>> indeed. of course first of all i felt that was the wrong thing to do because even if i went to some obscure village in the andes, within a week or two people would know about it thanks to "the news of the world" putting it on the internet. but i also felt that this was typical of some of the things they do and i was somebody who fortunately had the means and a little bit of legal knowledge and within 18 months would be free to concentrate anyway, i felt if i don't do it, i don't know who is going to because the number of people they pick on were really bad case who got the means to fight it is very infinitesimally small. and it really, one of the terrible things is that unless you're very fortunate and happen to have a bit of money, you simply can't take this on as things stand at the moment.

>> deal with a number of context wall points before we to the proceedings. the first point the dissemination around the world with the internet of course is obvious but you touch on this at paragraph 22 of your witness statement. indeed you point out this like in terms of the print media alone there was 790 separate articles written in various, various u.k. newspapers and online between the 30th of march, 2008, and the 30th of june, 2008. these articles were all comment on the underlying article in "news of the world" presumably? >> indeed. and of course on the internet it was even more extensive. one example i've got very good and energetic lawyer in early dpl any and i -- in

germany, they shut down 193 different sites which were repeating "the news of the world" story. not shut down the sites but got it removed from the site i should say. >> in the matter it telephone -- itself was of interest to the fia. they commission ad report from distinguished leading counsel here, mr. anthony skrifer in. his report as you made clear in your evidence exonerated you? >> yes. he said there was no basis whatever for the nazi allegation. >> what i would like to deal with is paragraph 25. an edited video, copy of it was sent to the presidents at the fia senate? >> yes. >> by solicitors acting on "news of the world" at their instructions, is that correct? >> that is correct.

they sent this and that was a matter of complaint actually in the french courts at a certain point because it was potentially criminal what they did. but they sent the, deliberately sent the entire video after inviting the fia to show it to all the members. >> and the inference which may be drawn is that they were putting some sort of political or other pressure on the fia to write you off, is that what you're saying? >> absolutely. i had the impression from the outset that as soon as i challenged the original story, that the entire resources of news international, news group newspapers, were then deployed effectively to try and destroy me and obviously one way of attacking would be to send this thing to the, to the fia and try to get them all to look at it and hope they get rid of me. >> there was a vote of confidence that you won it? >> yes. one of the things i did quite at the outset i

suggested to the party that deals with these things we should have a an extraordinary general assembly and invite the membership to vote because it seemed to me they voted me into the position and they were the ones entitled to tell me i should resign or i shunt resign. i called the general assembly. everybody that wanted to say something was allowed to do so. at the end they voted and i won by a substantial majority. >> in relation to the evidence educed at the civil trial -- >> before you go onto that new top pick, mr. jay, i ask a question arising out of something you said two minutes ago, mr. mosley. you said your energetic lawyers in germany shut down 193 different stories on different sites? >> yes. >> is it only in germany you've taken such actions? >> oh, no, sir. i've done it in a number of

different companies. there is publication going on in 22 or 23 countries at the moment. it is just an ongoing process because, i mean, i'm trying to do everything i can to get this material removed from the web and it is not easy. it is ongoing. it is very expensive. germany is actually the number one example because of the nazi thing it got very much picked up in germany. >> how many sites have you been able to close down? if you don't know exactly i'm trying to get a feel for the size of the exercise. >> the order of magnitude, it is in the hundreds. i could probably, my lawyers could probably produce an exact figure. see one of the difficulties is that google have these automatic search machines. so somebody puts something up somewhere it will then, if you google my name it will appear and we've been saying to google, you shouldn't do this. this material is illegal. these pictures have been ruled illegal in english high court.

they say, we're not obliged to police the web and we don't want to police the web. so we have brought proceedings against them in, actually in france and germany where the, where the jurisprudence is favorable and we're also considering bringing proceedings against them in california but the fundamental point is that google could stop this material appearing but they don't. or they won't as a matter of principle. and my position is that if the search engines were, if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine nobody will find it. it will be a few friends of the person who post it. the really dangerous thing are the search engines. >> yes. well, that's part of the problem. >> indeed.

>> yes. >> the evidence before justice edy this, is quite complicate and i'm going to just, because i may identify some highlights. otherwise the danger we'll get bogged down in detail which people will not understand because they haven't preread your witness statement. just a number of points i would like to bring out. the first point is the hidden pinhead camera which was on the lapel of the woman e. had she been given any instructions by "the news of the world" which you can assist us with that, please, mr. mosley? >> she was because they had a reversal where he showed her how to fit it and how to work it and this rehearsal was actually recorded on the tape. i don't think they knew this to be fair to them. and the beginning of the tape is felbeck saying to

her, when you get them to do the feed, get him to stand back three meters so you get it all in the shot. and it was quite clear to me that, when i saw this, that felbeck was trying to set the whole thing up at the beginning as a nazi episode. she of course never mentioned anything doing nazi. she knew had she done so everyone would be horrified. particularly the german girl with this, being a modern german person she would have been horrified. and but it is absolutely clearly there. felbeck telling here to try to get me so do the sig highly. >> to be clear about it, you obtained the copy of the video footage as part and parcel of the disclosure in the civil proceedings? >> indeed. >> then the second point, and you always dealt with this, mr. mosley, this is paragraph 33, and this

relates to the second article on the 6th of april, the follow-up article. when woman e was offered more money, 8,000 pounds you told us, so that we understand it in sequence, what is the significance of this, this point? what is the point you were driving at here? >> to me at least is significant is that they wanted a follow-up article because i had said this was untrue. they wanted really, really to put the boot in. and so they wrote this article purporting to be by the lady and completely composed by felbeck. her to sign it, went back and rewrote parts of it. during the trial he was saying this was the result of numerous telephone conversations with her which i don't think anybody really believes. the judge asked him if he kept a note. of course he hadn't.

not surprising. i don't think the conversation ever took place. he simply invented the entire article. >> in paragraph 34 and 35 you explain that within "the news of the world" this story was very tightly kept. in other words to a limited number of people to avoid the possibility of leaks. because, the risk of leaks would obviously cause a risk you might take proceedings for injunction, is that right? >> i think that's right. i think they realized publishing the article was completely illegal and therefore if i find out about it and went to a judge, it would be stopped but knowing, therefore knowing it was i will illegal, they took elaborate precautions including the first edition you mentioned earlier making sure nobody on my account would find out. . .

the party will not on friday were please before you get angry with me i did ensure that your cases are blocked out to spare you any grief and soon the story will become history as life and the news agenda very quickly. there's a substantial sum of

money available to the exclusive interview with us. the interview can be done anonymously and blacked out, too so it's pretty straightforward. can i read out the email the following day. just about the pictures that will form the basis of the article this week we want to reveal the identity of the girls involved and this is the only follow-up we have to our stories. the preferred story however will be about your dealings and for that we have been extremely grateful and we turn to this and would grant you fault anonymity and pixel your face is on the photographs and secure a substantial sum of money for you and this allows much greater control as well as the anonymity

of your names weren't used or pictures please don't hesitate to call me or e-mail me and then finally there was an e-mail about money and anybody reading that and indeed this is just an easy conclusion i think that this was close to being black male. is that so? >> i think so. i mean, what he was saying particularly in the last e-mail those if you don't cooperate, we will publish your pictures on pixilated. these women that was terrifying because the idea that any of the family finding out their work they had a very significant positions. one was a very serious scientist and another one had a major position in health care another

ran an office. only one of them was fairly anonymous, and they were all terribly at risk and the fall of this being published in the news of the world was terrifying. the only admirable thing is they did not succumb to it. >> i'm not going to deal with what happened. what i am going to do is the judgment to navigate my way through it so one can understand his findings and his reason because his reasoning is important in terms of article 8 and the judgment starts with the numbers on page 14 and is a very

lengthy judgment. >> certainly a judgment that repays the reading in full. >> first of all having set the scene on the numbers on page 24 consider the question was there will and his conclusion was to the later point in the judgment nine which is page 31 the black male allegation.

male allegation. and he is absolutely clear about that. page 32. he says this would appear to contain a clear threat to the women involved but unless they kurt lubber late it would be revealed. there was then some cross-examination on 85, and he accepted they could be interpreted as a threat and the observation of related it's the end of what was paragraph 85 on the behavior.

>> to estimate its the witness >> he works out the cross-examination is talking about blackmale and is their justification of the threats and looking it could be interpreted as a threat, and i accept that. i would love to know how else it could be. >> mr. justice then asked his own questions with paragraph 86, and his questions directed to the obvious point while on this race it appears he is possibly blackmailing people and how he raised that with them.

the answer was not in his view or perhaps the view of any objective reader satisfactory. but he said the bottom of page 33 this is effectively what answer which is clear that mr. am i lawyer doesn't come clear that anything objectionable about the approach to the two women is he didn't, this is a remarkable state of affairs so the massive to judge but the judicial criticism there. >> coming from a high court judge i think it is quite impressive but almost sort of more impressive is that a few months later the try for the title of newspaper of the year, based on their groundbreaking view we believe the impact of our experience is always forward following have helped define the

nature of the tabloid reporting and the case itself etc. is one of the fiercely debated stories of 2008 and they go on to say what a wonderful job they have done. then the high court judge has told them that they should have done something about this. it is completely symptomatic of their entire attitude. >> paragraph 87 vlore ship recalls the cross-examination of the progress on this point. i'm not going to go through it with you, but the upshot was at the end of paragraph 87 that he didn't understand the point being put on the examination or pretended not to understand the cross-examination. >> it was i am giving a choice because that is what blackmail

is given a choice between what they are blackmailing you into doing. >> the facts we need and to be absolutely clear the judge makes a finding there was no announcing -- >> just before you leave that, there is a point here because i go back to the words all the time. he said when it has been put to this and offered to pay money for an anonymous interview and not to take anything from them so in that sense not at all that rot never crossed my mind i'm offering the choice and the judge goes on he genuinely did not see the point, yet the elementary could be applied to something which would not in itself be unlawful. so the question that is

obviously going to have to be asked quite apart from any questions about it is whether that state of mind was limited to one reporter or one newspaper or the state of mind if others which we have in mind and he has been asked to deal with this. >> but my point is it's not just him because one could reach conclusions about an individual which is all fine and dandy and don't go very far. the question is is this a pervasive perception? if it isn't the 1908. if it is then equally. estimate in the route to his conclusion as a matter of law we see whether we can chart a path to that and ask you to move

forward to page 40 on paragraph 110. >> he is dealing here with the public interest issue was the public interest to justify the intrusion? we deal first with the point that i'm sure the news of the world is thinking about whether there was the underlining criminality and he soundly objected that point. then paragraph 112 with the nazi theme point. and there are two aspects to this. the third is paragraph 123 where

he finds that there wasn't and therefore self evidently there wasn't a nazi femur you couldn't even cap the size of the public interest. then in a speech to 100 to you consider the conclusion that there was the fleeing of them and maybe his conclusion was somewhat equivocal he didn't have to decide the point you may or may not have the case but he made a finding of fact which you didn't. in the third public interest and it is an important one is under the heading to adultery that starts with paragraph 104. in the argument with which he was addressing whether there is a public-interest in revealing

in the moral depraved or even to an extent the behavior. his lordship found that there wasn't really as a matter of law in particular paragraph 127. his analysis of the cases and the case in the house of lords said given that there was the human rights in play and the right to privacy is not the journalists who undermine human rights above the ground everyone

is naturally entitled to inspire moral or religious beliefs and the fact certain types of behavior wrong to those participating in the that doesn't mean that they in fact can help those the practice them or detract them for the right to live as they choose. the real point making is that given that we are in the demand privacy, the law does not concern itself with making a morrill adjustment with what occurred in the privacy. that is my understanding of what justice is saying. do you follow that? >> i do. i think it is entirely reasonable because the problem is that if you can reach this because you have disapproved of someone is doing it will be all over the place because behavior

covers when you start analyzing and vice versa so where would it stop and the rational thing is to say that provided this and in private and provide a ready's genuine consensus it is nobody's business and i think if i have understood him rightly stated the law to be precisely that, and another words john stuart mill attitude rather than the disapproving attitude and i think the law recognizes if you are not doing any hand it to anybody should not be to whatever you would like and that is the modern view and they disapproved and the idea that it

is the journalist of whose case is completely outdated and if that hadn't disappeared we would still be persecuting the gay community would be at risk for anybody else is her absolutely right that the press don't recognize that they do recognize it but it doesn't add met how things should be. >> i think one has to be careful to distinguish the philosophical position which of course you are quite entitled to be giving us and mr. justice may or may not share that view but all he was doing is saying analyzing article 8 of the convention the

concept of privacy means, and this is how the court interpreted it, that you do not conduct the judgment of what is occurring in the main just off limits to read some aggressive that completely and it makes absolute sense. >> i know of no case in strasbourg or domestically where it contradicts that part of mr. justice's meeting. it is called to one of the key issues involving this inquiry. >> i think it is coming and if i may say so, had they got that wrong, that would have been a matter for the court to appeal and the fact that it didn't go to the court of appeal if you strongly suggests that we got it right. >> it is certainly if you're point. the only other point of principle we would gather from this judgment is 135.

