“The Moral Duty of Care”
· Mr Maurice Saunders Master of Ceremonies& Director – Legal Aid Clinic
· Hon Dorothy Lightbourne Minister of Justice & Attorney General
· Dr the Hon Oswald Harding President of the Senate
· Hon Delroy Chuck Speaker of the House
· Hon Mrs Zaila McCalla Chief Justice
· Hon Mr Justice Seymour Panton President of the Court ofAppeal
· Professor Stephen Vasciannie Principal Norman ManleyLaw School
· Mrs Jacqueline Samuels Brown Chairman – Council of Legal Education
· Miss Dorcas White Senior Tutor Emerita
· Other Senior Tutors & Associate Tutors
· Mr Cedric Brown
· Ladies and Gentlemen
When I saw this invitation on my desk a few weeks ago, I was very surprised, even a little ‘overwhelmed’, and certainly humbled that I was being asked to speak at this auspicious occasion. I thought to myself that if Professor Vasciannie has the confidence to ask me to speak, given the luminaries who have done so previously, then at least I should have the courage to accept.
Thank you Professor Vasciannie for your kind invitation.
Coming as it does, almost at the end of the academic year, I imagine that this annual Dinner and Lecture provides an opportunity for Faculty, Staff and students to take a break form torts and ‘torture’, relax a little, do some thinking instead of writing, and share fellowship in a relaxed atmosphere. The latter objective has certainly been achieved as Lady Allen and I have been enjoying the evening so far.
I know you have heard enough humour regarding lawyers to last you a life time. However, there seems to be an unending list, and you will hear many more in the years to come. I just could not resist the temptation to add one more to your collection!
Question: How many lawyers does it take to change a light bulb?
Answer: Fifty four (54).
– 8 to argue
– 1 to get a continuance
– 1 to object
– 1 to demur
– 2 to research precedents
– 1 to dictate a letter
– 1 to stipulate
– 5 to turn in their time cards
– 1 to depose
– 1 to write interrogatories
– 2 to settle
– 1 to order a secretary to change the bulb, and,
– 28 to bill for professional services.
This is what I call ‘total care!’
The Duty of Care
I have chosen for my presentation this evening the topic, ‘The Moral Duty of Care’ because I believe that in our society today, there is a crisis in our attitude, and the way that we relate to each other. I think if we pause for a while to recognise and really understand our rights and responsibilities, we may be seized with the will, vigour and enthusiasm to do things a little differently, come to new considerations and new decisions regarding our actions.
Some time ago, I delivered a speech where I spoke about the duty of care that we owe to each other as human beings – that is – the personal duty of care. I referred to the landmark case of Donoghue v Stevenson where the court held that a duty of care is owed to the public at large to take care in our actions to each other. A similar principle is used in other areas of the law and life such as Occupier’s Liability where the owner of premises owes a duty of care to ensure that visitors are reasonably safe. In every profession, a duty of care is owed by the professionals to ensure that the work they do is at a particular standard and does not cause harm.
However, there is a higher duty of care and that is our MORAL DUTY OF CARE. Morals are concerned with principles of right and wrong in behaviour, and the establishment of standards to regulate behaviour. These standards are arrived at through consensus-building and years of refining. They set boundaries to regulate our behavioural practices, protect the innocence of our young, and maintain social stability.
Indeed, the standards that exist regulate an infinite gamut of professions, institutions, cultures and personal existence. The thread that runs through these standards is one that is all-encompassing and that is: an agreement of what is accepted as right and that which is rejected as wrong. It is an awareness, comprehension and conformity to, what is virtuous behaviour.
Our moral duty of care presumes that we are virtuous people who hold virtue in high esteem. I am using virtue here to mean desirable quality and good value. It would seem therefore that a satisfying life inextricably encompasses moral virtue. As such, one would therefore have to agree with the great philosophers who reason that there must be a higher good to which all human activity aims, and this GOOD is moral virtue. Indeed, there are other GOOD to which we must strive, such as intellectual virtue, but the highest GOOD to which we all must occupy ourselves, is moral virtue.
In one way or another all of us have virtuous standards by which we must abide, and we must all play an active role in ensuring that the standards that are set to regulate our society are not eroded.
