The Supreme Court of Florida handed down its long awaited decision in this case on September 13, 1990.  The court said that it was presented with the question:

"Whether the guardian of a patient who is in competent but not in a permanent vegetative state and who suffers from an incurable, but not terminal condition, may exercise the patient's right of selfdetermination to forego sustenanceprovided artificially by a nasogastric tube?

The answer was in the affirmative, with considerable elaboration.  The decision is much more sweeping and broader than the facts directly presented in court.

In order to describe the impact of the decision let us consider five questions, who ', what, when, how, and where?  Who is the patient for whom these decisions can be made? What treatments or procedures can be withdrawn under this decision?  When or at what stage of the patients condition can the treatment or care be withdrawn?  How can the decision be made and by whom, and what process has to be followed?  And where do we go from here?

WHO --Who is the patient for whom these decisions can be made?

The decision applies to both competent and incompetent patients.  The decision sets forth thecompetent persons right of privacy a s a fundamental right of selfdetermination, which entitles every patient to the "inherent right to make choices about medical treatment."  It bases that on the right of privacy section in the Florida Constitution.  This right is not lost or diminished because of incapacity or incompetence and belongs to all individuals whether able or unable to make medical decisions for themselves.

The court says in a footnote:  "This opinion addresses only those persons who are mentally and 'physically incapacitated and are being sustained by artificial means.  We do not address those who are mentally incapacitated but physically are in good health".  However, many of its holdings clearly apply to all incapacitated patients (i.e. definitions of imminent death and terminal illness, regarding sustenance the same as all other treatments, etc.)  In Re: Barry, involving an infant, and In Re: T.W., involving the abortion of a 15 year old, are cited as authority for the extensions of the right of privacy to incompetents.  Thus clearly, the decision applies to children as well as all other incompetents.

WHAT --What treatments or procedures can be withdrawn under this decision?

All treatments are covered, including artificia1 sustenance, heroic measures, and lesser measures.  The court finds that the withdrawal of food and water through a feeding tube is no different from the removal of other artificial life supports, and says "we conclude that a competent person has a constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health."   Moreover, the court applies this right to "all medical choices", and rejects 'any distinction based on whether the procedure is "major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, lifesustaining, or otherwise".   The court expressly refers to blood transfusions, and clearly would include kidney dialysis, insulin treatment and any other medical procedures which might sustain or prolong the life of a patient.

WHEN -- When or at what stage of the patients condition can the treatment or care be withdrawn?

The withdrawal of such procedures does not depend on terminal illness or imminent death.   If the patient is incompetent and unable to legally act, a surrogate may take action so long as three physicians certify that the patient "does not have a reasonable probability of recovering competency. "  The right to withdraw "is one of self-determination that cannot be qualif ied by the condition of the patient." (i.e. is not lost because the patient became incompetent)

Although the case went up to the Supreme Court on the basis that the patient had an incurable but not terminal condition, and the opinion itself appeared to be based on the right of a non-terminally ill patient to have any type of treatment withdrawn, the opinion concludes with a holding that because Mrs. Browning would die within.four hours to nine days after remova of the artificial feeding her death was therefore imminent and her condition was terminal.  This holding conflicts with earlier holdings and construes imminent death and terminal illness differently than that contemplated in the statute and in prior decisions.  There is no citation of authority or reasoning for this finding. It is simply stated as a conclusion.  This has a profound impact on current law, and on current declarations or living wills.

The court further holds, without discussion, "the discontinuation of life support in fact will merely result in (her] death, if at all, from natural causes."  The opinion insists that the decision must be that of the patient, and that the guardian must not exercise his or her own decision but only that of the patient.  The wishes of the patient may be expressed in writing or orally, or turned over in writing to a proxy.   Since these are clearly not  available in the case of  infants, the retarded, or persons who have never been competent, the impact of this opinion on those patients is not completely clear.  However, the way the opinion is written,  it could well be cited as authority for non-judicial decision making in those cases as well, regardless of terminal  illness or imminent death.

The court depicts a glowing stereotype of the medical decision-making process in these cases.  It recognizes the possibility of improper activity under the guidelines but says "we are loath to impose an cumbersome legal proceeding at such a delicate time in those many cases where the patient neither needs nor desires additional protection".  The decision "is being made painfully by loving family members, concerned guardians or surrogates, in conjunction with the advice of ethical and caring physicians or other health care providers".  No mention is made of the uncertainty of diagnosis; fiscal pressures on or antisocial attitudes of caregivers or families; bureaucratic and legal restrictions on what used to be good medical practice; or the growing bias for death in our society.  In fact, the court says:  "We are satisfied that the states interests [in prolonging life] do not out weigh the right of an individual to forego life sustaining measures".

HOW --How can the decision be made and by whom, and what process has to be followed?

