Tuesday, June 8, 2010

Doctors and lawyers as gatekeepers or agents

Today's New York Times science section has a very interesting article on how doctors should interview patients who they fear might be trying to trick them into prescribing addictive drugs. Under the title "Occupational Hazard: Playing the Fool,"Dr. Michael W. Kahn argues that "the harm of missing a chance to help often greatly exceeds the harm of prescribing under a false pretext," and suggests that "our prescribing habits" could benefit from the legal idea "that we should let the guilty go free rather than punish the innocent." But lawyers face similar problems, as I wrote in what became a chapter in Lawyers and Clients, the book I've mentioned earlier on this blog. It is right that a lawyer should not be a prosecutor to her own client, but also right that lawyers often need to learn truths from their clients that the clients may be reluctant to reveal, and that lawyers may be constrained in what they can do for their clients by what they learn -- as, I'm sure, Dr. Kahn would agree that doctors also must try to learn what their patients' true situation is, and must, in his words, "exercis[e] proper skepticism and clinical shrewdness."

I agree with Dr. Kahn's approach, and I'm particularly impressed by it because in urging doctors to give their patients the benefit of the doubt, he is urging doctors to risk enabling the client, quite directly, to violate a number of laws (and even to risk the repercussions of coming under suspicion as aiders and abettors). In many circumstances, lawyers who err in favor of trust don't run quite such acute risks.

But what strikes me about both professions, in light of Dr. Kahn's article, is how awkward the idea of agency is -- "agency" as it's meant in the statements that lawyers, or doctors, are the agents of their clients. It's often been pointed out that lawyers are also gatekeepers -- as clearly is true of doctors as well -- but I had thought of that function as something of an add-on, or a sidelight, of the role. It seems to me now, however, that the gatekeeper function is absolutely integral to what members of these professions do. Law and medicine are storeboxes of tools, very powerful and dangerous tools. Someone must give lay people access to those storeboxes, but the right kind of access -- access structured so that the clients/patients don't harm themselves and don't harm others.

If we think of lawyers as the agents of their clients, it is easy to conclude that they should structure their relationships with the clients so as to put their expertise at their client's service. This is one formulation of the idea of client-centeredness, an idea which I hold to. But it is an idea whose grip is somewhat weakened when we think of lawyers as gatekeepers as well, for a gatekeeper is not completely at the service of those clamoring at the gate. The idea of lawyers as partners with their clients -- a formulation sometimes taken to suggest greater lawyer authority than client-centeredness connotes -- also fits uncomfortably with the gatekeeper role; again, the gatekeeper and those waiting at the gate are not partners.

Of course, one might respond by trying to diminish the ways that lawyers perform as gatekeepers, and there's a lot of value to this approach to lawyers' responsibilities (just as Dr. Kahn is trying to diminish doctors' performance of this kind of role). But it's very hard to eliminate this part of the professional function altogether. In fact, all agents have their zones of responsibility that the principal cannot override, and so in an important sense no one is meant to be entirely anyone else's agent.

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