MaxedOutMama
Friday, March 04, 2005
The Right To Live
Two very different people have published extremely thoughtful posts inspired by the debate over Terri's situation. It is interesting that both have focused on an individual's responsibility to make such decisions in advance. Ilona at True Grit writes:
Who gets to decide? The proxy (partial, click the link for the entire section):
If you are mentally incapacitated, you will have either a surrogate or a court-appointed guardian (partial, click the link for the entire section):
765.205 Responsibility of the surrogate.--
(1) The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall:
(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity.
(b) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
In other words, your surrogate must approve each medical procedure, including a procedure to install a feeding tube. If it is denied, then you starve, even if you are begging for food and water. See this nurse's remarks about such a case. Note that you could execute a document limiting the authority of a surrogate to refuse such procedures on your behalf. The following code section essentially reiterates the same condition, except it also address withdrawal:
765.305 Procedure in absence of a living will.--
(1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.
(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.
Health-care providers, surrogates, and proxies have immunity from suit as long as they abide by these statutes:
765.109 Immunity from liability; weight of proof; presumption.--
(1) A health care facility, provider, or other person who acts under the direction of a health care facility or provider is not subject to criminal prosecution or civil liability, and will not be deemed to have engaged in unprofessional conduct, as a result of carrying out a health care decision made in accordance with the provisions of this chapter. The surrogate or proxy who makes a health care decision on a patient's behalf, pursuant to this chapter, is not subject to criminal prosecution or civil liability for such action.
(2) The provisions of this section shall apply unless it is shown by a preponderance of the evidence that the person authorizing or effectuating a health care decision did not, in good faith, comply with the provisions of this chapter.
Hey, draw your own conclusions. You might be interested in this brief discussion about who was responsible for the above laws in Florida. In light of the above, perhaps you'll understand why I am awaiting with great anxiety the results of today's hearing. Among the motions that was supposed to be heard was one allowing Terri's feeding by mouth, although it's probably already been denied like the one for additional medical testing. There has been testimony that she can swallow. This appears to me to be the best hope, although perhaps this error of fact also provides some reasonable ground for appeal:
Update: According to this Empire Journal article, the issue of whether Terri can be fed by mouth is still on the table. Also, the DCF is seeking a 60-day stay. It's a long, detailed article.
Further Update: By way of My Vast Right-Wing Conspiracy, here's a link to an organization that will provide you with the paperwork for a medical power of attorney appropriate for use in your state. This one has some of the exclusions I have referenced above. Here at LA-Law is one that specifically allows withholding of food and water.
What is the truth in Terri Schiavo's case? The truth is we keep buying into the idea that we are gods. That we can use technology and debates to determine who lives and dies, for how long and what makes them a worthwhile human being.and continues:
How do you protect yourself, first? Use the law as far as the law is compatiable to your ideals to draw up a living will, to give medical power of attorney to trustworthy individuals, and keep communication open so they know you and what you really want.... not what you cry out in duress.Marty at American On Line writes:
An important lesson that can be learned from the pain and passion that Terri's case teaches is that no one can tell when he or she will be in her position. Everyone needs to prepare for such an event, so as to spare your loved ones and yourself the catastrophe that can befall you and everyone around you if you have not taken adequate steps to make your desires and intentions are clearly known.This is good advice, so I thought perhaps a look at the Florida Statutes might be in order. The following are sections of the Florida Statutes and Constitution. I have added the emphasis and italics:
Seek counsel, speak to those expert in the field, read the law of your jurisdiction, read every word of any document that you are prepared to sign to reckon with such events, and do so with great reflection and design.
765.404 Persistent vegetative state.--For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:If you don't have someone to fight for your rights, you are probably going to be killed after 3 months. It seems a lot of conditions fall under the rubric of persistent vegetative state as determined by currently accepted medical standards these days, including those in which a person can swallow to some degree and speak a few words. This is why you might want to fill out an advance directive saying that you wish to be fed and watered twice a day in compliance with the currently accepted veterinary standards in your state.
