Document Type

Article

Publication Date

2016

Abstract

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and must be rejected. It also is contrary to the principles of the school of therapeutic jurisprudence with which we both firmly align ourselves. Moreover, this presumption is also contrary to all the valid and reliable empirical evidence that has been available for decades. When it comes to mental disability law, the law is clear: if there is an issue as to the client’s capacity to engage in autonomous decision-making, then the lawyer must aid the client in supported decision-making, rather than impose substituted decision-making.

In our analysis, we also discuss how sanism, pretexuality, heuristic thinking, and false “ordinary common sense” contaminate the practice of mental disability law, and look at the implications of criminal law, elder law, juvenile law, caselaw implementing the Americans with Disabilities Act, and international human rights law (especially, the UN Convention on the Rights of Persons with Disabilities), and how the ethical obligations in these types of cases are no different than in mental disability law. And we discuss the multi-textured meanings of “competency” and “capacity” and how they affect the resolution of these issues, especially in the context of forced medication, psychiatric advance directives, and sexual autonomy.

We conclude that client autonomy must be in the forefront of any client-attorney relationship, and an attorney must thus always follow their clients wishes except for in very limited cases (where there is a pre-existing finding of civil incompetency), that, if an attorney feels that a client is unable to make a decisioncompletely on her own, the attorney should seek out others who might assist in supported decision-making; an attorney should never substitute her own judgment for “what is best”. We underscore that persons with mental disabilities have the same civil rights as all other persons; the existence of a question as to competency does not do mean that a person is stripped of all their decision-making power, or that the person’s expressed needs/desires are not valid.

We acknowledge that pressure to ignore the client’s wishes will likely be the greatest in cases that involve the exact controversies (cases involving such civil rights as the right to refuse medication or the right to sexual autonomy) that create the most dissonance and are likely of the greatest importance to the client. Finally, we urge lawyers to take seriously international human rights law that mandates such supported decision-making, and to embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness will be enhanced.

Comments

Cardozo Public Law, Policy and Ethics Journal, Vol. 15, Issue 1 (Fall/Winter 2016/2017), pp. 73-116

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