Authors

Nathaniel Counts was a Student Fellow during the 2013-2014 academic year. At the time, he was in his third year at Harvard Law School. He was interested in the role of law and lawyers in the treatment of mental health issues, with a focus on behavioral disorders, including intersections with the criminal justice system. He was also interested in the use of a right to health care in human rights lawyering and international development. Nathaniel graduated from Johns Hopkins with a major in biology and a minor in entrepreneurship and management. Prior to law school, he studied creative writing at Bar-Ilan University in Israel. His past research focused on the federal government’s response to marijuana legalization, including recommendations for public health initiatives; he published an article on this subject in the Gonzaga Law Review in 2014.

Rational Actors and Happy Actors

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By Nathaniel Counts

Politics, theoretically at least, is a process designed to enhance the sense of wellbeing of its citizens.  The success of this process, the amount of wellbeing that can be created, is hamstrung by biology – we have basal levels of felt wellbeing that are determined through some amount of nature and nurture, and that are independent of our present circumstances.  Because there is a biological component to it, we may be able to alter an individual’s basal wellbeing before they reach adulthood.  For example, if hypomania, a psychological condition where the individual only experiences the manic part of bipolar disorder, were found to have a definitively genetic etiology, gene therapy could be used on embryos so that they would grow up to experience the constant heightened state of wellbeing associated with the condition (for an interesting article on hypomania and wellbeing, see here).

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Health Class and Personal Preferences

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By Nathaniel Counts

High school health classes that are effective in preventing high-risk behaviors employ two educational models: the social influences model and the life skills model.  The social influences model teaches children about social norms and techniques for resisting social influences.  The life skills focuses on developing child autonomy, self-esteem, and self-confidence to help children resist social influences and gain a sense of self.  There are two explanations for why health classes premised on these models would be effective: either they replace the preferences the children were likely to develop with different preferences or they help children develop their own preferences which, for some reason, consistently disfavor high-risk behaviors.

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Admissions and Mental Health

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By Nathaniel Counts

In our legal system, colleges may not make admissions decisions in order to ameliorate historical (or presumably other) inequalities, but may make decisions that take into account the particular situation of the applicant or that strive to create a diverse student body.  Justice Powell rejected the former two goals in Part IV of his Bakke opinion, which went uncontradicted in the Grutter opinion that followed it and, most recently, the Fisher opinion almost exclusively focused on the diversity justification.  Whether or not it appears in court opinions however, the issue of transformative justice is very much at stake – colleges, as the gatekeeper to many of the high honors and offices of our society, can control the distribution of a set of goods to the rising generation and decide how equally they are distributed among certain groups.  Here we will imagine that transformative justice is indeed the goal of affirmative action.

Colleges have two tools by which they can currently select among students based on disadvantage (historical or otherwise).  First, there is the demographic and socioeconomic information disclosed in the application.  Although these questions are optional, for those students who answer the questions, schools may use these answers as signals for disadvantage and take this into account.  Second, there is the essay questions, which frequently ask about an instance in which the applicant overcame adversity.  Here the applicant can demonstrate the degree of disadvantage experienced or explain some more nuanced disadvantage not revealed in the first part.

These two tools are far from perfect, but let us take our imagining further and envision a world in which colleges could accurately determine disadvantage.  If it decides to take on the latter, mental health may pose an insurmountable problem – individuals with intellectual disabilities may not be able to thrive in the setting offered by the institutions that select them.

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Diagnosing Mental Disorders from Internet Use

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By Nathaniel Counts

We live in a time when increasingly our personal information is publicly available on the internet.  This personal information includes our names and phone numbers, things we’ve written and things we’ve done, along with a good deal of information that only exists because we interact with others on the internet – thoughts that we might not have otherwise externalized, or that we certainly would not have saved so that others could read.

If all of this information is publicly available, all of this information can be gathered.  Already advertisers analyze our behaviors to better target products to us.  It is not hard to imagine a not so distant future where the government analyzes this data to determine whether we have a DSM mental disorder.  By looking at the online behaviors of those already diagnosed – the way the syndrome affects their usage patterns, the sites they visit, and how they interact with others online – it is likely that one can find statistically significant usage patterns that can distinguish individuals with a diagnosis from those without.  The available data could then be mined to identify other individuals that exhibit the usage pattern and allow for presumptive diagnosis.

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Social Signaling and the Undoing of the Harm Principle

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By Nathaniel Counts

In On Liberty, John Stuart Mill asserted that “[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”  This has since become known as the harm principle and is foundational for much of American political discourse, especially for libertarianism and civil rights.  At the time of Mills’ writing, On Liberty having been published in 1859, this logic could protect a lot of conduct that involved consenting adults or did not appear to directly impact others.  If the harm principle was controlling, we could never have a soda ban.  Today however, with our advances in social science, clear lines of harm and no harm have become fuzzy.

Few people buy cigarettes in a vacuum.  Someone offers you cigarettes or you see other people smoking and then you buy cigarettes.  This phenomenon, in which we make decisions based on the decisions of others in relationship to our esteem for them (if we see someone we respect smoking, we will be more likely to smoke; if we see someone we do not respect smoking, we will be less likely to smoke) is called social signaling (The Origin, Development, and Regulation of Norms is a great article on a related topic, the generation of norms, which explains this phenomenon quite well).

