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Suppose Carl Hiaasen were to write one of his Florida novels about a presidential election that turned on the U.S. Supreme Court’s decision denying a Florida ballot recount, yielding a president who did not win a popular vote. Yet the result stood because everyone accepted the high court’s authority to have the final word on interpreting the Constitution. And suppose Hiaasen’s narrative were to have the president’s brother, as governor of the same state whose voters were judicially denied a recount, use legislatively conjured executive authority to overrule decisions of the state Supreme Court and the U.S. Supreme Court in a later case. A potential publisher would say that plot was too over-the-top in absurd irony. Yet that is exactly what happened last month. There is nothing substantively new, either in medical ethics or in law, in the tragic case of Terri Schiavo, the brain-damaged St. Petersburg, Fla., woman whose feeding and hydration tube was reattached by order of Gov. Jeb Bush. The ethical and legal principles have been settled for more than a decade. End-of-life cases like this have proceeded routinely without hurtling us down the “slippery slope” feared by those who advocate Schiavo’s continued maintenance on artificial life support. The only differences in Schiavo’s case are the intractability of the dispute between her husband and her parents, the media frenzy, and the overabundance of legal and political bites at the apple her parents have received. FLORIDA’S RIGHT TO DIE Florida voters approved the following amendment to the Florida Constitution (Article I, Section 23): “Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.” In 1990, the Florida Supreme Court declared in the case In re Browning that this privacy right includes the right of incompetent adults to refuse life-sustaining treatment, including artificially provided nutrition and hydration, for patients in a persistent vegetative state. Florida Statutes Chapter 765 clearly recognizes that persons who never left written instructions and who never formally designated a surrogate decision-maker have the same right to withholding and withdrawal of unwanted life support as those who provide written instructions. The order of priority of those specified to be the patient’s proxy decision-maker presumes that order based on probability of accurate knowledge of what the patient would have chosen. In Chapter 765, the preferred standard of decision making for the proxy remains the same as for a surrogate decision-maker designated by the patient, namely substituted judgment about what the patient would have wanted. This order of priority — placing the spouse before the patient’s adult children, parents, and siblings — presumes the spouse to have a greater likelihood of knowing what the patient would have chosen. Nearly two-thirds of Floridians have not written anything about their end-of-life choices or designated a surrogate decision-maker in writing. That does not mean that many, if not most, of those people have not expressed themselves about what choices they would make or who they would want to choose for them. CAN YOU HEAR THEM NOW? Imagine how many such conversations have occurred among spouses or other intimates during the intense coverage of the Schiavo case. To invalidate the evidentiary value of such oral expressions of a person’s choices because another family member challenges it is terrible public policy. It trivializes the serious expression of that person’s views in the context where such expressions most naturally occur. It allows any family member who has differing religious beliefs or personal reasons of any sort to hold hostage the choices of the incapacitated patient and to prevent those choices from being honored. Chapter 765 does not assume that there is never a reason for another family member to present evidence that the proxy designated by statutory order is wrong about what the patient would have wanted. As an ethics consultant in such cases, I have found in some cases that there were good reasons to believe that the spouse’s claim to know what the patient would have wanted is not credible or there is a sufficient conflict of interest to question the spouse’s appropriateness to make the decision to withdraw life support. In such cases, I have recommended that the best way to assess the credibility and weight of the spouse’s claim and the decision as to whether the spouse should be replaced with a court-appointed guardian is a court with appropriate jurisdiction. Only a court can place the parties under oath and compel adequate discovery in order to make such decisions fairly. The hastily passed legislation being called Terri’s Law overrides the judicial process when a relative disagrees with judicial determinations. To usurp the finality of the judicial process with a legislative and executive intrusion threatens the fundamental constitutional right of all Floridians to make one of the most personal and basic decisions — the timing and circumstances of our living and dying. Bill Allen is associate professor of bioethics, law, and medical professionalism at the University of Florida College of Medicine in Gainesville. This article originally ran in the Daily Business Review, a Legal Times affiliate in Miami.

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