COMMENTARY
FLORIDA CATHOLIC CONFERENCE

Archdiocese of Miami + Diocese of St. Augustine
Diocese of St. Petersburg + Diocese of Orlando + Diocese of Pensacola/Tallahassee

VOLUME 1, NUMBER 4 / February 1981

   The Florida Catholic Conference is unalterably opposed to THE DIRECTIVE OF NATURAL DEATH ACT, DEATH WITH DIGNITY LEGISLATION, OR LIVING WILL LEGISLATION for the following reasons:

1.  Informed consent cannot be provided by a generic, statutory document signed in advance of illness.
2.  The legislation is not necessary.
3.  It increases government intrusion into family life.
4.  It creates more medical problems then it solves.
5.  It would be counterproductive.

   The proposed Directive of Natural Death Act (SB 149) establishes a leg.ally binding document to be entitled "Directive to Physician." The Directive would state that "my life shall not be artificially prolonged" in the event of "an incurable injury, disease or illness certified to be a terminal condition" by the attending physician and one other physician, where the mechanical or artificial life-sustaining procedures would serve only to prolong the moment of death, and where death is imminent whether or not the procedures are used. Physicians would not be liable if they withheld or withdrew life sustaining procedures in accordance with the document. The bills state that they do not impair existing legal rights or responsibilities and do not condone mercy killing.

   Read in a vacuum the bill seems unobjectionable; applied to current law, medical practice and ethics, it is disastrous.

ETHICAL PRINCIPALS

   Care must be taken in any discussion of "Living Will" legislation to distinguish between the concept of death with dignity and proposals for legislative guidelines on that subject.

   Catholic moral teaching on this subject is well established. Death is not a final horror to be dreaded; rather it is a necessary "passage" to a new life, an eternal life gained for us by Christ's death and resurrection. There is no obligation to use or continue the use of extraordinary means of preserving life. It is permissible to allow a person to die naturally. Moreover, it is the inherent right of the patient and his or her family to make the decision to refuse or withdraw extraordinary means of life support; neither society nor the physician has the right to determine what is a meaningful existence for the individual person.

OPPOSITION TO LIVING WILL LEGISLATION

1.  Informed consent cannot be provided by a generic, statutory document signed in advance of unknown future contingencies.

   Under the Florida Medical Consent Law the patient has the primary right to decide on his or her medical care; his informed consent is required before procedures are instituted or removed.

   Living will legislation provides for advance, blanket consent. It subtly alters the doctor-patient relationship, and shifts the focus of the use of extraordinary means toward technological concerns, and away from the patient's overall concerns for life, death, and spiritual, emotional, moral and subjective realities. It has been said that these proposals "tend to enshrine the notion that physicians are masters of their patients and not their servants."

   The Living Will is to be, in ordinary cases, executed when a patient is well, but is to be applied at some subsequent time under unforeseen circumstances, and often under the treatment of unknown attending physicians. The circumstances may include a stroke, heart attack, accidental trauma, or any number of other causes. The patient may well be in an emergency room in his own home town or in a strange town, with his family present or absent, with his family physician in attendance or not. He may be under long-term treatment or may have just been admitted to an intensive care ward. The possibilities are endless. What is sure is that the patient has consented to whatever the physician's judgment might be. What is a terminal condition in one hospital may not be in another; a condition that is terminal in the opinion of two physicians may not be in the opinion of two other physicians. Valid "informed consent" requires that an individual have access to necessary information about the intended medical treatment, procedures, benefits and alternative procedures. A "living will" makes this aspect of Florida law irrelevant.

2. The legislation is not necessary.

   Every person in Florida has a right to determine his own medical treatment. No physician or hospital can force on a competent person medical treatment against his will, or even without his "informed consent." (Section 768. 46 F.S.) Limitations placed on consent to medical treatment continue in effect even after the patient becomes unconscious (Chambers v. Nottebaum 1957, 96 So. 2d 716.)

   The Florida Supreme Court recently affirmed the right of a terminally ill competent adult to remove mechanical life support measures, where his condition was hopeless and burdensome, all of his children grown, and his wife and children concurred in the decision. (Satz v. Perlmutter, 1980, 379 So. 2d 359) suggested that the matter was best handled by the legislature. The court limited its decision to "the particular facts presented."

   The care and treatment of the dying is not well suited for regulation by the court or the legislature. There are matters in life which are best left alone by government, in which government regulation, no matter how benevolent, does more harm than good. This is one of them.

