Skip to comments.California Law Provides for Killing of Non-Terminally Ill (Terri Schindler)
Posted on 03/30/2005 9:30:39 AM PST by TheDon
CALIFORNIA CODES PROBATE CODE SECTION 3200-3212
3200. As used in this part:
(a) "Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition.
(b) "Health care decision" means a decision regarding the patient' s health care, including the following:
(1) Selection and discharge of health care providers and institutions.
(2) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication.
(3) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(c) "Health care institution" means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.
(d) "Patient" means an adult who does not have a conservator of the person and for whom a health care decision needs to be made.
3201. (a) A petition may be filed to determine that a patient has the capacity to make a health care decision concerning an existing or continuing condition.
(b) A petition may be filed to determine that a patient lacks the capacity to make a health care decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a health care decision on behalf of the patient.
(c) One proceeding may be brought under this part under both subdivisions (a) and (b).
3202. The petition may be filed in the superior court of any of the following counties:
(a) The county in which the patient resides.
(b) The county in which the patient is temporarily living.
(c) Such other county as may be in the best interests of the patient.
3203. A petition may be filed by any of the following:
(a) The patient.
(b) The patient's spouse.
(c) A relative or friend of the patient, or other interested person, including the patient's agent under a power of attorney for health care.
(d) The patient's physician.
(e) A person acting on behalf of the health care institution in which the patient is located if the patient is in a health care institution.
(f) The public guardian or other county officer designated by the board of supervisors of the county in which the patient is located or resides or is temporarily living.
3204. The petition shall state, or set forth by a medical declaration attached to the petition, all of the following known to the petitioner at the time the petition is filed:
(a) The condition of the patient's health that requires treatment.
(b) The recommended health care that is considered to be medically appropriate.
(c) The threat to the patient's condition if authorization for the recommended health care is delayed or denied by the court.
(d) The predictable or probable outcome of the recommended health care.
(e) The medically available alternatives, if any, to the recommended health care.
(f) The efforts made to obtain consent from the patient.
(g) If the petition is filed by a person on behalf of a health care institution, the name of the person to be designated to give consent to the recommended health care on behalf of the patient.
(h) The deficit or deficits in the patient's mental functions listed in subdivision (a) of Section 811 that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended health care or inability to participate in a decision about the recommended health care by means of a rational thought process.
(i) The names and addresses, so far as they are known to the petitioner, of the persons specified in subdivision (b) of Section 1821.
3205. Upon the filing of the petition, the court shall determine the name of the attorney the patient has retained to represent the patient in the proceeding under this part or the name of the attorney the patient plans to retain for that purpose. If the patient has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel under Section 1471 to consult with and represent the patient at the hearing on the petition and, if such appointment is made, Section 1472 applies.
3206. (a) Not less than 15 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be personally served on the patient, the patient's attorney, and the agent under the patient's power of attorney for health care, if any.
(b) Not less than 15 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be mailed to the following persons:
(1) The patient's spouse, if any, at the address stated in the petition.
(2) The patient's relatives named in the petition at their addresses stated in the petition.
(c) For good cause, the court may shorten or waive notice of the hearing as provided by this section. In determining the period of notice to be required, the court shall take into account both of the following:
(1) The existing medical facts and circumstances set forth in the petition or in a medical declaration attached to the petition or in a medical declaration presented to the court.
(2) The desirability, where the condition of the patient permits, of giving adequate notice to all interested persons.
3207. Notwithstanding Section 3206, the matter presented by the petition may be submitted for the determination of the court upon proper and sufficient medical declarations if the attorney for the petitioner and the attorney for the patient so stipulate and further stipulate that there remains no issue of fact to be determined.
3208. (a) Except as provided in subdivision (b), the court may make an order authorizing the recommended health care for the patient and designating a person to give consent to the recommended health care on behalf of the patient if the court determines from the evidence all of the following:
(1) The existing or continuing condition of the patient's health requires the recommended health care.
(2) If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient.
(3) The patient is unable to consent to the recommended health care.
(b) In determining whether the patient's mental functioning is so severely impaired that the patient lacks the capacity to make any health care decision, the court may take into consideration the frequency, severity, and duration of periods of impairment.
(c) The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration and all other forms of health care and designating a person to give or withhold consent to the recommended health care on behalf of the patient if the court determines from the evidence all of the following:
(1) The recommended health care is in accordance with the patient' s best interest, taking into consideration the patient's personal values to the extent known to the petitioner.
(2) The patient is unable to consent to the recommended health care.
3208.5. In a proceeding under this part:
(a) Where the patient has the capacity to consent to the recommended health care, the court shall so find in its order.
(b) Where the court has determined that the patient has the capacity to consent to the recommended health care, the court shall, if requested, determine whether the patient has accepted or refused the recommended health care, and whether the patient's consent to the recommended health care is an informed consent.
(c) Where the court finds that the patient has the capacity to consent to the recommended health care, but that the patient refuses consent, the court shall not make an order authorizing the recommended health care or designating a person to give consent to the recommended health care. If an order has been made authorizing the recommended health care and designating a person to give consent to the recommended health care, the order shall be revoked if the court determines that the patient has recovered the capacity to consent to the recommended health care. Until revoked or modified, the order is effective authorization for the recommended health care.
