Posted on 01/05/2004 1:42:20 PM PST by cpforlife.org
This is a Hospice Patients Alliance Special Update Jan 5, 2004, sent out periodically to inform the public about news affecting hospice and end-of-life care.
We have just confirmed that ALL of Judge Baird's cases, INCLUDING the suit by Michael Schiavo v Gov Bush related to the Terri's Law, challenging its constitutionality, HAVE been transferred to Judge Nelly Khouzam. This information came directly from Judge Khouzam's assistant. Judge Khouzam is known to be a "by the book" tough, but fair judge.
For a little about Judge Khouzam see:
"Diminutive judge sits tall behind the gavel" Northpinellas St Petersburg Times 12/29/2002 http://www.sptimes.com/2002/12/29/NorthPinellas/Diminutive_judge_sits.shtml
The court is NOT explaining why the judges were suddenly switched, except to say that "judges rotate from time to time." We believe it might have something to do with:
Local PINELLAS COUNTY COURT BAILIFFS AND COURT EMPLOYEES WERE TAKING BETS ON WHETHER TERRI WOULD DIE OR NOT!!!
It was widely reported that Judge Baird made reckless and prejudicial comments in support of Greer and Felos and against Jeb's lawyers way before he had heard the evidence from the Governor's attorneys.
In other words, Judge Baird's comments are the likely reason local Pinellas County employees were doing "inside betting" that the local Pinellas County Judges would back each other's poor and constitutionally illegal decisions against Terri's constitutional rights and thus overrule Jeb Bush and Terri's Law. The 6th Circuit Judges are upset to have anyone tell them they are morally and legally wrong...... whether it's constitutionally illegal or not to murder Terri.
Conducting inside betting on the case is a severe violation of the code of conduct for court employees! Whether that is, or is not, the reason the judges have been switched, the very important change in judge can be extremely significant to what happens to Terri. We are hoping that Judge Khouzam will give the Gov a fair hearing in the case and allow the discovery he sought (which was denied by Baird). If Judge Khouzam allows some discovery as requested by Gov Bush, it could make all the difference!
You heard it hear first!
Ron Panzer President, Hospice Patients Alliance http://www.hospicepatients.org
Are you saying law is irrelevent?
In 1990, the Florida Supreme Court ruled in Estelle Browning v. Doris Herbert that patients have the right to refuse medical treatment, including artificial nutrition and hydration. The court also upheld a law that said people who can no longer communicate need only have told friends and family of their wishes not to be sustained by life support.
According to Florida law, MS is her next of kin. That holds true in most if not all states.
The point isn't whether or not her husband has the right to starve her to death, it is whether or not Teri Schiavo would wand to be sustained by life support ot artificial nutrition and hydration. The Court after hearing the testimony found "clear and convincing" evidence that Terri would not. His decision was appealed and a panel of judges reviewed the decision and concurred with the lower court. This procedure is often referred to as due process.
And that's where, as a citizen of the State of Florida, I have a big problem with these proceedings.
Once again, Ron Panzer will be hosting a special edition of Highway 2 Health Radio focusing on Terri Schindler-Schiavo. On Wednesday, January 7, 2004 at 10.00pm ET, Mr. Panzer will be discussing Terri with world renowned neurologist, Dr. William Hammesfahr of Clearwater, Florida.
Dr. Hammesfahr evaluated Terri and gave testimony on his conclusions during the 2002 trial. He stated that not only is PVS an incorrect assessment of Terri's condition, but also that she can be greatly improved with new therapies. Dr. Hammesfahr specializes in a number of successful therapies and has offered to treat Terri, citing that she is an excellent candidate for rehabilitation.
Dr. William Hammesfahr was nominated for the Nobel Prize in Medicine and Physiology in 1999 and has been called "the first physician to treat patients successfully to restore deficits caused by stroke" by Judge Susan Kirkland of the Florida Department of Health. His patient success rate is an amazing 80%.
Highway 2 Health Home Page - http://www.highway2health.net/
Listen Live Link (10.00pm ET) - http://www.warpradio.com/popTuner.asp?id=14108
Ron Panzer and the Hospice Patients' Alliance - http://www.hospicepatients.org/
Hammesfahr Neurological Institute - http://www.floridaneurologicalinstitute.com/
The other statements are not mine and I just returned from a successful demonstration at the courthouse complex. I am thinking about Terri's future, not about drudged up talking points.
Wish-boy Felos who can bring a plane down with his mind isn't doing so well with his mind LATELY...
Supreme Court of Florida.
In re GUARDIANSHIP OF Estelle M. BROWNING.
STATE of Florida, Petitioner,
v.
Doris F. HERBERT, etc., Respondent.
No. 74174.
Sept. 13, 1990.
BARKETT, Justice.
We have for review In re Guardianship of Browning, 543 So.2d 258 (Fla. 2d DCA
1989), in which the district court certified the following question as one of great
public importance:
Whether the guardian of a patient who is incompetent but not in a permanent
vegetative state and who suffers from an incurable, but not terminal condition, may
exercise the patient's right of self-determination to forego sustenance provided
artificially by a nasogastric tube?
Id. at 274. [FN1] We answer the question in the affirmative as qualified in this
opinion.
