Diminished Capacity - Emergency Situations

Diminished Capacity - Emergency Situations

Emergency vs. Dangerous Situations

  • Emergencies involve higher risk, worse potential injury, and require immediate action.
  • Time is of the essence; decisions must be made rapidly.

Hypo: Child Requiring Blood Transfusion

  • A child needs a blood transfusion after a traffic accident.
  • Parents refuse to allow the transfusion.
  • The hospital seeks a court order.

Lawyer's Duty When Representing Parents (Full Capacity)

  • The lawyer's duty is to advocate for the parents' position, even if the outcome is harmful to the child.
  • If the lawyer finds the representation too objectionable, they can attempt to withdraw.
  • Rule 1.2(b) can provide reassurance, reminding lawyers that advocating for objectionable views does not make them awful people.

Representing the Child in an Emergency

  • Model Rule 1.14 provides guidance.
  • The risk involves "imminent and irreparable harm."
Key Points from Rule 1.14
  1. Acting Without Communication: In an emergency, a lawyer can act even if the client cannot communicate their wishes.
  2. Consultation with Representatives: If the client has a guardian or representative, the lawyer should consult with them before taking action.
  3. Scope of Authority: The lawyer's authority is limited to actions necessary to maintain the status quo or prevent imminent and irreparable harm.
  4. Continuing Duties: The lawyer retains all duties owed to the client.
  5. Normalization: The lawyer should strive to normalize the situation as quickly as possible.
  6. Compensation: Normally, a lawyer would not seek compensation for emergency actions (aspirational, not enforceable).

Applying Principles to the Blood Transfusion Case

  • The situation is clearly an emergency (high risk of death, need for quick action).
  • The child is unable to communicate their position.
Options for the Lawyer
  1. Decide for the Child: Act unilaterally; potential overstepping of boundaries.
  2. Determine Client's Wishes: Ascertain what the child would want if they could communicate and advocate for that.
  3. Defer to Another Decision-Maker: Ask someone else to decide what is best for the child.
Considering Alternatives
  • If deciding what the child would want, who is the best person to ask? The parents, likely, who might argue against the transfusion based on their faith.
  • In the abstract, parents are generally considered to know what is best for their child.
  • Under normal circumstances, the lawyer prioritizes the client's wishes, not family members'.
  • Comment 3-2 to the rule acknowledges that this may not apply in dangerous or emergency situations.
Possible Actions for the Lawyer
  • Making the decision for the child (potentially overstepping).
  • Relying on the parents' decision (likely against the child's best interest, leading to death).
  • Seeking appointment of a guardian ad litem: This option removes the lawyer from the decision-making process and places the burden on a third party. The lawyer would then advocate for the guardian's decision.

Role of the Judge

  • The lawyer isn't making the final decision; the judge is responsible for that.
  • The parents will be represented and argue their position.

Key Takeaway

  • If the client cannot express their position, the lawyer must determine what the client would want.
  • This may involve finding someone who can express those wishes (e.g., a guardian ad litem).

Controversial Issues

  • Representing clients with diminished capacity often raises controversial issues and strong opinions.