The Duty to Rescue - Essay Example

Running head: Duty to rescue Duty to rescue (school) Duty to Rescue Introduction The duty to rescue is one of the most controversial issues in the field of law and health care. Various professionals in these two fields, along with interest groups and citizens, are concerned about the imposition of a law making it criminally and civilly punishable to not fulfill this duty to rescue. The duty to rescue however remains an important consideration for many citizens because it presents valid and humanitarian considerations. This paper shall discuss the statute which would impose civil and/or criminal liability for failing to rescue and whether or not such statute should be supported by the Massachusetts State Representative. Discussion Statute should be passed which would impose civil and/or criminal liability for a failure to rescue. The duty to rescue should be imposed as a mandate subject to criminal and civil liability because it is a positive obligation which can benefit people. This duty finds support in the utilitarian principle. This principle is a normative theory which “explains all of morality and political justice in terms of positive obligation – the single positive obligation to benefit people as much as possible” (Murphy, 2001). In this case, the utilitarian principle emphasizes that the morality of actions is based on the obligation to benefit people. The earliest philosophers and economists Jeremy Bentham and John Stuart Mill discuss that actions are right if they bring happiness and they are wrong if they bring about the opposite of happiness. In this case, happiness should be brought to the one performing the action and the person affected by such action (West, n.d). In fulfilling one’s duty to rescue, benefit and happiness is surely brought upon the rescued; and happiness is also felt by the rescuer. Based on this theory, legislation which imposes civil and/or criminal liability to those who fail to rescue is justified because it benefits the rescued and the rescuer. Granting that the benefit to the rescuer may also be based on an egoistic need to make oneself look or feel good, this egoism still does not negate the validity of the duty to rescue. Based on the utilitarian theory, “it is possible for the right thing to be done from a bad motive” (West, n.d). Therefore, even if a person’s motive in rescuing may be bad or selfish, it still does not diminish his obligation or duty to rescue. The very essence of utilitarianism is rounded up in the query, “What ought a man to do?” The answer is that he ought to act in order to produce the best possible consequence. In seeing someone in danger, what one ought to do is to act in order to produce the best possible consequence for that person in danger. In order to do that, one ought to rescue that person. English-speaking lawyers are uncomfortable with the implications of enforcing the duty to rescue as a legal obligation (Murphy, 2001). Their main argument against the legalization of the duty to rescue is that it constitutes “excessive interference with individual liberty…” (Murphy, 2001). However, the mandate of this duty to rescue is that it is being undertaken on the pretext that there is little cost or danger to the rescuer, and that most people would respond to such duty without thinking of the cost or danger (Murphy, 2001). It is a duty which is not intrusive to personal liberties – and it is also not an imagined duty as that attributed to Lord Macaulay who felt he had a duty to travel to India to render medical aid. The duty to rescue is based on an impending responsibility and one which ought to be done. Failing such duty should be subject to civil and/or criminal liability. John Stuart Mill’s harm principle helps lend support to the position on our duty to rescue. Mill declared that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (Lacewing, n.d, p. 1). Based on this principle, for people who may bring harm to themselves, our duty is to help prevent such harm. This is not however a legal or a moral duty, unless they potentially bring harm to other people as well (Lacewing, n.d). Mill sets forth a healthy discussion on the harm principle when he negated the various objections to the application of the principle. As regards the right to freedom, Mill argues that although the right to freedom seems to conflict with his utilitarianism, “his appeal to utility is to utility in the largest sense, grounded on the permanent interests of main as a progressive being” (Lacewing, n.d, p. 1). The progressive man would help the injured man or the man who needs help. It is surely in the interest of man’s permanent interests to render assistance to the man needing rescue. Mill also sets forth in his discussion that the harm principle is applicable “to inactions or omissions as well as actions that harm others” (Lacewing, n.d). Mill explains that it is justified for society to impose legal obligations on people to perform actions which, if not performed, would bring harm to others. In other words, society can obligate people to aid others who may be under attack or in danger or dying (Lacewing, n.d). Consequently, for those needing rescue because of an attack or of any mortal danger, and for people who are in a position to help prevent such attack or assist in any way, the legal obligation is inherent. The traditionalist view in relation to the duty to rescue is that, we are not legally obligated to come to the rescue of others. This is the tort law from England, later adapted by the United States (Kochan, 1998). This law basically states that “an individual cannot be forced to give up a portion of his liberty to benefit another, no matter how little the cost or how great the benefit” (Kochan, 1998). In effect, the limitation on the duty to rescue is based on the concept of giving up one’s liberty – and that it should not be given up even at the littlest cost or the greatest benefit to the person. In carrying out this viewpoint more extensively, our laws were established to protect against personal and societal intrusions and impositions on our liberty – and they are not established as a means of compelling action (Kochan, 1998). Support for legislation imposing civil and/or criminal liability on failure to rescue may be argued in relation to the tort law. There is an inherent danger when law supports the duty to rescue – the demands on the people’s time and money will now seem limitless. There is therefore prudence in protecting the individual’s freedom of action: by declaring that there is no legal obligation to rescue (Kochan, 1998). The above argument however still does not hold water in