FN1. We have jurisdiction. Art. V, <section> 3(b)(4), Fla. Const. Estelle
Browning died on July 16, 1989, at the age of 89. Although the claim is moot,
we accept jurisdiction because the issue raised is of great public importance
and likely to recur. In re T.W., 551 So.2d 1186, 1189 (Fla.1989); Holly v.
Auld, 450 So.2d 217, 218 n. 1 (Fla.1984).
I. THE FACTS
On November 19, 1985, a competent Estelle Browning executed a declaration that
provides, in part:
If at any time I should have a terminal condition and if my attending physician has
determined that there can be no recovery from such condition and that my death is
imminent, I direct that life-prolonging procedures be withheld or withdrawn when
the application of such procedures would serve only to prolong artificially the
process of dying.
In addition, Mrs. Browning stipulated that she desired not to have "nutrition and
hydration (food and water) provided by gastric tube or intravenously." [FN2]
FN2. The entire form is reproduced in the appendix of the district court's
opinion. In re Guardianship of Browning, 543 So.2d 258, 275 (Fla. 2d DCA 1989).
At eighty-six years of age, Mrs. Browning suffered a stroke. She was admitted to
the hospital on November 9, 1986, where her treating physician diagnosed a massive
hemorrhage in the left parietal region of the brain, the portion that controls
cognition. Because Mrs. Browning was unable to swallow, she underwent a
gastrostomy on November 20 during which a feeding tube was inserted directly into
her stomach.
The following day, she was discharged from the hospital and transferred to a
nursing home where she remained bedridden and required total care. Mrs. Browning's
second cousin and only living relative, Doris Herbert, eighty, was then appointed
guardian of the person and property of Mrs. Browning.
During the course of her stay in the nursing home, Mrs. Browning was plagued with
physical difficulties, including complications with her feeding tube, which became
dislodged. [FN3] The gastrostomy tube was replaced by a nasogastric tube on May 19,
1988. [FN4]
FN3. The ailments included numerous episodes of vomiting; numerous bed sores,
some of which evidenced profuse drainage; bruises and blisters on extremities;
swelling of the hands, feet, and ankles; ingrown toenails; sporadic vaginal
bleeding; and rectal discharge. The complications included leakage from the
tube; drainage from the incision around the tube; plugging of the catheter
bulb, which required frequent replacement and insertion; and leakage from the
catheter. Like the district court, we are distressed at the need to discuss
the details of Mrs. Browning's condition.
FN4. Gastrostomy and nasogastric tubes are two means of supplying nutrition and
hydration to the patient. The former is surgically placed into the stomach
through the abdomen, and the latter is placed into the stomach through the nose
and esophagus.
Nearly two years after Mrs. Browning suffered her stroke, the guardian filed a
petition in circuit court to terminate the nasogastric feeding based upon Mrs.
Browning's living will. At the evidentiary hearing, the guardian presented
additional evidence of Mrs. Browning's wishes. The evidence reflected that a
predecessor living will, written in 1980, contained the same provisions for
rejection of medical treatment at issue as the one presently before the Court.
Believing that the death of a witness to the 1980 will might have rendered the will
invalid, she executed the 1985 document. Neighbors also testified that Mrs.
Browning had expressed her wishes orally in this regard several times. Mrs. Rose
Kings, a close personal friend of Mrs. Browning since 1965, witnessed Mrs. Browning
execute the 1985 document. She testified that Mrs. Browning signed the declaration
about two days after visiting patients in a nursing home and had said, " 'Oh Lord, I
hope this never happens to me ... thank God I've got this taken care of. I can
go in peace when my time comes.' " Mrs. Kings' husband added that Mrs. Browning
had a friend in the hospital on life- support and remarked that she " 'never
want[ed] to be that way.' "
The guardian, Mrs. Herbert, who had lived with Mrs. Browning from 1982 to 1986,
testified that she had discussed the withdrawal of life-prolonging measures with
Mrs. Browning following the death of Mrs. Browning's husband in 1978. According to
Mrs. Herbert, Mrs. Browning said that she did not want to be maintained through
artificial life-support mechanisms.
The consensus of the medical evidence indicated that the brain damage caused by the
hemorrhage was major and permanent and that there was virtually no chance of
recovery. Death would occur within seven to ten days were the nasogastric feeding
tube removed. However, Mrs. Browning's life could have been prolonged up to one
year as long as she was maintained on the feeding tube and assuming the absence of
infection.
At the same time, the medical evidence reflected that Mrs. Browning was not
comatose. Although she was noncommunicative, she "appeared alert and would follow
[a visitor] with her eyes." However, she "would not blink in any consistent
pattern when asked to respond to simple questions[,] ... would not follow any simple
commands[, and] ... would not look to the right or to the left on command." A
nurse testified that Mrs. Browning had attempted to say a word on a few occasions,
although she conceded that the words had not been clear and the speech was garbled.
Dr. James Barnhill, a neurologist, described Mrs. Browning as noncommunicative and
essentially existing only by virtue of fluid and nutrition supplied by the feeding
tube. Dr. Barnhill opined that she was in a persistent vegetative state, which he
defined as the absence of cognitive behavior and inability to communicate or
interact purposefully with the environment.
