A living will should not be confused with a last will and testament, which directs the distribution of real or personal property after a person’s death. A living will is a witnessed written document in which a person states whether a life prolonging procedure should be withheld or withdrawn.
Terminal Condition, Persistent Vegetative State and End Stage Condition
Prior to October 1, 1999, the Florida statutes defined a terminal condition to mean a condition caused by injury, disease, or illness from which there is no reasonable probability of recovery and which, without treatment, can be expected to cause death. The definition of a terminal condition also included a person suffering from a persistent vegetative state characterized by a permanent and irreversible condition of unconsciousness.
The 1999 Florida legislature approved a revision to this statute which states that beginning October 1, 1999, life prolonging procedures may also be withheld or withdrawn from a person who is suffering from an end stage condition. An "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 medically ineffective.
Definition of Life Prolonging Procedure
"Life prolonging procedure" means any medical procedure, treatment, or intervention that
- uses mechanical or other artificial means to sustain, restore, or replace a spontaneous vital function, and
- when applied to a patient in a terminal condition, serves only to prolong the dying process.
Prior to October 1, 1999, the providing of hydration and sustenance or the performance of any medical procedure considered necessary for comfort or to alleviate pain was not considered a life prolonging procedure. A terminally ill patient was required to specifically decline feeding or hydration by stating in the living will that he or she considers the insertion of these tubes to also be a life prolonging procedure. If such a statement was not made in the living will, feeding and hydration tubes would be inserted into a terminally ill patient as part of the normal care process provided by a hospital or nursing home. Therefore, it was important that a person state in his or her living will whether feeding and hydration tubes are to be withheld.
The 1999 legislature approved a revision to this statute which states that beginning October 1, 1999, life prolonging procedures include artificially provided sustenance and hydration. Thus, a person signing a living will after October 1, 1999, who wishes sustenance and hydration if terminally ill will need to make this statement in his or her living will.
A living will should also state whether the person, if in a terminal condition, wants elective procedures that are not considered life prolonging, such as radiation, chemotherapy, and dialysis. Likewise, a living will should clarify whether a person suffering from a terminal condition should be treated for secondary medical conditions such as pneumonia.
Procedure for Exercising a Living Will
Before proceeding in accordance with the living will, it must be determined that the patient is both mentally and physically incapacitated and that
- the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient,
- the patient’s physical condition is terminal, or is in a persistent vegetative state or an end stage condition, and
- any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.
A health care surrogate, guardian, or family member does not have to seek court approval before consenting to the withdrawal or withholding of life prolonging procedures for a terminally ill patient who has signed a living will.
There is no requirement that a judge first appoint a health care surrogate or a guardian to act on behalf of the patient before the health care provider or facility can withhold or withdraw life prolonging procedures according to the dying patient’s living will. If a terminally ill patient has signed a living will expressing his or her desire to withhold or withdraw life prolonging procedures, but has not named a surrogate to follow his or her wishes, the attending physician may proceed as directed by the patient’s living will. If there is a dispute or disagreement concerning the attending physician’s decision to withhold or withdraw life prolonging procedures, the physician cannot proceed pending an expedited judicial review. If a judicial review of a disputed decision is not sought within seven days following the physician’s decision to withhold or withdraw life prolonging procedures, the attending physician may follow the instructions in the patient’s living will.
Procedure in Absence of a Living Will
In the absence of a properly signed living will, the decision to withhold or withdraw life prolonging procedures from a patient may be made by a health care surrogate named by the patient unless the designation limits the surrogate’s authority to consent to the withholding or withdrawal of support. A surrogate cannot assert the incompetent patient’s right to forgo treatment, without demonstrating:
- the patient does not have a reasonable probability of recovering competency,
- the patient suffers from a physical condition that is terminal, or is in a persistent vegetative state or an end stage condition, and
- that there is clear and convincing evidence that this decision would have been the one the patient would have chosen if he or she had been competent.
If a person has not signed a living will and has not named a health care surrogate, the decision to withhold life prolonging procedures can be made by a health care proxy. However, a proxy’s decision to withhold or withdraw life prolonging procedures must either be supported by a written declaration or the proxy’s decision 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. The Florida statute create an exception for persons in a persistent vegetative state, who have no advance directive and no family or friends available or willing to serve as a proxy to make health care decisions. This statute states that in such an event, life prolonging procedures may be withheld or withdrawn by a judicially appointed guardian with authority to consent to medical treatment who is representing the best interest of the patient. The guardian and the patient’s attending physician must first consult with the medical ethics committee of the facility where the patient is located. A conclusion must then be reached that the patient’s condition is permanent and there is no reasonable medical probability for recovery. It must also be confirmed that the withholding or withdrawing of 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.
