Due Process Reviewed ??

Due Process Reviewed ??

Re-pub of a message posted by me at Yahoo Message Board about 18:21 03-28-05 Terri Schiavo's construed choice to avert an artificial extension of her life denies her the living option of a change of mind - she cannot revoke her construed 'living will'. Further - the providing of water and nutriment may or may not have been an artificial prolongation in her contemplation depending on the interpretation of that term. Florida's Supreme Court in limiting Gov Bush's intervention by special state law - stayed that state law which did not explicitly (adequately) dictate a procedure for the executive in these cases .. so the traditional choice of the judicial power [for resolution] remained paramount. In exercising that power and sustaining the lower state court's decision -Florida's Supreme Court, and the US Federal courts .. sustain the right to die as a medical privacy right - even when construed by a detached judicially appointed guardian from the evidence of the terminal patient's living wishes as a replacement for a physically prepared 'living will'. Hence - Terri Schiavo, can be said to have chosen an end even where her life is not vegetative - so long as her guardian can speak for her. Florida's statute broadly applies medical evidence to 'brain death'; however she would have to have capacity to revoke her guardian's decision. Proof of a changed mental condition might forestall her choice's effectuation. Revocation of a terminal death choice is a right denied Terri Schiavo in exercising her medical privacy. Florida does not permit a 'right to suicide' because the life in living is valuable to more than the suicidist. However - a dispute by next of kin does not stay a life termination by a terminal patient's 'next friend' guardian or surrogate. A better solution, where she prepared no 'living will' in advance would have been to default in favor of continuing her life to a more natural death.

Florida Statute - Living Will & Terminal Medical Illness Provisions

Link from State Code of Florida above provides sections of law pertinent to living wills and surrogates or proxy in criticical medical decisions of incompetent or mentally disabled persons. (Click the colored title above or use this link -as in other posts below: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0765/ch0765.htm

In Terri Schiavo's case (my fact knowledge incomplete) either the husband was surrogate or was intially chosen as 'next of kin' to make the decision; the patient was possibly transferred to a hospice which wouldor could carry out the intentions to end 'life prolinging' - an option permitted under law (ie if a religious or other hospital's procedure would not permit the extinction of life prolonging'.
The law also provides for a guardianship by the courts to make a decision as to a proxy for the decision.

More on Schiavo

More on Schiavo Matter

Links below address the Schiavo case further for the layman ... they highlight 'Living Will' & "HealthCare' Proxy forms .... and the text excerpt outlnes the Florida 'reverse-default' - if you have no living will - then without more the State of Florida, in American majority exception - may choose at medical advice to initiate one for you and to act as or to select your health care proxy. In better form - absent a 'living will' or health decision proxy for your disablement situation -the effect should be a decision by you for your life's continued maintenance -rather than the Florida law's default to an optional state death decision. Yes in Florida it is a state option to shorten your disabled terminal life ... however, in most states - the decision BY YOU to shorten your terminal life MUST BE IN WRITING (or communication of record) & WITNESSED - and done by you. http://www.legacywriter.com/hcdrequirements.html http://www.ctelderlaw.org/LivingWills/LivingWillQ&A.htm http://www.willtrust.com/book/livingwill.htm [excerpt from article on Florida statute from link above The Florida statute create an exception for persons in a persistent vegetative state, who have no advance directive and no family or friends available or willing to serve as a proxy to make health care decisions. This statute states that in such an event, life prolonging procedures may be withheld or withdrawn by a judicially appointed guardian with authority to consent to medical treatment who is representing the best interest of the patient. The guardian and the patient's attending physician must first consult with the medical ethics committee of the facility where the patient is located. A conclusion must then be reached that the patient's condition is permanent and there is no reasonable medical probability for recovery. It must also be confirmed that the withholding or withdrawing of life prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community based ethics committee approved by the Florida Bio ethics Network. ... [end excerpt]

Determination of Death - Current Recommended Law

Determination of Death at Law

Current determination of death as recommended by a unifrom act .. is at this link or click above. From the Uniform Law Center ... with American Medical Association approval - it defines brain death as complete cessation from functioning -of the entire brain. It was drafted as a model law for uniform state adoption in 1980. Its application to the Schiavo case, by reasoning in Florida, is unknown.