(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and
(2) The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network. The ethics committee shall review the case with the guardian, in consultation with the person's attending physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.
Who gets to decide? The proxy (partial, click the link for the entire section):
765.401 The proxy.--The statute continues to list the court-appointed guardian, spouse, child, parent, etc, and goes on to list the scope of the proxy's power:
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.You want a wild guess as to what those "best interests" are going to be? Again, if you don't actively specify that you wish to continue living you are worm food. It is all about money. The proxies are selected by the health-care provider's bioethics committee. In other words, the hospital that is forced to take care of you is the one picking the person who decides what is in your best interest.
If you are mentally incapacitated, you will have either a surrogate or a court-appointed guardian (partial, click the link for the entire section):
765.205 Responsibility of the surrogate.--
(1) The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall:
(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity.
(b) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
In other words, your surrogate must approve each medical procedure, including a procedure to install a feeding tube. If it is denied, then you starve, even if you are begging for food and water. See this nurse's remarks about such a case. Note that you could execute a document limiting the authority of a surrogate to refuse such procedures on your behalf. The following code section essentially reiterates the same condition, except it also address withdrawal:
765.305 Procedure in absence of a living will.--
(1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.
(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.
Health-care providers, surrogates, and proxies have immunity from suit as long as they abide by these statutes:
765.109 Immunity from liability; weight of proof; presumption.--
(1) A health care facility, provider, or other person who acts under the direction of a health care facility or provider is not subject to criminal prosecution or civil liability, and will not be deemed to have engaged in unprofessional conduct, as a result of carrying out a health care decision made in accordance with the provisions of this chapter. The surrogate or proxy who makes a health care decision on a patient's behalf, pursuant to this chapter, is not subject to criminal prosecution or civil liability for such action.
(2) The provisions of this section shall apply unless it is shown by a preponderance of the evidence that the person authorizing or effectuating a health care decision did not, in good faith, comply with the provisions of this chapter.
Hey, draw your own conclusions. You might be interested in this brief discussion about who was responsible for the above laws in Florida. In light of the above, perhaps you'll understand why I am awaiting with great anxiety the results of today's hearing. Among the motions that was supposed to be heard was one allowing Terri's feeding by mouth, although it's probably already been denied like the one for additional medical testing. There has been testimony that she can swallow. This appears to me to be the best hope, although perhaps this error of fact also provides some reasonable ground for appeal:
"In our motion we pointed out that in Judge Greer's February 2000 Order authorizing Terri's death, he made a clear mistake by discounting the testimony of Terri's friend, Diane Meyer. Diane testified that in 1982 Terri told her she did not agree with the decision by Karen Ann Quinlan's parents to take their daughter off life support. Judge Greer, although initially finding Diane's testimony 'believable,' finally concluded that this conversation could not have occurred in 1982. Judge Greer said in his 2000 Order that he was 'mystified' about Diane Meyer's use of present tense verbs in relating her conversation with Terri. Therefore, he concluded that Terri's statements to Diane did not indicate end-of-life wishes made as an adult, because Terri would only have been 11 or 12 years old in 1976, the year he believed Karen Ann Quinlan had died.I don't think most people understand either the law in Florida or the way in which it is applied. Please pass this information on. It could be you or someone you love next.
"But it was not Diane Meyer who was mistaken; it was Judge Greer. Karen Ann Quinlan did not die until 1985, some 9 years after her court case ended and her respirator was removed. Apparently, none of the attorneys working on the case in 2000 noticed the mistake in dates. No one told Judge Greer that Karen Ann Quinlan was alive in 1982, making it entirely appropriate for Diane and Terri to discuss her situation in the present tense.
Update: According to this Empire Journal article, the issue of whether Terri can be fed by mouth is still on the table. Also, the DCF is seeking a 60-day stay. It's a long, detailed article.
Further Update: By way of My Vast Right-Wing Conspiracy, here's a link to an organization that will provide you with the paperwork for a medical power of attorney appropriate for use in your state. This one has some of the exclusions I have referenced above. Here at LA-Law is one that specifically allows withholding of food and water.
