Posted on 03/31/2005 6:53:45 AM PST by watchdog_writer
Dick Morris said: Gov. Jeb Bush (R-Fla.) better look for a new line of work. The right is mad at him for not standing in the hospice door.
A little knowledge of the law in Florida may be helpful. Maybe then laymen will be able to better understand that it was the liberals in the Florida Legislature that set the stage for this calamity.
765.101 Definitions.--As used in this chapter:
(1) "Advance directive" means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal's desires are expressed concerning any aspect of the principal's health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to part X of chapter 732.
(2) "Attending physician" means the primary physician who has responsibility for the treatment and care of the patient.
(3) "Close personal friend" means any person 18 years of age or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the attending or treating physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient's health care; and has maintained such regular contact with the patient so as to be familiar with the patient's activities, health, and religious or moral beliefs.
(4) "End-stage condition" means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.
(5) "Health care decision" means:
(a) Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.
(b) The decision to apply for private, public, government, or veterans' benefits to defray the cost of health care.
(c) The right of access to all records of the principal reasonably necessary for a health care surrogate to make decisions involving health care and to apply for benefits.
(d) The decision to make an anatomical gift pursuant to part X of chapter 732.
(6) "Health care facility" means a hospital, nursing home, hospice, home health agency, or health maintenance organization licensed in this state, or any facility subject to part I of chapter 394.
(7) "Health care provider" or "provider" means any person licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession.
(8) "Incapacity" or "incompetent" means the patient is physically or mentally unable to communicate a willful and knowing health care decision. For the purposes of making an anatomical gift, the term also includes a patient who is deceased.
(9) "Informed consent" means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.
(10) "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
(11) "Living will" or "declaration" means:
(a) A witnessed document in writing, voluntarily executed by the principal in accordance with s. 765.302; or
(b) A witnessed oral statement made by the principal expressing the principal's instructions concerning life-prolonging procedures.
(12) "Persistent vegetative state" means a permanent and irreversible condition of unconsciousness in which there is:
(a) The absence of voluntary action or cognitive behavior of any kind.
(b) An inability to communicate or interact purposefully with the environment.
(13) "Physician" means a person licensed pursuant to chapter 458 or chapter 459.
(14) "Principal" means a competent adult executing an advance directive and on whose behalf health care decisions are to be made.
(15) "Proxy" means a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who, nevertheless, is authorized pursuant to s. 765.401 to make health care decisions for such individual.
(16) "Surrogate" means any competent adult expressly designated by a principal to make health care decisions on behalf of the principal upon the principal's incapacity.
(17) "Terminal condition" means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.
765.401 The proxy.--
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.
(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
(4) Nothing in this section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645. 765.404 Persistent vegetative state.--For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:
(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and
(2) The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network. The ethics committee shall review the case with the guardian, in consultation with the person's attending physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.
765.404 Persistent vegetative state.--For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:
(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and
(2) The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network. The ethics committee shall review the case with the guardian, in consultation with the person's attending physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.
765.309 Mercy killing or euthanasia not authorized; suicide distinguished.--
(1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.
(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide.
Currently the law in Florida is this: 765.305 Procedure in absence of a living will: (1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.
(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.
See Also: rule 5.900 of the Florida Probate Rules,
That's right. Throw down the gauntlet against judicial activism. A life was at stake, our nation's soul was at stake. Jeb could have gone in and saved Terri and the President could have pardoned him if need be. He's got that legal power left doesn't he?
I see FlipWilson was far more eloquent that I was. His post #32 is worth the read.
You're so right.
We are a nation of laws until we don't like one!
No, I dont favor a "living constitution," and the constitution cannot be amended by a Natural Law decision, (ie, if for example, a judge needed to stop a legislature from implementing death camps when he had no positive/written law venue to do so, there still would be no way for him to amend the text of the constitution/law, he could only declare such part of law void). Only in rare cases when a human life (an obvious natural right)is in danger and the positive law provides no protection for a human being, is the lawgiver obligated to stand up for the higher law. But we werent at that point yet, Bush still had Positive law venues to protect Terri, as the Thomas Moore Law Center, the 11th hour coalition, Klayman and Keyes all pointed out.
The alternative to natural law would be to bow down and worship whatever court decision or act of legislature is produced, be it Roe vs. Wade or Auschwitz. Remember Hans Kelsen, the foremost legal positivist in the 20th Century, said the Nazi death camps were "legal" and moral. He said we cant know what justice is (the relativist left always says we can know nothing, who knows what is right and wrong, so whatever "law" is validly innacted by the proper authorities is what we MUST live with).
I agree with you that the modernist "right of man" theory, detached from Christ, has been the source of a lot of abstract "rights" that the left uses the courts to push on us. But that is a bastardization, not the natural law real-deal that comes from St. Thomas and the Scholastics, and many of the Founding Fathers. But in these rare cases when a life is at stake, there has to be a better answer than "I was just following orders".
How about blaming the voters?
Last year, Greer drew his first opponent in any race for re-election. Protesters in the Schiavo case rallied around Jan Govan. But Greer easily defeated Govan.
How about blaming the liberals?
How The Florida Legislature and Governor Have Usurped the Judicial Role
in the Schiavo "Right to Die" Case
By MICHAEL C. DORF
But if there is no clear right answer in Terri Schiavo's case, there is nonetheless a clear wrong answer: When the Florida legislature and Governor Jeb Bush last week assumed responsibility for this most intimate of decisions, they violated several fundamental constitutional principles.
