Hot Topics 64 - Health and the Law - Legal Information Access Centre

case sTudY: scHiaVO
On February 25, 1990, Terri Schiavo suffered
brain damage after a myocardial infarction (‘heart
attack’), possibly caused by a chemical imbalance
resulting from an eating disorder. This left her
in what was clinically diagnosed as a ‘persistent
vegetative state’. Her husband, Michael, was
appointed her legal guardian, and in 1993 was
awarded one million dollars in a malpractice
lawsuit against physicians who failed to diagnose
and treat the eating disorder. In 1998, Mr Schiavo
filed a petition with the court to discontinue his
wife’s feeding tube, a request that her parents,
Mr and Mrs Schindler, devout Catholics, opposed.
The parties were involved in more than 25 court
rulings and interventions over a period of ten
years, as a result of which the feeding tube was
twice been removed and reinserted. Contentious
issues concerned whether Terri made an advance
directive and who had the ultimate authority to
withdraw futile treatment from her.
Late in March 2005 her doctor, following the
order of a Florida Supreme Court judge, removed
the feeding tube that had been keeping Schiavo
alive for 15 years, despite the extraordinary,
last-minute efforts of Republican congressional
leaders to extend her life by issuing a subpoena
for her to give testimony before them.
At a midnight sitting in March 2005 the uS
Congress voted to order a federal court to
review the case. The legislation gave the parents
standing in federal court, though it did not compel
a federal judge to take up the case. On 21 March
2005, uS president Bush issued the following
public statement:
‘Today, I signed into law a bill that will allow
Federal courts to hear a claim by or on behalf of
Terri Schiavo for violation of her rights relating
to the withholding or withdrawal of food, fluids,
or medical treatment necessary to sustain her
life. In cases like this one, where there are
serious questions and substantial doubts, our
society, our laws, and our courts should have a
presumption in favor of life. This presumption
is especially critical for those like Terri Schiavo
who live at the mercy of others. I appreciate the
bipartisan action by the Members of Congress
to pass this bill. I will continue to stand on the
side of those defending life for all Americans,
including those with disabilities.’
The uS Supreme Court refused to hear an
emergency appeal by the Schindlers, and Terri
died on 31 March 2005, aged 41, nearly two weeks
after doctors removed her feeding tube.
The Schiavo case represents an unprecedented
legislative involvement in individual end-of-life
clinical decision making. It is difficult to imagine
the professional and social consequences of
making such intervention routine. Criticisms that
the legislative action in this instance is the result
of a broader agenda on the human right to life and
the political role of its religious proponents must
be taken seriously by clinicians.
united States Court of Appeals decision of 23 March
2005 available at http://www.ca11.uscourts.gov/opinions/
ops/200511556.pdf
that is apparently ‘futile’ should be continued, the issue
is best discussed before the Hospital’s Clinical Ethics
Committee. Ultimately, if such disagreement persists,
a declaration to lawfully withdraw treatment may have
to be obtained from a Court. If the relatives continue
to dispute a withdrawal of treatment decision, then
relevant doctors should specify that as a reason for not
signing the death certificate. This will then activate the
jurisdiction of the coroner.
‘No CPR’ (cardio-pulmonary resuscitation) orders may
be written in consultation with a terminally ill patient
and the patient’s family, in accordance with hospital
guidelines, to avoid the indignity of life ending in
the pressure of an emergency attempt at CPR. This
might possibly involve deep chest compressions, cardiac
‘shocks’ with a defibrillator, the insertion of intravenous
cannulae and giving of drugs such as adrenaline.
One important issue that Justice Howie discussed
in the Messiha case was whether resource restriction
(pressure for beds) should ever be mentioned to relatives
in discussions of end of life treatment. Certainly to do
so seems to indicate an erosion of the primacy of the
patient’s reasonable prospects of return to a meaningful
quality of life as the decisive principle. The courts have
preferred not to get involved in cases of resource rationing
because they are not in possession of a political mandate,
nor do they have the professional knowledge to make
such decisions. The only situation where a court might
become involved is where there has been unfairness or
illegality in the decision-making process (for example,
racial discrimination). Yet, pressure of scarce resources
as a result of rationing of government health expenditure
are an inevitable social justice background to such
decisions, that filters down to intensive care specialists
for whom it often reluctantly becomes a matter of
trading lives in pressured clinical deliberations. The
question then arises whether a Schiavo type ‘extreme’
case could arise in Australia.
Futile treatment is a notoriously controversial concept
which has proven almost impossible to define.
Disagreements still arise as to what level of probability
of success one chooses before saying a treatment is
technically ‘futile’ in the sense of, on the best available
End of life issues 15