Tag Archives: Cognitive Disability

Legal immunity for conservators

DisAbility Rights Galaxy has a great post on a rather scary case pending before the Connecticut Supreme Court addressing whether court-appointed conservators for people with disabilities should be immune from lawsuits. Conservators wield incredible power over their wards and it’s not terribly rare to hear of conservators who financially exploit, abuse, or neglect their wards. In this case, for example, the conservator failed to object to a ward’s institutionalization; I won’t speculate on his motives, but this has in the past happened when conservators felt that institutionalization of their wards would make their job easier.

I haven’t had time to read the pleadings, but I’m a little confused why court-appointed conservators should be entitled to such immunity. It seems that the defendant in this case is comparing himself to a judge, as judges are immune from lawsuits concerning the validity of their decisions (for example, if you are incarcerated based on a judge’s ruling that turns out to have been contrary to the law, you can’t sue the judge for false imprisonment). Judicial immunity makes some sense in that there’s already an avenue – appeal  – for contesting bad decisions. Plus, judges are obligated to do justice to both parties before them and are constantly forced to make decisions that are bad for at least one of the parties before them; permitting lawsuits against judges might scare judges out of ruling against wealthy and litigious parties who might later sue them.

Conservators, on the other hand, don’t face any of these challenges. They’re obligated only to their ward, and are under absolutely no requirement to be “impartial.” Their decisions are not directly subject to appeal. They have no obligation to hold a hearing or observe any sort of process prior to issuing a decision. Their role is probably closer to that of an attorney, or to someone holding a durable power-of-attorney. Both attorneys and power-of-attorneys can be held liable for malpractice.


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Filed under Disabilities, Elder Law, The Law as Applied to Weird People & Situations

Why do we recognize human rights?

There’s an interesting post and discussion on What Sorts of People Should There Be? on he philosophical basis for according rights to severely cognitively disabled humans while denying them to intelligent animals such as dolphins and apes. Joseph Singer has argued that such a distinction is a speciesist one, and that in order to avoid speciesism we must simultaneously lessen legal protections for people with very low IQ scores while heightening them for intelligent animals. There are a number of potential objections to Singer’s argument, as the original poster points out, but it is somewhat more difficult to come up with an alternate one.

Here’s my take, which I originally posted as a comment on WSOP (since-added thoughts in italics):

I actually struggled with this question since I identified as an animal rights advocate before I identified as a disability rights advocate, but still believe that it is less horrifying for people to eat cows than for people to eat cognitively disabled infants. My reasoning has gone as follows:

I consider myself a being worthy of moral consideration and good treatment. I know that at some point in my life, I may lose many cognitive functions, potentially even to the point where I am listed as “profoundly” cognitively disabled by Singer’s terms. The thought of losing moral rights at this same time horrifies me. The reason it horrifies me is because my sense of continuous personhood is not based on my ability to do complex tasks but on subjectivity. If someone hurts me, I rarely think to myself “it is so wrong that this person is hurting me. Does this person know the kind of higher-order reasoning I am capable of?” I think “ow.” Higher-order thought, like “use of tools,” “advanced technology,” and “ability to form abstract moral judgments,” seems to me to be only relevant as one of those post-hoc rationalizations for privileging an already-privileged group that appears to have a monopoly on a particular trait.

I am assuming (for lack of proof to the contrary) that people who become cognitively disabled continue to have emotions and feel pain in the same way they had before. There is also no reason to make a distinction between people who become disabled and people who were born disabled, since what matters is not that there *was* ability in the past but whether there *is* subjectivity in the present, and it would be odd to assume that people who were always disabled have no subjectivity while people who became disabled have no subjectivity.

Of course then we come to the question of whether this subjectivity is shared with animals. The answer, though, is that since people do not become animals and then transform back into people as frequently as people gain (and sometimes recover from) a cognitive disability, it is harder to say exactly what it feels like to be an animal. Many animals clearly have some subjectivity and therefore deserve protection from cruel treatment, but we as a society are able to at least feign ignorance on animals’ inner lives in order to keep up the assumption that animals are somehow different from humans.

