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Wednesday, April 1, 2009

Never Trust a Judge to Do a Philosopher's Job

I have for some time been fascinated by a legal case that I believe to be one of the worst legal judgments I have come across. There are many bad legal judgments out there, but this one I take to be egregious because of the insidious surface plausibility of the justice’s reasoning, which belies a facile and half-assed approach to thinking through the issue involved in the case.

The case is Mallette v. Shulman ((1990) 72 O.R. (2d) 417). Mrs. Georgette Mallette was involved in a car accident and was brought to hospital requiring a blood transfusion. With the transfusion her prognosis was good, without it, bad. Under normal circumstances the transfusion would have been given. However, a nurse found a card in Mrs. Mallette’s purse stating that her wish was not to be given a transfusion, as she was a Jehovah’s Witness. For our purposes, it is important to bear in mind that the card was neither dated nor witnessed. Dr. Shulman was the attending physician. After getting a second opinion, he ordered the transfusion to be given. To cut a long story short, Mrs. Mallette recovered, and subsequently sued Dr. Shulman for assault and battery. Amazingly to my mind, she was awarded $20,000 in damages.

I have countless objections to the reasoning of the judge in this case, Justice Robins. They fall under three heads, of which, the first two are closely related. They are (i) Autonomy, (ii) Respect, and (iii) Damages. I should warn the reader that my comments are for the most part directed to the moral and philosophical aspects of the case. I am an ethicist rather than a lawyer, and so my criticism of the legal aspects of the case will be minimal (though I have a few remarks on this as well).

I. Autonomy

Throughout his judgment, Justice Robins took for granted that the note found in Mrs. Mallette’s purse was the autonomous expression of her will with respect to the transfusion. As such, to disregard the note was to disregard her autonomy as a free moral agent. Justice Robins should not have been so quick to accept the validity of the note.

First, it was undated. If it had been written several years before, should it be taken as expressive of Mrs. Mallette’s will now? This raises the difficult question of what time limitation should be put on a note of such a nature. I submit that, given the life or death consequences of it, if such a note should be accepted at all, it should be within a very short time of its composition indeed. For example, the dissent of McEachern, CJ in Rodriguez v. Attorney-General of B.C. ([1992] 4 W.W.R. 109) effectively suggested any assisted suicide ought to require a certificate obtained through a very rigorous process, and that such suicide must occur no more than thirty-one days after said certificate is issued, or the process must be begun again.

To understand the importance of this, just think of the number of times you have made a decision and then changed your mind. How often in our lives have we found ourselves doing exactly the opposite of what we had made a decision to do? Now, it may be objected that in this case, Mrs. Mallette’s decision is to be taken seriously, because it expresses her religious convictions. But, my personal unbelief aside, all of us can easily think of examples of people who have changed or jettisoned their supposedly firm religious convictions. Religion can have no special or exalted place in deciding such a case as that of Mallette v. Shulman.

Second, the note was unwitnessed. This is an extremely pertinent fact, for how can Dr. Shulman be sure that it was Mrs. Mallette herself that wrote it? Or that she didn’t write it under some kind of duress or undue influence? Or that she was in her “right mind” when she wrote it (i.e. that she wasn’t drunk or stoned or having a manic or schizophrenic episode)? Again, in Rodriguez, McEachern recommended the above-mention elaborate process in order to eliminate the possibility of coercion or duress, as well as to establish competent agency. It is important that such agency should be established where the stakes are so high. It should never be presumed, as Justice Robins seems to have done.

II. Respect

Justice Robins makes the following rather inadequate attempt to explain the significance of the freedom of choice he mistakenly assumes himself to be upholding in this case: “For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others.”

What does Robins mean by “meaningful”? I think he means that my commitment to another’s freedom of choice is made most manifest in exactly those situations where I would be most tempted to intervene in that choice, just as the true test of my commitment to free speech is in exactly those cases where I disagree with what is being said.

Behind such common liberal characterizations there lurks what I take to be a common misconception. Liberals tend to assume that the highest form of respect I can show another is respect for their autonomy. Although in certain situations this may be the case, it is so more rarely than liberals would like to think. On the contrary, I believe that respect for persons is distinct from — and often even in conflict with — respect for their autonomy.

Let’s return to Robins’ fixation on the “meaningfulness” of free choice. I would wonder why it is so “meaningful” for me to have others sit by and allow me to do things they consider to be stupid, life-endangering, or misery-causing, especially in cases where ex post facto I would wish they had done something to stop me. This is what people do who do not care about me. If you were about to commit a foolish act, who would you say respects you more: a friend who warns you and perhaps does what they can to stop you, or a “friend” who politely says nothing, and allows you to bring misery upon yourself? And let us never forgot that all of us do foolish things, things which we wish after the fact someone had at the very least warned us about. It is meaningful to me that others care about me and my well-being, perhaps even more meaningful than that they care about my so-called “autonomy”.

