Getting Personal About COVID19

What I discussed in last week’s Blog post is multiplying quickly.  The stakes have changed dramatically-- life and death are now overarching concerns.  The approach to this pandemic and its consequences is no longer a simple question of who did what when.  We already know that answer. In my mind, one of the overwhelming questions may now become: should those responsible for decisions resulting in death for tens of thousands of patients  -- who might have survived had they had an earlier test result or been provided with a ventilator -- be questioned and investigated for civil or criminal violations? 

To go a bit further: Is there any basis on which class action suits can be brought against federal officials (particularly the so-called President, Donald J. Trump) for violation of the public trust or of his constitutional obligations? 

I don’t know the definitive answer, but in Nixon v. Fitzgerald, the Supreme Court ruled that “presidents are not liable for damages in civil lawsuits if the litigation concerns their official acts as president” (pbs.org).   However, the issue of civil suits brought in state courts has never been resolved but is likely, in my opinion, to follow the import of Nixon V. Fitzgerald.

Nonetheless, the lack of a national federal plan with strategic objectives is now a question of life or death, and those deaths may have been partially caused by people who have full responsibility for the general welfare of the people of this nation.  
Forgive me if I seem upset, but two members of my extended family are on the front line in a small city hospital that is treating COVID19 patients – a daughter is the head respiratory therapist responsible for originally intubating those patients and overseeing their respiratory care; her daughter (our granddaughter) is an RN in contact with those caring for these patients.  Protective supplies are running out.  We are all scared as HELL!  So, please forgive me if I sound angry or slightly vindictive and realize please that real fear, helplessness and rightful anger are at the core of my concern.

I have mentioned before (on 12/7/2015 and 02/20/2019) that elected officials have a certain responsibility to their constituents that can be considered a legal as well as ethical obligation. They have a fiduciary relationship which means they must provide their clients with the best possible services for the welfare and protection of those consumers/clients/constituents.    

 “A Fiduciary is an individual in whom another has placed the utmost trust and confidence to manage and protect property or money; usually, a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or assets for another person.  A fiduciary relationship is one wherein one person has an obligation to act for another's benefit -- all actions are meant to be performed for the advantage of the beneficiary.  While the courts have not specifically defined the circumstances or restrictions on such a relationship, the courts stringently examine transactions between people involved in fiduciary relationships toward one another, placing particular scrutiny on any transaction by which a dominant individual obtains any advantage or profit at the expense of the party under his or her influence)(sources include: Wikipedia; legal dictionary; Oxford dictionary

 

In an article written for, Santa Clara University by one Hana Callaghan, we find some interesting thoughts about this form of ethical responsibility.

 

“The concept that government officials have special ethical obligations to the public is actually quite old.  In Ancient Greece Plato called for death for public officials who took bribes. (Laws, 12.955d) 
In 1215 King John of England signed Magna Carta, which promised among other things, “To no one will we sell, to no one deny or delay right or justice.” (Magna Carta, cl. 40) 
In 1254 King Louis the IX of France promulgated conflicts of interest rules for provincial governors in the Grande Ordonnance Pour la Réforme du Royaume. (Davies, Leventhal, & Mullaney, 2013)

In 1776, our Declaration of Independence acknowledged the concept of delegated authority,

‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." (emphasis added.  U.S., 1776).

Moreover, she gives voice to both Hamilton and Jefferson who supported this concept in their writings:

‘Madison argued, for example, that senators ought to be guardians of justice and the general good, while Hamilton envisioned that members of the House of Representatives would be guardians of the “poorer orders.”  Natelson notes that the concepts of fiduciary government were also held by the states charged with ratifying the new constitution. Maryland representatives literally declared themselves to be the trustees of the public. (Natelson, 2013).’

Turning to present day scholars, she lays out the following simple list of ethical considerations involved in the fiduciary relationship between officeholders and the public.

‘As noted by legal scholars David Ponet and Ethan Lieb, “Because fiduciaries are difficult to monitor and have wide access to power over beneficiary resources and assets, fiduciaries are under rigorous obligations that ensure compliance with their role responsibilities.” (Ponet & Leib, 2011).   

So, what are those obligations in a governmental context?

• The duty of care;
• The duty of loyalty;
• The duty of impartiality;
• The duty of accountability (Ponet & Leib, 2011; Natelson, 2004); and
• The duty to preserve the public’s trust in government (Wechsler, 2013)’.”

