Medical Care at the End of Life: A Catholic Perspective

Chapter 5. Advance Directives

Decisions for Incompetent Patients 61 advance directive and evidence of her wishes was not entirely clear). The Florida Supreme Court declined to review that decision (Annas 2005, 1711). But because of objections from family members who claimed they had new evidence of her condition and new treatment options, another court hearing took place in 2003 (In re Guardianship of Schiavo). Again the court agreed with Schiavo’s husband and again the Florida Supreme Court refused to hear an appeal (Annas 2005, 1711–12). Family members, with support from some religious and political groups, then asked the Florida legislature to enact a law requiring that the feeding be continued, which they did in passing ‘‘Terri’s Law’’ in October 2003. The law was drawn up in such a way that it applied only to Schiavo and to no one else (Annas 2005, 1712). In the fall of 2004 the Florida Supreme Court ruled this law to be unconstitutional because it was an encroachment by the legislative branch onto the judicial branch of government (Bush v. Schiavo). The U.S. Supreme Court refused to hear the case, and the feeding tube was removed on March 18, 2005. In a final attempt to maintain the feeding tube, Congress reconvened from Easter recess for the precise purpose of enacting a law concerning Theresa Schiavo. Annas correctly notes the ‘‘uninformed and frenzied rhetoric’’ that was part of the debate in Congress (Annas 2005, 1713). A number of Republican physicianmembers of Congress claimed to be sure that she was not in PVS, a claim that would be refuted when an autopsy after her death showed clear evidence that that indeed had been her condition. The law Congress passed, which was signed by President George W. Bush on March 21, in effect it required a federal court to hear the case. The following day the federal court ruled. Judge James D. Whittemore, U.S. District Court, refused to order the feeding tube to be reinserted (Schiavo ex rel. Schindler v. Schiavo) (Annas 2005, 1713–14). Theresa Marie Schiavo died, still unconscious, on March 31, 2005, more than fifteen years after her last conscious experience. 62 Chapter 4 In the aftermath of this case, with all its attendant publicity, one conclusion commonly drawn was the need to make one’s wishes clear in written advance directives (Dombi 2005). Had Terri Schiavo done this, it was said, the strife and the drawn-out court battles would not have occurred. But when I return to discuss treatment directives in the next chapter, we will discover significant reasons why they often do not in fact provide the resolution that is sought. In my judgment, the principle legal conclusion to be drawn from this unfortunate case is, as Rebecca Dresser claims (Dresser 2005), that there is a need for some sort of objective standard in the law. Dresser points to Martin, Wendland, and Schiavo as three cases proving this need (Dresser 2005, 21). And this is precisely what I have been arguing for in this chapter. The pure subjective standard (the pure substituted judgment standard), to which courts have all too often given preference, is insufficient. Regarding the Schiavo case, Dresser writes: Much of the opposition to the Florida court rulings was based on weaknesses in the substituted judgment standard. The testimony about Ms. Schiavo’s previous statements was general enough to raise doubts about whether she would indeed have refused nutrition and hydration. And years after her brain injury, with her family so divided, could anyone really know what she would decide if she were, in the language of the Quinlan court, ‘‘miraculously lucid for an interval . . . and perceptive of her irreversible condition’’? (Dresser 2005, 20) In Schiavo, it is clear that objective evidence was considered by the courts and that they properly judged the decision of her husband Michael to remove the feeding tube to be the right one. Deciding for the Never Competent The issues we have discussed apply to patients who once were able to make decisions and now no longer can. In these cases, surrogates need to look at both the patients’ previously expressed wishes and Decisions for Incompetent Patients 63 their best interests. In cases of young children or others who, perhaps because of a lifelong mental deficiency, have never been able to make or express autonomous wishes about treatment, the situation is in many ways easier. In such cases it is clear that...