Char
"Do people with profound disabilities no longer have a right to live? That issue is still on the table."
An excellent editorial that addresses this and key issues:
Spare Me the Indignation
http://www.nationalreview.com/mccarthy/mccarthy200506171321.asp
From the court transcript:
"... and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent."
Following the movie ... wanted it stated in her will ... tubes and everything. Just a little more than "no tubes for me" while picking up the empty chip bowl, Mr. Leo.
Second, this was but one of five (5) comments that Terri made regarding not wanting to live that way. The judge was certainly convinced.
Actually, the judge claimed that he had "clear and convincing" evidence as to Terri's wishes, thereby meeting the State of Florida standard.
Profound disabilities? Like no cerebral cortex? To me, that's way beyond dis-ability -- that's no-ability.
Tell me, Mr. Leo, do people with profound disabilities have a right to die if they so desire? Doesn't seem like it, according to your article. And THAT scares me.
Schiavo Thoughts:
Hearsay
Yesterday, I saw on the news a protester carrying a sign that asked, "SINCE WHEN IS HEARSAY ADMISSIBLE?" I wonder how often protests involve rules of evidence.
I also heard hosts on news shows of three different networks express bewilderment at how the trial court could have relied on hearsay to determine Terri's wishes.
If you've read the trial court's original decision regarding Terri's wishes, then you know the court considered five persons' testimony of what Terri supposedly said to them about what she wanted. That's the supposedly inadmissible hearsay. Some say it shouldn't have been admitted. Others say it can't amount to clear and convincing evidence. "It's not in writing!" they say, as if writings aren't hearsay, or that a writing would eliminate any controversy. (More on that oft-repeated fallacy in a later post.)
I've addressed this issue countless times in emails, but the email flood has gotten too large in the last couple days to respond to each one, and this issue continues to bother people. It doesn't help that the media haven't figured it out. I wish they would. They're supposed to be doing a public service.
So I'll do what I can to clear this up on the blog. Someone tell the news folks.
Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind. You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.
Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.
In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:
A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:
1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.
The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:
We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.
Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.
I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.
An assertion that the ward made a particular statement may certainly be challenged as unreliable -- that the ward never said it -- but there is no question that evidence of the ward's oral statements is admissible evidence, or that oral statements may constitute clear and convincing evidence. That's the law.
...posted by Matt Conigliaro
http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111167384435979940
That "hearsay" dog won't hunt.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Heinrich Himmler....You were right!!!!
Good point. People change their minds when it is in writing, and in Terri's case there was nothing at all.
bump
I want to see Mark Furman's take on the case.
This jumped out at me - Democrats have a long record of inventing civil rights and repressing those they claim to be helping. This whole article is prefaced with a partisan lie.
Just my personal opinion on this case: Michael Shiavo is a very unlikeable person. He comes across as a controlling pig, bent on having his way, not caring about others feelings. Terri's parents wanted to care for her, Michael had gone on with his life, which included a live in girlfriend and 2 kids. All he had to do was terminate his rights to Terri, give them to her parents and family, and walk away. I think he fought to let Terri die to spite her family.
Decent article, although the author is confused as to which party traditionally supports civil rights and which one doesn't.
Felos says this and the media let him get away with it. Unbelievable. Bottom line - they killed Terri and I will never forget.
later read/ping?
One thing is certain; the autopsy will never put to rest the question of whether Terri was PVS or not. A PVS diagnosis is a clinical diagnosis. There isn't any blood test for it or any other type of metabolic test and, as long as some cerebral cortex remains (as it did in Terri) no machine can make the determination. It absolutely can't be determined from a corpse.
ping
End the hypocrisy? We knew that. End the story? We knew that too.