Effect of Living Wills Made Prior to October 1, 1999
The 1999 Florida legislative revision states that an advance directive made prior to October 1, 1999, shall be given effect as executed. This new statute further states that all of these revisions become effective October 1, 1999, unless otherwise expressly stated. It is accordingly very important to understand that any living will created prior to October 1, 1999, may be construed according to the law in effect when the living will was signed. Thus, a person should consider signing a new living will after October 1, 1999, to ensure that the living will is construed to include the new rights provided by the revised living will statute.
Prohibition of Mercy Killing
A terminally ill patient’s exercise of his or her legal right to request medical assistance to hasten death by the withholding or withdrawal of life prolonging procedures does not constitute a suicide. However, a patient whose treatment does not involve the use of a life support system does not have the right to hasten his or her death with medical assistance. It is a felony in Florida for a physician or anyone else to deliberately assist another person in the commission of suicide. This distinction is based on the argument that the removal of life support systems sustaining a terminally ill patient allows a natural death, but any other medical assistance to hasten a terminally ill person’s death would result in an "artificial" death. The Florida Supreme Court’s ruling in McIver v. Krischer (Fla. Sup. Ct., 1997) 697 So.2d 97 confirmed this distinction. The McIver case did not involve a terminally ill patient’s refusing medical treatment and being allowed to die naturally. Instead, this case involved a physician’s request to help a terminally ill patient die.
The trial court found in the McIver case that the patient was mentally competent and that he was in obviously deteriorating health, clearly suffering and terminally ill. The physician testified that he proposed to assist the terminally ill patient in committing suicide by intravenous means. The trial judge held that the lethal medication could be self administered by the patient after consultation and determination by the physician that the patient was competent, imminently dying, and prepared to die. In essence, the trial judge cleared the way for the physician to assist the patient in ending his life at some point in the future when the patient subjectively decided there was no longer any hope that the brief life remaining to him would be one of satisfactory quality.
In reversing the ruling of the trial court, the majority of the Florida Supreme Court justices held in the McIver case that there is a sharp distinction between disconnecting a respirator, which would result in death from natural causes, and the requested unnatural death by means of a "death producing agent" prescribed by a physician. The Florida Supreme Court cited as the basis for its ruling the state of Florida’s legitimate interest in the preservation of life, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession.
The question presented to the Florida Supreme Court in the McIver case is essentially the same question that was presented to the U.S. Supreme Court in Vacco v. Quill (U.S. Sup. Ct., 1997) 117 Sup. Ct. Rptr. 2293 and Washington v. Glucksberg (U.S. Sup. Ct., 1997) 117 Sup. Ct. Rptr. 2258. In those cases, the U.S. Supreme Court also refused to recognize an open ended constitutional right to commit suicide. As stated in the Vacco opinion, "the value to others of a person’s life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life."
The Florida Supreme Court, in the McIver case, also cited a New York Task Force report finding that those who attempt suicide, terminally ill or not, often suffer from depression or other mental disorders. The court noted that research indicates many people who request physician assisted suicide withdraw that request if the depression and pain are treated. It also cited the Code of Medical Ethics, which states that physician assisted suicide is fundamentally incompatible with the physician’s role as a healer.
It is interesting to note that at the end of the McIver opinion, the Florida Supreme Court stated, "We do not hold that a carefully crafted statute authorizing assisted suicide would be unconstitutional." The court went on to state that this case should not be decided on the basis of the court’s own assessment of the weight of the competing moral arguments. It was stated in a concurring opinion, "[t]he public would be much better served if the legislature, with significant input from the medical community, would craft appropriate exceptions to the general prohibition of assisted suicide, which include suitable standards, definitions, and procedures ensuring that the use of assisted suicide would truly be used to assist only those individuals who suffer unbearable pain in the face of certain death."
In November of 1994, the Oregon voters approved a carefully drafted referendum by a margin of 51 to 49 percent. This voter initiative states that a resident of Oregon who suffers from an incurable or irreversible disease that will reasonably result in death within six months may make a written and witnessed request to a physician for medication for the purpose of ending his or her life in a humane and dignified manner. An initiative in 1997 to repeal this statute failed. The margin against repealing this statute was 60 to 40 percent.
The Oregon statute requires the attending physician to determine that the patient is not suffering from a psychotic or psychological disorder or depression causing an impairment of judgment. If the physician determines the patient is competent, the physician must then inform the patient of the diagnosis, the prognosis, the risks related to the medicine to be prescribed, and the alternatives, including comfort care and pain control. The patient must also meet with a consulting physician, who must examine the patient and his or her relevant medical records, confirm in writing the attending physician’s diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily, and has made an informed decision. If after a waiting period of 15 days from the first request, the terminally ill patient is competent and again requests the medication to end his or her life, the physician may write the prescription, which may be filled and given to the patient after an additional two day wait.