The trial court found that Mrs. Browning could continue to live for an
indeterminate time with artificial sustenance but that death would result within
four to nine days without it. Construing Florida's "Life-Prolonging Procedure
Act," sections 765.01-.15, Florida Statutes (1987), the trial court concluded that
death was not imminent, and it denied the petition.
The district court affirmed the trial court's decision that the termination of this
treatment was not permitted by the statute. However, the district court held that
Mrs. Browning was entitled to relief under our state constitution, which expressly
recognized every citizen's basic right of privacy. Browning, 543 So.2d at 261. The
district court then authorized the guardian to make the decision in accordance with
procedures established in the opinion.
II. A COMPETENT PERSON'S RIGHT OF PRIVACY
We agree with the district court that chapter 765 of the Florida Statutes
(1987) is not applicable to Mrs. Browning's situation. [FN5] We also agree with the
district court that Mrs. Browning's fundamental right of self-determination,
commonly expressed as the right of privacy, controls this case.
FN5. Section 765.04(1) of the Florida Statutes (1987) permits competent adults
to order the withholding or withdrawal of "life-prolonging procedures" under
certain conditions. Section 765.03(3) of the Florida Statutes (1987)
specifically excludes the provision of sustenance from the term "life-prolonging
procedure." We note that the legislature has since expanded the definition of
"life-prolonging procedure" to include the provision of sustenance. Effective
October 1, 1990, a patient may authorize the withholding or withdrawal of
nutrition or hydration under certain circumstances. Ch. 90-223, Laws of Fla.
Because the word "privacy" generally has been used in common parlance in its
informational or disclosural sense, its broader meaning has been somewhat ignored.
However, the concept of privacy encompasses much more than the right to control the
disclosure of information about oneself. "Privacy" has been used interchangeably
with the common understanding of the notion of "liberty," and both imply a
fundamental right of self-determination subject only to the state's compelling
and overriding interest. For example, privacy has been defined as an individual's
"control over or the autonomy of the intimacies of personal identity," Gerety,
Redefining Privacy, 12 Harv.C.R.-C.L.L.Rev. 233, 281 (1977); or as a "physical and
psychological zone within which an individual has the right to be free from
intrusion or coercion, whether by government or by society at large." Cope, To Be
Let Alone: Florida's Proposed Right of Privacy, 6 Fla.St.U.L.Rev. 671, 677 (1978).
These components of privacy are the same as those encompassed in the concept of
freedom, and, as recognized in In re T.W., 551 So.2d 1186 (Fla.1989), are deeply
rooted in our nation's philosophical and political heritage. See also Winfield v.
Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). In Florida, we have
recognized that this fundamental right of privacy has been expressly enumerated in
article I, section 23 of the Florida Constitution, which provides "an explicit
textual foundation for those privacy interests inherent in the concept of liberty."
Rasmussen v. South Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987).
Thus, we begin with the premise that everyone has a fundamental right to the sole
control of his or her person. As Justice Cardozo noted seventy-six years ago:
Every human being of adult years and sound mind has a right to determine what shall
be done with his own body....
Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92, 93
(1914). An integral component of self-determination is the right to make choices
pertaining to one's health, including the right to refuse unwanted medical
treatment. "We can conceive of few more personal or private decisions concerning
one's body that one can make in the course of a lifetime ... [than] the decision of
the terminally ill in their choice of whether to discontinue necessary medical
treatment." In re T.W., 551 So.2d at 1192; see Public Health Trust v. Wons, 541
So.2d 96 (Fla.1989).
Recognizing that one has the inherent right to make choices about medical
treatment, we necessarily conclude that this right encompasses all medical choices.
A competent individual has the constitutional right to refuse medical treatment
regardless of his or her medical condition. Wons; accord Cruzan ex rel. Cruzan v.
Director, Mo. Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 2852, 111 L.Ed.2d 224
(1990) ("for the purposes of this case, we assume that the United States
Constitution would grant a competent person a constitutionally protected right to
refuse lifesaving hydration and nutrition"). The issue involves a patient's right
of self-determination and does not involve what is thought to be in the patient's
best interests.
More is involved in respect for self-determination than just the belief that each
person knows what's best for him- or herself.... Even if it could be shown that an
expert (or a computer) could do the job better, the worth of the individual, as
acknowledged in Western ethical traditions and especially in Anglo-American law,
provides an independent--and more important--ground for recognizing
self-determination as a basic principle in human relations, particularly when
matters as important as those raised by health care are at stake.
President's Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, I Making Health Care Decisions 44-45 (1982).
Courts properly have regarded the subjective desires of competent adults to forego
medical intervention as dispositive. As the California Court of Appeal wrote in
the case of Elizabeth Bouvia:
She, as the patient, lying helplessly in bed, unable to care for herself, may
consider her existence meaningless. She cannot be faulted for so concluding. If
her right to choose may not be exercised because there remains to her, in the
opinion of a court, a physician or some committee, a certain arbitrary number of
years, months, or days, her right will have lost its value and meaning.
Who shall say what the minimum amount of available life must be? Does it matter
if it be 15 to 20 years, 15 to 20 months, or 15 to 20 days, if such life has
been physically destroyed and its quality, dignity and purpose gone? As in all
matters lines must be drawn at some point, somewhere, but that decision must
ultimately belong to the one whose life is in issue.