This is somewhat of an unsatisfying answer, and its grounds for according rights to people with cognitive disabilities may be troublingly derivative from the rights of people without disabilities, but I’m aiming to be descriptive, and I don’t that a dominant group has ever ended up believing another group has rights without comparing the groups to each other and finding a relevant similarity. The best we can do is look for similarities that seem actually relevant.

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New Milgram research

The Situationist Blog recently posted about an interesting new study on the human ability to inflict pain on others.

Dominic J. Packer, of Ohio State University, performed a statistical meta-analysis on several of the original Milgram experiments, in which experimental participants were asked to administer progressively severe electric shocks to another individual (the other person was in reality an actor who was not in fact receiving shocks). Despite the victim’s expressions of severe pain, pleas to be released, and, eventually, silence, over two-thirds of participants continued “shocking” the victim up to 450 volts. These participants were not sadistic or callous – in fact they usually showed signs of extreme distress – but were unable to resist the persistent directions of the researcher that the experiment “must” continue.Ethical concerns prevent psychologists from conducting this type of study again, at least not in the same exact form. However, Packer was able to statistically analyze eight studies that Milgram performed several years ago.

The meta-analysis indicated that of the participants who disobeyed, about 37% did so at 150 volts, which is when the “victim” first asked to end the study. Considering that there were 28 other potential moments where the participants could have stopped, this size of a cluster around 150 volts is very significant.

The other most common points of disobedience were at 315 volts, 300 volts, and 180 volts. However, although the overall level of disobedience varied across the eight studies, most of this variation happened at 150 volts, while the rate of disobeying at other points stayed largely the same across the different studies. Thus, a variation in the experiment that made people more likely to disobey, did so by making people more likely to disobey when the learner first asks to leave, not at some other point.

But wait, there’s more: psychologist Jerry Burger, of Santa Clara University, has recently replicated Milgram’s experiment. As I pointed out above, ethical rules prohibit psychologists from performing experiments identical to Milgram’s, so Burger’s experiment ended after the 150-volt mark. As in the original experiments, a great majority of the subjects administered the 150-volt shock – despite the victim’s request to leave – and would have been willing to continue had the experiment not been stopped.

Packer calls attention in his study to its potential implications in situations where potential victims have no recognized right to leave a particular situation, such as treatment of prisoners. Since participants did not seem to respond to escalating expressions of pain, it is not reasonable to expect interrogators to stop an interrogation practice when it appears to be too painful. But the study may be even more relevant to the treatment of people (especially children) with disabilities, whose protests to abusive treatment are frequently ignored and dismissed.

It could, for example, shed light on an incident where a prank phone call lead caretakers of children with disabilities to shock them dozens of times within a few hours. In that particular group home, electric shock was used as an “aversive therapy” for those children, authorized through a “substituted judgment” proceeding through which a judge decides that the child “would have consented” to the treatment were they competent to make such a choice. This is even worse than an interrogation situation, where victims’ requests to end interrogation are simply not respected; in the case of these children, at no point are the child’s protests and attempts to avoid the shock even considered the child’s own choice.

Alternately, we can imagine (rather optimistically) that in situations where people aren’t paying attention to requests to stop, they may compensate by paying attention to other factors. For example, the people who ended the experiment at 150 volts may have reasoned until that point that their victim was implicitly consenting to the shocks by not asking to be let free; these people may have been more attentive to other signals that it’s “time to stop” if they know the victim is unable to make such a request or have been told to disregard such requests as illegitimate or inauthentic. It may seem hard to imagine such a result given the widespread level of abuse against people with cognitive disabilities, but remember that even the Milgram experiments, the majority of participants ignored the requests of an apparently competent adult to end the experiment. Thus, even if people do begin focusing on other factors when their victims are unable (or have no right) to ask them to stop, we wouldn’t necessarily expect most people to actually stop. That said, I don’t if any studies have been done that would support or refute this theory.

Overall these two studies emphasize the vulnerability of people whose choices, even choices to avoid pain, are disregarded or seen as not really their own. Although the choices of even perceived “competent” choice-makers are often disregarded in the face of authoritarian pressure, it is respect for those people’s choices that seems most important in causing people to resist those pressures. Take away that respect, and hope of humane treatment could grow incresingly dim.

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Filed under Disabilities, Experimental Psychology, The Law as Applied to Weird People & Situations