Neglect of Care
There are three (3) issues which have been prominent in the news recently—two locally and one globally—which bear on the theme I am addressing this evening, i.e. our moral duty of care.
The first is the deep sense of outrage, anger and sadness over news of conditions at an Old Age Home, particularly among those residents who are physically challenged and hence most in need of care. Not everyone agrees on who should take responsibility for this tragedy, but the news story evoked in all of us a deep sense of empathy, concern and care for those persons on the margins of society; those who cannot care for themselves and whose quality of life is totally dependent on others. There is one thing on which all of us can agree: These people are owed a duty of care.
On one evening news programme, after all the disappointment and sadness was expressed about the Old Age Home incident, a journalist asked the poignant question: What are members of the public doing to show their care, to express their love, to touch the lives of the people at the Home?
This duty of care cannot simply be confined to the Ministry of Local Government. The journalist, stepping outside the strict boundaries and narrow confines of news-reporting, suggested that people could take along some groceries and personal effects to the Home; then take clothes from the Home to be cleaned, while others could help to bathe and feed the patients.
After all, this duty of care should not rest exclusively on the state, even though the state has the primary responsibility from which it cannot shirk. This issue forcefully brings to our attention and causes us to contemplate the matter of our duty of care.
The other local issue was the passage of the Charter of Fundamental Rights and Freedoms, which has long been overdue. Its passage was facilitated by some very welcome bipartisan work, which was greeted with joy by a public grown weary of divisiveness and lack of consensus.
The Charterof Rights also focuses our attention on this issue of the duty of care. ‘How so?’ you may ask – if there are rights, it means there are rights-holders, and if there are rights-holders there must be those who hold duties vis-à-vis those rights. Rights cannot be accorded unless duties are imposed, otherwise they would be just empty and reckless rhetoric. If we are guaranteed rights such as education and health, then someone must have the duty or obligation to see that those rights are protected and actualised.
The third area is the one which has been attracting much attention in the international and local media—Operation Odyssey Dawn- the Western countries’ intervention in Libya. Fundamentally, this Western intervention, though it might seem as merely another in a long series of such interventions, is philosophically predicated on a particular doctrine which was been adopted by the United Nations in 2005, the Responsibility to Protect Doctrine of Humanitarian Intervention. The background to this was the humanitarian disasters which took place in Bosnia, Kosovo, Rwanda, Somalia, and the Congo and before that, Cambodia.
The UN Charter stated clearly that: “Nothing in this Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”. Ever since the Treaty of Westphalia in 1648, which established the sanctity of the nation-state and the inviolability of its borders, non-intervention in the internal affairs of nations has been sacrosanct.
States were therefore free to oppress their peoples and trample on their rights, safe in the knowledge that the international community would defer to the non-intervention concept. However, after Rwanda, and in particular, Bosnia and Kosovo, the international community came to a deeper sense of its own duty of care to people trapped by oppressive and cruel conditions in nation-states. No longer could they escape the moral dutyof care or flinch from that obligation under the guise of respecting territorial integrity.
In 1999, then UN Secretary General Kofu Annan spoke passionately to the UN General Assembly on the need for a responsibility to protect doctrine for exploited peoples or people facing genocide. He said then: “If the collective conscience of humanity… cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice”.
In 2000, the Government of Canada responded to the UN Secretary-General’s appeal and established an independent International Commission on Intervention and State Sovereignty. In 2001 the Commission made its Report titled, “The Responsibility to Protect”. It was a landmark Report which represented a paradigm shift in international relations.
In that Report the following pivotal philosophical framework was adopted: “Where a population is suffering serious harm as a result of internal war, insurgency, repression or state failure and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect”.
In 2005, a special summit was held by the United Nations to further flesh out ideas related to the Responsibility to Protect, and a document was drafted which was eventually accepted by the UN General Assembly of that year. The following year, the UN Security Council invoked the Responsibility to Protect doctrine in its Resolution on Darfur.
The international community has come a far way in recognising this duty of care to the citizens of the world. Our duties are not just to those who are in state borders, but to all mankind. The Who is our neighbour principle extends to persons who live physically beside us, as well as to people of all races, nationalities, religions and classes. As the prophet Bahaullah, (BA-HOWLER) founder of the Bahai faith said, “The world is but one country and mankind its citizens” The duty of care therefore transcends borders.