he decides the public interest and his lord should is making it clear and again right as a matter of basic law that is to the court to decide ultimately if the case comes to the court and journalists perception. >> that must be right as well. >> the court has to have regard to editorial judgment in the discussion so far as those who express concern or merely just reading on. >> at the end of the day the obligation having fallen to the ground and the point there was

no public interest justification and q1, is that correct? but to the exemplary damages he made probably as necessary to the law why but made findings of the fact which meant whatever the law was in the second incidentally damages and the law you opportunities in the circumstances in a nut shell. >> that is correct. >> in terms of damage as the award was 60,000-pound which was and perhaps still is the highest award of damages in the privacy case. do you happen to know whether it still this? >> i believe it still is.

awarded by the court? >> if i might i think i'm right in saying that since my case it has only been one full trial and that is the reason that we refer to it in the case which actually lost, but of course for the reasons i explained earlier that is quite eccentrically very determined before you bring the privacy action. >> we don't have many settled. we don't know how many have settled. >> i think what happens is if somebody finds out there is an injunction which then usually will be granted if it is a good case and that is the end of the case. then of course from the injunction that feels fielder the information will be published and that is the and so

to speak. so i think somebody being awarded damages certainly none of the settlements the i have heard of except of course the famous tayler and clifford settlement, but that is another matter and i think that there are other reasons. i haven't heard of large sums of money changing hands. >> mr. justice of the end of the judgment recognizes too obvious things. the first is no amount of damages can fully compensate you for the damage done. that will always apply whatever the context. and second, he says in relation to you, he is hardly exaggerating when he says it is like it was ruined and this is the geniality of the point. >> you work all of your life to

try to achieve something and doo try to achieve something and do something useful and when this came up i got to the age of 68 and i achieved things i was proud of any way to do and suddenly something like this happens and that's what you are remembered for and however long i live now, that is the number one thing people think of when they hear my name and of course really matters and sometimes if i could just make this point, it sometimes is yes it is the same with no personal injuries if you have an entry the courts can do nothing they can only compensate you financially and of course that is true. the difference, the fundamental difference is if you could go to a high court judge and say i am about to have an accident can you please stop the accident because this is all you have to do is make an order it is inconceivable. the problem with accidents is

every precaution is taken there's something happening, whereas any revelation of privacy can be stopped. the only thing that is essentials as if you know so you can go to a judge as soon as you know about then it goes to an independent assessment on your right to privacy on somebody else's right to free speech and to the decision. if the an bushehr and publish date no judge can save you is what it comes to. >> the judgment handed down all we know about the matter of the record is the public statement or the prepared statement by mr. miler on the steps outside the year accusing the quarter from producing the privacy law by the back door that is paragraph 50 of the witness' statement.

but to be fair to mr. weiler that is his right to comment on the judge. >> he subsequently got a right to comment on the judge. >> whether he should comment without appealing and maybe for others to judge there was some fairly certainly bad taste to describe that way of reporting while 52 of your judgments. >> couldn't resist the hon feeble crack. >> this is typical of the stream of that sort of thing coming from the press and i think one has to put up with it once it was out they were going to do this and does not just the sun.

>> but again, they have the right to comment and whether they do so and a high-minded way >> i think it reflects more on them than on me. >> before we finish, you quoted mr. max mosley from a document you describe as the news of the world either put themselves forward or otherwise being being put forward by an award is that in the documents? >> it is not that i have a copy i forgot to put it in. >> that's fair enough, but i would like to see it and so why make it clear why i want to see it because it goes back to whether this is one reporter or indeed one journal, but what is

happening in the industry as a whole. >> as you will see it makes it clear that they were very proud of what the have done. co bring that available. >> thank you very much. 2:00. >> [inaudible conversations] >> i believe about a ticket to paragraph 53 of your witness statement, please. >> do you suggest ms. brooks agreed to launch a campaign? >> is that a joint campaign or federal campaign? >> it's my understanding that it

is in effect with the joint agreement my understanding is they got together to be attacked estimate it probably is no surprise to is a seat position whatever stance he took it certainly wasn't fair in any collusion with ms. brooks he did in tire the on his own and do you have any comment? >> i wouldn't find that surprising by this i mean brooks as well as mr. baker and certainly in rebecca brooks' case she could do my freeing land because they denied that e-mail or that the ever had one become more than one journalist and of what became of absolutely

obvious they kept it in april of this year and i could go on and on. >> we get picture of your view and you are entitled to your view and the people entitled to your view that the question is does the basis of your understanding have an evidential foundation? >> ivies told by a former senior employee of the news international it would be wrong for me to announce his name because this is confidential but i would be happy to write it down to you, sir. >> you got it from the source and you can't go beyond it. >> i'm very confident i was told the truth. >> fair enough.

the full idea was a very serious issue mr. max mosley. to refer to another piece in the daily mail which is a shivering title that hands down has shown no balance and another example of comment rightly or wrongly on the decision. >> one could say that. i would say it is calculated if i put my self and position of someone that is a distinguished judge he is not used to being attacked on the public domain for a sample of i would find that offensive and worrying. if you think those articles are going to appear it must influence you to some degree you must realize the with the so-called celebrities realize they don't attack and i cannot

believe this is to intimidate. >> let me assure you that although we don't hit the headlines quite so frequently we are used to being criticized and to say nothing about that, and that may require biting one's tongue occasionally, but we recognize that goes to the territory. >> on the issue of impact touching on paragraph 57 appreciate a personal matter what can you tell us in your own words at least? >> my son was a drug addict and one of these people liked the

extreme had the mathematics paper on economics open source limits intelligence but like a lot of the intelligent people he fought in the depression and his way of dealing with this, the only effective way he found was drugs, and he was getting to the age where he knew he made several it had to get off but he didn't get off the drugs probably this would end badly. he was struggling with it. he had overcome his problem command of the news of the world still the had the most devastating effect on him. he really couldn't bear it. it was just so awful. bad for me but bad for my son to see pictures of your father in that sort of situation all over the newspapers all over the

world and he couldn't bear it. he went back on with drugs and it would be wrong to say he didn't from all the circumstances but like other people on hard drugs it is dangerous and you make a small mistake and you die and that is what happened. spec that was in may of 2009. >> it was. >> you deal with some of the other effects of that in paragraph 58 to sort of his personal effects there was one journalist on the doorstep and then a whole nother. >> this is correct. what to me was so horrifying is that there was no sense of this matters or these are human beings these people actually

mind the situation may be we can write a story so let's be there and the head these photographers there and i call my solicitor he arrived on the scene and said they had expected i would have thought the actions were outrageous and that sort of situation they have no feeling at all. >> we've already touched on some of the office on the internet provocation and the next section

deals with that detail in the united kingdom through the news of the world until you win your case and then there are the effects around the world really with the world wide web and you've already told us that you have instructed as you have to have done in the 20 different jurisdictions to find to close this down. >> that is correct. we haven't succeeded. all we can really do is mitigate pity the >> can you tell us how much that has cost you? >> it is well over half a million pounds and is ongoing. >> i would like to deal with a related issue namely the economics of litigation and the particular case slightly after a

sequence of this paragraph 76 of your witness statement. this is something that anyone would understand immediately, but the public at large would be forgiven for not understanding what you could win a case having not left out of pocket but you are left out because you get your 60,000-pound damages coming your legal the obligation to pay what ever they charge you and that is a matter of contract between you and then and you then get an order of assessment from the judge then another judge 82% of the cost by the losing party international is a

summary of what happened. >> that is an exec summary because if the difficulty is this you never accept to get all of your cost that means there's a difference between the cost the court give you and the cost you actually have to pay. they come out of your damages. in this case they exceeded the damages and in the case that would exceed the damages. >> we learned about this yesterday because mr. lewis is making the point in connection with the settlement of one of his actions he received every single piece of the cost i think was the tayler mitigation. >> that may or may not, but in your case where you had a good result there was the shortfall of 18% and that 30,000 pounds

out of pocket. >> i think that mr. lewis and mr. taylor's case was at the level -- >> he made that point. >> i would like to come back to a point you regard it important the argument of the prior notification. and in your own words, give us the notte shell to impress on the sangree please. >> and that shell the point is that in the privacy matter once the information has been made public it can never be made private again, there for the only effective remedy is to stop it from becoming public and what they needed is a mechanism to get an order to stop it from becoming public. that is completely doable if you

know the information is about to be published. the only gap in the law and it is a gap in the law as it dennis tater manages to keep secret in terms to publish the information, then felt it comes and it is too late and there is nothing more to be done and what follows from that is there should be cspan: notification. one quick point on that is that and evidence to the select committee said in the 99 cases out of a hundred the individual has notice because the newspaper would normally approach somebody and ask for a comment. he may have been slightly exaggerated but i can't believe he would not tell the truth to the select committee so in my knowledge of cases it would serve the very cases where the newspaper knows if you did find out he would get an injunction, so they keep it secret knowing

that once the publisher at no one in their right mind and i say that to myself in their right mind because it would cost you money and get information published all over again and you don't solve the problem because the information can't be and private so one is dangerous but without prior notification to induce people to lend if they have information which is outrageous or outrageous pictures they can only publish them before the person finds out there is no remedy unless one says 30,000-pound repetition but the repetition is like a suing because you have a broken leg who going to court and the break the other leg because it just makes it worse, so sorry, that wasn't much of a nutshell but it is the very cases within egregious breach of privacy.

