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QUESTIONS AND ANSWERS ON
SB 2128 and HB 701, 2. What can be done that the Florida courts won’t strike down? _____________________________________ 1. What can be done now that the Florida Supreme Court has struck down “Terri’s Law” under which Governor Jeb Bush directed that she be given food and fluids? On September 23, 2004, the Florida Supreme upheld Michael Schiavo’s challenge to the constitutionality of “Terri’s Law” which allowed Governor Jeb Bush to intervene and order that Terri Schindler-Schiavo be given food and fluids. The court held that it violates the “separation of powers” doctrine under the Florida Constitution, allegedly invading the province of the judiciary by allowing the Governor and the legislature to direct the outcome of a specific pending case. The U.S. Supreme Court refused to hear an appeal. Consequently, Terri Schindler-Schiavo’s life is again in danger. What then can be done? A bill that alters Florida law to create a general presumption for food and fluids for those who cannot speak for themselves would not face the separation of powers challenge. HB701 {click here for text} has been introduced by Representative Dennis Baxley. The identically worded SB 2128 has been introduced by Senator Stephen Wise. This bill has been drafted precisely to fit with controlling Florida Supreme Court opinions. It is carefully written to cover Terri’s circumstances. It would also bring protection in the uncounted number of unpublicized cases in which persons with disabilities similar to (and, in many cases, less severe than) those of Terri Schindler-Schiavo are routinely denied food and fluids in nursing homes, hospices, and hospitals. 2. What can be done that the Florida courts won’t strike down? In Guardianship of Browning, 568 So. 2d. 4 (1990), the Florida Supreme Court held that under the Florida Constitution a guardian, acting as a surrogate decisionmaker, must be permitted to make a decision to reject feeding through a tube for a patient who is not presently capable of making health care decisions and who has an incurable condition – even if the patient is neither terminal nor in a “persistent vegetative state.” However, the guardian must base such a decision on “clear and convincing” evidence of what the patient wanted. The Court specifically recognized that reliance on oral statements does not have the same presumption of clear and convincing evidence as written declarations. It stated that “the evidence of the patient’s oral declarations [must be] reliable.” In creating a presumption that an incompetent person would have wanted nutrition and hydration, the proposed bill provides that the presumption is overcome if the patient executed a valid written declaration (such as a living will) specifically rejecting nutrition and hydration in the applicable circumstances. It also allows the presumption to be overcome if “There is clear and convincing evidence that the incompetent person, when competent, gave express and informed consent to withdrawing or withholding nutrition or hydration in the applicable circumstances.” This conforms to the standard mandated by the Florida Supreme Court, but takes steps statutorily to ensure that the evidence of the patient’s oral wishes is indeed “reliable.” That “reliability” is increased by ensuring that rather than a casual, thoughtless comment, what is required is evidence of a decision that truly constitutes “express and informed consent.” Based on a combination of elements of two Florida statutory definitions of informed consent, the bill provides, “‘Express and informed consent’ means consent voluntarily given with sufficient knowledge of the subject matter involved to enable the person giving consent to make a knowing and understanding decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion. Sufficient knowledge of the subject matter involved includes a general understanding of: (a) The proposed treatment or procedure for which consent is sought; (b) The medical condition of the person for whom consent for the proposed treatment is sought; ( c ) Any medically acceptable alternative treatment or procedure; and (d) The substantial risks and hazards inherent if the proposed treatment or procedure is carried out and if the proposed treatment or procedure is not carried out.” This is the critical core of the bill’s protections. In a manner that comports with the parameters set forth by the Florida Supreme Court, it assures that when there is no legal document specifying the person’s wishes, only a statement based on a fully informed decision can be interpreted as “clear and convincing evidence” of an intent to reject nutrition and hydration. 3. Since the courts in the Schiavo case maintained there was “clear and convincing evidence” that Teresa Schindler-Schiavo would have rejected nutrition and hydration, how would the proposed bill save her life? Any bill that hopes to survive Florida court constitutional scrutiny, based on the existing precedents, must allow for “clear and convincing evidence” that a presently incompetent individual wanted to forego nutrition and hydration, even when the person never executed a legal document specifying his or her wishes. However, in order to ensure the reliability of such evidence, a factor whose importance is acknowledged by Florida Supreme Court precedent, the bill requires that to meet the “clear and convincing evidence” standard, it must be shown that the person gave “express and informed consent” to rejecting nutrition and hydration. As noted above, there is a strict standard for what constitutes truly informed consent. The casual and indefinite statements which Michael Schiavo claimed (and the courts accepted) had been made by Teresa Schindler-Schiavo could not plausibly be said to have been made with a knowledge of the medical condition in which she now finds herself that was sufficient “to make a knowing and understanding decision” based on the “substantial risks and hazards inherent if the proposed treatment or procedure is carried out and if the proposed treatment or procedure is not carried out.” Consequently, the presumption the bill creates for the provision of nutrition and hydration would apply to her. See 10/27/2003 column by Wesley Smith, “The Consequences of Casual Conversations.” 4. Does the bill require nutrition and hydration in every instance in which it has not been specifically rejected by the patient? The presumption for nutrition and hydration does not apply when it is medically impossible to provide it, when its provision would actually hasten death (as might be the case, for example, in some cases of kidney failure), or when the medical condition of the person is such that provision of nutrition or hydration would not contribute to sustaining the incompetent person’s life or provide comfort to the incompetent person (as may sometimes occur, for example, in the final stages of the dying process when death is imminent). To safeguard against abuses of these circumstances, the bill defines an objective standard for the “reasonable medical judgment” required to establish their existence. 5. Some legislators say that since the Florida Supreme Court said denying Terri her food and fluids was a “final judgment”, and the legislature can’t overturn a final judgment, nothing can be done. In a number of states, legislatures have passed laws allowing inmates on death row to use new DNA evidence to prove their innocence – even though there have been “final judgments” condemning them to death. These are constitutional because even if the legislature can’t overturn a past final judgment of a court, it can pass a law that changes the future effect of a court order that means someone’s death – as long as the person is still alive when the bill is enacted. "For legal memorandum explaining this point, click here." |
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