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by Fred A. Baughman Jr., MD

Prior to 1993, the U.S. Supreme Court held that scientific testimony
constituted competent evidence if it was “generally accepted as reliable
in the relevant scientific community.”

But, in 1993, Daubert v. Merrill Dow Pharmaceuticals, changed that,
holding that the Federal Rules of Evidence must require more than
“general acceptance” of the scientific views expressed. Daubert
stipulated that expert testimony must be “scientific…knowledge. The
adjective ‘scientific’ implies a grounding in the methods and procedures
of science. Similarly the word ‘knowledge’ connotes more than
subjective belief or unsupported speculation. The term ‘applies to any
body of known facts or to any body of ideas inferred from such facts or
accepted as truth on good grounds.’” (509 U.S. at 589-590)

Since Daubert the term “junk science” has been applied to any supposed
expert views that warrant rejection due to a lack of scientific
foundation. According to Daubert, virtually all of so-called
biological psychiatry—which claims that all emotional and
behavioral conditions are actual diseases having confirmatory physical
or chemical abnormalities of the brain—is “junk science.” More than
that, when such allegations are the basis of ‘informed consent’ in
research and in practice, it is deception, the violation of informed
consent, and fraud. That such has been standard practice in psychiatry
for 20 to 30 years, would have found legal acceptance prior to Daubert
(1993), but is not scientific and is acceptable no longer. It is time,
now that biological psychiatry, in general, and ADHD, in particular, was
held up to the Daubert standard. Better now, seven years late, than not
at all!

Physicians owe every patient the right of ‘informed consent’ which, at
one and the same time is the right of ‘informed rejection’ of a
proffered treatment or treatments. The essence of this right is the
best, most scientific, analysis of the risks and potential benefits set
forth in the risk/benefit equation. Only when the chance or probability
of net benefit outweighs that of risk (injury or death) should the
physician advise proceeding and should the patient, parent or other
surrogate, opt to proceed.

In all of medicine, with the exception of psychiatry, a disease—a
detectable abnormality within the patient, is the main source of risk,
risk, which we might hope, can be outweighed by the treatment (s)
available. Also to be born in mind is that every treatment—every
medicine and every surgical operation, is also, invariably, a source of
risk, that is, a chance of injury or even death.

Net chance of risk or benefit = risk (from disease, from treatment) /
benefit (from treatment; rarely from disease, such as immunity).

Turning to ADHD, let us first consider the standard treatment: Ritalin
and the other stimulants, most of them amphetamine, addictive and
classified by the Drug Enforcement Administration as Schedule II drugs.
On page 4 of Methylphenidate (A Background Paper) published October,
1995 by the DEA we read:

“Of particular concern is that most of the ADHD literature prepared…by
CHADD (Children and Adults with Attention Deficit Disorders) and other
groups and available to parents, does not address the abuse potential or
actual abuse of methylphenidate. Instead, methylphenidate…is usually
portrayed as a benign, mild substance that is not associated with abuse
or serious side effects. In reality, however, there is an abundance of
scientific literature which indicates that methylphenidate shares the
same abuse potential as other Schedule II stimulants. …there are a
significant number of case reports documenting more severe abuse. These
reports and scientific studies of abuse potential are routinely
down-played, if referenced at all. As a consequence, parents of
children and adult patients are not being provided with the opportunity
for informed consent or a true/risk benefit consideration in deciding
whether methylphenidate therapy is appropriate. …The DEA has concerns
that the depth of the financial relationship of the manufacturer was not
well known by the public including CHADD members that have relied upon
CHADD as a guidance that pertains to the diagnosis and treatment of
their children.”

In general, to obtain an informed consent from a patient, a physician
must explain to the patient the ailment, the nature of the proposed
treatment, the probability of success of the contemplated therapy and
its alternatives, and the risk of unfortunate consequences associated
with such treatment.

To recover under the informed consent doctrine, the patient must prove
(1) that the physician failed to meet his duty to inform, (2), that the
patient suffered an injury from a risk that was not disclosed, but
should have been disclosed, and (3), that if the patient had been
adequately informed of this risk, a reasonable patient in his position
would have declined the treatment, in a few states it is sufficient to
show that the patient himself would have declined the treatment, (from
Physicians Medical Law Letter 1994).

Let us turn now to the ‘ailment’ or ‘condition’ on the ‘risk’ side of
the risk/benefit equation. Is ADD, invented in committee at The
American Psychiatric Association in 1980, changed by committee action
(to ADHD) in 1987, and, again, in 1994, an actual disease?

