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Ethics: life and death matters

Every Issue

The email conversation reproduced below, which is an almost verbatim transcript of the original, deals with a difficult, almost impossible issue of ethics. Although outside the confines of the lawyer-client relationship, this or a similar scenario may nevertheless come your way at some stage. These events are told to alert readers to the moral complexities. The text below has been changed slightly to protect the confidentiality of the lawyer and his client. The relevant consultation did not occur in Victoria; further, neither the lawyer concerned nor his client is a Victorian.

Dear Ethics Adviser,

This afternoon I saw a longstanding client who walked into my office and explained that he intends to commit suicide. He was evidently rational and cogent about the decision. He impressed on me the need to keep the disclosure confidential. I recommended that he should seek professional help; he declined. He is middle-aged and married. I refused his request to keep his suicide notes and to make them available to his family after his death. My question is: do I maintain the privilege?

Dear Mark,

I’m not sure that this is so much a matter of privilege as confidentiality. The consultation was arguably not for the purpose of obtaining legal advice, but merely to arrange safe custody of documents pending the client’s (terrible) action. However, it’s probably academic. The main question centres on whether there is any public interest that allows disclosure despite the client’s instructions.

There is a general principle of discretionary disclosure of a confidence when the public interest is at stake (see e.g. the Lake Pleasant bodies case in the US),1 but cases are rare, and in any event the problem is not automatically solved by this principle because the public interest is always extremely localised and contextual.

About your client demanding confidentiality – as a practical matter, you can hardly have been in a position to give informed consent on that issue before you heard about the situation in full, and the subsequent agreement to confidentiality was also extracted without you having any chance to reflect and consider, etc.

Knowing what to do depends a lot on knowing the reasons for the proposed suicide. Knowing the motive for the intended exit is surely a most important precursor. I speculate of course, but if the client were, for example, living in (legitimate) guilt for some past crime, breaching confidentiality would have to take account of the effect of the breach on any others who were involved in that crime, either as victims or co-offenders.

Alternatively, if the problem was an incurable disease which the client had simply decided that he would not suffer from, maintaining confidentiality might be important to prevent desperately unwanted intervention. Or, if the client were “tired of life”, maintaining confidentiality and possibly foregoing the chance to allow relatives to “talk him through” might seem irresponsible.

Dear EA,

No, my client had discovered that he has an incurable disease which will shortly leave him entirely debilitated. His family does not know yet, and he does not want them ever to find out. He had been gravely ill before, and does not want to put himself and his family through the same trauma again. He was absolutely sober and calculated about his decision, and there is no basis whatsoever for suggesting that he was either psychotic or depressed. One cannot argue that he needed protection against himself as a basis for intervening. To the contrary, it seems to me I am bound to abide by his request to respect his decision, albeit that I’ve tried my best to persuade him otherwise.

Dear Mark,

Are you concerned that by breaching the confidence and informing either family or medical authorities you might not actually prevent the suicide but merely force him to take even more drastic measures (e.g. provoke a murder-suicide, or his disappearance, leaving his family even more distraught for lack of information)?

Dear EA,

I think my primary concern is that although I disagree strongly with his decision, I feel I have to respect both his reasons (and reasoning) as well as his express wishes. Secondly, I have no doubt that any intervention is bound to fail, and to make it just much more difficult for him; he will still commit suicide. It would just hasten it, and constitute a betrayal of his confidence.

Dear Mark,

Are you concerned, in any decision to breach the confidence, more about the client or the possibility of discipline for misconduct? (I mean no disrespect by this question – it’s just that motives in such matters can be very mixed and it will be helpful to you to identify what are your main concerns.)

Dear EA,

I am concerned primarily about breaching the confidence, but also that the family of the deceased will criticise (and possibly sue) me. I feel it’s a really desperate situation, particularly as I disagree fundamentally with this client’s chosen course of conduct. But he approached me as a friend and longstanding and trusted adviser. He had told no-one else, and will not tell anyone else.

Dear EA,

I fear that my client may be dead today. I received an SMS message from him thanking me and apologising for having imposed the burden of secrecy. I implored him to reconsider, for the sake of his family. I also spoke to a psychiatrist yesterday. He agreed that in the absence of any depression or psychosis, one should respect the client’s wishes, but that it ultimately was a personal moral choice.

I am heartened by your distinction between privilege and confidence, and the fact that we cannot be bound by an undertaking given in the absence of full knowledge. I had not been aware of the general principle of disclosure in the public interest. It’s very helpful. Ultimately, I suspect that no-one else will ever know he had shared his terrible secret with me before he killed himself.

Dear Mark,

This further observation may well now be redundant, but I have thought about this further today and concluded that, quite apart from the undertaking, you might well have been justified, even sanctified, in a decision to speak to your friend’s family, since at a moral level families have rights also. Perhaps it is/was critical for them to say goodbye and not to be denied that privilege, even for well-intentioned reasons. I say this apart from any fear of you being sued for your silence.

This is assisted by the possibility that (the more I consider it) this consultation was friendship-based, rather than practitioner-client in nature, so the moral issues are even more to the fore. I would suggest, if you did not find it presumptuous, you will most assuredly need to talk about this yourself. The situation is very rare. If I do not offend you, perhaps the psych you mentioned might agree to see you, to allow some closure. It does not pay to underestimate the hidden effects on one’s peace of mind if stones are left unturned in the aftermath.

Dear EA,

I take your suggestion. He was very much minded to tell his family, although he had apparently been to visit his children individually to somehow say goodbye. It was very important for him to be able to do so on his own terms and he was specific that he would not brook any interference. I know I should make the final call, bearing in mind my loyalties to my client (who I agree may well have blurred the line between friendship and a professional relationship) on the one hand, and the rights of his family. I am very conscious of the tension between the two, and I think my final decision is that I should not second-guess my client, difficult as it is.

Note: It is not a crime for a person to commit or attempt to commit suicide (s6A Crimes Act). It is a crime for a person to aid or abet a suicide (s6b(2)(b)).

For those troubled by thoughts of suicide there are organisations which can help. These include:

ADRIAN EVANS is associate professor in law and convener of legal practice programs at Monash University.

1. This case has been extensively dissected. One of the best references is contained in David Luban, Lawyers and Justice: An ethical study, Princeton University Press, 1988.

2. [2008] VSCA 32 (29 February 2008).


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