>> the print notification is essential. >> they then lead to a rapid hearing before a judge with a reasonable balance but the second point is you only get the injunction as a claim and the privacy has been violated and there is a public-interest justification in the practical terms the notification injunctions in the case and the other way around the newspaper will publish with impunity perhaps rightly because they know they are in the right and in the cheaper process. do you agree or disagree with

that? >> my information is that to seek an injunction the cost is something less than 5% and the cost of a full trial and that also tries the newspaper and as you say under section 3 of the act you got to show more likely than not to in the case. what could be wrong with that? and independent judge thinks you're more likely not to win you should have the injunction because if you don't, if it is out you in the case. requiring this extent how the privacy proceedings have a million pounds each side is for the very wealthy even these proceedings the notification

doesn't deal with the person of limited means. >> i very much believe that this would be an alternative mechanism and the regulatory body suppose the question but to which you could go into think it is absolutely essentials that such a body should be free of charge because otherwise if you went to the county courts has some of the academics have suggested and it is beyond the means of a great many people and there is no reason it shouldn't be freed and if i may say that is the invasion of privacy if someone burglar's your house you can replace the things that have been taken, you can repair the damage but if someone reaches

your privacy can never repair the damage. you can never put it right again. so it matters. with a burglary if you found a burglar in your house and called the police come they don't say are you rich because if you are not rich they will come and arrest and this should be a similar mechanism to stop people from reaching the privacy of an ordinary person who is not in the position to fund the money on the injunction. >> to say that it should be free of charge dix the question as to who is going to pay for it. >> indeed. but if you have a body similar to the press complaints commission, which is free, that was independent both of the press and the government and everybody else, and which may be essential which is often not talked about the division between making the rules and enforcing the rules coming into the moment the rules themselves

are not that bad. what is missing is the ability to enforce them. if you had a body that could enforce the rules it almost -- you don't necessarily have to have super qualified people. i would prefer to have anybody deciding whether or not the position should be breached or not. islamic the of the argument is that it was the censorship. >> no more than the existing procedure the only difference between that and the existing procedure would be free of charge. people don't say that i go to -- if i go with the knowledge and ask for an injunction i suppose news of the world censorship but i don't think any reasonable person would. >> would be put another situation to you. forgive me if i take your example because it is actually it was the point to be made she

was unsure whether he had been satisfied about the underlining allegation whether that would have been the public interest or not. what concerns me just thinking through the point as i was reading your statement and your judgment was how you were going to resolve that issue you would go along to the judge and for those that don't understand these are comparatively short hearings and say my privacy has been infringed. this is what we want to say and it is outrageously untrue know it isn't. it is absolutely true. whether there is the injunction may depend upon whether it is

whether you think the allegation more accurate which is mor more accurate. >> as far as the number-one prime and number two and the tribunal but on the fundamental issue it will always be difficult and the test which is a balance of convenience that they deliberately made the standard higher their difficult questions on what they do and what dangerous to allow the editor of tabloid to wait this out when really all he wants to do is sell newspapers and in the particular case you mentioned i think probably what he would

have done is say that he could see no public interest in this. he did actually say that in his judgment. >> maybe i should change the facts a little bit but i want to get to a situation where there is a real argument about public interest which requires a popular investigation. >> my submission and if i may put it like that article 123, section 123 because it is a little bit like the situation where i have a tree in my garden and mr. jay says he has the right to cut it down. you may well desire but once you cut it down you cannot put it up again so we will leave it there pending the file, and i think what the judge would like to do in a difficult case is say this is a difficult case. it means a trial. i'm going to grant the injunction but i'm going to

grant an expedited trial. >> there will be submissions of the law but i think it is fair to note that in your case the combined effect of paragraph 21 and 46 of the judgment of the quarter of 2008 is if it were not for this point you would have felt the injunction would be my reading of it in getting you that assurance. but the white point of what happens in the case for the public interest is more debatable that can be held by the legal submission to it spent on the reason of rejecting the nullification argument in this very fact bundle i am going to get straight to the

discussion or conclusion of the european court. page 410. this document of course is in the public domain. i am not going to ask for it to be put up. >> for those who don't understand you took the case to the court of european human-rights and it went to the grand chamber. >> it went to the small chain. tried to go through the grand change. >> thank you, yes. >> let me summarize this as succinctly as i can. paragraph 120 said that the

general rule is damages afterwards would satisfy -- -- notwithstanding that prenotification adjunct to address that and two levels. the traditional margin of appreciation argument which would mean in essence the european call leads to the domestic call. was marked discretion how to organize this procedure? but then there is an interesting section of judgment which i draw to your attention.

page 412, the concerns regarding the effectiveness, two considerations arise. any prenotification obligation would require some form of public -- the newspaper could not notified a subject. it is believe you could subsequently defend this position on the basis of public interest. the court considers that in order to prevent a serious chilling effect from freedom of expression to reasonable belief that there was a public interest at stake would have to be sufficient to justify no notification even if it were subsequently held. may i respectfully suggest not to you but -- is arguable at least that two matters have been conflated. public-interest is not notifying you because you might be a criminal, you might destroy

evidence or whatever and then there is public interest in justifying a publication in due course. what arguably is done here is pertaining to the second consideration but the first and -- entered into the same era which you would say infiltrate the reasoning of that committee when they come to address the same issue. is that a fair summary of your position? >> the issue that matters is the prime notification argument in relation to notification itself. when it gets to that effort the jobs will look at that. >> the other point which they make with great respect again -- the driving point, if there were an induction the newspaper might break it because they would be

happy -- it seems to me to involve misunderstanding about the rules. if you got your injunction you would be in contempt of court to break it and unthinkable the newspaper would take that risk. maybe that is a complete answer. >> very strange reasoning. they won't ignore it. the argument saying it is okay -- >> but whatever. one respects the judgment. it is the lawn coming out of the grand chamber invited by you to reconsider this and they have not granted you privilege to do so. >> that is correct. >> it doesn't mean you would say domestic law could not move further than european law and

provide you the production you say it should like notification because it is within the gift of parliament to provide for that. >> indeed. the only reason i went to strasbourg was i thought there was no chance of convincing the u.k. government to bring in this legislation because to put it bluntly they were completely in the thrall of mr. murdoch and other newspaper people who would have objected. that's all has been broken. i don't see any reason why such a law should not be brought in. the case to my reference is not answerable. it is so clear that you need it and it is the right way to do it. the only outstanding issue is how you would arrange your tribunal to do this without it being costly.

you need prior notification and an independent person to decide whether it should be published or not. >> towards the end of your statement you deal with the wider picture and your views about this regulation and it becomes that. but there are some specific points i would like to raise with you. the first point in relation -- you are well aware that he has stated publicly that the justice made his decision incorrect. he referred in the lecture in 2010 to the objective and relativistic few of justice easy and to the select justice committee that they have

available expressed a similar view. i don't interpret your evidence and saying that he is entitled to express that opinion. not sure what he may be saying if it is better than that -- a am paraphrasing here -- this is immoral conduct. many people would judge it. surely there is part of the newspapers comment under article 10 or whatever for these matters to come to light because of the nature of the subject matter. i expressed that in a way that they would not but the general sentiment you now have your comment on it. >> what he said in his speech in

an editorial, i was guilty -- it guided his imagination. it is not a sensible comment because i wouldn't -- have no idea about his sex life. he has a preoccupation with school in his website this woman showing of her sons and, he may have the strange occupation but it is not up to me to go into his bedroom and film him and write about it. it is his business. equally if somebody had an unusual sex life, the lot is

very clear, it is private and consensual and concerns nobody else. the law pertaining to that area that i don't like what that person is doing, it is not up to me to tell the not too. all i can object to is please don't do it in front of me. please make sure everybody consents and that is the end of the matter. i said this before. a complete the old fashioned idea. it dates from when i was young when it was illegal to begin a. all sorts of sexual activities which some people find quite normal were actually criminal offenses even between a man and woman. that has been changed. the world has moved on. the only one for whom it hasn't moved on its mr. baker. >> he said to the select committee on the 20 third of

april, 2009, to the greatest respect to you, the committee, a lot of us were surprised that max mosley presented himself as a knight incline at -- shining armor for claiming self righteousness in his crusade to clean up the press. a real conversion of the moral values in our society. for mr. max mosley to say against the media campaigning against men who batter women. >> it is really quite fair to say things like that to the committee but when he is really saying, he doesn't like something that is sexually in private with consenting adults. the fact that he didn't like it should prevent me from saying the press should not convey

people's privacy. ludicrous argument. it is a sad thing every time i get in a debate, if you can get baker on the other side, no chance. >> it crystallized his point later on. my main objection is the way he exploited and humiliated women in this way. >> it just shows again he is completely naive about sex. that is not a criticism but fact. the women in my little party are like to call at the personal their total, complete enthusiasts for what they do. they love what they do. they are more intimate than i have ever been. the idea that you are exploiting women is ludicrously nike's and in fact offensive to them.

they do these sort of things in their privatized -- that is how they are. mr. baker may not approve of this bill we live in a civilized society where grown-ups in private should be allowed to do what they please. it is not up to him to decide who can do what between consenting adults. >> two further points the position is clear. it is evidence that the committee is categorical to this extent that the article they published was certainly not an article the daily merrill would publish because of its nature for reasons of good taste. you probably recall that. >> i do well. he is in a position like a crocodile that killed the animal and the highy comes along to scavenge. he is the scavenger. >> the second matter which i am sure you recall as well.

mr. baker's agenda is the matter of human-rights and certainly not part of his objective to undermine justice eady. is he's respecting his democratic rights? >> what he said was this was an immoral judgment. it isn't. is a judgment that recognizes consenting adults are allowed to do what they wish in private. he may criticize the law. that is absolutely possible. what he should not do is criticize the judge for imposing a lot -- the lot --law. if this were not the law they could appeal and they didn't appeal. he recognized the reason you

cannot appeal is not they dislike the judgment but they knew they would lose. he is attacking the man rather than the law. if he doesn't like the law he could campaign to change it. all the judge can do is to apply it. >> i have taken that point as far as i need to. let's look at the wider picture through evidence and this is the part of your witness statements -- first of all you deal with -- what do you say about the ccc? that is not unfamiliar to the inquiry. it times with other evidence or

rather the opinion the inquiry has received. you made various points that the sanction up that out. they wouldn't prevent this scandal that you name. the amendments -- you mentioned positive aspect in paragraph 155 and 156. could you tell us a little bit about those matters and how they bear on you? >> absolutely. the commission in my case when it came to try to stop harassment after the death of my son. they did cooperate there. and i believe for personal experience that they had some success in preventing publication of stories that

shouldn't be published. they can call them up and have done i believe a lot quite successfully. this brings us to the fundamental point that you don't know the stories coming out you can't bring meet bcc for help. that is why notification is vital. >> then you make the point that has been made of the conflict of interest point -- i would argue it to develop your point and suggested alternatives. you touched on this little bit but in your own words, help the inquiry with this. >> it is a subject i could talk about for hours but briefly i think a tribunal of some kind is

needed. the basic principle of the vcc that it is free, paid for by the press is right. i would give the new body slightly different, that i would divide it into two sections. one which would make them and another that would enforce them. making them doesn't take a great deal of work. fundamentally -- what is needed is a body that can and forced them. a body that would have the power to order a story not to come out to justify under the law as it stands, and have various powers that a judge would have. i would add to that the power to stop the press harassing somebody, that those points would be worked out. i would be very happy to submit

to the inquiry had detailed proposal that fundamentally you should be able to go very simply and say my privacy is about to be invaded and i would add to that defamatory statements. i think there is a case to mediate these things at the beginning. if somebody went with their complaints of defamation or breach of privacy and the other side would turn up as well or put a mediator sitting there. a large portion of these things before they started and in most cases were quite simple. you would have to have some mechanism for complicated cases and some mechanism for paying for them. there are various ways that could be approached. the overwhelming majority of cases could be dealt with with a single adjudicator and two party

system where the issue explained no expensive lawyers or pleadings. most of these are quite simple. just the capacity, greatest respect to legal profession, capacity to make things complicated is great and very expensive. >> thank you, mr. max mosley. journalistic practices. to some extent if i could be forgiven for saying so, commentary on evidence the inquiry has received will receive in due course particularly when it comes to operation motorman dealing with a lot of detail next week and reach its own conclusion about that but you do make one point in the context of blackmail on 154. would you like to bring this point out?

after the justice delivered judgment on july 24th, 2008, that his criticism -- you wrote to mr rupert murdoch in new york about your concerns to his attention. did you receive a reply to that weather? >> that letter was written on the tenth of march this year and i sent it by recorded delivery and 1/2 evidence from the united states postal service and also sent two e-mails. all always asking him to do was to order an inquiry but got no reply. i cannot imagine life in a proper international company with serious criminal conduct for a senior employee who gets no reply. sorry to say this but i think i

will if i may. the is the conduct of the mafia. would you expect if you wrote to the head of la mafia family complaining about one of their soldiers. you would probably get no reply and if one of their soldiers went to prison as mr. reese did and properly employed when he came out after serving a sentence for a serious offense, you would expect that from the mafia. you would not expected from a serious company like news international down in washington. >> doubt was your legal team will remind me in a few months to get a reply which may be possible to do that.

