Please note: Professor Robert Veatch, Senior Editor of the Kennedy Institute of Ethics Journal, has published a facsimile resemblance of this essay at the Kennedy Institute of Ethics at Georgetown University in their Newsletter of the Network on Intellectual Disabilities. The author of this blog is endlessly grateful to Dr. Veatch.
In 1994 in The Matter of M.R. the Supreme Court of New Jersey handled the case of a mildly retarded young woman who wanted to live with her father, but whose mother had filed a guardianship action in order to keep her with her. The trial court had decided that M.R.’s father didn't prove she was competent enough to make this decision and ruled in favor of her mother. Then a majority of the appellate court agreed that he had the burden to prove she was capable of deciding where to live, but the Supreme Court overruled the appellate court and remanded the case back down for the mother to prove M.R.'s incompetence instead. This ruling supported M.R. whose decision involved choosing between two loving parents, something a retarded adult is capable of doing. Beyond the dynamics of this particular family, however, the Supreme Court said they were addressing the freedoms of “over 80,000 New Jersey residents (who) meet the State's functional definition of developmentally disabled.” Speaking for the court, Justice Pollock wrote,
The clear public policy of this State, as reflected in (its constitution, legislation, and regulations) is to respect the right of self-determination of all people, including the developmentally disabled. . . . The paradox with incompetent people (is) to preserve as much as possible their right of self-determination while discharging the judicial responsibility to protect their best interests. . . . Depending on the facts of the case, someone who is unable to manage his or her own affairs may still be capable of making choices about daily activities, as well as choices about where and with whom to live. . . . We cannot, however, abandon our responsibility to those who cannot make decisions for themselves, particularly when those decisions are irreversible or may be reversed only with great difficulty. Our goal is to permit developmentally disabled people to make as many decisions as possible, while protecting them from the harmful effects of bad decisions that they do not fully understand . . . (while placing a) heavy burden on anyone seeking to overcome the right of self-determination of a person who is generally incompetent. . . . We now hold that the court should have placed on M.R.'s mother, as the person challenging M.R.'s capacity to decide, the burden of proving specific incapacity by clear and convincing evidence. . . . If the trial court finds (on remand) that M.R. lacks the specific capacity to decide where to live, M.R.'s father, as the party challenging the present status, would bear the burden of proving that a change in residence would be in M.R.'s best interest.
The court was saying that if M.R. wanted to move in with her father, the mother had the burden to prove that she was unable to make that decision, rather than the father. If she could prove she was incapable of making that decision, then, complicating the matter in a secondary proof, the father must prove that it would be better for her to move in with him.
I agree with the primary burden of proof as placed on the mother. It is a good step toward the kind of consent I am talking about in this blog. There should always be roadblocks to declaring somebody incompetent. Anything less would be un-American. On the other hand, they could have issued a stronger opinion.
I question the justice of the secondary burden of proof. Was it unfair to require her father to prove that moving was better than maintaining the present status? Didn’t his wish correspond with his hers? Wasn’t this placing upon him the difficult challenge of proving that the fulfillment of her wish would be in her best interest? Since the mother stood against her wish, shouldn’t she bear the burden of proving the move would be too harmful? Even if M.R. couldn’t understand which home would be better, couldn’t they let her decide anyway? Couldn’t she learn how to make better decisions by experiencing the direct consequences of her own decisions? Don’t we all learn from trial and error? Couldn’t she return to her mother’s home if she realized she had made a mistake? Doesn’t the act of choosing in itself represent her best interest? Wasn’t it harmful to minimize her freedom?
I say, yes, human dignity is the paramount value. If the mother should prove M.R.’s incompetence, she should also prove that the move would be too harmful. She should submit a risk/benefit analysis specifying how the net harm from moving versus staying with her would be severe and highly likely to occur. She should subtract from her side of the argument the damage caused by diminishing M.R.'s right of self-determination. The Supreme Court said, “The trial court noted that either parent would provide a loving environment.” They indicated that the change in routine might cause her a problem. They could factor that into the equation, but the question remains: which is more harmful, the change from one loving house to another or the denial of this young woman’s right to choose even if she might be mistaken?
M.R. was slow to learn, but a full-grown adult nonetheless. So let's apply the golden rule of ethics: do unto others as you would have done to you. If you were a non-emancipated young adult needing to live with one loving parent or the other, would you want the right to be able to choose, or would you acquiesce to the choice being made for you, having no right to object, after they said you were too retarded to know any better?
The funny thing here is that we can appreciate her reasons for wanting to live with her less-restrictive father. Justice Pollock said, “M.R. believed that, like her sister, she could obtain a driver's license, leave her father's home, marry, and have a baby. The (trial) court summarized M.R.'s reasons for wanting to live with her father as ‘boys, babies, and boyfriends.’”
Regardless of the particulars of who was right and who was wrong, however, we can thank the courts and all the litigants for the improvements to the law. New Jersey is headed in the right direction.