False Dilemma.
Legislation to create a "Presumption" is not required to prevent doctors from killing me no-questions-asked.
If you're going to pass legislation, why not legislation that forces respect for advance directives/living wills, even if wacko parents or activists or whomever wish to intervene?
Living wills are useless in a lot of cases. That is what people are not being told.
Why Not Sign a Living Will Instead of the Will to Live? From the National Right to Life
Many people who simply do not want what they see as a lot of medical technology prolonging the last few hours or days of their lives when they are terminally ill sign living wills. If you do, in many states you may not know what you're really signing.
Webster's Dictionary defines "terminal" as "of or in the final stages of a fatal disease." And this is what the ordinary person thinks: that somebody who is "terminally ill" is someone who will inevitably die, whose death cannot be prevented by medical treatment.
But in many states, that is not what it means. Instead, for the purposes of the living will you are legally in a "terminal condition" even if your life could be saved--so as to live indefinitely--by medical treatment, so long as you would still have a permanent disability of some kind.
If you sign a legal document you ought to be able to expect that the words in it mean what they are generally understood to mean. If you sign a contract selling your "car" you should not later discover that a legislative act has defined "car" to include "house" and that you're now homeless. But that is exactly what the laws in many states have done with the wording of their living wills.
Another example: Many people who would not want what they consider the extremes of medical technology would be horrified at the idea of being starved to death. But the laws of most states define the medical treatment that is refused by their living wills to include food and water. While a few states at least have a "check-off" so you can choose whether or not to be starved, in the majority you have no indication in the living will you sign that you are agreeing to starvation.
One widely used "Living Will Declaration," states, "If I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, I direct my attending physician to withhold or withdraw treatment that merely prolongs my dying." This is broad indeed.
If you walk with a limp that can't be corrected, you have an "irreversible ... physical condition." If you have grown forgetful, with some irretrievable memory loss, you may well have an "incurable ... mental condition." If either of these happens to you, and--having signed the "Living Will Declaration"--you become unable to speak for yourself, that means you will be deprived of all medical treatment and food and water (possibly including what you could be spoon fed) except pain medication and treatment to keep you "comfortable." Any irreversible disability qualifies as a basis for death.
The term "merely prolongs my dying" may sound as though it limits this, but it really doesn't. No time frame is given, and the truth is that we are all "dying." Literally every life-saving medical treatment "prolongs dying," in the legal sense.
The bottom line is this: if you are someone who doesn't want medical technology to prolong your last hours, but who also doesn't want to be starved or allowed to die just because you have a disability, your wishes will be far more likely to be respected if you sign a properly prepared Will to Live than if you sign a living will.
There is a culture of death that we are fighting in this country and overseas
"In response to the denial of food and fluids to Terri Schindler-Schiavo, the National Right to Life Committee is calling on state legislatures throughout the nation to move to protect people with disabilities from being denied food and fluids. The organization is issuing a “Model Starvation and Dehydration of Persons with Disabilities Prevention Act.”
“Far from being an isolated instance, the attempted starvation and dehydration of Terri Schindler-Schiavo is typical of the denial of food and fluids in less publicized cases taking place daily in nursing homes and hospitals across America,” said Burke J. Balch, J.D., director of the Robert Powell Center for Medical Ethics, affiliated with the National Right to Life Committee.
“For years, people who never asked to die have been quietly starved without much public attention, based on state laws and court opinions that permit third parties to make deadly decisions with little or no scrutiny or accountability,” Balch said. “The outcry over the Schindler-Schiavo case has awakened millions of Americans to the inhumanity of this practice. Now we must act to reverse this trend, and restore a presumption against starvation and dehydration.”
The proposed model law, drafted to be easily adaptable for each state, is written to be constitutional under the governing precedents of the United States Supreme Court. It would create a presumption that those incapable of making health care decisions would wish to get food and fluids so long as their provision is medically possible, would not itself hasten death, and can be digested or absorbed so as to sustain life.
The presumption would not apply if the person has specifically authorized withholding or withdrawal in an applicable legal document (advance directive). To comply with governing court precedent, the presumption would also not apply if there is clear and convincing evidence the person gave express and informed consent to rejection of food and fluids. The bill carefully defines “express and informed consent” to ensure that casual or uninformed statements cannot be used to meet the “clear and convincing” evidence test.
“We must not let the horror and outrage over the attempted starvation and dehydration of Terri Schindler-Schiavo dwindle and die away before we have acted to secure protection for the thousands facing s similar fate,” said NRLC Executive Director David N. O’Steen, Ph.D. From National Rifgt to Life...
This act shall be known and may be cited as the [STATE NAME] “Starvation and Dehydration of Persons with Disabilities Prevention Act”.
Section 2. Definitions
A. “Attending physician” means the physician who has primary responsibility for the overall medical treatment and care of a person.
B. “Health care provider” means a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
C. “Express and informed consent” means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
D. “Nutrition” means sustenance administered by way of the gastrointestinal tract.
E. “Person legally incapable of making health care decisions” means any person who:
1. Has been declared legally incompetent to make decisions affecting medical treatment or care, or
2. In the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services, or
3. Is a minor.
F. “Physician” means a physician licensed by [relevant state statute].
G. “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
Section 3. Presumption of Nutrition and Hydration Sufficient to Sustain Life
A. It shall be presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.
B. No guardian, surrogate, public or private agency, court, or any other person shall have the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person except in the circumstances and under the conditions specifically provided for in Section 4 of this act.
Section 4. Presumption of Nutrition and Hydration, When Inapplicable
The presumption pursuant to Section 3 of this act shall not apply:
A. To the extent that, in reasonable medical judgment:
a) provision of nutrition and hydration is not medically possible,
b) provision of nutrition and hydration would hasten death, or,
c) because of the medical condition of the person legally incapable of making health care decisions, that person would be incapable of digesting or absorbing the nutrition and hydration so that its provision would not contribute to sustaining the person’s life.
B. If the person executed a directive in accordance with [state advance directive statute] specifically authorizing the withholding or withdrawal of nutrition and/or hydration, to the extent the authorization applies.
C. If there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
Section 5. Civil Remedies
A. A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating this act, or to secure a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
B. The action may be brought by any person who is:
(a) The spouse, parent, child, or sibling of the person;
(b) A current or former health care provider of the person;
(c) A legally appointed guardian of the person;
(d) The state protection and advocacy agency, or
(e) A public official with appropriate jurisdiction to prosecute or enforce the laws of this state.
C. Pending the final determination of the court, it shall direct that nutrition and hydration be provided unless it determines that Section 4A is applicable.