>> thank you. >> i hope you don't mind if i leave off operation motorman. >> it is my attendant. >> the internet is a big issue. is there anything else that is cause of great concern for this inquiry? practical solutions or ideas you wish to share with us to deal with the proliferation of information at the speed of light globally? >> this is something that would probably require national laws. probably better for european laws at the international convention. what i think can be done at an early stage, to require service

providers and search engines not to proliferate information which is illegal in some way. the technology for that exists and if it would be helpful a am happy to put together a detailed proposal to submit to the inquiry. rarer >> the second time you offered to do something and speaking for myself is tempting to take you up on the offer. but i am not doing that generally because i think it potentially imposes an undue burden on somebody when at the end of the day have not reached a conclusion what would work.

i might make an exception in your case for this reason depending on what you say about this. you have experience of international governance in motor racing. i don't know whether that gives you any additional understanding of the potential pitfalls to be faced in trying to do something nationally let alone internationally. so if you want to submit to the inquiry you can rest assured it will be considered that you will equally understand by making absolutely no promises. >> it may turn out to be inadequate or no good for all sorts of reasons. we have given it a great deal of thought. one can submit and the inquiry to decide whether to adopt any part of it.

>> as long as the basis on which you are doing this and takes your time and is an effort as long as the basis is well understood. >> very happy to do that. >> final point. your statement has gone on line and therefore people will have read paragraph 31 which touches on the daily mail. of course you are entitled to your opinion in the context of operation motorman. the middle of that paragraph, inconceivable that the newspapers did not know they were procuring an encouraging criminal act. it is clear on behalf of the daily mail that that is strongly denied by them and they will say when they have the opportunity to do that that the information

commission in 2011 stated there was no evidence that any journalist asked mr. whitmore to obtain information illegally. of wood like to leave the point there so that the daily mail's position is clearly set out to me but secondly to make it clear that the rights and rons of the issue are being investigated by the inquiry so let's wait and see what happens next week. are you content with that? >> unlike to say of course there would say that. i hope they won't consider this a smear. all i am saying is no journalist asks for an illegal act. not the same as saying no journalist would have realized the information they were

obtaining was illegally obtained. >> you are reaching your conclusion based on your study of privacy. >> yes. >> i will be doing that as well. a very long day. the board is extremely grateful to you. have we covered all the ground you wish to? >> i think so. some twice. >> if that is the case it would be my fault. thank you very much. >> probably sensible to have five minutes for the short and right for all of us but five minute actually means five mentor in this case seven minutes and not longer. >> all rise.

>> in a few moments senators pat toomey and claire mccaskill talk about banning spending earmarked and in 20 minutes a hearing on how nursing-home is is anti psychotic drugs to treat patients with the mention of. >> several live events to tell you about on c-span3. the senate foreign relations committee will hear from representatives of the departments of treasury and state and u.s. policy on iran at 10:00 a.m. eastern. at 2:00 eastern the ceos of fannie mae and freddie mac testified before the house financial services subcommittee on oversight. >> within 90 days of my inauguration every american soldier and every american prisoner will be out of the jungle land out of their cells

and back home in america where they belong. >> george mcgovern's pledge it the 1972 democratic convention came nearly a decade after being one of the first senators to speak out publicly against the vietnam war. the senator from south dakota suffered a landslide defeat to president nixon but his groundbreaking campaign changed american politics and the democratic party. george mcgovern is featured this week on c-span's the contenders. from the mcgovern center for leadership in south dakota live friday at 8:00 p.m. eastern. >> senators pat toomey and claire mccaskill told reporters about their bill that bans spending earmarked. this is 20 minutes.

>> good morning and thanks for coming. i want to thank senator mccaskill for her leadership and the great work she has done on this issue. almost exactly one year ago that she and are joined forces. we wrote an op-ed in usa today urging the adoption of a moratorium on earmarks by both of our respective parties. fortunately we had a number of colleagues that joined in this effort and both parties did in fact adopt such a moratorium much to their credit. our purpose today is to announce we will introduce a bill together and the bill would make a ban on earmarks permanent and would do so in a fashion that closes the loophole that allows the ban to be circumvented the

day. i think this is very important for a number of reasons. one is there is an effort under way to go back to earmarking as usual as it used to be and i think that would be a disaster for our country and our congress and we intend to do our best to prevent that and it is important we do it for a number of reasons. the most obvious is we can't afford to waste money this way. we have staggering deficits. we have a completely unsustainable debt. we are on a fiscal trajectory that can only lead to disaster if we don't change this half. by 2010 over the course of the previous 15 years earmarking tripled and gotten to $33 billion. i will acknowledge that $33 billion itself doesn't put us on a sustainable fiscal path but we have to start somewhere. this is a good place to start. it is an important place to start. i would argue there's no better place to start because among

other things this is a flawed process. it is a process that exists for the purpose of circumventing the kind of scrutiny and attention and competitive bidding spending of taxpayer dollars should always be subject to and worst of all in my view earmarks became currencies that was used to buy votes. there is an unwritten rule that was pretty well and forced that somebody asked for an ear marketability and they got there earmarked. they were of obligated to vote for that regardless how bloated it was or wasteful was. this should be completely unacceptable in an era where we are running trillion dollar deficits. may be to most important thing about this effort to have a permanent ban on year marks is an effort to change the congress. we need to change the culture from a congress that historically is all about how much money can i spend to one

that is focused on how much money can we save so we can restore fiscal discipline, put ourselves on a sustainable fiscal pact and insurer promising future we can have if we get our fiscal house in order. that is our mission today. senator mccaskill, thank you for this effort and for joining me. >> it is great to be here with senator toomey working on a permanent ban on earmarks. i did not campaign against year marks in 2005-2006. i didn't really understand how the process worked until i got here and when i got here and it was beginning -- people were beginning to explain it to me i said this isn't right. i won't do this. i won't participate in this process. no one could tell me who was making the decisions as to who got how much. no one could tell me how that process occurred. i knew there were slips of paper

is being passed around. i knew there was some kind of effort to make people think at home that someone else was picking the winners and losers so the individual member didn't have to be the one responsible for picking winners and losers from all the people who were thwarting their office wanting these handouts. i know certain members got a lot more than other members and there was no explanation for that. the process coming from the government auditor to this job made me realize that something was amiss in the way they spend money and i said i am not doing it. at the time, there were only two democrats in the united states senate who didn't participate in earmarking and only a handful of republicans. most people looked at us like we were literally it almost felt like some of the senior appropriators were patting you on the head.

you don't like earmarks. you are making a big mistake. they're never going anywhere. fast forward and thanks to senator toomey and others at the american people being more educated about this we have made an effort to stop earmarking which is a good thing. but frankly i watch every day as people try to get around it. i was shocked when i saw the house armed services committee put in the defense authorization bill hundred the earmarks. they claim they weren't here marks but if it walks like a duck and quacks like a duck is a duck and these were earmarks no question about it. we will have more information on our effort to look at that problem in the coming weeks but it is clear to me there are many people who want to get back to business as usual. that is why this legislation is necessary to put into the budget act that earmarks are prohibited and to allow enforcement mechanism on the floor of the

senate if anyone tries. i will close with this and we will take questions. i have many memorable moments from my first years in the united states senate bill one of the most memorable is when i filed an amendment on the floor of the senate to paul nancy pelosi's year marks out of the farm bill that had been slept in the dead of night in cover. called and airdropped year mark. i put this amendment on the floor of the senate and it was very awkward because the leaders of my party were aghast that i would take on the ear marks in an open amendment process on the floor of the senate. and they were even more upset when i almost passed the amendment and one of my colleagues came to the red face on the floor and said ugly things that that moment. it was shocking to me that it

was so controversial that i had done that. they told me a lot about how this place work and why is it is important to be independent, strong and stand up for a process that is fairly brittle based on merit and has taxpayer interest at the top of the list. this legislation will go along way towards changing that culture, changing the quid pro quo of but earmark world and get us back to a merit based process where every time you spend taxpayer money is spent competitively and based on merit, not on how powerful you are or who you know or how long you have been here. we will be happy to take questions. >> last year did you have any reason to get the agenda past? >> i think it is going to be hard with all of the emphasis right now on fiscal responsibility and all of this

focused on spending i think to vote against a moratorium on earmarking right now would be a very dangerous vote. i think it would be and i don't get it vote. one of those folks that tell the american people that in washington is really out of touch. everyone is feeling endangered regardless of the party in washington because of frustration of the american people about the dysfunction. this is on top of the dysfunction if people actually have the nerve to vote against this and to earmark a. >> if you look at freshmen members of the senate and how they would be likely to vote to how they're likely to vote in the previous congress there's quite a pickup in the number of votes and senator mccaskill points out there is greater

importance than there has ever been. >> any indication that you as a leader support bringing this to a vote? >> i haven't had that conversation with the leadership. i intend to. i just can't speak to the question. >> both of our leaders are former associates. >> one thing i am a little confused about is but a senator or lawmaker does if there's a project for a need that is not being looked at or terrifies the administration. how do you go about getting funding if you have that lead? >> you are getting what i think is one of the most bogus arguments made in favor of earmarked which is we know better than bureaucrats. most of the money being stolen

for earmarking is thrown out of grant and formula programs at the state level. if you look for example into that earmarking that has been done in the criminal justice area we have all of those decisions, that money goes in blocks to the states and the states allow competitive process to throw that money out. when someone besides in washington to take money from that program for their own project, sheriff smith's new patrol car, all he is doing is dealing from a competitive process to the state. what we need to do is programs need to be addressed whether it is water need for road needs this money needs to go to the state and allow local stakeholder through the process of hearings and their own determination to decide the best use of the money within their

state. that is how we do it around here except for this relatively modern practice of robbing from those funds in order to fund pet projects based on a lobbyist ability--or do you know and what committees and so forth. it never stops local decisions about where federal money goes. it stops individual members of congress from being able to put it into that room. >> you don't think there were any legitimate year marks that lawmakers -- >> no question. great projects funded by earmarks. i'm not saying we were not worried but the process by which it was done is so flawed that we need to end that process. these projects get funded through competition. look at water project. we have all these water needs and a huge flooding this year. you can't earmarked for a lot of repair what is going to happen?