Bouvia v. Superior Court, 179 Cal.App.3d 1127, 1142-43, 225 Cal.Rptr. 297, 304-05
(Ct.App.), review denied (June 5, 1986). Mrs. Bouvia was a competent
twenty-eight-year-old quadriplegic who suffered from severe cerebral palsy and
degenerative and severely crippling arthritis. She was completely bedridden,
immobile, physically helpless, and totally dependent upon others for her care.
Respecting her right to refuse "any medical treatment," the court approved her
request to remove immediately a nasogastric tube that kept her alive. Id. at 1137,
225 Cal.Rptr. at 300 (emphasis in original). See also State v. McAfee, 259 Ga.
579, 385 S.E.2d 651 (1989); In re Requena, 213 N.J.Super. 475, 517 A.2d 886
(Super.Ct.Ch.Div.), aff'd, 213 N.J.Super. 443, 517 A.2d 869 (Super.Ct.App.Div.1986).
Likewise, this Court has honored the subjective choices of competent patients to
refuse medical treatment. In Public Health Trust v. Wons, 541 So.2d 96 (Fla.1989),
we held that a competent, thirty-eight-year-old practicing Jehovah's Witness could
exercise her constitutional right to refuse an emergency blood transfusion, without
which her death was certain to follow shortly. We approved the opinion of the
district court, which concluded that Mrs. Wons was entitled "to exercise her
religious freedom and to lead her private life according to her own conscience."
Wons v. Public Health Trust, 500 So.2d 679, 687 (Fla. 3d DCA 1987), approved, 541
So.2d 96 (Fla.1989). Also, in Satz v. Perlmutter, 379 So.2d 359 (Fla.1980), adopting
362 So.2d 160 (Fla. 4th DCA 1978), we held that a competent, seventy-three-year-old
patient who was suffering from terminal, incurable amyotrophic lateral sclerosis,
was entitled to remove a mechanical respirator, without which death would occur
within a short time. Mr. Perlmutter complained that his life was "miserable," and
at a bedside hearing he testified that his condition without the respirator "can't
be worse than what I'm going through now." Satz, 362 So.2d at 161.
We conclude that a competent person has the constitutional right to
choose or refuse medical treatment, and that right extends to all relevant decisions
concerning one's health. [FN6] Courts overwhelmingly have held that a person may
refuse or remove artificial life-support, whether supplying oxygen by a mechanical
respirator [FN7] or supplying food and water through a feeding tube. [FN8] We
agree and find no significant legal distinction between these artificial means of
life-support.
FN6. We see no reason to qualify that right on the basis of the denomination of
a medical procedure as major or minor, ordinary or extraordinary,
life-prolonging, life-maintaining, life-sustaining, or otherwise. Although
research disclosed no cases that sought to distinguish these terms in the
context of the rights of a competent patient, as opposed to an incompetent
patient, courts generally are agreed that the terms are legally
indistinguishable. See, e.g., Cruzan ex rel. Cruzan v. Director, Mo. Dep't of
Health, 497 U.S. 261, 110 S.Ct. 2841, 2853, 111 L.Ed.2d 224 (1990) (addressing
the issue as the refusal of "life- sustaining medical treatment"); Corbett v.
D'Alessandro, 487 So.2d 368, 371 (Fla. 2d DCA) ("We are unable to distinguish on
a legal, scientific, or a moral basis between those artificial measures that
sustain life--whether by means of 'forced' sustenance or 'forced' continuance of
vital functions--of the vegetative, comatose patient who would soon expire
without use of those artificial means."), review denied, 492 So.2d 1331
(Fla.1986); Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 437, 497
N.E.2d 626, 637 (1986) ("[w]hile we believe that the distinction between
extraordinary and ordinary care is a factor to be considered, the use of such a
distinction as the sole, or major, factor of decision tends, in a case such as
this, [is] to create a distinction without meaning"); In re Hier, 18
Mass.App.Ct. 200, 207, 464 N.E.2d 959, 964, review denied, 392 Mass. 1102, 465
N.E.2d 261 (1984) (rejecting distinction between nutrition and treatment); In
re Gardner, 534 A.2d 947, 954 (Me.1987) (nutrition and hydration
indistinguishable from other life- sustaining procedures); In re Conroy, 98
N.J. 321, 367-70, 486 A.2d 1209, 1233-34 (1985) ("[W]e reject the distinction
... between actively hastening death by terminating treatment and passively
allowing a person to die of a disease.... [and] also reject any distinction
between withholding and withdrawing life-sustaining treatment."); In re
Guardianship of Grant, 109 Wash.2d 545, 563, 747 P.2d 445, 454 (1987) (the right
to withhold life-sustaining procedures extends to "all artificial procedures
which serve only to prolong the life of a terminally-ill patient"); Gray ex rel.
Gray v. Romeo, 697 F.Supp. 580, 588 n. 4 (D.R.I.1988) (no analytical difference
between withholding and withdrawing medical treatment).
FN7. See John F. Kennedy Memorial Hosp., Inc. v. Bludworth, 452 So.2d 921
(Fla.1984); Satz v. Perlmutter, 379 So.2d 359 (Fla.1980); State v. McAfee, 259
Ga. 579, 385 S.E.2d 651 (1989); In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert.
denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); In re Colyer, 99
Wash.2d 114, 660 P.2d 738 (1983).