Globally, there is more to be done in our responsibility to each other. The stark facts speak for themselves:
· Nearly three billion people live on less than US $2 a day.
· 1.1 billion lack access to clean water,
· 2.2 billion lack access to proper sanitation
· 1 billion lack adequate shelter
· 2 billion lack electricity;
· Nearly 800 million are illiterate
· Nearly 950 million are chronically undernourished
· 1 billion children out of approximately 2.2 billion worldwide live in poverty
· 30, 000 children die every day from poverty-related causes
· 15 million children die of malnutrition every year, and,
· 2.2 million die simply because they are not properly immunised.
Conversely the world’s 500 richest people have a combined income greater than the poorest countries and the richest 20% account for a staggering 75% of the world’s income. The $7 billion needed annually over the next few years to provide 2.6 billion people with access to clean water is less than what Europeans spend on perfume, and less than what Americans spend on elective surgery.
Nationally, the situation is also grim. There are those who argue that since the 1940’s, and progressively so after Independence, our development strategies have been deficient. These strategies have focused on economic planning, industrialisation, infrastructure and governmental progression, however, as a country; we have failed to profoundly establish a set of values and attitudes conducive to balanced development and equity.
Ladies and Gentlemen, as a people we have not been prudent in our moral duty of care. Try as we might to ignore the consequences of this imbalance, it is all around us, on our daytime television, in our news reports, in our schools, in the stagnation of our economy, the hopelessness of our people and the deterioration of our health.
· Unemployment is at 12.9%,
· 10.6% males and 6.5% females over age 15 are illiterate
· Divorce is on the increase with 8.65 per hundred marriages
· 150,000 young adults are considered unattached
· 77% homicidal violence is by the gun
· youth related crimes incur public and private cost equivalent to 3.2% of GDP while GDP growth rate is at 1.2% and by all indications the poverty rate is at 16.5%; this is 445,000 of our people.
· the reports of our young people and particularly school children found in compromising positions on our buses and in public spaces have inundated our airwaves; we are losing our children to moral decadence.
National Failure of Care
Our present state of affairs would therefore appropriately cause us to question whether as a people we have failed in exercising our moral duty of care, and in particular, to question whether individuals in the legal profession are not the watchmen and guardians to ensure that the integrity of the system by which we operate is maintained.
On March 20, 2011, one of our daily newspapers published an article entitled “Corruption Capital”, which stated that 80% of Jamaicans think our public officials are corrupt. The article also revealed that Jamaica is still ranked the second highest among 25 countries that participated in the Latin America Public Opinion Project 2010 Corruption Perception Survey. It seems we have not fully discharged our duty of care as a people.
In September 22, 2010 another daily newspaper published an article entitled “Parents, teachers, most trusted says poll: Police, Dons, politicians score low” The article displayed a poll which sought to determine how Jamaicans feel about morality and other social behaviour issues. The survey showed that the persons in whom respondents placed the least trust were lawyers:
· lawyers at 39 per cent.
· the police, 28 per cent;
· community dons, eight per cent (8%) ; and,
· politicians, seven per cent(7%).
Lawyers and the Duty of Care
The latter survey has obvious implications for members of the legal profession. Many of us here are aware of the challenges the legal profession grapples with and the negative impact these have on its image. It serves to highlight the position of trust and confidence that attorneys should enjoy. The public has a legitimate expectation that individuals in the profession will live by the highest moral standards. This expectation was not easily gained. Many men and women worked tirelessly to build goodwill and have worked even harder to maintain this goodwill.
If this legitimate expectation is unfulfilled, the client feels betrayed. I have my own personal stories and the impression has been lasting. The client entrusts his fate and his life in some instances with the attorney. When a client is charged with a serious offence of which he is honestly innocent, his entire life is in the hands of the attorney. He retains the attorney with the currency of faith; the faith that his best interest will be represented, while meeting the highest moral benchmark.