they are going to compete. instead of north dakota and utah getting all the money because that is the chairman and ranking of the appropriations committee, guess who has a lot of needs? the state where missouri and mississippi come together and we have flooding as a constant problem in our state. on merit they will do just fine as it should. it shouldn't be just because the chairman of the subcommittee gets to pull that money out because they are the chairman of the subcommittee. >> you don't feel you should have a role in that process? >> make sure the money gets to missouri and allows the people to prioritize it. >> our responsibility is to make sure we have a properly designed process that is transparent and merit based. sometimes we will argue and disagree and sometimes we will agree about the criteria and what the formula ought to be that allocates among the states. that is perfectly reasonable and

legitimate and in a system like that the projects with the most merit will get funded and that is how it ought to rack -- work. not where an individual member gets to have his or her way in darkness without scrutiny and without being subject to a competitive process. >> a couple questions on the defense side. he mentioned you were looking into the earmarks to mark up the fare bill and to provide a little more description. secondly if you eliminate earmarks how do you prevent lobbyists from going to the pentagon to fund these projects and other profits? >> what we have to do is ask questions of the pentagon that i have been trying to ask the last five years which is why are you doing the contract? why wasn't it competitive?

looking into amcs leaders believe variety of ways congress can have oversight of the executive branch and how they spend money and we need to rant that up and be serious and significant overseers as it relates to that. as to the house are services committee it was a massive attempt to create -- members were allowed to offer amendments to use that for their pet projects and they tried to say it was to be competitive. if you look at it closely it just doesn't pass the smell test so we have been trying to analyze it in a detailed manner and have a report for weeks to come. >> i completely agree about the importance of congressional scrutiny. that needs to be better. that is an ongoing challenge.

let's remember earmarks exploded in the fashion that they did because members of congress are uniquely -- they have an incentive that the bureaucracy in the pentagon does not count. that is to get the big media splash when they walked down a gigantic oversight and say i brought you this big pile of money or whatever it is and i am responsible for this and the message is you ought to support me in my reelection campaign. the pentagon has no such incentive to do that and that is why we have seen members of congress who asked for a bridge to nowhere and cowgirl hall of fame and superchristmas trees. these came from members of congress because they thought there would be some kind of political work for them. >> you find this a unique challenge with the ongoing effort at deficit reduction? the pressure is greater for members to target spending?

smaller pot from which to choose and insight into whether the supers in the committee addressed the issue of earmarks at any time? >> i don't think we spent a great deal of time focusing on earmarked in the supercommittee. there was a moratorium in place and most of us were trying to find ways to address the mandatory spending side of the equation because it was a different part of the project. >> somewhat related topic from earmarks from the white house. you ask for a review of the contracts over the smallpox -- >> no bid contract over $250 million. >> do you feel because the large democratic support from the white house are involved in that companies that this has the impression of a political task? >> i won't comment about people

and draw conclusions about the appearance of the contract. i give answer to the fact which is how did this become a contract? was justified as a no bid contract? we need to ask policy questions about the money we are spending on developing drugs where the united states government is the only customer and if we are spending a lot of money developing those drugs, why is it that -- we are the ones putting up a significant portion of development funds when in fact the united states becomes the customer? there are policy issues around this writ large where we come up and be contract, and other really large contract so i am looking at the policy of those contracts in this particular arena and looking at the facts of it it is too early to

speculate as to whether or not there's a motive. we have to figure out why is this the only company that has a drug? that moves the problem that there was an appearance trying to help out somebody who had given money to the president. >> have you made any determination that this smallpox treatment is necessary? >> i am not going to be someone who has the expertise to make that determination but we are gathering all the information surrounding this including the justification for the purpose of the drug in the first place. what documentation was out there that supported the need for this. this plan was done back in 2007. the bush administration. as to what kind of stockpile for a bio terror threat in this country. my predecessor has done a lot of

work on this subject as co-chairman of the bio terrorist task force with senator graham from florida. they worked hard at looking at whether our country is prepared for the threat of terrorism in the form of a biological weapon. i think we have to look at the history of this and why this came about. it was that recommendation in 2007 that the purchase of this particular drug, we are going to look at that. >> i am curious how exactly your bill makes the end run around the earmarked moratorium? >> there are couple ways in which it makes it much more difficult to circumvent the ban in our bill. specifically individual senators become empowered with making a decision whether and earmarking is an earmarked in our bill as opposed to the current arrangement in which the

chairman or the leadership can decide if something is considered an earmarked. secondly our bill establishes 67 votes on point of order. if a senator believes there is an earmarked that is prohibited he or she can raise that point. is not subject to the opinion of any other member of the senate at that point. and 67 vote threshold to allow the earmarked to remain in the bill. that is pretty high. that combination makes it very likely to sustain the objection is and prevent the earmarked in the first place which is really difficult. >> thinking of anything as an earmarked -- >> there is a precise definition. is not subjective. parliamentarians would ensure the senator who raise the point of order was invoking the bill properly. >> thank you very much.

>> in a few moments the hearing on how nursing-home as use anti psychotic drugs to treat patients with dementia. the senate is back in session at 9:30 eastern for more debate on a bill that covers defense programs and policy. >> several live events to tell you about on our companion network c-span3. the senate foreign relations committee will hear from representatives of the department of treasury and state and u.s. policy on iran at 10:00 a.m. eastern. and at 2:00 eastern the ceos of mortgage lenders fannie mae and freddie mac testify before the house financial services subcommittee on oversight. >> i look at why the country does well or why it doesn't i think it is fundamentally a

values thing. is not natural resources. these are two crucial values. do you believe the future can be different than the present and do you believe you can control your future? these are not universal. some places have and some places don't. the u.s. we have an exaggerated sense how much control we have but it is good for us. >> questions from author and new york times op-ed columnist david brooks. he will take your calls, e-mails and tweets on variety of topics including bourgeois bohemians. this includes both lows in paradise and paradise drive and a social animal. david brooks in depth live this sunday at noon eastern on booktv on c-span2. now a hearing on how anti psychotic drug prescription the used in nursing-home to treat patients with dementia. the fda says the drugs could be life-threatening. this is more than an hour and a

half. >> good afternoon. will be we appreciate you being here today and we will commence the hearing at this point. today we will be discussing the widespread and costly inappropriate use of psychotics in nursing-home us and efforts to find safe and effective alternatives. anti psychotic drugs have been approved by the fda to treat an array of psychiatric conditions numerous studies have concluded these medications can be harmful when used by frail elders with dementia who do not have a diagnosis of serious mental illness. the fda issued a two black box

citing increased risk of death when the drug used to treat elderly patients with dementia. despite these warnings there's little impact, anti psychotic prescription rates and long-term care facilities for dementia patients who do not have a diagnosis of psychosis. most recent data indicates increasing usage of anti psychotics for nursing-home residents with dementia and more than half of the stations have been prescribed these drugs. improper prescribing not only puts patients health at risk but leads to higher health costs. today we will hear testimony by the office of inspector general as the use of anti psychotics and bears in homes for patients without a diagnosis of mental illness costing taxpayers hundreds of millions of dollars every year. we know we can do better.

the second panel features experts including tom hlavacek from wisconsin who will discuss safe alternatives using and pies are caught its to deal with behavior issues and older dementia patients. improperly prescribed anti psychotics beneficial treatment for individuals suffering mental illness. however, we have a responsibility to patients and their families to ensure elderly nursing-home residents are free from all types of unnecessary drugs. we have a responsibility to the taxpayers to be sure they are not having to pay for drugs that are not needed. or continue working with my committee colleagues as well as senator grassley to address these issues. we thank you for being here and we will turn to our first panel.

our first witness today will be daniel levinson legal inspector general of the department of health and human services. thank you for being here. our next witness on the panel will be dr. patrick conway, chief medical officer for the centers of medicare and medicaid services and director of the office of clinical standards and quality. thank you for being here. daniel levinson. >> good afternoon, chairman k l kohl. thank you for the opportunity to testify. these drugs are powerful. miss use poses a risk to the elderly. two recent reports raise concern about the use of anti psychotics by elderly nursing-home residents particularly those with dementia. we hired psychiatrists expert in treating elderly patients review samples of medical records. their review revealed the

following. in 2007, 14% of nursing home residents had medicare claims for anti psychotic drugs. half of these drug claims should not have been paid for by medicare because the drugs were not used her medically accepted indications. for one in five claims the nursing-home used drugs in a way that violated government standards for their use. for example prescribed dose was too hot or residents were on medication too long. finally prescription drug plan sponsors lack access to information necessary to ensure appropriate reimbursement including anti psychotic. what do these findings mean? too many institutions fail to comply with regulations designed to prevent overmedication and medicare pays for drugs that it

shouldn't. why should we be concerned? these powerful and dangerous drugs are too often prescribe for uses not approved by the fda and do not qualify as medically accepted for medicare coverage. the fda has imposed a black box warning emphasizing increased risk of death when used by elderly patients with dementia yet 88% of the time anti psychotics were prescribed for elderly patients with dementia. physicians can use their medical judgment to prescribe drugs for use not approved by the fda including patients for whom the warning applies. most physicians in nursing homes have the best interest of patients in mind. however it is concerning that so many elderly nursing-home residents with the image are prescribed anti psychotics. for instance without medical workup one patient was given

anti psychotics for education. medical exam would have detected a urinary tract infection which may have been a source of it. how can we help protect this vulnerable population? cms should 1, consider enhancing claims data to assure accurate coverage determination. for example, adding diagnosis to drug claims could help determine whether prescribing inappropriate and the claim is payable. 2, ale nursing-home accountable for unnecessary drug use through the survey and certification process. and 3 leaders will explore other options such as incentive programs that provide education to promote compliance with quality and safety standards. for example cms could require nursing homes to reimburse the part b program within claims drugs violate. the government must auditor --

monitor -- there's evidence of drug companies have illegally promoted these drugs used by the elderly with dementia. drug manufacturers have paid billions of dollars in federal allegations of marketing of these drugs. it is difficult to undo the influence of such marketing campaigns. .. >> and we have issued guidance to nursing homes about compliance risks related to the use of antipsychotics and

psychotropic drugs. over the next 18 years, 10,000 americans will become newly eligible for medicare each and every day. as the balk by boomer -- baby boomer population ages, it is imperative to address the overuse and misuse of antipsychotic drugs among nursing home patients. thank you for your interest in this issue, and i am happy to take your questions. >> thank you very much, mr. levinson. dr. conway. >> chairman kohl, thank you for the opportunity to be here to discuss this topic. i left the private sector to take on my current career public servant role six months ago in order to improve the care to all americans. this topic is a significant opportunity for improvement, and our nation's seniors deserve our

collective focus. finish cms is undertaking a multipronged approach engaging with external take stakeholders to eliminate use of antipsychotics in nursing homes. i will lie light seven components to our approach; survey and certification, research, quality measure development and transparency, partnering with states and collaborative quality improvement. first, to help insure that nursing homes meet federal and state standards, cms conducts inspections of all facilities participate anything medicare or medicaid. to help address concerns about overuteliation of medications. overutilization of medications. such as increasing exercise or time outdoors, monitoring pain and planned individualized activities. cms is working to utilize our

quality assessment performance improvement program better. the surveyors are our armies of quality assurance staff in the field, so we need to focus on appropriate beaferl interventions. to provide patient-centered care that emphasizes interventions when appropriate. cms added language to make dementia care a mandatory part of training. additionally, cms is producing an educational dvd that emphasizes nonfarm cologic intervention. these will be distributed gnashly to -- nationally. finally, cms updated the curriculum to improve skill at detecting unnecessary medication use. cms is updating its rules regarding antipsychotic use requiring long-term pharmacist to be independent from pharmaceutical manufacturers and distributers. the goal is to assure that recommendations are made free from a possible financial

influence. cms is considering opening other -- nubble -- [inaudible] cms has awarded a contract to conduct a study in 20-25 nursing homes that will evaluate factors influencing prescribing practices for antipsychotic med sayings. fifth, addressing the use of antipsychotics, nursing home compare. sixth, cms is interested in partnering with states the to address this issue and help identify and spread best practices. for example, cms funded work with illinois to use advanced nursing home drug data to detect and monitor issues related to antipsychotic use. we have recently engaged in an initiative focused on reducing antipsychotic use in nursing homes by eliminating

