casting vote to deregister my colleague." This was the reason Dr Lucire undertook her study.
John from Canberra, reports that this paper "� presages a turning point in Australian Courts relating to standards of scientific rigour to be expected of expert witnesses. � Equally significant is the call for psychiatric assessment of certain types of witnesses and accusers in sexual abuse cases. Dr Lucire sees the Recovered Memory issue as part of a wider dysfunction of a counselling industry whose practitioners lack clinical training and worse, are sometimes mentally disordered themselves. Of course, she calls for counsellors' records to be made available to courts. A copy of this paper may be obtained by phoning AFMA's Canberra branch on (02) 6249 7998.
This paper will be published in the Journal of the Australian
Academy of Forensic Sciences.
Adriaan Mak's Paper
How innocent people end up in prison.
This paper cites the cases of the first prisoners exonerated by DNA tests.
Gary, a psychologist from Iowa University, discovered that
mistaken eye-witness testimony was playing a large part in convictions.
Scholars, law enforcement officials, criminal defense lawyers
and prosecutors wrote "Guidelines for Eye-witness Testimony".
They found MEMORY IS NOT A HIGHLY RELIABLE TOOL for determining
guilt. "Weapon focus", recall of facial detail, "transference",
pleasing police, matching their own descriptions in line-ups
are factors that influence identification. RECALL DOES NOT IMPROVE
OVER TIME! Defense lawyers, prosecutors, jurors and police all
need to be educated.
Re: Anglican Counselling Centre's (ACC Sydney) dilemma - dealing with the aftermath of the use of discredited and dangerous counselling methods.
The Anglican Counselling Centre, Sydney has been exposed as using dangerous counselling methods which we believe, based on their own report, ('The Anglican Counselling Centre. A Report from the Committee appointed by the Standing Committee' - March 1999, Chaired by Dr John Woodhouse) may have potentially destroyed hundreds of families over the past decade at least.
The AFMA is painfully aware of the enormous damage which can arise from false accusations of child abuse, including suicides, for those who recover memories, those who are falsely accused and the abused.
What will the Church do to ensure justice for these families?
While welcomed, the decision of the Anglican Counselling Centre (Sydney) to discontinue such recovered memory practices, raises some issues.
� While the ACC Sydney will discontinue such 'recovered memory' practice, its own report indicates that 68 counsellors, 95 clergy, 45 partners of clergy and 30 medical practitioners who have been associated with this service have been educated with this model of practice as a central tenet.
� The ACC Committee's Report indicated that the respondents to the Report (ACC Counsellors) appeared unaware of the practices which are of concern. This raises the basic issue as to how this decision will be implemented at the level of practice.
� The Committee of the Sydney ACC's Report did not investigate claims of potential harm. Without an independent review of the service's records over the past decade, the numbers affected by ''recovered memory'' remain unclear. The ACC (Sydney) Committee Report only considered responses from counsellors for patients seen in the previous year, and many did not respond.
� Individuals can still seek such practices elsewhere, as such methods are effectively unregulated. There is the potential for the problems associated with 'recovered memory' and unregulated therapy being transferred elsewhere.
The Australian False Memory Association (AFMA) wishes to stress
that this problem is by no means isolated to Anglican Church-based
ACC Services. It is well aware that such practices and ideas
have been widely employed and promoted in Government and private
services Australia-wide over the past decade.
A DAUGHTER RECOVERED :
We apologise for anonymity but we do not want to upset loyal siblings. Our daughter 'abandoned' us in 1991 and amongst the accused, eventually, was her Dad. He knew that the claims were false and quietly, but forcefully, remained 'in denial' for the whole time. He was quite sure he didn't even want a daughter who thought he was capable of even thinking such things, let alone doing them. Last year a letter was received apologising for the wrong of the past years and as a result, happy inter-communication has ensued. It has now become apparent why 'therapy' was entered into in the first place; books were read, by Bass and Davis, Frederickson and even our own Cathy Ann Matthews. The dye was cast!
She has emerged out of all this and has become one of Australia's retractors. If this encourages other families then that's good. If still-affected families can use it to awaken their accusers to reality then even better. Hang in there and pray; and get others praying. It may take time but the result is worth it.
A thankful Dad.
I wanted to write to thank you from the bottom of my heart for all you are trying to do for Robert.
Your compassion and determination are a credit to you. You
understand more than most the misery and suffering one goes through
as this nightmare unfolds and you truly care.
With the choice I made, we were able to meet you and belong to a worthwhile organisation. We have met wonderful people, who listen with compassion, enthusiasm and encouragement to help everyone there.
I also cannot express words that are worthy enough for yourself and Donald Thomson, for taking the time and effort to do what you both have done. This means a lot to us all, Mike.
There is a special place in one's heart when determined to succeed. Your hope that you hold on to throughout the ordeal is like a stepping stone for the success you yearn for, not just for your own benefit, but for all those others in need also, in this nightmare. Neither Rob nor I will ever give up until the truth is revealed.
The courage to keep going in the face of failure can sometimes go unnoticed and unrewarded. But, as we all chip away, little by little, we shall be heard in time and the journey we all take for truth and justice will be seen. Hopefully, reform will take place for all those wrongly accused in this maze of destruction in our lives. Thanks to you, Mike and AFMA, we will have a strength and courage to keep going.
Once again, both Rob and I thank you for helping, caring and
listening, and for your guidance. It is very much appreciated
This letter has been a long time coming and for that I humbly apologise to you, sir.
I wish to thank you for the excellent way in which you came to my assistance during the worst period of my life. Your constant encouragement and support was greatly received during that time. However, the end result of all your advice was the large part of my success in gaining a favourable conclusion.
I am grateful to you for all you have done, and I count you as one of my true friends. Without your effort, I do not know where I would be today.
I would like to thank you again for the kindness and help you showed me during the months prior to the court case. I will never be able to thank you enough for all you have done.
Carole writes :
Happy New Century! I hope and pray that the year 2000 will be the end of all False Memory problems, and that everyone will have their children back, WITH APOLOGIES.
We have our daughter back, but we are still waiting for the apology. Meanwhile, she is almost back to her old sweet self and it is wonderful to have her back in our life. For those who do not have their child back we say DO NOT GIVE UP.
Just before Christmas we got the word from a Cleveland family that their daughter wants to come back after twelve years.
Caring for Families and Individuals
PO Box 74
88 88 77