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 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.
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:
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.
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..