Or are the symptoms said to constitute ADHD, those of stress and
conflict in a normal child’s everyday life at school, in the home, and
amongst their peers? Is it a disease or isn’t it? This question is
more fundamental by far than those having to do with the nature to the
treatment or treatments proffered. Does the patient have a disease or
merely an emotional or behavioral response to things gone wrong in their
everyday life—the everyday life of a normal individual. If it is not a
disease with a confirmatory, diagnostic, abnormality, but you are told
that it is, you have been provided false ‘disclosure’ and have been
deprived of your right to informed consent regarding whether to proceed
with a treatment or treatment. And this, it should be understood, is
tantamount to medical malpractice (Kansas Supreme Court 1960, Natanson
v. Kline ).

It should be recognized at this point that either the misinformation
concerning ‘treatment’ or that pertaining to the misrepresentation of
the nature of the ailment or condition as a disease when it is not,
would, in and of themselves be sufficient reason to conclude that the
right to informed consent has been abrogated, that de facto medical
malpractice has taken place. Today, 20 years after the initial
conceptualization of ADD/ADHD there exists not a shred of proof of a
neurological, a biological, a physical, chemical or organic dimension.
Representing that it is a disease, therefore, is a total, 100% fraud.
While one can argue endlessly the relative merits accuracy of the
description of this drug or that, or of a given drug in combination with
psychotherapy, there is no evidence that ADHD is a disease, that
the patient is other than normal. This representation—standard practice
in the ADHD industry for 20 years is, as I testified at the National
Institutes of Health Consensus Conference on ADHD, November 16-18, 1998:

“ADHD is not a matter of misdiagnosis or over-diagnosis, it is a total,
100% fraud.”

Peter S. Jensen, MD, still with the National Institute of Mental Health,
was an organizer of the Consensus Conference. Jensen heard Professor
William B.Carey of the University of Pennsylvania address the subject:
“Is ADHD a Valid Disorder?”…and conclude:

“…common assumptions about ADHD include that it is clearly
distinguishable from normal behavior, constitutes a neurodevelopmental
disability, is relatively uninfluenced by the environment… All of
assumptions…must be challenged because of the weakness of empirical
(research) support and the strength of contrary evidence…What is now
most often described as ADHD in the United States appears to be a set
normal behavioral variations… This discrepancy leaves the validity
the construct in doubt…”

Jensen also heard the Panel of the Consensus Conference conclude (p.3,
lines 10-13, final statement of Consensus Conference on ADHD,

“…we do not have an independent, valid test for ADHD, and there
are no data to indicate that ADHD is due to a brain malfunction.”

Undaunted, Jensen suggests not only that it is a disease but that it is
a grave one indeed, one with “lifelong consequences” (USA Today, August
15, 2000, p. 16 A). Speaking the need to remove children from their
families, if need be, in order to get them necessary treatment, he

“So what should we as a society do if a child with a disorder with
lifelong consequences (which the panel concluded was true of ADHD) is
denied treatment?”

Leaving no doubt he considers children labeled ADHD to be
diseased—abnormal, Jensen continues:

The answer, of course, depends on the severity of the child’s condition,
what other treatments have been tried and the likelihood that treatments
such as Ritalin will restore that child to normal or near-normal

Speaking of returning ADHD children to “normal,” “near-normal,” can
there be any doubt that Jensen is calling such children abnormal,
diseased? Where, Dr. Jensen, is the abnormality?

Without proof that ADHD is an abnormality or a disease at all, much less
a grave, disabling, or life-threatening one, Jensen asks:

“But what if their decision is no treatment, or to use an unsafe
treatment? In such cases, society (through state child-protection laws)
often intercedes.”

And this is just how Jensen feels it should be.

Jensen, perhaps the leading ADHD “scientist” of the day concludes:

“Certainly, child-protection laws and the courts are not the best way
for us as a society to see that our children receive appropriate care.
Communication and clarification of ‘what the science says’ are the best
solutions, so that we all make informed choices…”

Speaking of “what the science says,” Jensen, most importantly of all,
neglects to let the parents and children of the nation know not a shred
of scientific evidence exists of a confirmatory abnormality within the
children an abnormality to make them other than normal and to make of
ADHD something other than an illusion of a disease.

Jensen’s former NIMH colleague, F. Xavier Castellanos lamented, as
recently as January, 2000 (quoted in Readers Digest):

“Incontrovertible evidence is still lacking. But many
researchers…widely accept that it is a valid medical condition.”

If not science, what is it that these gentlemen are up to?

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