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?
Do you think we should allow such killing?
Since the Karen Ann Quinlin (sp?) case of 10-15 years ago, some states began making laws regarding this issue. Many institutions were keeping patients alive by artificial means in order to receive the medicaid payments, nothing more. These laws have merit, the Shiavo case notwithstanding.
Do you suppose artificial nutrition and hydration means a feeding tube? Or does it include natural nutrition and hydration supplied by another person (such as spoon feeding or inserting water into the mouth)?
As the point of the law is to kill people who cannot feed themselves, I think it would include both.
I think the monetary issue is well understood, but I'm questioning the moral issue in these cases.
Karen was removed from the respiratory. Unexpectedly, she continued to live in a vegetative state for another ten years.
Greer's latest order to kill said that MS was to cause removal of nutrition and hydration - nothing about whether it's artificial or not. Nothing about removal of a feeding tube. I guess that was just in case Terri could actually swallow.
I think that if we don't like it, we should petition the legislature, and stop pretending that Judge Greer invented the law.
Your response is jumping the gun, as I'm asking should we allow it. In other words, should we change the law to disallow the killing of the non-terminally ill?
Here's my question to the MS supporters:
For all the people who say, "Terri is/was a vegetable" and "Terri wouldn't have wanted to live this way."
Imagine Terri was your mother. Would you do to her what Michael Schiavo has done to Terri?
This is the video that should be shown on the news everynight - it is even more powerful than the balloon video.
You need Real Player to watch this, available free on the internet.
This is not reflex action - she heard the doctor, she opened her eyes as wide as she could to impress him.
Even Fox news has ignored this clip.
While a teenager, I went with my mother to the home of a young boy who was probably in a PVS. He had been hit by a car while riding his bike. We were at his home to help his mother with his daily stretching exercises. She was absolutely dedicated to caring for her son. He never did recover and after several years he passed away.
So what is your take? Do you support the killing of the non-terminally ill? If Terri had left a written will stating that she wanted to be killed under the circumstances she is currently in, do you think she should be killed? I don't.
WOW.....do you know how many people they could kill with this law? DO many old people....and almost all the people who are mentally retarded. Who the hell passed this law? Is everybody insane?
Absolutely not, I agree with you. I don't even support the killing of the terminally ill. We shouldn't starve people to death even if they request it. We may not be able to stop the conscience from killing themselves or force conscience people to take take certain life-saving treatment, but no one has the right to force the rest of us to help them die.
This was the whole reason for this post, I don't think many people realize our legislatures' have already legalized euthanasia.
I never realized that a non-terminal person could be murdered (aka.. starved to death).....that is shocking.
Those people have: 1. Done just that
2. Are wanting to do that and may not
be honest enough to say so because when
it comes to it, THEY want to be thought
of as good and kind.
They are not sick. Those people are just plain evil.
Someone told me that every state but Illinois now has this type of law. We have a lot of work to do.
For which I salute you, but one thing I've learned reading FreeRepublic the past two weeks is don't bother trying to argue from a position of morality with people who are only interested in monetary issues.
Perhaps true! But if I don't prick their conscience, who will? I have found some are also pro-abortion, and euthanasia is more of a "I want to be in control of my body and my life" issue, i.e. I have a living will and it is none of your business.
How many people do you think knew about this before Terri's case? I'm guessing most people still don't.
I'm not begrudging you your effort. It's commendable. I'm only reflecting on the truth that, as a pro-lifer, and one who believes the courts are dangerously out of control, when it came down the crunch, I found more allies among the likes of Jesse Jackson, Alan Derschowitz, and Ralph Nader than I did among some of my FR "brethren."
LOL! As they say, politics makes strange bedfellows.
Very few. I think most still think it is just a matter of bad law in Florida. I do have to give California's top court credit for stopping a similar case here a few years back, but we need to raise public awareness and change the law.
All states do except for Illinois.
I can understand not keeping people alive with machines such as heart and lung and dialisis machines, when there is no hope for treatment or recovery. Keeping them artificially alive serves little purpose if they are not contributing to the society or the family life, and a moral case can be made that is is wrong to prolong suffering by artificial means just to preserve an artificial life that has no hope of survival without artificial means.
But that is a far cry from simply removing a feeding tube, when all other bodily functions work without mechanical means. In Terri's case, I believe it was a horribly misguided and immoral decision. If a person can swallow food and water, or even if they need the tube for convenience sake (i.e. because nobody has the time or inclination to help them bring food and water to their mouth) it is, in my judgement, immoral to deny them food and water.
What happened to Terri - the demand that no food or water be fed to her by the mouth - amounts to murder in my opinion. This was a horribly wrong decision and I am wholly dismayed at the judicial system for not recognizing the immorality - and indeed the illegality - of their decision to deprive her of food and water by mouth.
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.
A feeding tube amounts to very little in raw costs and any claim of the financial burden of a feeding tube really only reveals the absurd and out of proportion health care costs. It is the system we have that demands a "professional level of care" instead of sending her home with her family to care for and provide the feeding tube is the problem. We have artificially increased the costs of caring for her and those like her by demanding that she be placed in a high-cost environment, when a low cost environmnet coupled with a few hours of training (i.e. how to clean the feeding insert and how to change the feeding bag) would suffice to extend her life for years to come. We have abdicated our familial and social responsibilities to the government, and then cry when the government refuses to take on that burden in the manner we expect. To a degree, only a small degree, what has happened here is the fault of Americans at large. Not only regarding health care - we have abdicated our social, welfare, security and educational responsibilities to government as well, and we are getting our just desserts for so doing.
Theresa Marie Schindler, Martyr for the Gospel of Life, pray for us.
I think we are generally of a like mind on this issue. I believe these euthanasia laws regarding the removal of nutrition and hydration are clearly immoral, regardless of the desires of the person, written or otherwise.
I did. Years and years ago.
This decision also paves the way for infanticide, since infants can't feed themselves.
What the hell is 'artificial nutrition'???
Is it nutrasweet? Is it a plastic bag? Is it wallpaper paste?
WHAT THE HELL IS ARTIFICIAL NUTRITION??
I'm off Burger King to get my artificial nutrition.
Do you know of any suggested language for changing the laws or groups that are already working to change them?
Thank for your help.
I wish I could recall what his reply to me was but it was not hopeful.
I did call some senators here and they said it was pretty much hopeless. Maybe in your state it would have a chance.
Scary stuff, we are there all ready.
Thank you. I think it's a new day now. I think a lot of people are horrified by the thought that someday they could be the one lying there starving and dehydrating to death and at the total mercy (or lack thereof) of one guardian who may have conflicts of interest.
It would be nice if California could lead the way on this.
For consideration for your ping lists.
=== 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..."