When presented with the Schindlers' videotape, the Florida legislature took an extraordinary step: It granted Florida Governor Jeb Bush the power to order the reinsertion of Terri Schiavo's feeding tube. Bush promptly exercised that power, the feeding tube was reinserted, and the lawyers headed back to court. The votes didn't come from liberals to help Terri they came from Republicans.
The President signed the legislation and is willing to take the heat from you and your kind.
Sorry but I have no idea what you call "vanity? maybe you would like to explain?
So the judges have no culpability? Next time you vote for a politician, why not ask what kind of judges he intend to support?
Next time you vote for a Judge ask if he will oppose abortion, oppose gay marriage?
begin disbanding, and re-organizing the judiciary. Rather than trying to impeach a judge, just eliminate his court, or a complete court system.
You don't agree with me in spiri. I do not share your views at all. I respect the rule of law, you are way too radical and will never get anything accomplished, with the exception of hearing your own voice.
So are most of the 11th Circuit Judges who refused to take up the case, thumbing their nose at Congress --- including the ass (Judge Birch) who delivered an arrogant sermon criticizing Congress and the president.
If you read Scalia: the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory you might begin to have a better knowledge of why the Federal Courts refused to overturn the decisions of the state courts.
Jeb Bush as governor let Greer mount a mini-insurrection and get away with it.
Judge Greer may have abused his discretion, but his order was valid and constitutional protected. Don't be persuated by the rhetoric of those who want to blame republicans first.
Greer commandeered local cops and ordered them to repel a state agency and Jeb's state police.
I must respectfully disagree. Judges issue orders they don't control a police force. if the police acted it was because the order of a judge of competent jurisdiction must be obeyed otherwise we have anarchy.
No consequences for Greer in this act of rebellion.
It's not a rebellion. He exercised his constitutional authority. I may not agree but I will defend his right to do so. Perhaps next time it will be a truly conservative judge who will save the life of someone from the attempts of liberal athiests who want to arrest some child in elementary school for carrying a bible.
In fact, Jeb had respectful words for the slimy judge in a newspaper interview last week.
Because Jeb Bush is an honorable man and respects the rule of law. I am quite sure it took a great deal of restrain for him not to create chaos out of a simple case of a judge abusing his discretion.
You can say that only "liberals" made this happen, but the facts say different.
What facts? Liberals usually only offer platitudes but rarely can they give you anything specific.
you can also say Jeb bears no responsibility, but an act of ommission - by a person in authority - is an act all the same.
For an act of omission to be culpable, there must have been a duty to act. Not only was there no duty to act, but there was a duty not to act. Please enlighten me on exactly what legal authority, not biblcal, we do not have a theocracy, I have already heard from Aristotle, so please see if you can give me authority from the Florida Constitution or any Florida law or case.
Ability? is that the same as a clear legal authority?
but his political career was more important.
Even Dick Morris believes that Jeb Bush will suffer politically.
He stood by and watched while Terri was DEHYDRATED and STARVED to death.
Thank you for putting words in CAPS, otherwise I might not get your meaning.
What a coward.
The Bolshivics were not cowards. Hitler was not a coward. Stalin was not a coward. So I guess Jeb has distinguished himself from them.
He will NEVER be president.
You would rather see Hillary as president?
Will JUDGE GREER EVER be brought to Jusctice????? I think NOT!!!!!!
Judges abuse their discretion everyday of the week. The answer is vote him out of office. As strongly as you feel, I'm sure you will be the first in line holding a sign to remind voters that it was not Judge Greer who you blamed for Terri's death. .
However, even if he did not, JEB BUSH had the ability. His refusal to rescue Terri thereby permitting her BRUTAL STARVATION and DEHYDRATION will do FAR MORE DAMAGE to his country than if he had gone in and rescued her.
BTW, I see the BIG picture VERY CLEARLY. It is people like you who do not.
Of course they do. They have nearly all of the culpability. They are like a wayward child, unable to correct the error of their ways. It's up to our elected representatives to set them in their place, or to fire them, or to eliminate their jobs.
You don't agree with me in spiri.
Evidently not. I did say that I agreed in spirit with engrpat, not you
I do not share your views at all. I respect the rule of law
I respect the rule of law too, including the Constitution as the Founding Fathers wrote it. Including Article 3. I wish the judges did.
you are way too radical and will never get anything accomplished,
I probably won't I'm not as active as many others. Mark Levin (author of Men in Black) and Rush Limbaugh probably will though, and it is from those powerful men I first heard this radical idea. I hope you will consider their words and thoughts before you reject this Constitutional idea completely. The Founding Fathers came up with it over 200 years ago.
on the with the exception of hearing your own voice.
I'm not sure what to do with that, I post here (or any where else) so seldom I often feel like I'm not contributing my share.
I just checked your posting level..............seesh, I look like a real piker compared to you, and you have the nerve to say I'm talking too much?
If only life were as simple as you would like.
Judges are appointed for life. You can't fire them. If they are elected they would have to go through an impeachment procedure.
I read Men In Black. I don't remember Mr. Levin advocating the overthrow of the judiciary by force?
“I don't remember Mr. Levin advocating the overthrow of the judiciary by force?”
He didn’t, and I doubt he ever would. Nor did I say that, or anything approaching that.
When my posts are edited to turn what I said into a lie, or to say something I never said, it tells everyone reading it something important about your posts and the intellect contained therein.
It tells us that even you realize your posts are full of bull$hit. It tells us that you can't win, or even discuss, the argument on its merits, only by lying about your opponent.
Go away, stop telling lies about me, go tell lies about someone else if you must.
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