Wednesday, February 14, 2018

When Exercising One's Autonomy Clashes With One's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I examine the case of McCoy v. Louisiana, currently pending before the Supreme Court. In McCoy, the Court faces the question whether there is a Sixth Amendment right to stop your lawyer from announcing your guilt to a jury, even if the announcement would serve your best interests (in reducing the odds of a death sentence). Among the issues I consider is how to cabin such a right so that convicts are not all in a position to reopen their convictions just because their attorneys deviated from the exact instructions of a client.

A useful analogy to consider here is the medical decision context. A patient who is uncomfortable with her doctor can decide not to patronize the particular doctor or, if he sticks with the doctor, not to follow the recommendations that she makes. For example, if the doctor prescribes a medication that the patient does not want, either because he hates medications in general or because the side effects of this one are unpleasant, the patient can choose not to fill the prescription or to refuse to take it after having filled it. Similarly, the patient can choose not to undergo triple bypass surgery, even though he has heart disease. He may have a bad reason for the decision, such as a belief that heart disease is a myth, or he may have a good reason, such as a commitment to eat in a manner that actually reverses the condition. Either way, he can forgo the medication and the surgery, come what may.
Doctors, of course, can and must avoid participating in malpractice. If a patient with healthy lungs asks his doctor to cut him open and remove as much of his lungs as possible, the doctor must refuse to do so. To cut into a healthy patient's lungs would be to engage in medical malpractice. Similarly, if a patient asks his doctor to prescribe opioids because the patient is curious about what opioid addiction is like, the doctor may not provide such a prescription.

There is accordingly freedom (and even an obligation) on the part of doctors to look out for their patients' best interests, even when the patients very much want something different from what their doctors advise. Attorneys likewise have some obligation to do right by their clients even when that means refusing to follow clients' instructions. A client may not, accordingly, force his attorney to object to evidence as hearsay when the evidence is not in fact hearsay, and the client cannot require an attorney to use swear words in closing arguments, even if the client desperately wants swear words used.

Though this does not explain everything, the distinction between acts and omissions is helpful in thinking about the autonomy/best-interests split. If the client wants to stop an attorney from doing something affirmative, whether that something be pleading guilty on the client's behalf or announcing that the client is guilty (as in McCoy), the client should be able to do so. Affirmative acts by the attorney should not be undertaken against the wishes of the client. In the same way, a doctor may not force medication into the patient or cut open the patient against the latter's will. Attorneys and doctors can recommend a course of action, but they cannot affirmatively pursue it against clients' and patients' wishes.

Clients and patients cannot demand that their attorneys and doctors behave in ways that are detrimental to the former's interests. Making someone do something bad is problematic in a way that preventing someone from doing something good is not. Just because you think that bleeding you will heal your strep throat does not entitle you to demand that your doctor bleed you. And your believing that mocking a murder victim during opening statements would be a smart move does not mean that your attorney must carry out that mockery.

Things may be more complicated than the act/omission distinction captures, of course. Once an attorney or doctor has already begun a trial or a course of treatment, it may take affirmative steps to do what ordinarily counts as an omission. For example, once an attorney is representing the client at trial, and it is too late to withdraw as counsel, she may have to do affirmative things--like put the client on the stand--that she regards as against the client's interests. Similarly, if a doctor has put a patient on a feeding tube, and the patient wants the feeding tube removed, the doctor may have to remove the tube to fulfill the patient's right to refuse unwanted medical treatment, even if the patient's medical interests require the tube. Of course, if a doctor anticipates this dilemma, she can refuse to take on the patient in the first place. The patient cannot simply order any doctor in the world to come to her side and remove her feeding tube (or respirator).

Both lawyers and doctors may be resistant to the idea that the client or patient gets to make bad decisions. The professions are both somewhat paternalistic in orientation; both give their practitioners the sense that they know what is best and that the client or patient should just follow the instructions of the wise professional. But it is useful to remember that professionals sometimes get things wrong. Doctors make mistakes all the time, including their failure to regularly and consistently wash their hands. And attorneys may erroneously assume that admitting a crime to the jury will make a death sentence less likely. Though the right to autonomy is important independent of the outcome, it is also useful for professionals to cultivate humility and to appreciate the possibility that what the patient or client really wants may actually be better than what the professional prescribes. One should always advise what one believes to be the best course of action. But when the person whose future is actually at stake disagrees, the obligation to yield may sometimes lead to the better outcome.