I understand the liberal fear of what is derogatorily called “paternalism”, but I also understand that there are cases where what I prefer to call intervention is warranted. When I see a woman floating facedown in a pond, I ought to attempt to rescue her. Such an attempt is not paternalistic. I do not shrug and say, “Well, she decided to go swimming and should have known the dangers involved.” I do not consider a rescue attempt as disrespectful of her autonomy, or of her humanity. And when I do decide to go in to rescue her, nothing changes if I find a suicide note on her person.

What is the effective difference between Mrs. Mallette’s “do-not-transfuse” card and a suicide note? We are certainly under no legal obligation to heed the latter, so why is the former treated with kid gloves? I speculate that it has something to do with the lurking spectre of religion, but we’d have to ask Justice Robins about that. (I’ve already made clear how little I believe religion should matter in this case, and I will soon have a little more to add.)

I take it as axiomatic that one is never so lacking in autonomy as when one is dead. The dead do not make choices. Taking this into consideration, it would have been more disrespectful to Mrs. Mallette’s autonomy for Dr. Shulman to have respected this one (supposed) choice of hers, at the expense of her ability ever to make another choice again.

III. Damages

Another question naturally arises, one which is as much legal as it is moral: What are the damages suffered by Mrs. Mallette for which she is to be compensated? Has she been deprived of her right to die? Well, to quote Seneca (Phoenissae, l.152): “Anyone can stop a man’s life, but no one his death; a thousand doors open on to it.” In other words, she has the choice of ending her own life any time she wishes, in whatever way she wishes. Indeed, it is thanks to Dr. Shulman that she still has this choice.

To this we can imagine that Mrs. Mallette might reply, “Yes, but my religion forbids suicide.” Then get a new religion. Or none at all. This is a matter between Mrs. Mallette and her religion, and has nothing to do with Dr. Shulman.

Furthermore, whatever agreement Mrs. Mallette has with her co-religionists should not prevent Dr. Shulman from doing that which in the normal course of events he would normally do, and indeed would be obligated to do. This is commonly referred to as the doctrine of “privity of contract”: a contract between two parties cannot bind a third party without his agreement.

At the risk of carrying this contract analogy too far, we can also view it another way. Aside from the problem of the privity of contract, Mrs. Mallette has made what is effectively a conditional suicide pact with her co-religionists. Such a contract is unenforceable at law, in much the same way that contracts to perform criminal acts are unenforceable. There are some things we cannot make binding contracts for. For example, no court will enforce a contract by which I sell myself into slavery. There is a real sense in which Mrs. Mallette has sold herself into slavery, for she has effectively agreed that should such-or-such conditions arise (e.g. a life-threatening car accident), rather than have her life preserved, she will abide by the wishes of her co-religionists and give up her right to ever make another choice again (i.e. she will die).

There are some things the law will not allow us to do, and certainly not if we try to implicate non-involved third parties in the matter.

To re-iterate: whatever “damages” Mrs. Mallette suffered are a matter between her and her religion. If she wishes to worship her bloody-minded gods, that is her business; it is not Dr. Shulman’s business to help her do so.

A Dilemma

Before leaving this case, I would like to mention one more issue. It seems that in that emergency room Dr. Shulman was caught between the two horns of a serious dilemma: he could either (i) give Mrs. Mallette the transfusion and open himself up to being sued by her, or (ii) let her die and have her family sue him. Justice Robins acknowledges this dilemma, only in order to dismiss it — and rather cavalierly, in my opinion. In effect, he says that if Dr. Shulman did (ii) the family could not sue, because the onus of the duty of care was shifted to the patient carrying the note. But we’ve already discussed the dubious validity of the note. Furthermore, where is the law that will back up Robins’ assertion here? He offers none; it is to be taken by Dr. Shulman and other physicians placed in his situation as an article of faith. It is not an obvious article of faith, especially to someone who is not a lawyer and who must make a quick decision in circumstances of life or death. And all of this aside from whatever professional obligations Dr. Shulman was bound by.

I think the dilemma was a real one. Whatever Dr. Shulman did would open him up to tort liability. The law should never place a citizen in such a position. A more thoughtful judge would have cast doubt on the validity of the card, and would also have closely scrutinized the assumption that Mrs. Mallette has suffered any damages.

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