Monday, February 25, 2013

Making Decisions about Our Animals’ Health Care: Does It Matter Whether We Are Owners or Guardians?


Susan J. Hankin∗
Introduction ................................................................................................................. 2
I. From “Property Owner” to “Guardian”............................................................ 5
A. Goals of the Owner-to-Guardian Campaign..................................................... 5
B. Opposition to Language Changes...................................................................... 8
C. Responses to Arguments Against Animal Guardianship................................ 9
D. What the Arguments Imply about Health Care Decisions for Animals....... 18
II. Human Health-Care Decision-making: Lessons Learned ............................ 19
A. Making Decisions for Patients Without Decision Capacity: Substituted
Judgment and Best Interests Standards........................................................... 20
B. Health-Care Decision-Making for Minor Children......................................... 24
C. Potential Application to Animal Care Decision-Making ............................... 27
III. Making Health-Care Decisions for Our Companion Animals.................... 28
A. Similarities Between Human Health Care and Veterinary Medicine........... 28
B. Major Differences Between Human Health Care and Veterinary Medicine.31
C. Proposed Framework For Veterinary Clinical Decision-Making.................. 36
1. Who should decide what level of care an animal receives? ............................... 36
2. Factors to include in treatment decisions: toward a modified best interest
standard ......................................................................................................... 40
3. Resolving Conflict: Should There Be Any Limits On Owner Choice?............. 45
Conclusion ................................................................................................................. 51
∗ Law School Associate Professor, University of Maryland School of Law.
The author would like to thank Inga Rubin and Uyen Phan for their research assistance,
Susan McCarty for her research and footnoting assistance, and Deans Karen Rothenberg and
Michael Van Alstine for their generous support of this article.
Hankin Stanford Journal of Animal Law & Policy | Vol. 2
(2009)
2
Introduction
In July 2000, Boulder, Colorado, became the first city to replace the term
“pet owner” with “guardian” in its municipal code.1 Two California cities, West
Hollywood and Berkeley, soon did likewise,2 and in 2001 Rhode Island became
the first state to reference pet owners as “guardians.”3 Currently nineteen
jurisdictions—the state of Rhode Island, one Canadian city, and seventeen U.S.
cities—use this language.4 Inspired by a campaign by the animal rights group, In
Defense of Animals, the language change to animal “guardian” is aimed at
promoting more responsible pet ownership by changing the words people use
about their animals.5
Notwithstanding these laudable goals, a great deal of opposition has been
mounted against legislation that changes the language describing the
relationship between people and their animals from “owner” to “guardian.”
Groups ranging from veterinary associations6 to breed-specific dog clubs,7 the
Cat Fanciers Association,8 and professional aviculturalists9 have opposed such
language, claiming that such changes threaten to undermine, rather than
strengthen, the relationship between people and their pets.10

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