inappropriate use. these efforts are most successful when they engage a broad range of stakeholders including front line clinicians, physicians and families. we began proactively reaching out to stakeholders including the american society of consultant pharmacists, the american health care association, leadingage, consumer voice, government partners and others to participate in a national collaboration. we are committed to working to accomplish our shared goal. i want to share three of a our guiding principles that i led our organization in drafting. first, constant focus on what is best for the patient. second, being a catalyst for health system transformation and improvement, third, collaboration across hhs. this is our approach going forward both to dramatically improve the care of patients with again. >> as well as -- me shah as well

as other issues we tackle. as a practicing physician in front of a current and former medicare beneficiary, i personally take this commitment very seriously. for residents suffering from dementia, this involves comprehensive behavioral health by a team who are knowledgeable in the use of non-farm cologic medications. we hope that members of the committee will serve as important partners in these efforts, and i look forward to hearing your suggestions and comments and answering your questions. i have to mention my wife just gave birth to our third child, as you mentioned, so if i seem sleep deprived in my answering of questions, i apologize. thank you for your time. >> thank you very much, dr. conway, for being here. mr. levinson, your study found about half of the drug claims from nursing home residents dud

not comply with medicare reimbursement criteria because they were not used for medically-accepted indications. how can we assure appropriate reimbursement for drugs? >> well, our report included several recommendations, and in my summary statement i was including, you know, some of the options that i think cms needs to explore. first and foremost, you know, if we could have diagnosis information as part of the prescription, that would go a long way. it wouldn't necessarily solve the entire problem, but having the diagnosis information available on the prescription could make, potentially, a significant difference in being able to insure that the sponsors actually understand that, indeed, this is for a medically-indicated application. >> now, in almost, what, in every case the prescription comes from a physician.

>> uh-huh. >> correct? >> yes. >> well, the physician understands how he is to prescribe for dementia and how he's to prescribe for mental illness, so how is this mistake being made if it's a physician -- it's not just anybody that decide what to administer to a patient. it's a physician. so how does this happen? >> well, what we are focusing on is cms' need to require the pdp sponsors to insure that they have the diagnosis information available. because if you're reimbursing only half the time accurately, that is a problem that cries out for the need to insure that cms is saying we need to insure that we are only paying for those prescriptions in which we can support either fda or off-label but medically-indicated

applications. >> and i appreciate that. but i'm trying to somehow understand the medical part of this because it's dangerous to prescribe inappropriately, right? i mean, we're talking about patients who are at risk from inappropriate prescriptions. >> well, you know, on the medical expertise, i would defer even if he's tire today the doctor at the table. [laughter] but i would indicate that doctors are free to prescribe for any indications. >> sure. dr. conway, do you want to add, help us understand that? >> so we agree with the point that, um, we have a shared goal of appropriate prescribing. i think our view of this, as i outlined, is a multifaceted approach to appropriate prescribing, so, and we think about in the course of all of our levers. on the one hand is education and training. i agree with you, the decision should be between the physician and the patient, but there probably is additional education

and training for nursing home staff and physicians on this issue, especially around non-farm clojic interdimensions. secondly, we agree oib on the importance of data, and we're looking for additional measures so we can track this information. i won't recount everything i went through, but i think also on survey and certification, if there are outlier nursing homes with potential issues, we are working through a process to make sure we have appropriate quality assurance in those settings for those nursing moments. -- homes. >> do you regard this as a solvable problem, perhaps not easily, but a solvable problem? >> i do. >> let me put it another way. is there any reason other than our inattention for our patients to be prescribed improperly?

>> so i do believe it's a solvable problem. i think it is a complex problem, exactly as you said, senator. i think addressing complex problems such as this, especially where the symptoms are sometimes difficult to distinguish as opposed to some other of these processes where it's more obvious, and i can talk more about that if you want me to. i think here it is a solvable problem, but it will mean clap collaborative quality imprudent, a focus, and i really think one of the key is the this focus on upon the-pharm cologic treatment, so we educate patients and families about the options to treat dementia and behavioral disturbances with patients with dementia. >> do you agree with that, mr. levinson? >> i think that can be extremely, extremely helpful. that's very important. and, again, what is truly appropriate is a matter for the

doctor to decide perhaps in consultation with other medical professionals. the concern from the inspector general's standpoint is that cms is reimbursing half the time where we just can't establish that there are actual, the actual medical indications that the cms manual requires for there to be appropriate reimbursement. >> okay. senator manchin. >> thank you, mr. chairman. dr. conway, and if you've gone over this and i missed it before i got here, i'm sorry. the inspector general's report found over half of the antipsychotic claims for the residents did not comply with the medicare reimbursement criteria which is, i think, what mr. levinson was just speaking about. i mean, that's an alarming, an aharming rate.

alarming rate. what authority do you need to create incentives or improve data or promote compliance within the rates of noncliens you have now? -- noncompliance you have now? >> i agree that cms should not be paying for medically-inappropriate uses for medications. i think it is an inappropriate payment issue, it's also a quality of care issue that i did allude to on the survey and certification. i do think quality measurement is important which historically we have not. we're working to do that as early as this spring and transparently sharing that information with beneficiaries and their family on nursing home compare. i think in addition with our part d colleagues, you know, we continue to work with pdp drug plan sponsors. we actually recently asked for more in this area and in terms of input there, so i think it's

a multifaceted view. i think our current authorities achieve that goal. we would, survey and certification now reports to me, i would reiterate, the president put in an fy-1 budget for certification, we would support that budget. but i think we have the appropriate statutory authorities currently, and as i outlined, we're going to take a multifaceted approach the address this issue. >> a lot of the states, i mean, a lot of the states have, basically, their own controls or oversights, ombudsmen, things of this sort 6789 are you all exchanging information freely? i mean, do you all -- because i looked at just the figures of 2007, $309 million was spent. well, if half of that was misspent, that was $150 million. that was in 2007 dollars. i can only guess what it could be right now. but how do you all interact with the states?

>> so we, we work close hi with states now, and we think we need to do more in the future, so we're partnering with states. illinois, for example, we're working with them on analyzing their data, identifying what may be inappropriate use of antipsychotics. massachusetts is convening a multistakeholder group to address this issue. so we are closely working with statings including the state-based agencies -- >> well, states are doing more, aren't states doing more visitations to nursing homes than what you would say you are able to do? >> yes. so it is the state survey agencies will -- >> are they trained? have they been trained properly to look for if the types of so-called overprescriptions or abuse that might go on? >> it's a great point. so one of the aspects that we are trying to address is better training. so we've started that through a series of, as an example, educational dvds on this issue, direct training with

surveyors. so teaching surveyors and providers in nursing homes about non-pharm cologic treatments, and we think that's a critical point exactly as you outlined. so both the providers of care and the surveyors understand inappropriate use of antipsychotics and also understand the interventions that are possible to treat these problems. >> here i was reading, it says these treatments are administered despite fda warning concerning increased risks in patients with dementia and no diagnosis of psychosis. is it just the out of sight, out of mind, keep 'em calm or what? so that would not be our goal. >> i kno it's not your goal. it looks like what the results have been. >> on the fda label, as you know, many medications are pipe

pipe -- prescribed off label. to give some tangible examples, if a patient with dementia has delusions or hallucinations or serious mental disturbances, then that can be appropriate use. but we would like to have the non-pharm cologic treatments used more off. >> let me say, sir, it's really a shame in this great country not to get a better quality of care for the people. it just really is nonexcusable. >> i agree that it's a shame, and i agree that we need to do better. >> thank you. >> thank you, senator. senator grassley. >> thank you, mr. chairman. i appreciate the opportunity and the invitation to come and participate in this hearing. thank you. i have just one question for each of you. i'll start with general levinson. in your testimony you highlighted the extensive evidence that drug companies have illegally marketed their typical antipsychotics for off-label use. you mentioned one company that

used the slogan five at five to promote their powerful antipsychotic as a sleep agent. eli lilly's agents told the doctors that giving five milligrams of their drug at 5 p.m. would help their patients sleep. in 2009 this company pled guilty to illegal promotion and paid one and four-tenths billion dollars to settle a lawsuit. compared to the revenue this blockbuster drug generated, that large number becomes less significant and, unfortunately, just the cost of doing business. now, as you described, it is a profitable investment because even after government action stops illegal marketing, their effect on prescribing patterns may be long-lasting and difficult to undo. so my two-part question, general levinson, is there a system currently in place to educate prescribers in response to this

misleading promotion of drugs? >> provider training is absolutely essential, senator grassley, and whatever is in place now needs to be far more robust. that is a key takeaway, i would hope, from what has been examined and what has been reported on is that there needs to be far greater understanding of the to ten si of these drugs -- potency of these drugs and their application and how if you're going to use the back door as opposed to the front door of advancing this kind of drug regimen, it really needs to come with a really good understanding of what people are doing. and it's hard to believe that in the past that really has beenfect i just given the -- been effective just given the record of litigation. we've had not just that case, but nearly half a dozen major settlements with drug companies over the past years totaling billions of dollars that in one way or another involved these

antipsychotic drugs. so it's a very important key part of the puzzle, if you will, that needs to be really made far, it really needs to be strengthened, and we're doing our part trying to advance the provider training initiatives. and we're going to continue on quality of care to do much the same by drilling down and understanding individual plans of care to see exactly how nursing homes are actually trying to implement a far more effective plan for patient safety. >> okay. if there is, if there is such a system, it's inadequate -- you just said -- and needs to be improved or maybe even replaced. do you have some idea how that system should be, and is it possible if it needs more money using a portion of the settlements of off-label marketing? >> well, we would certainly stand very ready as we always

have to provide the kind of technical assistance that we do day in and day out to cms which really has the program responsibility to design these kinds of efforts. we really, we don't run the program. we evaluate it. in terms of a kind of a counterdesign, my chief concern would be how we would oversee how the government would actively seek to provide some kind of counterbalance to it. wearing the oversight hat, that presents some challenging issues about how you, i take it, level the playing field, make sure people understand pros and cons comprehensively. so that would be a senate oversight challenge and, therefore, it would be important to get those kinds of details right, and we would stand ready to certainly help. >> dr. conway, you mentioned proposed changes cms is

considering to require long-term care pharmacists to be independent from other pharmaceutical interests. currently about 80% of the consultant pharmacists at long-term care facilities are employed by long-term care pharmacies. there is then, obviously, a clear potential for conflict of interest. however, one large long-term care pharmacy reported to me, and i won't give the name of that group, that all of the antipsychotic recommendations made by their consultant pharmacist, 99.7% of those recommendations were to reduce or to discontinue the antipsychotic dosage. one problem they presented was that these recommendations are often rejected by prescribing doctors who believe that high dosage is appropriate. does cms keep data on relations made by -- recommendations made by consultant pharmacists and whether or not they're implemented? let me ask at the same time,

does cms require justification from a prescribing physician when they choose not to follow recommendations? so two questions. >> yes, sir. um, so on the first question we are not currently capturing data on recommendations from the long-term care pharmacist to physicians because that's within the nursing home care setting. um, i think as i alluded to earlier, i think the provide -- the education component is not just in the pharmacy world, it's also to physicians. i'd also say it's to patients and their families, nurses, cnas, so the whole nursing home community, if you will, which we think will make it a much more receptive audience to recommendations. on the long-term pharmacy care issue, you know, it is a proposed change, and as you alluded, the proposal was an attempt to insure that financial arrangements weren't influencing the recommendations from the long-term care pharmacist.

