Wednesday, November 13, 2013

Mutilated Economy - New York Times - Paul Krugman

"The public spending most of us object to is the flagrant waste and inefficiency that is inherent in public spending, the accountability loop is far to defuse in government – this is just the reality of a big organization. Show us clear accountability – clearly stated objectives, metrics and indicators, and objective reporting – then reach in our pockets."

Curious that the organization singing the litany is the one that has most rewarded the biggest culprits in the great recession trainwreck, with quantitative easing policy the gives money to banks to provision liquidity to corporations with fat balance sheets. Aggregate demand is built on the backs of people buying things with earned (and or free) money, as opposed to more credit to an already over levered economy. Your comments on infrastructure are most welcome, the one thing government can manage marginally competently is big, long lasting, stable infrastructure. The reason why human capital is under considered, is because no one has ever come up with a way to value it, the supply demand analysis has left many of us “supply siders” blind-sided, we need a value calculation on latent human potential and the resulting lost revenue calculations – then you would likely find some friends on my side of the economic debate; perhaps this document will help. There can be little argument however, that the nearly pan western world 1980 economic restraint and an the effort for responsible spending set up the 25 years of joy prior to the great recession, we can only inflate away so much debt – in long run we may all be dead, but someone will still have to pay. Infrastructure is investing, as opposed to spending and money is cheap - so sure lets build as much as we can as fast as we can, lets also invest in human capital there are great returns there. The public spending most of us object to is the flagrant waste and inefficiency that is inherent in public spending, the accountability loop is far to defuse in government – this is just the reality of a big organization. Show us clear accountability – clearly stated objectives, metrics and indicators, and objective reporting – then reach in our pockets. 
Discourse on the great recession

Saturday, November 9, 2013

Law, Legislation and Civil Liberty – BC Mental Health Act. (BCMHA) – Charter Breaches and Infringements

One can muse about the Charter of Rights and Freedoms, whether it is complete, whether it is that meaningful from a federal perspective given the “notwithstanding clause” and of course the complete absence of property rights – but it is here now and it has gained legal mass given all the precedent set in “Charter Challenges”.  The important thing about the Charter is that it says the words “Rights and Freedoms” and holds as equity 300 years of toil for freedom by the founders of the enlightenment. A collection of people who fully understood the tyranny of the institution and how it can wrought the human sole in a  most grievous way at times, they knew that in a human organization – the institution - is levered the human inclination to put a boot on others necks. We have what amounts of a fledgling document in the Charter of Rights and Freedoms that stands between us and the abuse of state power, a document that in many ways gives expression to the finest intent of humanity – the desire to give freedom to others; we ought to be nurturing it as opposed to permitting it to be chipped away at – as I have witnessed in this case study.

Section 7 of the Charter says we are entitled to Life, Liberty and Security of Person – embedded in that entitlement, and supported by a breath of legal precedent, is the right to choose. The BCMHA imposes on the right to choose and does so in breach of a the longstanding tenet in medical law, which amounts to the “assumption of competence”, like liberty - as it is an extension of liberty, for the state to arrest one’s ability to refuse treatment it must prove the individual is incapable of judging for themselves. In British Columbia there is no attention paid to this tenet as there is in other jurisdictions such as Ontario, in British Columbia, the opinion of the individual who is merely accused of mental infirmity has no weight – a doctor’s opinion and only a doctor’s opinion can incarcerate someone. There is no requirement, as the act is now administered to “prove” incompetence. Section 7 says we exist in a state of liberty and for the government to interrupt that state of liberty it must “prove” it has just cause, as the BCMHA is now administered there is no requirement to prove illness exists, with opinion and only opinion and no objective data you can be incarcerated. The BCMHA’s involuntary treatment provisions are most often actuated to force the consumption of medication, medications that are oft times pathogenic, very potent, and with very little scientific data to support their use; this is executed absent judicial review or any of the trappings of “real judicial process”.

