By Burke J. Balch, J.D., Director
NRLC's Robert Powell Center for Medical Ethics
On September 23, the Florida Supreme Court ruled that "Terri's Law," the measure under which Governor Jeb Bush restored food and fluids to Terri Schindler-Schiavo last fall, is unconstitutional. The court set a 15-day period for the filing of briefs on any petition for rehearing, raising the prospect that she could begin to be starved and dehydrated within a couple of weeks, unless Gov. Bush or the Schindler family attorneys can gain a stay through other legal avenues.
The court's opinion focused squarely on "separation of powers" doctrine. The judges unanimously concluded that the legislature could not empower the governor to intervene in a specific case after final judgment has been rendered.
However, the decision left open the possibility that the legislature could yet enact a more comprehensive set of amendments to the Florida statute governing the standards for making decisions in such cases whose application would include, but would not be limited to, Terri Schindler-Schiavo.
S.B. 692 is a bill that would address denial of food and fluids not only to Schindler-Schiavo, who is severely brain-injured, but also to other persons with disabilities like hers. It was introduced by Florida state Senator Stephen Wise during the spring but never came to a vote. However, with enough of an outcry by Florida citizens, Florida legislators could pass a similar bill that might survive Florida Supreme Court scrutiny.
Web Site Provides State Legislator Contact Info
A link from www.nrlc.org allows Florida residents, by entering their zip codes, to get contact information for their state senators and representatives. "It is critically important that anyone with a voting residence in Florida immediately urge his or her state legislators to support a bill like S.B. 692," said David N. O'Steen, Ph.D., NRLC executive director.
Florida Constitutional Standard
Both the decision and possible legislative responses require an understanding of Guardianship of Browning, 568 So. 2d. 4 (1990). In that 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, Browning also established that 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."
Provision of Food, Fluids in Absence of Informed Consent
State Senator Wise's bill would create a presumption that an incompetent person would have wanted nutrition and hydration. As compelled by the Browning decision, 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.
The bill 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 by ensuring that what is required is evidence of a decision that truly reflects an "express and informed consent," rather than a casual, thoughtless comment. 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.
Casual Conversations vs. Informed Consent
How would this apply to Terri Schindler-Schiavo? The casual and indefinite statements which her husband, 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 her.
There is still time to save Terri Schindler-Schiavo, if Florida legislators hear, urgently and effectively, from their constituents that a bill like S.B. 692, the Florida Starvation and Dehydration of Persons with Disabilities Prevention Act, must rapidly be passed.