 If we support this concept, we have to say that the President and many of his Republican members in his administration and in the Congress have deserted their fiduciary duty.  The dilemma is that neither Donald Trump nor the officeholders who support him (or the people who elected him) seem able to recognize their abandonment of these responsibilities in the face of this pandemic in January and February 2020, precisely when action was most needed. .A recent uptick in legislative action will hopefully help to mitigate the dangerous trajectory of their negative attitudes.

Instead of care, loyalty, impartiality, accountability and preservation of the public trust, here are some of what Trump and his "Trumpers" originally supported (even whileTrump’s favorable rating held at about 44-45% average):

v de-construction of essential units and agencies of national government leaving the inability to deal with a major crisis; dismantling of NSC group formed under Obama to deal with such global crises; eviscerated by Trump in 2017

v calling a dangerous pandemic, a “hoax”

v lying about the big “surprise” of this pandemic coming to our shores in 2020 when warnings had been given by the Obama administration in 2017 and Trump’s own intelligence council in 2019 along with notifications from the World Health Organization

v then saying it will go away “like a miracle”

v declaring everything is “fine” when it isn’t

v claiming that the “new system” for dealing with this threat is “working just fine” when ventilators and PPE are wanting everywhere

v treating business and the economy as top priority above assistance to people in need

v treating a health crisis as an economic crisis

v wanting people to return to work (exposing more people to the virus) by Easter (April 12, 2020) that scientists decry as opposite to the need to slow virus advance by continuing current stay-home and social-distance requirements

v forcing states to compete against each other for supplies and equipment as well as for unapproved medicine; failing to communicate with Democratic Governors who don’t show enough appreciation for what he has done

v passing the responsibility for purchasing, distribution and providing guidelines to the state and local governments rather than leading a national effort – especially when national shut-down and sheltering-in-place order is needed, along with basic equipment; instead proposes to institute an absurd regional “quarantine” of three states

v lack of consistent messages to the nation in daily briefings and ‘tweets’

v relying on voluntary involvement when national emergency demanded invoking of powers necessary to move the government (military) and private sector to mobilize to fight this health war (e.g., directing certain deployment of troops or directing certain manufacturers to produce ventilators)

Certain weaknesses of our governing system and our health care system are being exposed by this pandemic revealing that we are not the advanced society we thought we were.  Innocent people are dying because we have not been able to produce and distribute adequate equipment and personnel:

§  slow to act (until up against devastation of critical mass) partly because of

o   partisanship and ill-conceived ideologies

o   cumbersome rules of procedure in Congress and bureaucracy --‘red tape’

o   pressures from outside forces other than the crisis

§  confused purposes and aims

§  looming election promotes politicizing of crisis

§  President unable to handle crisis; unable to rise above self-aggrandizement, mythical ideology and fake conspiracies, unable to depend on science and the scientists

§  future planning for pandemic was almost non-existent in this administration

§  cutting back on previous administration legacy resulted in destruction of a task force and protocols for handling a pandemic crisis

§  health care supply sstem in tatters – no reserves; no beds; no PPEs. and non-coverage for at least 20k;

§  reserve stockpiles inadequate

§  business sector has no plan; can’t handle health crisis; raises prices to meet demand rather than re-tooling to produce what is needed; little commitment to community welfare

§  data gathering, analysis and communication poor

§  inadequate means of sharing best practices

§  lack of assessment and evaluation

§  people at the bottom of income scale always the last to be recognized, helped, supported or liberated; distribution of checks to them is far from guaranteed

§  members on the top of the income scale receive top priority attention and benefit

§  too many processes are inadequate or outmoded like the distribution system 

§  over-dependence on ideology rather than scientific and mathematical analysis

§  inability to hear and act on the voices, opinions, experiences and protests of the grass roots on a continuing influential and organized basis

