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.
* * *
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."


Sarebear said...

What you say is very sensible. If there was a store for that, that lawyer guy could go get some . . . lol!

I hope the person who was possibly suicidal ended up ok.

ClinkShrink said...

OK, I think there's a big alternative that Mr. Cohen overlooked:

Get a consult.

Forensic consults are done under the auspices of attorney-client privilege so there is no breach of confidentiality. A mental health expert can assess both the client's testamentary capacity as well as suicide risk. A forensic psychiatrist is also allowed to breach confidentiliaty in cases of imminent dangerousness, so if there is a need for communication with her doctor a consultant could do that.

Of course, this means that the attorney would have to discuss this with the client. From a legal standpoint I would imagine such a discussion would be necessary anyway given that part of the estate planning involves protecting the plan from legal challenge. If it became known that the client was under psychiatric care at the time of the will, and that she had mentioned suicide when it was being prepared, I think you'd be hard pressed to support an opinion of testamentary capacity with the assessment that "she seemed OK to me" without any expert mental health input.

Of course, he is correct that the client could just walk off and find another lawyer. If that's the worst thing that happened that's not a bad outcome.

Anonymous said...

[Note from Dinah: Mr. Cohen discussed this post in e-mails. With his permission, I am pasting our exchange into the comments section on the blog.]

Thanks for the interesting note, particularly valued coming from someone with real sophistication about the matter at hand. We do indeed disagree, but perhaps not quite in the ways you suggest.

I, too, think -- and wrote -- that the lawyer should urge the client to discuss all this with her psychiatrist (among others). I'm bemused that you'd respond as if I hadn't.

In our more fundamental disagreement, you seem merely to beg the question. The lawyer is forced to make just the kind of judgement you tell him not to -- and yes, it is incredibly difficult. But if he believes his client to be of sound mind, he is bound by lawyer-client confidentiality.

You tiptoe up to but don't quite declare this position: every lawyer must report every client who mentions suicide. That's a tough position to defend. And you don't really.

One last thought, I don't think much of your "was there more I can do?" test. There almost always is. That's the burden of being an adult.

Anonymous said...

I'm assuming that it's a fairly unusual event for a client to mention suicidal concerns to their attorney. I also thought it said a lot that the client had told the attorney that she has a psychiatrist, people often don't share that information. Given the entire concept that the client would bring up the topic of suicide during the process of making a will, I would think the attorney might be alarmed. Psychiatrists hear about suicidal thoughts a lot (this is not a rare event) but still get rather alarmed when suicidal patients make their wills as there is then the question of intent and imminence.

So, I don't think it's enough for the attorney to urge the client to talk to his family or psychiatrist. I think the attorney, knowing of the psychiatrist's existence, should ask the client for permission to call the psychiatrist and transmit his concern..."I have Mrs. X here, she's come to make out her will, and she asked if the will will be considered differently if she commits suicide. This made me a little uneasy." The problem then becomes the psychiatrist's; presumably the psychiatrist knows the patient and is in a position to determine if she needs a change in her psychiatric treatment. ClinkShrink, I believe, will tell you that any suicidal client needs a forensic evaluation before making out a will, but we'll see when she responds. If the client refuses to allow the attorney to contact her psychiatrist, then he is left to his own judgement: I personally would refuse to make the will (but hey, I'm not a lawyer). If he thinks she might imminently kill herself (for rational reasons or not, I'll get there next) he is obligated, lawyer or not, confidentiality or not, to try to prevent this. I'm not sure who he would "report" this to: her psychiatrist if he has that information-- even against her will, her family members, maybe her family doctor. The police don't care about suicidal patients, though they will come if someone is standing there with a gun and they occassionally pull people off bridges.

You wrote: " 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 lost me there big time, we'll see if I ever read your column again (oh, I probably will). It is never an attorney's job to get a client's affairs in order so they can suicide. Maybe if you're a character in a Kurt Vonnegut story. Oy.

I'm assuming that most people walk into an attorney's office to make their wills and have a business meeting without giving the attorney reason to question if they are rational or not. I don't believe the attorney is responsible for plying the client. In this case, the client was the one to bring up the issue of suicide.

The question of Rational is hard to get wrapped around. Suicidal thoughts/acts are common and frequent symptoms of treatable mood disorders, and while a person might look Rational (as opposed to Deranged?) during a depression, psychiatrists would contend that these thoughts are born of an illness and demand treatment, not colluding attorneys. Once the client gives the attorney reason to question if he's rational, the attorney should seek a professional opinion.

More than you wanted and crafted at work with many interruptions. Did I get to all your concerns? I've no idea how much is enough, but if the attorney is wondering "should I call the shrink?" and doesn't, and the patient is on the evening news, the answer is "it wasn't enough."

Anonymous said...

Thanks for these further thoughts.

If by my comments you mean our email exchange, then yes, you may paste it into the section of your blog. I'd like to add this, too: if Socrates comes into your office, will you respect his decision or call his shrink?


Anonymous said...

If Socrates came into my office, I would BE his shrink!

ClinkShrink said...

OK, let's stir up the water a little bit. I have a week off, I can afford the time to be a nuisance.

Here's the hypothetical:

Setting aside Socrates-as-patient for a moment, what if you as an attorney are called upon to write a will for a death row inmate who has decided to waive his appeals? He says that he doesn't want to die, but that execution is preferrable to life in prison.

Any change in opinion?

Anonymous said...

What am I doing wrong here: why does everyone think I'm a lawyer? I'm a psychiatrist and the only people who walk into my office are my patients (actually, I admit, I'd be a little surprised if Socrates came in, most of my patients are among the living) and no one has come in asking to make their death row last will and testament. Maybe Roy has a side business going...

Steve & Barb said...

Fine, I'll chime in, but it will muddy the water.

I side more with Randy than with Dinah (and I'm not sure about Clink).

If the lawyers' equivalent to "standard of care" is to assess a client's soundness of mind by some kind of prudent layperson stnadard, then I don't see the clear need to break confidentiality, call the psychiatrist, or terminate the attorney-client relationship in this case.

Suicide is a complication of Depression. A Blood Clot is a complication of Cancer. Both are foreseeable and potentially preventable. Both can lead to death. Granted, suicide mostly requires an intended action while the thrombosis would be more of an omission (refusing to take the recommended blood thinner). My point is that it is reasonable to ask one's attorney how a potential complication might affect the carrying out of one's will, or of an insurance policy.

Should that question raise an eyebrow? I hope so. But other than urging the client to discuss with her doctor, I don't know what more is necessary. But the question is not necessity, but one of ethics.

Attorneys (I am not one) should not have to report every mention of suicide. Otherwise, full disclosure would state that clients be informed of the mentions which would trigger a breaking of confidentiality.

Is there a such thing as a rational suicide? I think so. Some states recognize this. Of course, one could go too far. (Remember "Soylent Green"?)

On the other hand (yes, I'm with Randy, but with some ambivalence), here's an analogous question: If the client was getting advice on estate issues for his clearly demented mother and asked what would happen if she accidentally fell down the stairs, what is the ethical response?

As for Socrates being my patient, since I have not actually examined him, I can't say what I would do (think where we might be if he took Prozac and lived longer).