Excerpt 1 from Case Study of Starson v. Swayze.  “The Court noted that under the Health Care Consent Act there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

The subject of this case study passed this test, his capacity was substantiated by the very medical personnel the detained him for 12 years. In seven Review Panels and a B.C. Supreme Court proceeding, this issue was never raised on the individual's behalf nor was the principle applied – in other jurisdictions this test is applied.  In Ontario it is considered and generates an odd circumstance where people refuse treatment and then are held due to being a risk to self or others, it is in effect a legal catch 22; the fact this happens indicates how important the Judiciary in Ontario views the “presumption of competence” and the extent they are willing to go to protect it. The very crux of liberty, its point of emergence, is the individual’s right to hold domain over mind and body, there is no greater incursion the state can make on an individual than to take domain over mind and body away – when it is done wrongly, absent due process, in the public eye there is no more dis-empowering or humiliating experience. This case study has shaken my faith in our system of justice, the judiciary has abandoned people accused of mental infirmity and by extension has abandoned us all.

The intrusion by state on Section 7 must be contemplated by juxtaposing – how important is it to arrest this individual’s state of liberty against, the wellbeing of the citizenry at large – that is the basis in thought for the “Fair Balance Test” – the fair balance test in no way extends to the state the power to protect us from ourselves – when the state starts down that road our choice is eroded – as the BCMHA is now administered the state passes judgment of financial decisions, social interaction, physical health – these are matters clearly inside the domain of the individual and should never be subjected to state intervention.

Section 9 of the Charter says that a “reasonable mind(s)” and due process will determine whether or not someone falls under state sanction and that no one can just say “lock this person up”. The BCMHA as it is now administered does that very thing, on the perception of illness only – if a layperson judges your actions to be a product of mental infirmity – you can be incarcerated in a hospital – it is important to note; no illegality needs take place, no act of violence, no suicide attempt, you only need to be acting oddly. To be retained in “custody” a medical doctor has to “be of the opinion” your actions are a product of infirmity and then within 24 hours the “opinion” needs to be supported by another “medical opinion” and then you’re “in the system”.

As an aside, due to the fact that there is no requirement for evidence that is objective in nature, at the point of accusation, one is placed in a de facto state of reverse onus - as the state has acted on subjective opinion only. This disadvantages the accused, in that, they are required to respond with "objective" evidence to secure release.

The act then subjects people to the “arbitrary” actions of fellow citizens, the act then subjects people to the judgment of a single individual, the act the requires another individual to support the first individual – no real due process takes place prior to incarceration – that is arbitrary. Worse, however, is the fact that there is a high degree of propinquity between professionals, not mention professional courtesy – the second opinion is in effect a rubber stamp. The subject of this case study never interfaced with the GP that initiated the act’s use regarding mental health issues, he made claims which the second doctor interpreted as illness and which both doctors failed to refute via judicial process – that is to prove with evidence – then the third doctor, a requested the second opinion, did no independent investigation – he merely reviewed the second doctor’s records. The challenge here is, we have medical personnel taking a paternalistic stance, with a high degree of continuity of thought administering the law, the judiciary understands the boundaries of state power in the context of society as a whole, the BCMHA is administered completely in hospitals. When someone decides to dispute opinions they are offered retrograde process in a meeting room; people rights are being taken away, they deserve a courtroom, a judge, and real process. There should never be a circumstance when we “expedite” the incarceration of a citizen as the BCMHA does, as in the expediting there is inherent arbitrariness.

The subject of this case study had less than two hours interface with medical personnel before that act was misapplied, had never committed a single act of violence or threatened harm to self or others – he merely asserted the presence of synchronistic actions on the part of a group or groups and for that, absent any evidence to refute the claim, he was incarcerated and detained for 12 years, forced to consume medication, had his privacy invaded and a multitude of other humiliating experiences. An obscene abuse of state power, a travesty of justice, a heartbreaking saga for him, stigmatization for no reason - this was a state-sanctioned act of malfeasance. As his case progressed, after 12 years of his fighting the system, after Royal Inland Hospital spent thousands of dollars on a lawyer to fight him and he with only his own person and no resources – they released him with no apparent constraints on his person.

