By Burke Balch, Director
Robert Powell Center for Medical Ethics
As NRL News goes to press, a decision has not been issued on the constitutionality of "Terri's Law," the 2003 legislation under which Florida Governor Jeb Bush was empowered to restore food and fluids to brain-injured Terri Schindler-Schiavo. However, questions posed by various members of the Florida Supreme Court in oral arguments August 31 suggest a possibly promising avenue to save her life even if the state's highest court strikes down "Terri's Law" as violating the separation of powers doctrine. (For more detail, see story on page 16.)
George Felos is the attorney for Terri's husband, Michael Schiavo, who wants the law declared unconstitutional. Justice R. Fred Lewis asked Felos, "Are you suggesting that the legislature could not [require] that you must have something in writing, you must have a procedure other than someone's friend coming in and expressing what this evening the person wants?"
Chief Justice Barbara J. Pariente followed up. Justice Pariente pointed Felos to Cruzan v. Director of Missouri Department of Health. In that 1990 decision, the Supreme Court held that there is a constitutional right to reject artificially provided food and fluids, but that a state may require "clear and convincing evdience" that a now-incompetent patient had indicated when competent he or she would not want them. Justice Pariente said, "If you look at what the Supreme Court and the jury did in the Cruzan case, they decided that the testimony of a neighbor was not clear and convincing evidence of the person's wishes. So ... probably we may be getting a little far afield of what we have to decide in this case ... because the issue [here] isn't whether the legislature could enact something much more comprehensive, to better address this type of situation ...."
Just such a bill - - one that would address denial of food and fluids, not only to Schindler-Schiavo, but also to other persons with disabilities like her - - was introduced by Florida State Senator Stephen Wise last spring but never came to a vote. With enough of an outcry by Florida citizens, state legislators could pass a similar bill that might survive Florida Supreme Court scrutiny.
Any such bill must conform with In Guardianship of Browning, 568 So. 2d. 4 (1990). In this case, 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. This is so 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. In Browning, the Florida Supreme 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."
The Wise bill would create a presumption that an incompetent person would want nutrition and hydration. As compelled by the Browning decision, the proposed bill provides that this 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 "[t]here 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 to ensure that the evidence of the patient's oral wishes is indeed "reliable."
That "reliability" is increased under the Wise bill 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.
How would this apply to Terri Schindler-Schiavo? The casual and indefinite statements which Michael Schiavo claimed (and the courts accepted) had been made by Terri 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 Terri Schindler-Schiavo.
If the Florida Supreme Court strikes down "Terri's Law," her prospects will not be hopeless if enough Florida citizens rapidly mobilize to demand that their elected representatives move, as quickly as they did in enacting "Terri's law," to enact the "much more comprehensive" law the chief justice's comments invited.