At some point, we will have to look deep inside this crisis to see what can be learned from it,  applying such learnings to government and the larger society.  What follows are a few  beginning and tentative thoughts on that matter::

v we need more bi-partisan legislative task forces or action teams that will take one problem and work it through to solution(s)

v there ought to be a requirement to include grass-roots voices in all legislation that affects people’s lives; plus, a representative group of consumers affected by the legislation must have opportunity to comment on it

v paid lobbying forbidden

v input to legislation collected and analyzed from those most affected by it

v budget process of fitting money to actions; which involves goal setting, objective action steps and on-going assessment of successes and best practices

v upgrading of hardware and software that enables interagency communication, plus analysis of goals and processes;  known as "joining the 21^st century! " 

v every agency should be collecting and analyzing data that informs efforts to enhance lives and community well-being; we need predictive and tracking models for more than just viruses and natural disasters; we need analytical  models for tracking the needs and services for vulnerable populations; for tracking best practices in many areas; for projecting needs of certain populations such as those with auto-immune diseases, or those who are homeless

v to establish on-going methods and conduits for hearing the opinions and ideas from ordinary citizens and local leaders, many of whom have iniatiated and innovated actions that should be widely shared
v community service required as part of every public and private school curriculum; health care sector emphasized

v right to vote expanded and unfettered, such as universal automatic registration and mail-in balloting

v access to healthcare must be extended to all people and coverage under pandemics extended to cover all exigencies

v all elective and appointive offices need a job description that describes the responsibilities of the office and leads to specific qualifications and enhanced requirements for candidates, e.g. some form of community service; a goal plan; specific experience – age and citizenship are simply not adequate

v define the notion of representation and fiduciary responsibility and include these in job descriptions for congressmen, senators and President

BUT MOST IMPORTANTLY, we need this President to mobilize every agency of government, especially the military; every relevant private sector manufacturer, and every volunteer organization to get needed resources to our front line hospitals, medical professionals, caretakers, nursing homes, homeless shelters, everywhere there are vulnerable populations.  Further, widespread testing, possible medicines, and tests for antibodies are three areas that demand and deserve the full attention of government and the private sector. 

It is important to mention that today’s report from the President at his Task Force Report to the Press in the Rose Garden, he did declare progress on a new more rapid-result test, on efforts to use antibodies from survivors of the virus, and on vaccine development.  Unfortunately, we have been given no idea the exact status of each or a timeline for their development and distribution.  To hear CEOs who were present, you would think everything is working well with production and distribution of needed materials and equipment, despite the opposite feedback from the workers on site at points of actual testing and hospital care that they just don’t have what they desperately need.  Thank goodness for the extension of federal guidelines for mitigation until April 30^th. However, his exaggerated numbers for how many coud die without his interventions, and his undocumented accusation of NY state healthcare workers confiscating facemasks and selling them to vendors were completely destructive of possble achievements.  

Action and results – need not to be reactive, but proactive involving bold actions out ahead of the brunt of the ‘storm’.  When lives are hanging in the balance, bold national action is not only necessary, it is imperative!   

FOOTNOTE:  SO LET ME BE PERFECTLY CLEAR: I am of the unshakeable belief and opinion that The President of the United States, as well as his appointees to Executive Departments plus the congresspersons and senators from my state (and all states) have a personal responsibility to provide opportunities for health and well-being, let alone justice and basic rights, for all persons within the context of the constitution and the just laws of this nation.  

Those leaders hold substantial keys to the means by which my family and all families pursue their dreams of love, happiness, prosperity and success.  Life itself can hang in the balance of their decision-making on many matters of health, safety, justice and security.  They have a personal responsibility to protect me and my family -- and you and yours -- from local and global threats to those basic elements of life.  When they fail to carry out their fiduciary responsibility, they deserve no less than to be turned out-of-office.  But in my estimation, they also deserve to be held accountable for the damages they have caused when acting in a manner contrary to the protection and well-being of their constituents.  When their actions or lack of action result in unnecessary or preventable deaths, they should not escape the judgment of the courts for their actions.. 

One final comment:  any progress being made at this late date does not erase or excuse the fact that this administration did not act soon enough and strongly enough to save any of the thousands of people who have died and the thousands more who have suffered the worst of this sickness and may soon die. 
Nor does the new production of protective equipment and supplies -- still undelivered to the hospital where our daughter and granddaughter continue to be exposed to this deadly virus -- serve to reduce our great fear for their safety, and the safety of so very many in the health care professions.. 
Like it or not officeholders -- that concept of a personal responsibility for political and policy decisions that bring disastrous effects on the lives of millions of Americans is not going to quietly disappear -- it will endure in the lives of all those affected by the loss of (or harm to) a loved one in this war.
Talk is cheap; good results based on an organized national plan of action is what matters right now.