Terri Schiavo
Dear Dom Giordano:
Thanks for inviting me onto your 1210 Talk Radio show yesterday(Wednesday, March 30, 2004). As a former teacher/educator I thought I could share with you the analysis the courts go through when asked to review a "Schiavo" case and you would be interested.
The court's analysis begins with the premise that "no right is held more sacred or is more carefully guarded then the right of every individual to the possession and control of his own person." From this "right to self determination", the doctrine of informed consent was born. Absent an emergency situation, medical treatment may not be imposed without the patient's consent. The logical corollary is the patient's right to refuse treatment and to withdraw consent to treatment once begun. Courts have unanimously concluded that the right to self determination does not cease upon the incapacitation of the individual. However, this right is not absolute. There are 4 state interests most commonly recognized:
1. protection of 3rd parties, i.e., Whether the patient has dependants who would be left emotionally and financially bereft;
2. prevention of suicide (removal of life sustaining measures is not self inflicted, as is the case with suicide);
3. protection of the ethical integrity of the medical community (the Pa. Medical Society supports the withdrawal of life sustaining treatment by a surrogate attempting to effectuate the wishes of the patient); and
4. preservation of life, which the courts have held does not outweigh the individuals right to self determination.
All 50 states have laws regarding end of life decisions made by surrogates in the absence of a living will. Pennsylvania gives the right to make decisions to a close family member. Florida, which is in the majority, says it is the spouse. Texas, under a law signed by then Governor Bush, says physician and next of kin. You pick the state, and I'll tell you who the surrogate is. There is no erring on the side of life.
Since the incapacitated person can not communicate his or her wishes, (because of their permanent vegetative state), and their right to self determination doesn't die with their incapacitation, Pennsylvania chose the "substituted judgment approach" to arrive at the proper surrogate. The person who would know best what the person would want, in Pennsylvania, is a close family member. In Florida, its the spouse. In the Daniel Joseph Fiori case, decided by the Pennsylvania Supreme Court in 1996, (identical to the Schiavo case), the court gave the right to decide to Daniel's mom. Other approaches are "best interest" and "clear and convincing."
Now that Terri has passed away, and the emotion surrounding the preservation of her life has naturally diminished, it is time to understand why the court decided the way it did; why the Supreme Court refused to hear the case 5 or 6 times; why the judges decided the way they did. The debate should continue without the rhetoric.
Whether you agree or disagree, you should understand why.
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