First, the court addresses the case where there has been some expression of intent by the patient.  The opinion says:

"We are persuaded that when the patient has taken the time and the trouble to specifically express his or her wishes for future health care in the event of later incapacity, the surrogate need not obtain prior judicial approval to carry out those wishes.  This applies whether the patient has expressed his or her desires in a "living will," through oral declarations, or by the written designation of a proxy to make all health care decisions in these circumstances.  We recognize that instructions evinced in the form of a "living will" or other written or oral statements may not have designated a decision-maker to carry out those instructions.   In instances when a patient has left instructions, the patient may designate, orally or in writing, the decision-maker who is to carry out those instructions; but the patient need not do so.  However, when the patient has not expressed instructions, but has merely delegatedfull responsibility to a proxy, the designation of the proxy must have been made in writing.

A surrogate must see:  (a) that the patients document or oral declarations are valid and reliable; (b) that the patient "does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient"; and (c) that all the terms and conditions of the patients oral or written declaration are satisfied. If a proxy is making the decision, he need only determine (a) the validity of the document and (b) that there is no reasonable probability of recovering competency.

The court then declares that the courts are always open for any "interested parties" who wish to challenge the decision, defines the presumptions raised by written documentsor physicians certificates, and the burdens of proof to be met in court challenges.

The court says "We do not limit the ability to exercise this right only to a legally appointed guardian, but recognize that it maybe exercised by proxies or surrogates such as close family members or friends". The court repeatedly refers to oral statements of intention, and recognizes testimony as to Mrs. Brownings' statements after visiting patients in a nursing home: "Oh Lord, I hope this never happens to me . . . thank God I have this taken care of. I can go i n peace when my time comes," and that she "never wanted to be that it way . Since the court has already decided that artificial sustenance is no different than any other means, it accepts simple statements like these as a declaration that one wants to have everything, including artificia1 sustenance, withdrawn.

Where the surrogate seeks to rely on oral statements made by the incompetent while competent, he must be ready to prove by clear and convincing evidence that the patient intended to have the treatment withdrawn.  If an "interested party" should go into court to challenge the decision, than the surrogate would have to meet that burden of proof.  Prudence would seem to dictate that hospitals, nursing homes and physicians would require evidence of the patients wishes before agreeing with the decision, but that would be left up to the institutions and the medical community.

The court does not discuss the rules applicable to cases where the patient has never been competent, or while competent has never made any expressions of intention. The expansiveness of this decision, however, must give advocates of the disabled cause to be concerned about both extrajudicial decision-making and future rulings of both lower courts and this court.

WHERE --Where do we go from here?

Where do we go from here?  The Florida Supreme Court has in recent years construed the right of privacy to extend to the terminally ill "on the threshold of death", to minors and now to the mentally and physically incapacitated.  This case seems to withdraw that protection the state formerly provided under the doctrine of parens patriae.  It is said that this court is exercising a "new federalism" in order to protect the people of Florida from any moderating influences that might develop on the U.S. Supreme Court.  The decision seems to exhibit a philosophy of excessive individualism that ignores any social action or societal role in the protection of unborn children, teenagers, the elderly, senile or the infirm. without a doubt, a patient's autonomy has to be protected, but this opinion ignores threats that incompetents or debilitated patients f ace in society today.  There is almost an assumption that certain patients are better off dead than alive, and that if able to speak, would choose death.

While the court says that it does not justify euthanasia or suicide, it sets forth no barriers or protections to prevent those practices from taking place, other than the goodwill of proxies, relatives or friends, and the good faith of the medical profession. As an opinion of the Supreme Court, it will be interpreted and enf orced by lower courts, administrative bodies and by private institutions and medical personnel. The Department of Health and Rehabilitation service has to and is revising its nursing home rules because of it. When and how this subject will come back before the Florida Supreme Court cannot be predicted, and how vulnerable people will be protected is uncertain. Respect for human life remains a challenge.

There are many who are concerned about the euthanasia movement in this country, the direction our society is headed in its treatment of the elderly and the disabled, and the impact of the cost containment concerns and measures being implemented today and to be implemented in the future.  How can they react to this decision?  There are various options open, none too promising:  1) The f irst and most obvious, to insist, in legislation and in future cases, on the establishment of protective measures to guard against some of these dangers.  2) To effect a change in the thinking and the rulings of the Florida Supreme Court in future cases.  3) Amend the Florida Constitution limiting the courts authority to expand the right of privacy so far beyond that enjoyed by the citizens of the other 49 states. This latter is a difficult step to achieve, but not impossible.

Summary of the Browning decision. The right to "choose or refuse medical treatment" and to make "all medical choices" is part of Florida's constitutional right of privacy.  All persons have this right whether competent or incompetent.  Any treatment, including life prolonging procedures, can be withdrawn at any time, regardless of terminal illness, imminent death or incapacity.  The withdrawal of life prolonging procedures, such as artificial feeding, does not cause death, it only allows death from natural causes.  If a patient will die within 4 to 9 days after withdrawal of artificial feeding, then the condition is terminal and death is imminent.  A patient who has orally or in writing expressed wishes for future health care can have those wishes implemented by a surrogate without judicial review; and a proxy appointed in writing may make all such decisions unless limited in the writing; in these two cases, any interested party who disagrees with the decision may take the matter to court. Written instructions are prima facie valid, oral ones must be proven by clear and convincing evidence.