3209. The court in which the petition is filed has continuing jurisdiction to revoke or modify an order made under this part upon a petition filed, noticed, and heard in the same manner as an original petition filed under this part.
3210. (a) This part is supplemental and alternative to other procedures or methods for obtaining consent to health care or making health care decisions, and is permissive and cumulative for the relief to which it applies.
(b) Nothing in this part limits the providing of health care in an emergency case in which the health care is required because (1) the health care is required for the alleviation of severe pain or (2) the patient has a medical condition that, if not immediately diagnosed and treated, will lead to serious disability or death.
(c) Nothing in this part supersedes the right that any person may have under existing law to make health care decisions on behalf of a patient, or affects the decisionmaking process of a health care institution.
3211. (a) No person may be placed in a mental health treatment facility under the provisions of this part.
(b) No experimental drug as defined in Section 111515 of the Health and Safety Code may be prescribed for or administered to any person under this part.
(c) No convulsive treatment as defined in Section 5325 of the Welfare and Institutions Code may be performed on any person under this part.
(d) No person may be sterilized under this part.
(e) The provisions of this part are subject to a valid advance health care directive under the Health Care Decisions Law, Division 4.7 (commencing with Section 4600).
3212. Nothing in this part shall be construed to supersede or impair the right of any individual to choose treatment by spiritual means in lieu of medical treatment, nor shall any individual choosing treatment by spiritual means, in accordance with the tenets and practices of that individual's established religious tradition, be required to submit to medical testing of any kind pursuant to a determination of capacity.
=== Does your state allow this type of killing?
To my knowledge, all states do.
Now let's get that Living Will signed, pronto, 'cause the rest of the pieces already are in place.
=== Or does it include natural nutrition and hydration supplied by another person (such as spoon feeding or inserting water into the mouth)?
That's a good question and it's one the British courts were struggling over several years ago.
The consensus at present appears to be that, if any assistance is needed to help the patient swallow, if any "intentional" action is taken by another ... it's ANH ("Artificial Nutrition and Hydration").
This is only saying that they are giving permission, not ordering it to be done, nor ordering others (like family members) to not give food to the patient. There's a difference between the passive giving of permission and the active ordering of others to withhold food and water.
==== I guess that was just in case Terri could actually swallow.
Which she could, of course.
What's interesting about that ruling is that it's in direct conflict with Florida's statutes on care of the disabled (if not also the legislation Jeb Bush signed on Futile Care).
It's amazing to me that -- given this cruel, unusual and clearly illegal punishment inflicted on Terri -- that a state which regularly takes children from the home and even took Elian at gunpoint to deliver him to his father refused to intervene as the disabled Terri was being denied water as she was legally starved to death.
LOL! I'm sure it's lost on the victim.
LOL! Or not.
We grieve for Terri and her loving family, and also for our country. We are reaping the fruits of Roe v. Wade, which have inured us to killing: just like the Nazis did before them, the forces of evil start with the weakest, smallest and most defenseless, and work their way up until they achieve a reign of terror. How much longer before judicial tyranny becomes judicial terror? The polls suggest that we are on an irreversible path, as a solid majority seem to think it's a merciful thing to remove all hydration and nutrition from a disabled person. (We hold out hope that the pollsters prostituted themselves by the construction of the questions.)
As a parent of a mildly mentally-disabled child, I abhor and reject the future that Felos and Greer envision for our disabled friends and relatives. Terri's parents and siblings have provided a model of love for all Americans to emulate, so let us CHOOSE LIFE as our suffering Holy Father has said so often.
As much as I admire our leaders, I cannot help but be disappointed that they could not muster the courage to act with the greatness that was (and still is) called for by a higher law. Their failure to act heroically has raised the supremacy of the judicial branch yet higher. Abraham Lincoln understood the true meaning of separation of the co-equal powers, but that seems lost on our leaders of today.
If this is post-modern enlightenment, I want no part of it.
"That Michael Shiavo claims that Terri once said in passing "I would not want to live like that" - not even describing what "that" she was talking about (i.e. a heart & lung machine, or a feeding tube?) is considered clear and convincing evidence of a desire to die if stricken with her specific condition was an atrocious and frightful decision."
Yes, imagine the coaching Felos gave to MS. "Think hard, Michael. Was there EVER any time when Terri talked about wanting to die?"
"Oh, yeah, now I remember. We were watching TV one time..."
In the end, this Florida court didn't authorize, but ordered Terri's feeding tube removed, and removed the husband from any position of authority or choice in the matter. Following is a quote from the Florida Second District Court of Appeals:
The trial courts decision does not give Mrs. Schiavos legal guardian the option of leaving the life-prolonging procedures in place. No matter who her guardian is, the guardian is required to obey the court order because the court, and not the guardian, had determined the decision that Mrs. Schiavo herself would make.
2nd DCA denies Schindler's Motion for Stay
(Guardianship Case - March 16, 2005)...from www.terrisfight.org...a PDF of the court document.