The fine line between ensuring welfare, and paternal overprotection
By Ken K. Gourdin
Author’s Note – A helpful legal brief (an overview) of the case discussed herein can be found here: http://www.arnoldwadsworth.com/2014/03/utah-supreme-court-update-baird-v-baird-march-7-2014/. The court case that inspired this op-ed (an op-ed which was submitted to [but declined for publication by] my local semiweekly, The Tooele Transcript-Bulletin) can be found here (both last accessed today): http://www.utcourts.gov/opinions/supopin/Baird030714.pdf.
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Full disclosure: (1) I am not a lawyer; if you need legal advice, call one; and (2) I have known Robert Baird, as well as many of the professionals who play some role in ensuring his welfare, for several years. Baird’s civil stalking injunction against his mother, Gloria, recently was before the Utah Supreme Court.
The Supreme Court ruled that in order for such an injunction to be granted for emotional distress, an alleged stalker’s actions must cause a reasonable person in Robert’s circumstances such distress. The Supreme Court sent the case back to the District Court to determine if that is so.
Robert has a mild cognitive impairment, as well as a seizure disorder for which regular medication is required. Gloria believes Robert’s needs best can be met in a group home.
It’s difficult for anyone (especially a parent) to walk the fine line between ensuring a loved one’s welfare on the one hand, without being overprotective and inappropriately limiting freedom on the other hand. Other cases besides Baird’s also demonstrate this.
For instance, Parker Jensen’s parents, of Sandy, waged a protracted legal battle with the state over his care and custody after he was diagnosed with a rare, aggressive form of cancer in 2005 and the Jensens refused chemotherapy. The bottom line is, even without chemotherapy, Parker Jensen is alive and well.
Notwithstanding the fall of the Iron Curtain, there are still many places in the world where the state claims to know best how its citizens’ children should be reared – such as China, Cuba, and Venezuela. The U.S. should not be such a place.
Generally, the disabled should be allowed to live in the least restrictive environment possible where their needs can be met and where their health and safety can reasonably be assured. If Robert is capable of living on his own with the assistance of others who (for example) ensure that he takes his medication, he should be allowed to do so.
Absent compelling evidence that someone poses an immediate threat to himself or to others, generally, that person should be left alone to live his life as he chooses – even if others (including those closest to him) disagree with his choices. To allow greater intrusion than that smacks of paternalism.
Generally, that standard is followed even if one has a serious condition such as an active, untreated psychiatric diagnosis. You or I might not understand the choices that person makes; we might make vastly different ones; and we might care deeply for the person. Still, those facts alone do not justify our intrusion into his life.
As for Robert, one wonders if a happy medium can be struck. Perhaps calls or visits from Gloria (and maybe other family members) can be limited to some mutually-agreed-upon number within a specified period. One also wonders whether Gloria trusts the professionals in his life and, if not, why not.
While no one disputes that Gloria likely has Robert’s best interests at heart, he may prefer to make life decisions with the help of others who are equally interested in his wellbeing. That’s his choice, and he should be allowed to make it without undue interference.
Ken K. Gourdin, Tooele, is a certified paralegal.