There is no doubt that this acts initiation and ongoing administration was arbitrary in this case – it can be proven – proper process has been denied.

Wednesday, November 6, 2013

Law, Legislation and Liberty – BC Mental Health Act. (BCMHA) – Vague

In order for a law to be administered fairly and absent arbitrariness, clarity is required. The BCMHA is very difficult to administer because the nature of related medical practices leaves a wide scope for interpretation of illness and degree of illness, physiological assessment is inherently subjective and easily subverted by personal biases, social convention, and cultural variances. In administering patients under the act, the medical professional is extended a broad degree of discretion, while they have a requirement to assess the “plausibility” of claims, for example, there are no guidelines on how plausibility is interpreted or applied – they simply decide what to believe or not to believe absent any requirement for proving or disproving and they are most often informed by hearsay alone. Further; “severity” is ill-defined, the perception of illness is all that is required to actuate the act. In the administration of the BCMHA, there are no clear benchmarks for practitioners and judiciaries with respect to “severity”. People can have their rights breached absent being a threat or for failing to watch their finances or a single person exposed to the act can be treated differently depending on who treats them, in this case, vagueness effects arbitrariness. 

In the absence of clarity around “severity” medical personnel have the capacity to act preemptively-  we think the patient will do something wrong, we will incarcerate them. To medical professionals this makes perfect sense, mental illness responds to early treatment, this is one of the base arguments for an act like the BCMHA. The challenge is that it is a base tenet of our legal system that in order to have your state of liberty interrupted something wrong must have occurred – this is fundamental – the absence of clarity around severity moves us away from fundamentals. There are very few, if any in practical terms, instances where there is opportunity for preemptive action by the state, this may subject the act to subversion – it may be temping for example – to have a man declared ill on the basis of “unreasonable jealously” and incarcerated on the perception he might do something violent in a crumbling relationship. This kind of legislation is a very slippery slope, we are all at risk then, of at any time of having the perceptions of other’s determine whether our state of liberty is upheld or not. In law in general, there is an opportunity for wrongful incarceration or other punitive state action, to incarcerate people on the anticipation they might do something is a complete breach of our legal traditions. 

There is leeway given in the administration BCMHA with respect to the preconditions of incarceration, due to the assertion, that when administering the act professional’s actions are absent a punitive element. Anytime the state uses its power to change behavior, or to detain for the protection of the public it is punitive; the fact that force is permitted and used indicates the people affected view the use of the BCMHA as punitive.   

The act now grants complete discretion to medical personnel as to whether to use the act or not, the use of the act hinges on the perception of illness, as opposed to physical occurrences, objective data, proof of a pathogenic abnormality, or threatening actions by an individual. The BC Civil Liberties group and others see the flaw in this and want there to be a strengthening of the language around severity to include terms like “imminent harm” “a clear threat to self or others”.

As a result of the BCMHA being ill-defined, the requirements of the state to strike the right balance between public safety and administering the law can never be ascertained, because professionals discretion and the perception of illness are the only determining factors in the in actuating the act. The “fair balance test” as determined by Cunningham V Canada requires that for certain sections of the Charter of Rights and Freedoms to be deemed appropriately, circumvented or the degree they are circumvented, that there needs to be a clear requirement for public safety; the BCMHA has no mechanism, as it is presently administered and written, to determine whether or not the “fair balance test” is satisfied.  To find accord with the precedent it is required that the BCMHA effects a reduction in liberty that is commensurate with the need to protect society, there is no means determine accord with precedent given the vagueness of the act.

The inclusion of language that defines the parameters for professional action would reduce the risk of abuse of the act, reduce the present arbitrariness of the act and return us to be closer to fundamental law. Clearer definition and judicial review prior to incarceration or being committed would permit the treatment of people threaten by mental illness and protect the rest of the population while maintaining accord with fundamental rights.