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Already, the fault lines for 2024 elections are beginning to form with the parties in diametrically opposite positions. There is no greater divide that over Parental rights. The stark differences were even more apparent in Rep. Eric Swalwell’s tweet, in which he mocked the notion that parents should make major decisions about the education of their children.Â
The California DemocratIt is similar to “putting patients in control of their own surgery?” Clients in control of their own trials? Swalwell declared: “Please tell me what I’m missing here … This is so stupid.”
Rep. Swalwell, a lawyer is missing the concept of informed consent.
Since he asked for assistance, let’s deal with each in turn.
ERIC SWALWELL LAMENTS IT’S ‘SO STUPID’ FOR PARENTS TO CONTROL THEIR KIDS’ EDUCATION
Patients and medical consent
American torts have required consent in medical torts for a long time. Swalwell suggested that doctors would need consent to make key decisions about surgical goals and purposes. Even though doctors had consented to operate on one ear it was still considered battery. When they made the decision to treat the other ear in their best interest, it was still battery. Mohr (Minn. 1905).
In Canterbury v. Spence the court rejected claims that a physician can make key decisions given “the patient’s right of self-determination.” In the United States, doctors must obtain consent from patients before they can perform any surgery or other medical procedure. There are some exceptions, such as substituted consent or emergency that don’t apply here.
California has one the most stringent consent laws based on patient information. Cobbs, v. Grant (1972), California’s Supreme Court stated: “Unlimited discretion by the physician is inconcilable [with the basic right to the patient to make an informed decision about the course of treatment to whom he knowledgeably consents].”
The doctor cannot perform surgery on a patient’s behalf, but he or she must explain the procedure to them and get their consent. This is exactly what parents want when looking at the subject matter and books taught in school. This is also the role of school boards. They have historically had concurrent authority over schools and teachers under their budgets.
Clients and legal consent
Swalwell is also incorrect in suggesting that clients should not be in charge of their trials. Attorneys must obtain consent from their clients to discuss the trial. Clients can also remove them if they fail to represent their interests. Swalwell suggests that it would be malpractice for lawyers to tell clients they don’t control major decisions in their cases.
Ironically, informed consent is defined by the Model Rules of Professional Conduct to be the “agreement of a person to a course of conduct after the lawyer provides adequate information and explanations about the material risk of and reasonably available options to the proposed conduct.”
Lawyers must use their professional and ethical judgment in trials. Tactical decisions are usually left to them. But, Metrick v. Chatz (Ill.App.) remains the main purpose of the trial. Ct. 1994).
Clients have the right to refuse a trial plan and to oppose arguments or other means. This is similar to the parental claim. This consent can be exercised at any time during the litigation.
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Rep. Eric Swalwell (D-Calif.) listens to Sen. Jack Reed (D-RI.) speak during a news conference about the introduction of the Protection from Abusive Passengers Act in the U.S Capitol Building, April 6, 2022 in Washington. (Photo taken by Anna Moneymaker/Getty Images.
(Anna Moneymaker/Getty Images)
Informed consent
The key to informed consent is for parents to be given all the information necessary to obtain their consent. These disclosures have been resisted by school districts, who are attempting to thwart parental opposition to major policy and curriculum changes.
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What is most striking about Swalwell’s reference to patients and clients is that they, under his educational approach, have far more voice in a wart removal or a parking ticket challenge than the Education of their children. His analogies actually support the need for parental consent and greater knowledge.
In other words, “what is missing here” is that Rep. Swalwell’s interpretation could constitute both medical and legal malpractice. As both parties look to the 2024 elections, it could also be political malpractice.
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