>> what about the -- i hope you didn't answer this. if you did, i didn't want get it. does cms require justification from the prescribing physician when they choose not to follow recommendations? >> i apologize, sir. i didn't want answer the second part. so we currently do not require a written justification per se. it is similar to other prescribed medicine. the physician and the patient should have a discussion about the medication, the risks and benefits or the patient's family in this case, and then the prescription either the increase or decrease in dose or stopping a prescription would take place. but like other prescribed medicines, there's not a justification, a written justification captured for the prescription. >> thank you very much, mr. chairman. and thank you, witnesses. >> thank you, sir. >> thank you very much, senator grassley. senator blumenthal. >> thank you, mr. chairman. and, first of all, my thanks to

our chairman, senator kohl, for having this very important hearing and for senator grassley's continuing investigation into this issue which has been very, important. overuse of antipsychotics, as i don't need to tell the two witnesses and probably most of the people who are attending today, is a form of elder abuse, plain and simple. it's a form of abuse of people who often have no idea what is happening and even their families may not have a clear or informed idea about how these drugs are prescribed and applied. and it occurs not just in an occasional or isolated case, but as a routine in pattern and practice as some of the statistics show. i don't know how many of them have been cited here, but 83% of claims for use of these antipsychotics to medicare were

associated with off-label conditions like dementia. 51% of medicare claims for these drugs were erroneous and, of course, millions of dollars wasted. so the question is at the outset, if there is off-label marketing which is plainly a violation of current law as opposed to off-label prescription which may not be, can you give me specific instances -- both of you cite it in your testimony -- of off-label marketing occurring, what companies, what drugs? >> we've had a number of cases, and of the 18 settlements that we've had, senator blumenthal, i believe five in the past few years have involved

antipsychotic drugs. >> i'm thinking more going forward of what's occurring right now. >> well, i can give you past cases, but in terms of current investigations, i certainly wouldn't be in a position. it would be, it simply wouldn't be proper to talk about whatever current investigations might be ongoing with us. as investigators in the justice department, as the prosecutors. but we have, certainly, a record of the kinds of cases you describe that i think are a very important body of work that really underlay our evaluation work that we undertook to see further exactly how extensive the problem is in nursing homes with the percentages and then to build on that work by looking at patient plans of care. so the litigation work that we have been involved with, in partnership with the justice department, laid the foundation for the report that's now before you at least in part. and that, the report that's now

before you, will add further information and understanding to what is actually going on, if you will, on the ground and will lead to a further investigation of plans of care in nursing homes to see how the mechanics of this, actually, is east operating or not operating appropriately. >> are the penalties for off-label marketing, in your view, sufficient to deter it in this area? >> well, i mean, that's, you know, based on the record it looks as if we're still facing a significant health issue. >> exactly right. so i -- >> there's no question -- >> the answer is probably, no. >> that might be for others, you know, to answer -- >> well, you're in charge of enforcement. >> well, based on enforcement, we have quite an enforcement record at this point that we've built -- >> which is why i'm asking you can the question.

>> well, we certainly view these kinds of returns, and we're talking about billions of dollars, as a considerable amount of money. what happens with respect to the kind of cost benefit evaluations that are undertaken by others, um, social security certainly -- it's certainly very, very troubling that we don't just have a case, but we have a string of cases and, therefore, there's plenty of need to do more. >> in this area would you suggest that there ought to be specific prohibitions applicable to the providers in addition to the companies for off-label use in the area of use of antipsychotics for nursing home treatment? >> well, i mean, i think in the context of anti-kickback statute, and, you know, we've had some cases in which we have actually pursued at the provider

level, i do think everybody needs to take ownership of the problem throughout the health care system. and it's not just a matter of the folks who are actually producing the drugs. i would agree with that. >> so perhaps in the area of nursing care the penalties for off-label marketing should be also applicable to providers, or are there some institutional responsibility for off-label use? >> well, on the institutional responsibility the, one of the chief concerns we have as reflected in this report is that more than 20% of the time even when the drugs were used for medically-accepted indications they were being used for too long or improper dosages, that

there's a lot of misapplication that's actually going on within the nursing home setting itself. and i think we haven't really talked about that this afternoon, but that is equally concerning. >> thank you very much. thank you, mr. chairman. >> in testimony that you've both made and from what we've heard other sources, it's been noted that rules of combat some refer to as chemical restraints have been in place for many years now. so then why are there still such high rates of overutilization of medications that appear in many cases to be used as a shortcut for proper care by well-trained staff? what's, what's behind this all? >> well, chairman kohl, i think that's what we need to further examine, and that's why i

emphasized the follow-up kind of reporting that we're going to be doing, and i certainly will defer to dr. conway to give his kind of medical perspective on it. but we don't given this kind of evaluation with any goal of what is the right number of dosages or how many prescriptions should be allocated to this particular part of either the drug world or these kinds of issues. we look at what cms requires in terms of what is reimbursable and what isn't, and that kind of gives us our road map. um, it, it obviously concerns a considerable percentage of elderly nursing home residents with a great deal of money involved, and as we've talked the last few minutes about the enormous investment of dollars from the pharmaceutical industry, there's a lot at stake here. >> uh-huh. >> and given how much is at

stake here both in terms of patient safety and financial investment, i think we -- all of us as public officials need to do our part to make sure there's a much better, transparent and accountable understanding of exactly how these very powerful, important and very positive drugs in the right setting need to be used and need to be paid for. >> are you of the opinion that in the year to come there's going to be significant improvement? >> i'm very careful in the inspector general's role not to predict so much as to evaluate what has happened. and certainly try to advance recommendations that will, you know, provide positive outcomes in the futurement but in terms of what people will do either in response to this report, we hope they'll take actions that, indeed, will fulfill that kind of positive prediction. >> what about you, dr. conway? do you think we're going to makesome significant improvement

in the next year? >> i do think we have the right components in place, um, to make significant improvements. so, specifically, i think engaging in a multicollaborative approach as i outlined, so many of the folks in the room here, i think we've met a very receptive audience. i think behavioral change is complex, and we're asking for a behavioral change away from a medication-based regiment in many cases, but i think as i outlined, if we align the levers of survey and certification, quality measurement and reporting, education and training and a true quality improvement collaborative focused on this goal which i think, you know, we're -- we have drafts of a national action plan, you know, working with these external take holders, i think we have the potential for significant improvement. >> senator manchin. >> thank you, mr. chairman. and if i could just ask the

question, this didn't happen overnight. this has been, i mean, you've seen the telltale signs for quite some time, the increased amount of reimbursements probably that you were making for these types of drugs and how that's grown in pretty rapid succession. didn't it raise anyone's alarm? did anybody's alarm go off that something could be wrong? >> i'll start to try to answer that question. so -- >> i'm just saying if, when i look back at the years and the increased amount of reimbursement, that means increased usage, is there other things like this that would be a telltale sign that there's abuses going on that, basically, haven't come to the fore front that you all can see the change in reimbursement that should have told us something needed to be done much sooner than this? go ahead. >> i'll -- >> either one. >> i'll start and then -- >> sure. >> so, um, i think certainly this is an issue that -- and i

in the interest of full disclosure, i've been in this role for six months, so i can't speak to the history as specifically prior to that. but i think this is an issue that there was awareness of, i think this awareness has grown. i think at cms we have done some things already on this issue in terms of guidance, survey and certification, etc. i think we have much more to do. so i think, and then on the sort of coverage and reimbursement issues, i'd largely defer to my medicare reimbursement colleagues on the coverage and reimbursement issues. >> well -- and the kind of reporting that we did does, does take time. i mean, we're looking at in our report we looked at the first half of 2007, and we asked medical experts to actually do the medical record review. and, therefore, you know, we're looking at information that is now, you know, exists several years old. but we do, and we've been

involved in the cases that involve -- that resulted in senate settlements with pharmaceutical industries on these kinds of drugs for the last few years. so, you know, we know that this has been a very large issue for us on that litigation front as part of the settlements. there have been corporate integrity agreements that these companies have had to sign with very robust compliance requirements that we in turn are in the process of monitoring. >> do you all have any litigation going on right now with any companies that you know of or suspected any type of fraud whatsoever? >> chances are my come in my office of investigations would add rise me -- advise me not to talk about ongoing investigations, and i try to adhere to their guidance. >> that's a good policy to accept, to follow. [laughter] the only thing that bothers me more than anything is that, how much fraud, abuse and waste goes

on in the whole system. and in anybody's budget, if we see a spike in reimbursements, requests for reimbursements, that should alarm that something's wrong. that's an easy way out, it's the most profitable way, or you're sweeping it under the rug. i don't know why if someone's evaluating this whether it be medical staff or wherever, where does the flag go off? i keep asking the same question, i know. then maybe you need to change your all's overview or oversight. >> i do think there is considerable promise in the initiative of accountable care organizations, of coordinated or integrated care to get health care professionals and different corners of the health care industry doing business with each other on a, in a more integrated way. than has existed in the past. that does have promise to, in

effect, serve as a very useful way of people being able to understand what kinds of therapies whether it's farm cloj call or otherwise make the most sense for the patient. after all, we're dealing with the system in which the great majority of health care providers are honest. they are professional. they are trustworthy. they are people who we really count on to take care of us and our families. and the great majority of time they do so. so what we need to have is a system that really brings out those strengths and keeps the weaknesses, the marginal players out of the system entirely or at least at bay so that we don't have an issue that is as serious as this on both safety and financial grounds. and i think that that's a very good, positive development that i know cms and other parts of hhs are now in the midst of

unrolling, you know, this coming year and in this future. and i'm hoping that it will have benefits on the health care fraud and abuse front as well. >> we thank you both for being here today. you've added a lot to the discussion of this important issue. thank you so much. we'll now turn to our second panel. on the second panel we'll have four distinguished witnesses. first, we'll be hearing from dr. jonathan evans who's the incoming president of the american medical directors association. next we'll be hearing from tom hlavacek. mr. hlavacek currently serves as executive directer of the

alzheimer's association of southeastern wisconsin. our third witness will be toby edelman, senior policy attorney for the center for medicare advocacy. and then we'll be hearing from dr. cheryl phillips who's the senior vice president of advocacy at leadingage. we thank you all for being here. and now, dr. evans, you may commence. >> good afternoon and thank you, mr. chairman -- [inaudible] although my testimony today is quite personal, i also represent the professional society for long-term care physicians whose mission is to improve the quality of care for seniors. my personal story is this: i'm a doctor who specializes in the care of frail elders. i practice mostly in nursing homes and other long-term care settings where physicians are frequently absent. i do use antipsychotic drugs to

treat a small number of patients with longstanding schizophrenia or bipolar disorder. i do not prescribe antipsychotic drugs for treatment of agitation or other behaviors in patients with dementia. we acknowledge the use of these medicines in patients with dementia only as a lost resort and only when all else has been tried and failed which is rare. i and other like-minded doctors face tremendous pressure in all care settings to prescribe medication to make confused patients behave. most of the time this equates to chemically restraining the patient. this pressure comes from frustrated caregivers and family members who have been led my health care professional toss believe that these drugs are essential. a large number of patients that i see were started on antipsychotic drugs in the hospital for reasons that are entirely unknown. i routinely stop these and many other unnecessarily appropriate drugs in patients admitted to my care. nevertheless, my efforts to avoid or eliminate antipsychotic

drugs often put me at odds with facility staff, patients and families and other health care professionals. the rate of off-label antipsychotic drug use varies greatly between facilities and prescribers, and based upon their culture and attitudes and not based upon medical diagnoses, severity of illness or symptoms. federal regulations regarding antipsychotic drugs and chemical restraints only apply to nursing homes, but the problem of overprescribing antipsychotic drugs exists in all care settings. the majority of all off-label antipsychotic drug prescribing occurs outside of nursing homes. there is a firm belief that undesirable behavior is caused from medication and medication will be very likely to work. that firm, fixed belief is false. but it's based in part on inadequate training to understand behavior and care for confused patients. most doctors treat unwelcome behavior in all settings as a disease that requires medication. these drugs are used as chemical

resprints. the real concern should be for improved dementia care in all settings that focuses on understanding behavior and it meaning in order to meet the patient's needs. most of the time using drugs to stop behavior isn't doing the right thing. using drugs is instead of the right thing. using drugs to try to make people behave creates unrealistic expectations and distracts caregivers from solving the underlying problems resulting in these behaviors. behavior is not a disease. behavior is communication. and people who have lost the ability to communicate with word, the only way to communicate is through behavior. good care demands that we figure out what they're telling us and help them. undesirable behavior in dementia is usually reactive and occurs in response to a perceived threat or other misunderstanding in patients who by the very definition of their disease have lost some ability to understand. these behaviors represent a conflict between a patient and their environment. us.

