Living Wills

The fallbacks of not having a living will can create such a furor and the publicity received by the Terri Schiavo’s case in the USA is a testament to this. This case caught the attention of the world and the debates are continuing and implications are still being analysed even today, there is no end. The courts, the Governor, Legislature (Senate and Congress), including the President and the Pope, all got involved.

The Issues

The debate is centred largely around the confusion of whether the removal of the feeding tube is tantamount to murder? There is also the question of whether a right to die exists or not. Is there a right to refuse treatment? What about the right to assisted suicide? Add to all the Human Rights and Constitutional issues, there was the religious issues which were raised passionately.

The Case

Terri Schiavo suffered a cardiac arrest in February 1990. This resulted in deprivation of oxygen to her brain for a significant period. This left her with severe brain damage in a persistent vegetative state (PSV). She had lost all her cognitive abilities and was kept alive by a feeding tube.

Her husband Michael Schiavo was appointed as her guardian and in 1998 her husband alleged that his wife would not have wished to be kept alive artificially and he applied to court to have his wife’s feeding tube discontinued. Terri’s parents Robert and Mary Schindler opposed the application alleging that such conduct is tantamount to murder. This began one of the most legally contested, highly emotional, massive public debates. There has never before been such an intensive legal scrutiny of a patients medical condition and wishes as to the medical treatment in the annuls of American jurisprudence or internationally.

The Legal Battle

This was followed by a litany of litigation, cross-appeals which in short is as follows:

  • 11 February 2000: court ruled that Terri was in persistent vegetative state and that it would not be her wish to live that way and therefore granted and authorised the discontinuance of the artificial life support. However the order stayed pending an appeal by Teri’s parents.
  • 24 January 2000: the appeal of Teri’s parents was dismissed and three months thereafter on the 24 April 2000 the assisted feeding was discontinued; however it was later restored at pursuant to an order of another judge at the insistence of The Schindlers.
  • 15 October: the feeding tube was discontinued and this time the order was not only authorised but mandated Michael Schiavo to cause the removal of the nutrition and hydration tube.
  • Six days later the tube was reinstate by an Executive Order of Florida State Governor, Jeb Bush the son of President George Bush. It was authorised after the Florida Legislature had passed a law which empowered the Governor to be able to issue such an order. The order compelled reinsertion of the feeding tube, prohibited any persons from interfering and directed the enforcement to serve the order and hence the law became known as Terri’s Law.
  • Once again, the matter was in court's for a different reason: to pronounce on Constitutionality of Terri’s Law. The courts ruled that the Florida Legislature through the so-called Terri’s Law had exceeded its authority. The Governor sought a review and but it was denied on the principle that the executive powers should be separated from the judiciary.
  • 25 February 2005: the court ordered the removal of the feeding tube to be carried out on the 18 March 2005.
  • The Schindlers applied twice to court and to a therapist to determine whether Terri could swallow and intake nutrition and hydration without the feeding tube; and to have a medical expert to attempt to feed Terri by mouth, after the removal of the tube. Both requests were denied by the court.
  • 18 March 2005: the Appeal Court affirmed the trial court decision of the 25 February to have the tube removed and the removal was done on 18 March. This was the third time that the feeding tube was removed.
  • 22 March 2005: the Senate and Congress crafted and passed a Law specifically for Terri Schiavo. President Bush signed this law on the 22 March after being passed the legislature authorised the following:
  • Granted a particular court jurisdiction over this matter; previously the court had held it lacked jurisdiction.
  • Allow such a court to review the alleged violations of Terri Schiavo
  • Allows the court to issue a declaratory and injunctive relief as may be necessary to protect the rights of Terri Schiavo under the American Constitution order
  • The Schindlers refiled a petition pursuant to the special law but were unsuccessful.

The case according Michael Schiavo:

Terri’s husband Michael Schiavo alleges that his wife wishes were clear that she would not have wanted to live in the condition in which she was. He also stated that there was sufficient medical proof that Terri had lost all her cognitive abilities. He was satisfied with pronouncement of the court as it represented the wishes of his wife whom he alleges wanted to die in peace. He went further to assert that the case has been given sufficient scrutiny by an independent arbiter, i.e. the courts and therefore Terri was given her due process right;

The Case according to the Schindlers:

The Schindlers' arguments were that Terri would have wanted to continue being fed by the tube and that she had the potential to recover. The removal of the feeding tube was tantamount to murder. Terri’s right to due process had been violated as the she was not represented by an independent lawyer at the hearing to terminate her assisted feeding and hydration intended to cause her to die. They also alleged in subsequent proceedings and or appeals that the Government through the courts had violated the rights of Terri, infringing her fundamental liberties. They also argued that the Judge who ordered the removal of the feeding tube had never personally observed Terri or saw her prior to making his order of removal.

They also alleged that Michael Schiavo had infringed the Religious rights of Terri by refusing her to be taken to Mass as a Catholic. He also refused to respect the teachings of Terri’s Catholic faith which is against cremation of the corpse rather than the preferred method of Terri’s church, which is the burial.

Conclusion

There is no right to die. There is a right to refuse medical treatment through a living will. The issue has not arisen in the South African context. Death has not been defined, but a person is regarded as clinically dead if the person is brainstem dead. The right to suicide assisted death is not allowed even in law and it is regarded as murder. This involves positive action that causes death like giving a patient a lethal injection. Although the switching of a ventilator appears to a positive action, it is interpreted as stopping of an action and therefore it is a typical withdrawal of treatment.

South African Perspective

It is argued that in South Africa the issues may be more crystal and the reliance will be placed on the patients rights as the overriding determination. Section 12(2) of the Constitution gives a person the right to bodily and psychological integrity which include the right to security and control over their body. Secondly our legal system is different to the USA one and so is the manner of litigation. The threat of the executive interfering with the courts is minimal, certainly at this stage. The separation of powers is currently well guarded and this had to remain so. The danger of activism to attempt to influence independent courts as was evident in this case has some dangerous unforeseen consequences and should not prevail. Democracy is well protected by an independent judiciary that is objective and impartial and free from interference from the executive.

Let me have you views on the subject and have a safe and happy vocation..

Jerry Nkeli

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