Life Legal Defense Foundation

Presents …

ACTIVE KILLING:WHAT THE LAW ALLOWS

Copyright © 2012. All rights reserved.

Introduction

Cases involving this issue of life-sustaining care are proliferating.

For example:-Robert Wendland -Terri Schiavo-Rachel

Nyirahabiyambere

Goal:

To prepare the attorney for the legal issues that arise out of these disputes.

Legalized Killing: a slippery slope

-There has been a concerted effort to legalize intentionally allowing certain people to die

-This is contrary to traditional Western Ethic that human life is inherently valuable

-The physically and mentally disabled are increasingly viewed as unworthy of life for “merciful” reasons

if human life is not viewed as inherentlyvaluable, the plunge

to assisted suicide and euthanasia

becomes inevitable

Killing disabled people has become legal through withholding nutrition and hydration

The arguments used to justify this type of killing include › “privacy,” › “autonomy” and › “compassion.”

› Proponents also argue the preservation of scarce resources,

› but the result is the elimination of those deemed unworthy of life.

For more reading on this topic, see the Handout (tab 3 in your binder)

See also, Forced Exit by Wesley J. Smith.

Terminology:

-Purposely avoided: “end-of-life” - patient may or may not be near the end of his life.

- “Active killing” or “forced death” will be used throughout the

course.

What kind of cases?

Cases that involve withdrawal of medically effective sustenance, as opposed to cases where the body is shutting down/rejecting food and fluids

Cases NOT contemplated: Artificially prolonging life of person whose death is occurring from underlying malady, rather than from lack of sustenance.

Strategies and Tactics

Strategies and Tactics - hypothetical: you are contacted by Jane Roe

whose brother Joe Roe (75) remains incapacitated, though conscious, following an auto accident;

Joe’s wife wants to remove Joe’s feeding tube and discontinue all medical treatment for Joe’s condition.

There is no advance directive, but Jane feels that Joe would want to live based on his values.

She feels that Joe’s wife has an ulterior motive in wanting him dead: she wants to collect his life insurance money and marry her lover Hank.

Where do you start?› This seminar’s genesis was the case of

Robert Wendland, who became incapacitated following a car accident.

› Although he was conscious and able to perform various tasks, hiswife sought to removenutrition and hydration.

› (see Handout p. 6).

Strategies and tactics -

o know the facts:-cases are not always what they appear;-take measures to get essential facts.

o know the client:-who are you representing? -who is opposing?

o know your legal claims -see resources in the appendices

Know the facts What facts should you collect? How do you get these facts?

(Client/family interviews, hospital interviews)

Know your client—see whether the facts line up, whether client has “clean hands;”

Family disputes are messy, and it’s good to be appraised of family disagreements at the forefront.

For Example:-what are Joe’s underlying medical conditions? -what evidence is there of Joe’s wishes? His

values? His religion? -what do other family members think?-what evidence is there of wife’s bad motive?-how is the hospital responding? Have they

agreed to follow wife’s instructions? Are they urging her to discontinue treatment?

-is there a medical expert available who can confirm/counterbalance Joe’s doctor’s conclusions?

Know the facts

-In looking at the facts, consider statutory requirements

-What must be proved?-prepare client with reasonable

expectations—remember the type of remedy you are seeking (injunction? appointment of conservator or surrogate? temporary restraining order?)

-Realize that there is usually a significant time constraint in these cases.

Hospital Ethics Committee

-Resolving a dispute may be possible without litigation, especially if the dispute is with the hospital itself (when caregiver seeks to terminate treatment):

-Contact hospital directly, through a demand letter, or a meeting with “ethics committee” or hospitalist. (See appendix G for a sample demand letter.)

Know the law What statutes are in place? Causes of action/remedies to seek? What court to file in? What elements need to

be pled and proved? See sample pleadings,

appendixC-F.

California Probate Code § 3200, et seq.

Drafting the petition

Include all relevant facts Include supporting declarations Have client verify the complaint Include memorandum of points and

authorities Provide a proposed order

The petition

-Keep appeal options in mind-The Wendland case went all the way to

the California supreme court-Yours may be a

precedent-setting case

At Hearing on Petition -

Direct thinking of trier of fact Prove patient’s present condition (use

of video essential) Use opening statements to persuade

and educate Use caution with medical experts (may

be dedicated to a philosophy of care harmful to your position)

Use procedural rules, such as a motion for judgment, as additional opportunity to persuade

Closing statements –- make arguments and persuade as at

opening statements

Arguments for Preserving Life: No constitutional

right to die Legal system

presupposes value of each person

Ending treatment is not sound medical decision

Intolerance for the disabled is no reason to end care

Patient has prognosis for improvement, there is hope

Arguments for Preserving Life: Patient’s wishes

and values should be consulted before treatment is terminated

Relatives may or may not have best interest at heart

Bias against family of origin

General statements such as “I would never want to live like that,” are unreliable

If there’s a question, err on the side of life

In conclusion, remember -

In defending the innocent, disabled and defenseless against the threat of death, the attorney fulfills the highest calling of the law as a profession, and helps to preserve the decency and justice of a society too often bent on self-fulfillment at the cost of all that should be held sacred.

ACTIVE KILLING:WHAT THE LAW ALLOWS