often we have to change our behavior in order to prevent an undesirable but entirely predictable response. amda believes in patient-centered care and is working with others to change the culture of health care in the united states. a minimum requirement of patient-centered care is informed consent. patients and their families must be afforded sufficient information and dialogue to make appropriate treatment decisions regarding potentially harmful medications. likewise, we respect and strongly agree with existing federal regulations regarding the avoidance of chemical restraints and unnecessary drugs. we're developing core competencies for physicians in long-term care, we're raising the bar for dementia care and helping dedicated and caring individuals to leap over that bar. we're educated and empowering physician medical directors and attending physicians in long-term care, and we believe that these efforts will lead to the kind of health care quality that we all want without increasing costs. there's no substitute for good

doctors spending time with their patients and families, the time they need to solve problems and relieve suffering. doctors who are more often present and engaged in nursing facility care use fewer health care resources and fewer antipsychotic drugs. billions training -- billions training does work, and amda provides training and is working to provide for. we acknowledge that virtually every dollar of health care spending at some point occurred as a result of a doctor's order. it roars being a good steward of resources. what the money is spent on should be a reflection of what we value most as a society, what by colleagues value most is loving care. thank you, mr. chairman, members of the committee. >> thank you very much, dr. evans. mr. hlavacek. >> good afternoon, chairman kohl and ranking -- and senator manchin. thank you for the opportunity to discuss the very serious problems that overutilization of atypical antipsychotics present

for people with alzheimer's disease, particularly those who reside in long-term care. unfortunately, the alzheimer's community in wisconsin has seen firsthand what can happen when an individual with dementia is prescribed antipsychotics without proper precautions. at the time of his death, richard "stretch" peterson, a friend of senator kohl's, was an 80-year-old gentleman who exhibited challenging behaviors in a long-term care facility. after being at two hospitals in an effort to have his behaviors treated with antipsychotics, he was placed under emergency detention and was transferred by police in a squad car in handcuffs to the milwaukee county behavioral health psychiatric crisis unit. his family found him there tie inside a wheelchair with no jacket or shoes. in spite of his family's efforts to intervene and seek better care, he very quickly developed pneumonia, was transfer today a hospital and died. richard peterson worked hard all his life, raised his family and

contributed to his community in many ways. he did not deserve to die in the way that he did. mr. peterson's death was not an isolated incident. it was the latest in a string of incidents in southeastern wisconsin that involve tragic outcomes related to alzheimer's behaviors and antipsychotic medications. in response to the growing problem, the alzheimer's association of society wisconsin and other concerned stakeholders created the alzheimer's challenging behaviors task force. a local task force eventually included 115 members from all perspectives on the issue and published handcuffed, a report that provides a basic understanding of issues surrounding behaviors and approaches to addressing the problem. in wisconsin we found a reliance on atypical antipsychotics that were sometimes very poorly prescribed and administered. we found examples of untreated medical conditions such as

urinary tract infections, tooth decay and arthritic pain that led to agitated behaviors and, of course, atypical antipsychotics will do nothing to treat those underlying medical conditions. we also found negative outcomes from the relocation of individuals in and out of hospitals and long-term care facilities. our experience indicates that these care transitions can exacerbate behaviors and often lead to escalating drug treatments. the task force's one local example of how the alzheimer's association advocates for quality care in long-term care settings across the country, including the reduction of inappropriate use of antipsychotics. recently, the national alzheimer's association board of directors approved a position statement titled "challenging behaviors" which discusses the treatment of behavioral and psychotic symptoms of dementia, otherwise known as bpsd. the association maintains the position that non-pharm cloj

call approaches should be tried for the treatment of bpsd. i have included "hand handcuffed" and the board's statement with my written testimony. we strongly believe one mechanism for improving overall care for residents in long-term care is to raise the level of expertise of facility staff through training and education. the alzheimer's association has developed two dementia care training programs specifically for staff. the classroom-based foundations of dementia care and the online cares program. both of these training programs have been identified by cms has options for nursing facilities to satisfy the requirements of section 6121 of the affordable care act which calls for dementia care training for certified nurse aides working in nursing homes. the care's program has a new module, dementia-related behavior, that focuses on non-pharmacological strategies for reducing or eliminating challenging behaviors.

local chapters across the country are excellent resources for these and other training programs to enhance care and support for persons with dementia and caregivers. the alzheimer's association also developed dementia care practice recommendations for assisted living residences and nursing homes. these are the basis for our campaign for quality residential care. these standards of care will improve quality of life for people with dementia. the alzheimer's association is committed to insuring people with dementia have access to high quality care and strongly believe that nonpharmacological approached should be tried as the first line alternative for the treatment of behaviors. senator kohl and mr. manchin, thank you for the opportunity to address this issue, and we look forward to the opportunity to work with the committee in the future. >> thank you very much, mr. hlavacek. >> thank you, senator kohl and senator manchin.

congressional attention to the misuse of antipsychotic drugs as chemical restraints is longstanding. in 1975 this committee issued a report, "drugs in nursing homes: misuse, high cost and kick backs." in -- 20 years ago this committee held a workshop on reducing the use of chemical restraints in nursing homes that identified many of the same issues we're discussing today, the misuse of drugs and the need for staff to see residents' behaviors as communication, not problems. the inspector general's very important may report actually understates the extent of the problem because it focused only on atypical antipsychotics, not conventional antipsychotics as well. nursing facilities self-reported data indicate that in the third quarter of 2010, 26.2% of residents had received antipsychotic drugs in the previous seven days.

that's approximately 350,000 individuals. facilities reported to cms that they gave antipsychotic drugs to many residents who did not have a psychosis, including almost 40% of residents at high risk because of behavior issues. i want to make just several brief points this afternoon. first, federal law prohibits the antipsychotic drug practices we see in many facilities. second, why are antipsychotic drugs so misused. third, the high financial cost of these drugs and, finally, some solutions. the federal nursing home reform law since 1990 has limited the use of pharmacological drugs. implementing regulations and cms guidance to surveyors are very strong, but they are inadequately and ineffectively enforced. second, while there are many reasons why these drugs are inappropriately prescribed, the most significant cause is the serious understaffing in nursing facilities. most facilities don't have enough staff and enough staff with specialized and

professional training to meet the residents' needs. in addition, the enormous turnover in staff and the lack of consistent assignment of staff to residents mean that staff don't know the residents they're caring for. they're less able to recognize and you understand residents' nonverbal communications or changes that could warrant appropriate care and intervention. a second key reason for misuse of these drugs is the aggressive off-label marketing of antipsychotic drugs which we've talked about today. to give one example, in 2009 the eli lilly company paid $1.5 billion to settle civil and criminal charges for the off-label promotion of psi for example saw as a treatment for dementia. eli lilly had trained it long-term care sales force to promote the drug as a treatment for dementia, depression, anxiety and sleep problems. a third concern is that many consultant pharmacists who are critical to implementing the federal provisions have not been

independent. another false claims act case against johnson & johnson charged that facility with paying kickbacks to omnicare, the largest nursing home pharmacy, so that the pharmacist would recommend its drugs including one for use by residents. the consultant pharmacists were part of the sales force. there are other reasons as well, of course. drugs have replaced physical restraints whose use has declined, and antipsychotic are a protected class under medicare part d and generally not subject to control mechanisms. i'd like to discuss briefly the high cost of antipsychotic drugs. they're very expensive. the top-selling drugs in the united states generating annual revenues of $14.6 billion. but the costs, of course, extends far beyond the costs of the drugs themselves. residents who are inappropriately given these drugs experience a number of bad outcomes that are expensive to try to correct; falls, help fractures, urinary incontinence,

each with a high price tag can be the result of the misuse of antipsychotic drugs. millions and billions of dollars that these poor outcomes cost were identify inside a 20-year-old report by the senate labor and human resources subcommittee on aging and by a report issued this past april by consumer voice. links are in my testimony. for solutions what we recommend is implementing what virtually all commenters on all sides of this issue agree on, that nonfarm cologic approaches should be tried first. we recommend a number of approaches that would call attention to the issue of antipsychotic drug use, slow down the process of prescribing these drugs, teach better non-drug alternatives and create and impose stronger sanctions for inappropriate use. finally, i want to describe what eliminating antipsychotic drugs can mean for individual residents. a researcher working in new york to try to translate the research literature into practice at nursing homes sent me an e-mail

about a small facility she had spoken with. she said that the director of nursing heard her speak, and although she had been skeptical, she involved her medical directer and consultant pharmacist, and they were left with only two residents using antipsychotic drugs, both with a diagnosis of schizophrenia, and this is what she said. one man they found had severe back plain from a spinal injury from a car accident years ago that was never addressed, but his dementia kept him from communicating the complaint. he was on antipsychotic meds, couldn't communicate or feed himself. he now eats lunch in the dining room and converses with his wife, participates in acttivities, etc. they have taken away the antipsychotic and replaced with pain medication. one story makes it all worth it. i would add that this story could be replicated hundreds of thousands of times in nursing homes across the country, drastically reducing the use of

antipsychotic drugs would improve the lives of residents, of hundreds of thousands of residents and save hundreds of millions, if not billions, of dollars. after 35 years of studies, reports and hearings, it's time to eliminate the epidemic use of antipsychotic drugs. thank you, sir. >> thank you, ms. edelman. dr. phillips. >> thank you, chairman kohl. and, um, thank you for addressing, one, this critical issue and for involving all of us as witnesses because there is an important story to be told here, and we appreciate it. as a way of background, my name is cheryl phillips, and i, like my friend and colleague, have spent several decades in clinical practice predominantly in the long-term care setting. i now have the privilege of being the senior vice president of advocacy at leadingage, formerly known as the american association of homes and services for the aging. the 5700 members of leadingage serve as many as two million people a day through their mission-driven not-for-profit

organizations that offer a spectrum of services across the post, adude and long-term care continuum, and we promote practice, conduct research support, enable and empower people to live as fully as they can. so not only do we embrace this issue as a critical, important platform, we're going to talk a lot about how both our members are participating and how we are offering some solutions. we've heard a lot about the demographics. it's worth noting that seniors 80 years and older with a diagnosis of dementia, 75% will spend time in a long-term care setting, so this is an important and relevant platform conversation. and even by cms' own report, 50-75% of long-stay nursing home residents have some degree of dementia. but as i say that, it's important to note that this is neither just a nursing home issue, nor just a u.s. issue. part of my testimony i include some materials that were shared from the united