FN8. Cruzan ex rel. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 110
S.Ct. 2841, 111 L.Ed.2d 224 (1990); Rasmussen ex rel. Mitchell v. Fleming, 154
Ariz. 207, 741 P.2d 674 (1987); Conservatorship of Drabick, 200 Cal.App.3d 185,
245 Cal.Rptr. 840 (Ct.App.), cert. denied, 488 U.S. 958, 109 S.Ct. 399, 102
L.Ed.2d 387 (1988); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225
Cal.Rptr. 297 (Ct.App.), review denied (June 5, 1986); Corbett v. D'Alessandro,
487 So.2d 368 (Fla. 2d DCA), review denied, 492 So.2d 1331 (Fla.1986); In re
Gardner, 534 A.2d 947 (Me.1987); In re Estate of Longeway, 133 Ill.2d 33, 139
Ill.Dec. 780, 549 N.E.2d 292 (1989); Brophy v. New England Sinai Hosp., Inc.,
398 Mass. 417, 497 N.E.2d 626 (1986); In re Hier, 18 Mass.App. 200, 464 N.E.2d
959, review denied, 392 Mass. 1102, 465 N.E.2d 261 (1984); In re Jobes, 108
N.J. 394, 529 A.2d 434 (1987); In re Requena, 213 N.J.Super. 475, 517 A.2d 886
(Ch.Div.), aff'd, 213 N.J.Super. 443, 517 A.2d 869 (App.Div.1986); Delio v.
Westchester County Medical Center, 129 A.D.2d 1, 516 N.Y.S.2d 677 (App.Div.1987)
; Gray ex rel. Gray v. Romeo, 697 F.Supp. 580 (D.R.I.1988).
III. AN INCOMPETENT PERSON'S RIGHT OF PRIVACY
Having determined that a competent person has the constitutionally protected
right to choose or reject medical treatment, we consider whether this right is lost
or diminished by virtue of physical or mental incapacity or incompetence. [FN9] We
previously determined that it is not. In John F. Kennedy Memorial Hospital, Inc.
v. Bludworth, 452 So.2d 921, 923 (Fla.1984), this Court held that an incompetent
person has the same right to refuse medical treatment as a competent person. Thus,
our cases have recognized no basis for drawing a constitutional line between the
protections afforded to competent persons and incompetent persons. Indeed, the
right of privacy would be an empty right were it not to extend to competent and
incompetent persons alike. In re Guardianship of Barry, 445 So.2d 365, 370 (Fla. 2d
DCA 1984). As we have already stated:
FN9. Recent statutory changes that have taken effect since the decision of the
court below require some explanation of the use of the terms "incompetent" and
"incapacitated" in this opinion. The term "incompetent" as used here refers to
a status classification valid under applicable sections of the Florida
Guardianship Law, chapter 744 of the Florida Statutes (1987). The Florida
Guardianship Law was substantially revised effective October 1, 1989. Ch.
89-96, Laws of Fla. The reform legislation makes the word "incompetent"
obsolete and replaces the "incompetency" concept with "incapacity," a term
defined in the statute to recognize varying levels of capacity among persons who
need surrogate decision-making by guardians. As used here, the terms
"incompetent" and "incapacitated" mean those individuals unable to make medical
decisions on their own behalf. Obviously, persons of limited capacity, who
have retained the legal right pursuant to court order to make their own medical
treatment decisions, will be "competent" to make those decisions.
The primary concern ... is that this valuable right should not be lost because the
noncognitive and vegetative condition of the patient prevents a conscious exercise
of the choice to refuse further extraordinary treatment.
Bludworth, 452 So.2d at 924. Accord Cruzan ex rel. Cruzan v. Director, Mo. Dep't
of Health, 110 S.Ct. at 2852 (1990) (fourteenth amendment due process liberty
interest).
IV. ANOTHER MAY EXERCISE THE INCOMPETENT'S RIGHT TO
FOREGO MEDICAL TREATMENT
The real issue before us is an extension of the one presented in Bludworth. When
a person is unable to personally and directly express his or her desires for health
care because of physical and mental incapacity, [FN10] "[t]he question is who will
exercise this right and what parameters will limit them in the exercise of this
right." Bludworth, 452 So.2d at 924-25. In Bludworth, the question related to a
comatose patient. Mrs. Browning, in comparison, was not in a total comatose
state. However, we fail to see a significant legal distinction. As we previously
noted, the right involved here is one of self-determination that cannot be qualified
by the condition of the patient. In this case, as in Bludworth, the patient was
unable to personally or directly exercise the right to refuse medical treatment.
Significantly, the patients in both cases, while competent, had executed written
documents expressing their wishes.
FN10. This opinion addresses only those persons who are mentally and physically
incapacitated and are being sustained by artificial means. We do not address
those who are mentally incapacitated but physically are in good health.