   However the Court may have limited its decision, there are certain conclusions which may be drawn: A. That the removal of the artificial means, permitting the natural death of a patient, is not a violation of the homicide statute (since no amount of consent from families, the decedent's or the court could justify a homicide); B. A terminally ill competent patient, without minor children, and whose next of kin are in agreement, has the right to remove mechanical or extraordinary means of treatment; C. Any further doubt as to the rights of competent patients with minor children, or with children who disagree, can be resolved by the courts without intrusion of a statute.

   Physicians and medical staffs should feel uneasy before making the decision to terminate life support systems. They should be required to consult with the family before that step is taken. The Fl Florida Medical Association, the law and most religious disciplines concur in the policy expressed in the 1973 resolution of the House of Delegates of the American Medical Association:

   "The cessation of the employment of the extraordinary means to prolong the life of the body when there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family. The advice and judgment of the physician should be freely available to the patient and/or his immediate family."

   These are the ethical guidelines under which patients, families and physicians have been operating. While the decisions are never simple or clearcut, these principles adequately provide direction and support for those making the decisions.

3.  It increases government intrusion into family life

   Under present practice, as noted above, the decision is made between the physician, the patient and/or the immediate family. In the ordinary case, the family is the far stronger advocate of the patient's rights than any physician, hospital staff or ombudsman. This act removes the family entirely from the decision making process, eliminates to some extent even the patient's involvement and places it with the physician, at a time when people increasingly resent additional intrusion into their personal life.

   There is a desperate need today for better communication between the physician and patient and the physician and the family.

4.  It creates more medical problems than it solves.

   The act states that it shall not "impair or supercede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life sustaining procedures in any unlawful manner." This seems to say that the treatment of patients without a document will not be changed. But, if the "directive to physician" has any meaning at all, presumably the physician will treat the person with the living will differently than he would one without it. If two patients are in similar conditions, one with the "living will" the other without, does the physician treat the one humanely?  If so, does that mean he treats the other one inhumanely?  If treatment of the one patient is terminated for sound medical reason, does the same physician continue to apply life prolonging measures to the other patient, regardless of such reasons?  Inevitably, medical treatment of dying patient's without a document will suffer if this act is adopted.

   Different physicians will respond to the living will in different ways, since a large part of the physician's role here is judgmental. The physician is told by the living will that here is no liability for terminating artificial means. Does this not put pressure on the physician to give up doubtful cases? one of the advantages of the current situation is that doubt is resolved in favor of life. With the proposed legislation, doubt is resolved in favor of death. And this for legal, not medical reasons.

5.  The Natural Death Act would be counterproductive.

   Although the act rejects mercy killing, it is the direct product of the legislative manual of the Society for the Right to Die, formerly known as the Euthanasia Society. The strategy of the Euthanasia Society is stated by Professor Robert Williams of the University of Washington, writing in Northwest Medicine, July, 1970, at page 496:

   We should increase our activities immediately, and to a major degree, in dealing with population control, selective abortion, problems of mentation, aging, suicide, and negative euthanasia. It seems unwise to attempt to bring about major changes permitting positive euthanasia until we have made major progress in changing laws and policies pertaining to negative euthanasia.

   Representative Dr. Walter W. Sackett, Jr., introduced proposals for "death with dignity" in the Florida Legislature for a number of years. Dr. Sackett acclaimed his legislation as being a means of allowing severely retarded in Florida's institutions to "die with dignity" simply by refusing to treat infections and pneumonia. The Euthanasia Society of America, headquartered in Ft. Lauderdale, has endorsed this legislation and insists that the living will permits affirmative acts to hasten death, or so-called positive euthanasia. Sackett's bills took various forms, were amended each year, and evolved into the present bill, which parallels the California Natural Death Act.

   The original sponsor of the California Natural Death Act, now Senator Barry Keene, has repudiated that law and proposed to substitute for it a "Self Determination in Medicine Act" (SB 700, 1979 California Legislature), a completely new concept. Yet, it is precisely that California Natural Death Act that is the model for the pending Florida proposal.

   This is the reality in which this bill is debated. The intentions of the present introducers, and limitations in the bills cannot avoid the milieu in which the proposals are made. If adopted, these legislative guidelines for the treatment of dying patients would be the first step, precedents for future regulatory schemes.

   This legislation is so fraught with danger and its benefits are so doubtful, that the Florida Catholic Conference urges its continued rejection, no matter how it might be amended.