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Potato Chips and Choice Architecture

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By Nathaniel Counts

If, out of concern for public health, the government banned potato chips today, a lot of people would get very angry.  Only some of these people would be angry because they missed potato chips.  For most it would be the principle of the thing – the government should not interfere with our autonomy to eat whatever we want, as long as it does not harm others, and some days this will include potato chips.  I would posit that the autonomy at issue here is a narrow understanding of autonomy, and one that we should be suspicious of.

Imagine yourself in the biggest Costco in the world.  It has every food in existence and they are all placed equidistant from you, and you may survey the scene and choose whatever food you most desire and then eat it.  This would be true autonomy.  The world we live in, however, is deeply constrained and we should question how meaningful our autonomy is.

In reality, every time someone who came to the Costco before you made a purchase, the store owners moved the product a little bit closer to you, and manufacturers began shipping more variants of it.  The decisions that determined the composition of your commercial world were made over hundreds of years by individuals with no understanding of health – diet and exercise, hypertension and heat disease all being foreign concepts until recently.  Today potato chips, in all their variety, take up quite a lot of shelf space, and healthful foods are hard to come by.

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Prioritizing Parks and Patients

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By Nathaniel Counts

During the government shutdown in October 2013, a battle in part over the future of healthcare reform, a non-negligible amount of media attention focused on the shutdown of public parks.  Perhaps because the parks were the least expected casualty of the shutdown, or the most ludicrous – many are, after all, large outdoor spaces that functioned for millions of years before there were federal funds for them – Americans were frustrated or amused that they could not walk around outside some places because politicians in D.C. could not agree on a budget.

The healthcare reform debate pitted those who believed that everyone should have health insurance or that access to healthcare was a right against those who believed that health spending was already too high or that everyone does not have a right to access to healthcare.  In a world of infinite resources, where everyone could have complete access to healthcare without anyone having to give up anything of their own, it is difficult to imagine that anyone would say that there should not be universal access to healthcare, that some are not deserving of the service.  It would be strange to require a threshold public showing of effort to obtain health insurance through employment if there was no cost to giving the healthcare – if fairness is an issue, as it appears to be a concern for some, there are certainly other services that could be denied.  It is likely that for most the fairness concern only becomes salient in the face of resource constraints where these same funds could fund other programs or allow others to pursue their interests.

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Managed Care for Mental Health

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By Nathaniel Counts

Managed care and integration of primary care and mental health services are major foci of the Affordable Care Act, especially as more practices are encouraged to become Patient-Centered Medical Homes.  In managed care, vitals are used to track progress, and case managers can look over an individual’s blood pressure, weight, and blood-sugar levels to work with service providers and patients to ensure best outcomes.  If an individual is receiving mental health services, then the providers will share information about the patient’s current needs in both physical and mental health.  If the individual is not referred to or does not seek out mental health services, then there is no mental health component to manage.

Meanwhile in Massachusetts, every pediatrician is mandated to offer CANS (Child and Adolescent Needs and Strengths), a lengthy evaluation form that asks a patient (aged 5 to 20 for the link above) to evaluate their own life and mental health on sets of 0-3 scales.  CANS is used to monitor children’s mental wellbeing and identify potential problematic areas, including whether a mental health referral for serious emotional disturbance is necessary.  To the best of my knowledge, this information is not stored and used as an indicator for managed care, as blood pressure and weight are. Read More

Only a Right to Health

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By Nathaniel Counts

Human rights disaggregates otherwise related issues into separate rights.  We discuss rights to health, education, housing, association, etc., and, in countries where these rights are codified, we litigate each one separately in the courts.  We also know that each of these issues for which there is a corresponding right is, to some extent, a symptom of poverty.  In some cases it might not be possible to treat the symptoms without addressing the root cause.  For example, in 1966, the Coleman study on equality in education found that “[s]chools bring little influence to bear on a child’s achievement that is independent of his [or her] background and general social context.”  These findings have been contested, but it is likely that socioeconomic factors are a determinant of a child’s academic success, along with the educational experience itself.  If the socioeconomic background is the greater determinant, it may not make sense to use scarce government resources to fund school improvement rather than addressing poverty itself.  In a country with a right to education, school improvement could be litigated and potentially derail national efforts to address root causes.

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Personal Responsibility and the Procrastination Problem

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By Nathaniel Counts

We have all been confronted with the procrastination problem in one form or another.  You have a paper due in a month, and you have two options.  You can either work on it a little every day, or you can save it for the last two days and finish it all then.  If you do not procrastinate, you will be happier – the work will feel like less of a burden and you will be less stressed out.  However, one of your primary interests is spending time with your friends.  Your friends are all in class with you, and you do not have other friends.  If you decide not to procrastinate and they procrastinate, your little bit of work every day will mean that you will have to miss out on trips that your friends go on, and when you are available nearer to the paper’s due date, your friends will all be busy.

Your friends all procrastinate.  What do you do?  You procrastinate as well.  In your calculus, the additional stress of having to do the paper in less time is offset by the additional time with friends.

Now re-imagine the scenario with the same closed social group, but the decision is whether or not to do drugs.  If you decide not to do drugs, you will likely live a longer, healthier life, but if your friends decide to do drugs and trade in health for pleasure in the short-term, you are once again presented with the procrastination problem.  If you choose the “responsible” choice, you miss out on activities with your friends now and will be healthy and capable later when your friends are not.  What do you do?

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