IS THERE A
'CULTURE OF DEATH' IN FLORIDA?

by

Thomas A. Horkan, Jr.

March 18, 1999

   Bills have been filed in this year's Florida Legislature which seem to me to seriously threaten the lives of many patients in Florida health facilities.  House Bill 343 and perhaps others extensively amend the Life Prolonging Procedure Law, which now applies to terminally ill patients.  These would remove a series of protections that all patients now have.  The phrase "culture of death" comes to mind.

   These bills flow from the work of an advisory commission set up last year.

   It held public meetings around the state that were attended by some, but not many, citizens.  Some of those who did attend complained about patients who were kept alive longer than they wished.  The commission based their recommendations largely on those complainants, ignoring the vast majority of patients who want to live. Some of the complaints were just.  Humane medical care is not always perfectly delivered; but, likewise, well intentioned laws are often disastrously applied.

   The commission's recommendations, and this bill, strike out all mention of terminal illness in the law in at least nine places.  This not only applies to living wills and their implementation, but also to the withdrawal of treatment from persons who have never signed a living will or designated a surrogate, in fact to persons who have never been competent (children or mentally incapacitated).  The impact of this is to permit the withdrawal of life pro-longing treatment from any incapacitated patient, i.e., one who "is physically or mentally unable to communicate a willful and knowing health care decision."  For that patient, the decision is made by a surrogate, proxy or physician, regardless of terminal illness or treatable condition.

   The recommendations get worse.  The present law provides that when a physician diagnoses the patient as incapacitated, a second opinion must be obtained, since that diagnosis triggers major decisions.  These recommendations and the bill eliminate the need for a second opinion unless the first physician "has a question" about capacity.

   The present law provides for the next of kin, as proxy, to make decisions for a patient without a living will who has not appointed a surrogate.  The decision to withdraw treatment must be supported by "clear and convincing evidence" that it would have been the patients decision, if competent.  These proposals change that so the proxy's decision need only be supported by evidence "if challenged."  Few vulnerable patients have anyone to "challenge" anything.

   Another change to the proxy law relates to situations where the next of kin consist of more than one adult child, or more that one adult sibling of the patient.  The present law allows the majority of the children or siblings to make the decision.  The proposals change that to permit any one child or sibling to decide, regardless of the opinions of the others. 

   A new section of the law is then created to provide for the withdrawal of treatment from patients in a persistent vegetative state, where there is no surrogate or next of kin, on the decision of a court-appointed guardian, the attending physician and the hospital medical ethics committee.

   If all that is not enough, the recommendations and bill punish the physician and facility if they fail to comply with a living will or surrogate's decision to withdraw treatment.  Not only do they forfeit compensation for the continued care of the patient, but they can be sued for failing to comply.  Thus, death and they are free; if the patient lives they are sued.

   There can be isolated cases that may argue for one or another of the many changes. but cumulatively, this commission's recommendations, the bill and other bills that will flow from it are awful.  The vast number of people who are incompetent or incapacitated want to live, and want care and dignity.  Many are depressed, in pain or fear of being a burden on others.  Death should not be the only or favored response.

   Perhaps patients do not always get the care they deserve today, but this kind of legislation will only make it worse.  A member of the commission, a former president of the Florida Medical Association, stated during the proceedings that these changes would dramatically change the way patients are treated.

   This won't change things for the better.  Death will be available, not medical care.  Millions of Floridians lack medical insurance today.  Health maintenance organizations and other managed care plans succeed by limiting expenditures.  The whole medical care system and its financing are going through massive change.  This is the worst time to be considering this legislation.

   The commission members are not evil people.  They heard from some articulate advocates of these changes.  They considered the rights of patients under the Florida Constitution, including the right to reject treatment regardless of terminal illness.  But the life-prolonging procedure law has a different role than the constitution.  It lays down a road map for health care providers and facilities to follow in withholding or withdrawing extraordinary procedures from patients.

   If the map is followed, there is no civil or criminal liability.  This law preserves and recognizes the constitutional rights, but offers this special protection in these limited situations.  It should not be expanded in this way.

   There are too many vulnerable, disabled, elderly and poor people who need the protection of the law, not the loss of protection. When Pope John Paul II warns of the culture of death, it seems to me that he may be thinking of proposals such as this.