We find that the district court correctly followed the principles
underlying Bludworth. We hold that, because Mrs. Browning was unable to exercise
her constitutional right of privacy by reason of her medical condition, her guardian
was authorized to exercise it for her. As in Bludworth, we do not limit the
ability to exercise this right only to a legally appointed guardian, but recognize
that it may be exercised by proxies or surrogates such as close family members or
friends. [FN11] We emphasize and caution that when the patient has left
instructions regarding life- sustaining treatment, the surrogate must make the
medical choice that the patient, if competent, would have made, and not one that the
surrogate might make for himself or herself, or that the surrogate might think is in
the patient's best interests. As the court below aptly noted:
FN11. We note that in its most recent session, the legislature passed
legislation relating to the appointment of health care surrogates and the
creation of a durable power of attorney. Ch. 90-232, <section><section> 11-24,
Laws of Fla.
[I]t is important for the surrogate decisionmaker to fully appreciate that he or
she makes the decision which the patient would personally choose. In this state, we
have adopted a concept of "substituted judgment." [In re Guardianship of Barry,
445 So.2d 365, 370-71 (Fla. 2d DCA 1984) ]. One does not exercise another's right
of self-determination or fulfill that person's right of privacy by making a
decision which the state, the family, or public opinion would prefer. The
surrogate decisionmaker must be confident that he or she can and is voicing the
patient's decision.
The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate
concern that the "right to die" could become a license to kill. There are times
when some people believe that another would be "better off dead" even though the
other person is still fighting vigorously to live. Euthanasia is a crime in this
state. <section> 782.08, Fla.Stat. (1987). See <section> 765.11(1), Fla.Stat.
(1987). Despite the tremendous advances achieved in this century, the world has
witnessed the extermination of retarded and mentally disturbed persons for whom a
foreign government decided that death was the proper prescription. Thus, it
cannot be overemphasized that the remedy announced in this opinion and the
procedures designed to safeguard that remedy are based upon the patient's right to
make a personal and private decision and not upon other interests.
Browning, 543 So.2d at 269 (emphasis in original).
The state argues that we should not permit the enforcement of Mrs. Browning's
expressed wish because we can never know whether Mrs. Browning may have changed her
mind. A critical problem regarding the exercise of an incompetent's choice is
sometimes posed by the inability of the incompetent to express his or her immediate
wishes. Unfortunately, human limitations preclude absolute knowledge of the wishes
of someone in Mrs. Browning's condition. However, we cannot avoid making a
decision in these circumstances, for even the failure to act constitutes a choice.
That choice must be the patient's choice whenever possible. The right of privacy
requires that we must safeguard an individual's right to chart his or her own
medical course in the event of later incapacity.
V. COMPELLING STATE INTEREST
The state has a duty to assure that a person's wishes regarding medical
treatment are respected. [FN12] That obligation serves to protect the rights of
the individual from intrusion by the state unless the state has a compelling
interest great enough to override this constitutional right. The means to carry
out any such compelling state interest must be narrowly tailored in the least
intrusive manner possible to safeguard the rights of the individual.
FN12. As Justice Stevens observed, "[o]ur Constitution is born of the
proposition that all legitimate governments must secure the equal right of every
person to 'Life, Liberty, and the pursuit of Happiness.' " Cruzan ex rel.,
Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. at 2878 (1990) (Stevens, J.,
dissenting).
Cases decided by this Court have identified state interests in the
preservation of life, the protection of innocent third parties, the prevention of
suicide, and maintenance of the ethical integrity of the medical profession, and
have balanced them against an individual's right to refuse medical treatment.
The state's interest in the preservation of life generally is considered the most
significant state interest. However, " 'there is a substantial distinction in the
State's insistence that human life be saved where the affliction is curable, as
opposed to the State interest where, as here, the issue is not whether, but when,
for how long and at what cost to the individual [his] [or her] life may be briefly
extended.' " Satz v. Perlmutter, 362 So.2d 160, 162 (Fla. 4th DCA 1978) (quoting
Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740-44, 370
N.E.2d 417, 425-26 (1977)), adopted, 379 So.2d 359 (Fla.1980). Hence, in Satz, we
determined that a competent person suffering from an incurable affliction could
refuse medical treatment. See also Wons. Likewise, in Bludworth, the state
interests were insufficient to override the decision of a guardian or close family
members carrying out the wishes of an incompetent patient not to be kept alive
through the use of life-sustaining measures. Bludworth, 452 So.2d at 926.
Two other asserted state interests do not merit much discussion. First, there is
no issue in this case pertaining to third parties. Second, suicide is not an issue
when, as here, the discontinuation of life support "in fact will merely result in
[her] death, if at all, from natural causes." Satz, 362 So.2d at 162.
The last and least significant of the aforementioned state interests is the
maintenance of ethical integrity of the medical profession. However,
"[r]ecognition of the right to refuse necessary treatment in appropriate
circumstances is consistent with existing medical mores; such a doctrine does not
threaten either the integrity of the medical profession, the proper role of
hospitals in caring for such patients[,] or the State's interest in protecting the
same." Satz, 362 So.2d at 163 (quoting Saikewicz, 373 Mass. at 742- 45, 370 N.E.2d
at 426-27). "Given the fundamental nature of the constitutional rights involved,
protection of the ethical integrity of the medical profession alone could never
override those rights." Wons, 541 So.2d at 101 (Ehrlich, C.J., concurring
specially).
As we noted in Wons, the state interests discussed above are "by no means a
bright-line test, capable of resolving every dispute regarding the refusal of
medical treatment. Rather, they are intended merely as factors to be considered
while reaching the difficult decision of when a compelling state interest may
override the basic constitutional right[ ] of privacy." Wons, 541 So.2d at 97.
