The image above is of a Californian doctor sobbing outside the hospital building having lost the 19 year old patient on whom he was operating. It has gone viral on social media. It was also picked up in The Guardian in an interesting article by Deborah Orr: The image of the sobbing doctor proves that ‘professional distance’ has its human limits.
Orr goes on to discuss Louisiana lawyer Marty Stroud, who thirty years ago prosecuted for murder a man he now believes to be innocent who has only now been released from death row and who has months to live. Stroud regrets his role and actions, despite simply having been doing his job at the time.
It is a thought provoking article. I know that I struggle with my work. Unlike some immigration lawyers, I am not aware of any of my clients who has subsequently died as a result of an unsuccessful case. Nevertheless, day in and day out I work with families broken by the UK’s immigration rules and with victims of the most horrendous abuses. Sometimes we meet to prepare before court, sometimes on the day itself, but either way I often spend several hours with them. Solicitors spend far longer with their clients and no doubt build closer bonds, but even I experience their anguish. I think of the children who will be forced to grow up without a parent and I wonder what the future holds for them. I think of my love for my own wife and children and how I would feel in the place of my clients. I think of what might happen to the failed asylum seeker whose claim was authentic.
In so doing, I often wonder about the civil servants at the Home Office, the lawyers who put themselves forward to join the Government panels and most of all I wonder about some of the judges.
Some would see empathy as a sign of weakness and being a poor lawyer or judge. We are supposed to “maintain” professional distance. The word “maintain” is misleading, though. It suggests a passive perpetuating of the status quo. Unless we are literally psychopaths — some lawyers and judges no doubt are — we naturally empathise with other humans. What professional distance really requires is actively to dehumanise and isolate ourselves from the victims of our actions.
No thanks. That cost is just too great.
In response to this piece, Jonathan Collins of TRP Solicitors in Birmingham brought to my attention Second-hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context by Helen Baillot, Sharon Cowan and Vanessa E. Munro. It is a fascinating read about asylum decision making at the Home Office and the human cost of exposure to so much misery. The first paragraph of the article is encouraging:
Law and emotions scholars have emphasized the need to attend to the presence and influence of both positive and negative emotions in legislating and legal decision-making. In line with this, in some quarters of legal practice and doctrine, there has been an appreciable shift in recent years away from the tendency to see emotionality as, at best, a distraction from, and, at worst, an obstacle to, legality. Despite this, there remain enclaves within which the dichotomization of rationality and emotionality lingers, and is aligned with guiding conceptions of ‘professionalism’ to preserve a reluctance to acknowledge the role of emotion in framing legal decision-making processes and outcomes.
The study uses asylum decision makers as a way of exploring this issue and the findings are stark:
We suggest that these professionals, when faced with an applicant’s fear and distress, may use ‘survival mechanisms’ marked by detachment and denial of responsibility to protect themselves from the contagion of these emotions. Though reliance on such strategies may assist professionals’ personal coping (at least in the short term), we argue that they risk being deployed in more maladaptive ways that impoverish the prospects of a full and fair hearing of asylum appeals.
The study suggests that those most able to accept and cope with the emotional demands of the work were NGO workers and interpreters and the least able were lawyers, judges and civil servants, who rely on detachment and denial to protect themselves.