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Posted by paul What I got from Mr. Welch’s remarks is, “…that Terri Schiavo had a right to have her wishes respected” Not long ago, when a person with a disability refused to follow the advice of the professionals, experts, or “advocates”, that refusal was seen as a presumptive indicator of incompetence and the need for institutionalization. In the 70’s incarceration was used to simply raising the standard of living for these “incompetents” even though many, were capable of surviving safely in freedom, on their own or with the help of family or friends. Much of our institutional history stems from a simple, fallacious, and discriminatory paradox. You are competent, unless you make the “wrong” choice. Then you are “incompetent”, and “we” get to make the choices for you. Id est, “you can have any colour you want, as long as it is black”. Today, this paradox swings all directions. Should a competent consumer decide to live in a congregated setting some advocates begin to claim that such a choice “clearly” implies that such a consumer was NOT “Given real choices and information on how to make them.” Are we going to allow people to make choices, or use smoke and mirrors to bring about the “appearance” of a choice that nicely fits “our” conscience? (Rhetorical question) Fortunately, we have evolved “a bit” since this time. I say “a bit” because of your comment, “We are still left with the question of whether or not her wishes should be honored.” Still lingers… “It is the patients ability to weigh relevant factors, not the patient’s final decision, that determines competency. Because one of the purposes of informed consent is to enhance individual autonomy, people have broad latitude to make choices that reflect their personal values. A person is not incompetent merely because her treatment decision deviates from what the majority of patients would do, appears irrational, is not in her best interest, or contradicts a doctor’s advice.” In California, Back in 1972 a court stated that, “A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. But once this information has been disclosed, that aspect of the doctor's expert function has been performed. [begin bold] Weighing of these risks against the individual subjective fears and hopes of the patient is not an expert's skill. Such evaluation and decision is a non-medical judgment reserved to the patient alone.” [end bold] [Cobbs, 8 Cal.3d at 243] In California, “the legally competent person's right of self-determination to make medical treatment decisions even outweighs the state' interest in saving life.” Although you “are still left with the question” most of society, at least California and Florida, is not. Every adult, even adults with disabilities, are presumed to be competent, and capable of making personal life decision regarding treatment, the refusal of treatment, and bodily integrity, unless there is a judicial determination to the contrary. [Jarvis] Of course, Terry was not competent, nor did she “clearly [define] her wishes”. Without these assumptions the situation does get a bit less clear. I will easily grant you this. For the sake of argument let us state that, “The entire argument comes down to where the line should be drawn between using technology to keep someone alive "artificially" or allowing death to occur naturally, and more importantly, WHO makes the decisions.” MOST important is that once we decide “who” or “how” decisions are to be made we have FIDELITY to that agreement, due process, or social contract. Unfortunately, many lack the fidelity to the social contract [aka civilization]. In Florida, as in many states, decisions for people in Terry’s situation are decided by a due process called “substituted judgment” and/or the presentation of clear and convincing evidence to demonstrate the intentions of the person in question. This public policy was formed through a process called representative DEMOCRACY, and the “due process” build up over 200 years. Since democracy does not guarantee sound policy I will not defend the policy that allowed the feeding tube to be removed from Terry Schiavo, nor debate that policy on a list-server. However, I do not need to debate that policy to understand that if we begin to debate whether or not we should remove decisions about someone’s body away from that person, and place it with the “state” or others we move into murky waters which would be navigated with heightened scrutiny. I agree with Jeff. To attack a Judge for enforcing Florida law and Michael Schaivo for exercising his rights, and Terry rights, under Florida law is in my opinion unconscionable. If we disagree with the policies, due process, or social contract that we, as a civil society, have formed then those policies can be changed. The Florida legislature attempted to do this at the 11th hour, but could not come to agreement through the process we use, as a civil society, to make public policy. “Had Congress or the legislature, in their legislative capacity, been able to constitutionally amend applicable law, we would have been constrained to apply that law.” 11th Circuit. I am piqued by your comparison of George Felos with Dr. Kevorkian (I will skip the “mad jack” part even if I am in agreement…ad hominem does little service). Kevorkian made choices that “physically” expedited the death of individuals, and was against the law. Felos chooses only to be a polemicist and interlocutor, and represent individuals above board, within the law, and within a system of jurisprudence that goes back over 400 years. You seem to believe that this man should be locked up simply because his “opinions”, “positions”, and the advocacy that he brings to the table differ from yours. I ask these literal questions: “Does ANY collective, civil, decision making process exist in your eyes, that can make a public policy, protocol, social contract, covenant, that is contrary to your views in this case?” In regards to abortion, is Eric Rudolph a vigilante or hero? Are you able to except and respect a “group” value that is contrary to your value system? It is obvious that you, and others, disagree with the outcome. But, to make statements so factually opposite to the 5 years of due process, guardian ad litems, judges, and family is, with all due respect a bit arrogant. It amazes me how many people who are not doctors, do not know Terry or her husband seem to very confident in their abilities to know her wants or desires. The bright side is this vocal group is a super-minority. We certainly need and should foment devil’s advocacy, and therefore I encourage your dissent. However, dissent is not disrespect of group decisions made fairly, deliberatively, and respectfully. Should it come to that point we will find ourselves in a much more natural state, where those with the largest “gun” or pipe bomb will prevail and not individual liberties and freedoms. At that point we move from a devil’s “advocate” to the devil’s acolyte. It is highly likely that the Schindler family did much to harm their cause by stating “…that even if Theresa had told them of her intention to have artificial nutrition withdrawn they would not do it” Jay Wolfsen (Guardian Ad Litem for Theresa Schiavo). Terry was an individual. Her actions do not threaten nor represent any “class” of people any more than my choice to NOT have an abortion threatens someone else choice to do so… When you “question […] whether or not wishes should be honored.” I do not doubt that you feel certain that you are different from the historic individuals who have failed to honor the choices of people with disabilities in the past, after all, you are RIGHT, and they were WRONG…RIGHT? So, I have spent much too much time trying to frame the bigger picture as I see it. I hope you can respond in kind. I respect your opinion, and I hope you respect mine. Should you present opinions I hope that you respect my right to disagree without wanted to make me into a cellmate of “mad jack”. If you present things that you claim are facts then I hope you do me the respect, as I have tried to do, of providing some reference. I would also suggest reading In re A.C. I will post it next for it is hard to find on the Internet. If you think there are easy answers for A.C. and others similarly situated then I would probably decline to respond in the future. If In re A.C. makes you scratch your head, sigh, and ultimately cry then I look forward to following a VERY interesting discussion… Thanks…sorry for the length, but thanks for the time. My first public comments re: Terry.
on April 13, 2005, 5:55 pm, in reply to "Re: terri schiavo"
68.6.36.93
Mr. Busch,
My quick glance at recent posts does not give me the impression that “pro-euthanasia “ is an accurate label for Mr. Welch. I am pro-choice. Yet, I would never “choose” an abortion. Therefore, labeling me “pro-abortion” would be a bit two-dimensional.
The Rights of People with Mental disabilities – ACLU
Certainly, and in the beginning, Mr. Rudolph once asked himself if a pregnant women, “…had a right to have her wishes respected”
Mr. Busch,
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