the face of other theorists who believe that this duty to rescue should be considered as a legal mandate and responsibility. According to Joel Feinberg (as cited by Gray, 1999, p. 744), “one who fails to prevent harm may, under some circumstances, be said to have caused harm”. Although this ‘duty’ has not been fully settled in the legal sense, other theorists like Ames and Weinrib (as cited by Gray, 1999), emphasize that the law should be harmonized with moral principles. In this case, duties are based on moral principles. The duty to rescue is based on doing what is morally right and what one ought to do which is once again based on the utilitarian principles set by Bentham and other utilitarian theorists who came after him. Based on a cultural feminist perspective, the duty to rescue as supported by the traditionalists is based on a “traditional and or masculine view that emphasizes abstract rules based on individual liberty and autonomy” (Gray, 1999, p. 744). These cultural feminists instead support the duty to rescue based on the principles of caring and responsibility; it is also based on the interconnectedness of human beings (Gray, 1999). Communitarians also support this feminist theory based on a person’s individual responsibility to the community. The duty to rescue can be viewed in terms of the right and duties of liberal citizenship. Based on the social contract tradition, a liberal community includes the protection of its members from violence and serious harm (Gray, 1999). All citizens have a right to protection through the notification of authorities and through the administration of aid. Not rendering aid and failing to rescue a person in need or danger violates the duty to the community and to the victim. In this case, it is possible to “develop justification for rescue that combines the liberal emphasis on individual rights with the countervailing themes of community, responsibility, and the common good” (Gray, 1999, p. 744). The position of tendering support for the imposition of civil and/or criminal liability was explored in the Kitty Genovese case. In 1964, a young woman was raped and killed on her way home in Queens, New York; about 38 neighbors heard her screams for help. No one heeded her call and no one even bothered to inform the police about a possible ongoing crime in their neighborhood (Kirschenbaum, 1980). With police notification, the victim could have been rescued as she was repeatedly attacked for about 45 minutes before she was killed. Even in applying the conventional and traditional laws, it is still possible to seek support for a person’s duty to rescue in the Genovese case. The traditional legal doctrine dictates that all persons have the right to expect protection from the government against violence and injury (Halbert & Ingulli, 2009). It is the state’s responsibility to ensure its citizens’ safety and protection. In return for such protection, the people have the obligation to obey the law and also to help enforce its provisions (Halbert & Ingulli, 2009). The individuals at the scene of the crime who overheard her cries for help had the duty to intervene and to assist her. Even if they were afraid of any harm which would have befallen them, they had the duty to inform the police authorities about the crime in progress (Halbert & Ingulli, 2009). Their failure to comply with their duty is therefore a violation of their duty to the state – hence, rightly subject to legal sanction. It would be prudent to support legislation to seek passage of civil and/or criminal liability for failure to rescue because the traditional and liberal views on the subject do not anymore hold popular support in contemporary society. Moreover, even moves in the legal arena to uphold support for the traditional views on the duty to rescue are now falling short. By example, the decision in the People v. Beardsley case which excused a man from liability for failing to render aid to his mistress who took morphine and slipped into a coma is condemned by other experts and theorists (Murphy, 2001). Professor Graham Hughes condemned the decision and declared that “in a civilized society, a man who finds himself with a helplessly ill person who has no other source of aid should be under a duty to summon help, whether the person is his wife, his mistress, a prostitute or a Chief Justice” (Murphy, 2001). This duty is based on being in the position to render aid and of not using such position to rescue the person in grave danger. Again, failing the performance of such duty, civil and criminal sanction is justified. This statute is favorable to me because it is a statute which helps promote the rights of those who are unable to defend or protect themselves. It is a statute which may not have popular support from other legislators and other citizens, but is a statute which needs to gain more attention and support from legislators. It would be wise for Massachusetts for adopt it because doing so would put out the message that citizens can feel protected by their fellow citizens – not just by the police authorities. This would also help improve the coordination between the citizens and the police authorities – in helping apprehend criminals and in minimizing the impact of crimes. Through this law, the welfare state becomes a responsibility of every citizen, not just the government officials. Safety and welfare becomes a duty and quality that the people can own – not just one which they can expect to be handed them by the state without consequence or obligation. Works Cited Gray, C. (1999) The philosophy of law: an encyclopedia, Volume 1. New Jersey: Taylor & Francis Halbert, T. & Ingulli, E. (2009) Law and ethics in the business environment. California: Cengage Learning Kirschenbaum, A. (1980) The Bystanders Duty to Rescue in Jewish Law. DAAT.com. Retrieved 05 August 2010 from http://www.daat.ac.il/daat/kitveyet/assia_english/kirschenbaum.htm Kochan, D. (1998) The Pervasive Duty to Rescue. Association of American Physicians and Surgeons. Retrieved 06 August 2010 from http://www.aapsonline.org/brochures/rescue.html Lacewing, M. (n.d) Mill’s ‘harm principle’. Routledge Publishing. Retrieved 05 August 2010 from http://cw.routledge.com/textbooks/philosophy/downloads/a2/unit4/mill/MillHarm.pdf Mill, J. (2007) Utilitarianism. New York: Filiquarian Publishing Murphy, L. (2001) Beneficence, law, and liberty: The case of required rescue. Find Articles. Retrieved 05 August 2010 from http://findarticles.com/p/articles/mi_qa3805/is_200103/ai_n8946722/ West, H. (n.d) Utilitarianism. Utilitarianism.com. Retrieved 05 August 2010 from http://www.utilitarianism.com/utilitarianism.html Read More