[FN13] We are satisfied that the state's interests do not outweigh the right of the
individual to forego life-sustaining measures.
FN13. For example, the state may have parens patriae interests in protecting an
incompetent from an abusive or erroneous decision, see Cruzan, 110 S.Ct. at
2853, in avoiding unwanted medical care, see id. at 2851, or in "safe-guarding
the accuracy" of determining the person's wishes. Id. at 2871 (Brennan, J.,
dissenting).
VI. PROCEDURES FOR THE DECISION-MAKER
The state argues that its interests are substantial enough to require more
procedural protections than those provided in the district court's opinion. The
state urges us to quash that section of the district court's opinion that permits a
surrogate to make this life-or-death decision in a "private setting." Instead,
the state suggests that we implement a judicial procedure requiring the surrogate to
obtain prior court approval, giving an opportunity for the state or interested
parties to be heard.
We cannot ignore the possibility that a surrogate might act contrary to the wishes
of the patient. Yet, we are loath to impose a cumbersome legal proceeding at such
a delicate time in those many cases where the patient neither needs nor desires
additional protection. The decision to terminate artificial life-sustaining
measures is being made over and over in nursing homes, hospitals, and private homes
in this nation. It is being made painfully by loving family members, concerned
guardians, or surrogates, in conjunction with the advice of ethical and caring
physicians or other health care providers. It is being made when the only
alternative to a natural death is to artificially maintain a bare existence. See
In re Guardianship of Barry, 445 So.2d 365, 371 (Fla. 2d DCA 1984).
We are persuaded that when the patient has taken the time and the
trouble to specifically express his or her wishes for future health care in the
event of later incapacity, the surrogate need not obtain prior judicial approval to
carry out those wishes. This applies whether the patient has expressed his or her
desires in a "living will," through oral declarations, or by the written designation
of a proxy to make all health care decisions in these circumstances. [FN14] We
recognize that instructions evinced in the form of a "living will" or other written
or oral statements may not have designated a decision-maker to carry out those
instructions. In instances when a patient has left instructions, the patient may
designate, orally or in writing, the decision-maker who is to carry out those
instructions; but the patient need not do so. [FN15] However, when the patient has
not expressed instructions, but has merely delegated full responsibility to a proxy,
the designation of the proxy must have been made in writing.
FN14. As Justice O'Connor observed in Cruzan,
[f]ew individuals provide explicit oral or written instructions regarding their
intent to refuse medical treatment should they become incompetent. States which
decline to consider any evidence other than such instructions may frequently
fail to honor a patient's intent. Such failures might be avoided if the State
considered an equally probative source of evidence: the patient's appointment of
a proxy to make health care decisions on her behalf. Delegating the authority
to make medical decisions to a family member or friend is becoming a common
method of planning for the future. See, e.g., Areen, The Legal Status of Consent
Obtained from Families of Adult Patients to Withhold or Withdraw Treatment, 258
JAMA 229, 230 (1987).
Cruzan, 110 S.Ct. at 2857 (O'Connor, J., concurring) (footnote omitted).
FN15. As we noted earlier, when a decision-maker has not been designated, a
close family member or friend may carry out the patient's instructions.
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.
Likewise, when a proxy has been designated to make the decision without
explicit instructions from the patient, the proxy must satisfy the following
conditions:
1. The proxy must be satisfied that the patient executed the written designation
of proxy knowingly, willingly, and without undue influence; and
2. The proxy 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.
In determining whether the patient may recover competency or whether a medical
condition or limitation referred to in the declaration exists, the surrogate or
proxy must obtain, and may rely upon, certificates [FN16] from the patient's
"primary treating physician" and "at least two other physicians with specialties
relevant to the patient's condition." Bludworth, 452 So.2d at 926.
FN16. By certificates, we mean affidavits, sworn statements, or depositions. In
re Guardianship of Browning, 543 So.2d 258, 272 (Fla. 2d DCA 1989).
VII. CHALLENGES TO THE DECISION
We emphasize, as did the district court, that courts are always open to
adjudicate legitimate questions pertaining to the written or oral instructions.
[FN17] 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.
FN17. We request the Probate and Guardianship Committee of The Florida Bar to
submit to the Court within six months a proposed rule establishing procedures
for expedited judicial intervention as required herein. The experience of
numerous patients who died during the course of burdensome litigation
underscores the importance of rules that provide such patients with certain
access to the courts and the ability to swiftly resolve their claims when
nonlegal means prove unsuccessful. See, e.g., John F. Kennedy Memorial Hosp. v.
Bludworth, 452 So.2d 921 (Fla.1984); In re Guardianship of Browning, 543 So.2d
258 (Fla. 2d DCA 1989); Corbett v. D'Alessandro, 487 So.2d 368 (Fla. 2d DCA),
review denied, 492 So.2d 1331 (Fla.1986); Rasmussen ex rel. Mitchell v.
Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Superintendent of Belchertown
State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Farrell,
108 N.J. 335, 529 A.2d 404 (1987); In re Conroy, 98 N.J. 321, 486 A.2d 1209
(1985); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert.
denied, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981).