Many of you are familiar with the Biblical story of how Our Lord was invited by the Pharisees to eat with them, but He did not wash before sitting at the table and the Pharisees were displeased. Our Lord retorted by pointing to their neglect of justice. The lawyers who were present said, ‘But Lord you offend us when you speak like this.’ Our Lord proceeded to admonish them saying, among other things, ‘Woe to you lawyers for you have taken away the key of knowledge. . ……” The substance of Our Lord’s admonition was directed at the perceived burdens of injustice that the profession brought to bear on the poor and unsuspecting. It is evident then that Lawyers must be seen as the guardians of justice, fairness and truth in order for the perception to be changed and a higher level of trust to be accorded to them.
I say to the students who will be called to the bar in only a few months, your must stand firm as guardians of the higher moral pillars on which the legal profession is built. I challenge you not to be consumed with your personal gain to the detriment of the profession.
The General Legal Council has been relentless in its efforts to ensure that persons in the profession fulfil the legitimate expectations of the public. If one should peruse The Legal Profession (Canons of Professional Ethics) Rules, each of the Canons mandate that attorneys honour their duty of care. The Canons mandate that an attorney assist in maintaining the dignity and integrity of the legal profession and avoid even the appearance of professional impropriety.
Ladies and Gentlemen, justice must not only be done but must be seen to be done.
The Canon states that an attorney has a duty to assist in maintaining the dignity of the courts and the integrity of the administration of justice. Again the virtues of Dignity and Integrity are espoused. The Canons further state that attorneys have a duty to maintain proper professional attitude towards their colleagues. Winning at all cost is a dereliction of this duty, and at no time should attorneys destroy each other to win. In endeavouring to win at all cost, you destroy friendships and reputations, and sacrifice professionalism and the search for the truth.
Let us take an even closer look at the phrase “moral duty of care” which indicates that there is an implicit moral contract that exists between each individual. This contract establishes that not only should we adhere to reasonable standards of care, but we should desist from actions that will foreseeably cause harm to the public. In Donoghue v Stevenson, Lord Atkin espoused what has now come to be known as the Neighbour Principle when he concluded:
“There must be, and is, some general conception of relations giving rise to a duty of care … The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and…You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as long as so affected when I am directing my mind to the acts or omissions that are called in question.”
Caparo Industries plc v Dickman (1990) isthe modern-day ‘tri-partite’ test to establish whether a duty of care exists when considering action where the situation is considered to be unique:
1.The harm which occurred must be a reasonable foreseeable result of the defendant’s conduct.
If the attorney gives advice he is uncertain of, or takes money from the client knowing his proficiency in the area of law is sub-standard and any resultant harm is suffered, that harm is foreseeable.
2.A sufficient relationship of proximity, or neighbourhood, exists between the alleged wrongdoer and the person who has suffered damage.
The attorney’s service is offered to the public, he is an officer of the Courts, and he is a champion of justice. There is therefore a sufficiency of proximity between an attorney, the public, and in particular, a client who has directly engaged his services.
3.It is fair, just and reasonable to impose liability.
Attorneys have duties which you must uphold, breach of which gives rise to liability.
The moral duty of care appears to be set within a legislative framework and also in an implicit contractual framework. What then are these duties? Every attorney, and in fact all of us, have a duty to be truthful, diligent, honourable, patient, honest, selfless, decent and God-fearing.
The fulfilment of these duties is two pronged. First you must reflect moral virtues in your daily lives and second, you must assist in inculcating them in our fellow-men and particularly our youth.
THE WAY FORWARD
I challenge the legal profession therefore to embark on programmes to improve the perception of the general public. Every attorney and aspiring attorney must hold themselves to a higher moral standard. Endeavour to fulfil your moral duty of care and never be in dereliction of your duty. Pass on to our youth the moral virtues practiced in your daily lives. Mentor a junior attorney and show him the way he/she should go. Let your speech, actions, and deportment be a reflection of your moral virtue. Ceteris paribus– other things being equal, you would have fulfilled your moral duty of care to your neighbour and to yourself.
I believe that each of us is placed here by our Creator to enhance the quality of life of those around us.
Let all us leave here tonight with two objectives:
1) to be a guardian of good morals, custos morum, and, 2) to fulfil our moral duty of care.