Sunday, October 22, 2006

An Open Response to Randy Cohen: The New York Times Ethicist

[posted by dinah]

In today's New York Times Magazine, The Ethicist tackles the question of how an attorney should deal with a suicidal client around the issue of preparing a will in "A Suicidal Client."

In the question posed, the attorney notes that the client asked how her will would be affected if she commited suicide. The attorney asked if she was seriously contemplating this, the client said no (hmmm, then why did she ask?), but the attorney also notes that the client has a psychiatrist (this point, to me, is key).

I'm okay with the beginning of Mr. Cohen's response: "You should do your job." The question sounds to be coming from a theoretical standpoint, and the patient has a psychiatrist. So let's hope the patient isn't lying, doesn't leave the office and jump off a bridge, and everyone involved isn't left to feel badly. Given that the client has already told the attorney that she has a psychiatrist, it might be good if the lawyer steers her back there. Or, in an ideal world, honestly says, "I'm uncomfortable with this, would it be okay if I touched base with your psychiatrist?" He could then leave a message for the psychiatrist saying the client asked about how her will would be carried out if she committed suicide, and the psychiatrist could take it from there. It's not breaking confidentiality if the client gives permission for the communication. I won't go into all the different possible avenues to try if the client refuses permission.

Okay, this isn't really my problem with the article. My problem comes in with this:

If your potential client has made a reasoned choice for suicide, your task is not to dissuade her (you are, as you suggest, not a trained therapist) but to provide legal advice, to help her get her affairs in order. You can urge her to discuss this with her psychiatrist or her family.
Mr. Cohen goes on to say:

If however, she is clearly deranged and a danger to herself, then you must seek help for her. Of course, in such a case you are forbidden to prepare her will; as you know, she must be of sound mind for that.

He goes on to finish:

It should be noted that many psychiatrists discount the idea of rational suicide, except when a person is terminally ill and suffering intolerably. It is, however, beyond your purview to make such sophisticated judgments. If your client seems rational, and she does, you should help her draft her will, but I don't envy you the moral burden of doing so.

I'm not touching the issue of "rational" suicide, last I checked all suicide is illegal in my state. What I will touch is the entire concept that the attorney should be the one in these life-or-death issues to make the decision as to whether the client is Rational or Deranged. Sure, there are some instances where it's obvious even to an untrained person that someone is irrational if say they are talking about alien invasions or talking in nonsense streams, but it's possible, even likely, that one can hide that they are severely depressed, or even that they are delusional, long enough to get through a meeting. And hey, isn't "rational" a judgement and not a diagnosis? -- I think people who are afraid to fly in airplanes are irrational and even I would let them draft their wills. What if the attorney agrees that it's rational to kill oneself under a given condition, say bankruptcy? This isn't a litmus test for anything. Last I checked, people don't wear color-coded T-shirts with "I'm Deranged" signs on them, and one can calmly drop their children at the bus stop and then go slaughter Amish school girls. The attorney isn't qualified to diagnose, he shouldn't be expected to do so.

So, if I'm reading Mr. Cohen right-- and remember, I know psychiatry not law-- it's illegal to prepare a will for any one not of sound mind, so it seems to be that an attorney put in an uncomfortable position can always ask a client to get a psychiatric opinion before he drafts the will. Sure, the client can go to another lawyer and lie, but a chronically suicidal patient can also choose to drop out of psychiatric treatment. We only control what we can control, but to take the stance of "he looks rational to me and besides, someone else might get the fee if I don't" is irresponsible.

In sticky situations I ask myself, if something bad happens, will I be left thinking there was more I could have done? I don't think such a question is limited to psychiatrists. In life or death matters, it's not just about a minimalist interpretation of the law; we all like to sleep at night.
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Oh, and just an FYI on another topic. The New York Times has a heartfelt story about one family trying to cope with their child's mental illness. See "Living With Love, Chaos and Haley."