When the decision of a proxy or surrogate is challenged, a written declaration
or designation of proxy, in the absence of any evidence of intent to the contrary,
establishes a rebuttable presumption that constitutes clear and convincing evidence
of the patient's wishes. Evidence of the physicians' certificates establishing the
existence of any medical condition required by the declaration likewise establishes
a rebuttable presumption that these conditions have been satisfied.
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.
For example, Mrs. Browning made a written declaration. Had Mrs. Browning merely
indicated in her written document that she wanted to refuse any and all efforts to
artificially prolong her life, viable challenges to her guardian's decision to
implement those wishes would have included: that Mrs. Browning changed her
mind; that she executed the document unknowingly, unwillingly, or under undue
influence; or that there existed a reasonable probability that she would regain
competency. Evidence on other issues generally would have been irrelevant to the
only issue to be decided--the patient's wishes.
In this instance, however, Mrs. Browning's wishes were conditional. She
indicated that her decision to refuse treatment was limited to a time when she had a
"terminal condition" from which her attending physician determined that there could
be "no recovery" and that "death [was] imminent." Thus, in a case like this one,
the surrogate's conclusions as to those matters could become additional bases of
challenge. We are satisfied in this case that the surrogate's conclusions were
correct. No one questioned that the declaration was executed by Mrs. Browning
knowingly, willingly, and without undue influence. Nor was there any question that
Mrs. Browning was beyond hope of regaining her competency and making the decision
herself. Thus, the only question was whether the conditions established by Mrs.
Browning in her declaration were satisfied.
The trial court found that death would occur within four to nine days after removal
of the nasogastric tube. Therefore, Mrs. Browning's life could only have been
sustained beyond that time by the administration of artificial, intrusive medical
measures. Under those circumstances, Mrs. Browning's death was imminent as we
construe her express written intent. In addition, all the doctors agreed that Mrs.
Browning suffered permanent brain damage and the medical testimony established that
there was no hope that she would recover from her condition. We are satisfied that
clear and convincing evidence existed to support a finding that Mrs. Browning
suffered from a terminal condition. Under these circumstances, the surrogate was
correct in instructing Mrs. Browning's health care providers to discontinue all
life- sustaining procedures in accordance with Mrs. Browning's wishes.
VIII. CONCLUSION
We have previously held that competent and incompetent persons have the right
to determine for themselves the course of their medical treatment. Today we hold
that, without prior judicial approval, a surrogate or proxy, as provided here, may
exercise the constitutional right of privacy for one who has become incompetent and
who, while competent, expressed his or her wishes orally or in writing. We also
determine that there is no legal distinction between gastrostomy or nasogastric
feeding and any other means of life support. This case resolves a question of an
individual's constitutional right of self- determination. We are hopeful that this
decision will encourage those who want their wishes to be followed to express their
wishes clearly and completely.
For the reasons expressed above, we answer the certified question in the
affirmative as qualified here and approve the decision of the district court.
It is so ordered.
SHAW, C.J., and EHRLICH, GRIMES and KOGAN, JJ., concur.
McDONALD, J., concurs with an opinion.
OVERTON, J., concurs in part and dissents in part with an opinion.
McDONALD, Justice, concurring.
I concur, but to the extent that they are not explicitly expressed in this opinion,
I would incorporate, include, and adopt sections VIII, IX, and X of the opinion
under review. 543 So.2d 258, 271-274.
OVERTON, Justice, concurring in part and dissenting in part.
I concur with the majority opinion except that part which allows a guardian or
surrogate to assert an incompetent's right to forego treatment based on a prior oral
statement by the incompetent. In these circumstances, I find that judicial
involvement is appropriate to assure the validity of the oral statement and to
assure that the medical certificates required under John F. Kennedy Memorial
Hospital, Inc. v. Bludworth, 452 So.2d 921 (Fla.1984), were obtained. I recognize
that this view is contrary to some of the principles set forth in Bludworth.
Judicial approval is required whenever a guardian sells the property of a ward. I
find that, where there is no written "living will" or other written declaration,
judicial involvement is necessary to protect the interests of a ward when
termination of the ward's life is in issue. I recognize that a judicial proceeding
should not unduly delay the process. In order to make judicial involvement work
properly, we need to develop an accessible and expeditious proceeding to resolve the
factual issues in these matters.
I am concerned that, if there is no judicial involvement, these decisions could be
made by surrogates who would benefit financially from an early termination of the
ward's life. Given the factors involved, I find a substantial state interest in
the protection of the ward and also a need to assure the public that a proper
decision is being made where the intent of the ward is unknown or is based only on
the ward's prior oral statement. In this type of situation, I would be much more
comfortable with an impartial judge having the opportunity to determine the validity
of the oral statement and the medical certificates, particularly where those making
the decision have a financial interest.
On November 19, 1985, a competent Estelle Browning executed a declaration that provides, in part:
If at any time I should have a terminal condition and if my attending physician has determined that there can be no recovery from such condition and that my death is imminent, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying.
In addition, Mrs. Browning stipulated that she desired not to have "nutrition and hydration (food and water) provided by gastric tube or intravenously." [FN2]
[FN2] The entire form is reproduced in the appendix of the district court's opinion. In re Guardianship of Browning, 543 So.2d 258, 275 (Fla. 2d DCA 1989).
"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".
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