FLORIDA SUPREME COURT REJECTS ASSISTED SUICIDE
On July 17, 1997, the Florida Supreme Court, by a vote of 5-1, decided the case of Krischer v. McIver (1) which involved a challenge to the state’s one hundred twenty-nine year-old law against assisted suicide. (2) The challenge was based on the Florida constitution’s Privacy Amendment (3)
The case was an appeal of the January 31, l997 decision by Florida Circuit Judge S. Joseph Davis which gave specific approval for a physician, Dr. Cecil McIver, to intentionally provide a lethal dose of drugs to Charles Hall, an AIDS patient. In his decision Judge Davis ruled that an individual has the “right to determine his or her course of medical treatment, including the option to hasten his or her death.” (4)
Davis’ decision and its wording posed a serious threat to all Florida residents.
This fact sheet described what was at issue in the case.
If assisted suicide is considered a medical treatment under Florida’s right to privacy provision, wouldn’t it be limited to competent adults?
No. If it is found that assisted suicide is a beneficial “medical treatment” guaranteed under the right to privacy, it is logical and, indeed, necessary that this same treatment would be available to children and to those who are incompetent. In fact, Florida courts have specifically declared that the right to privacy provision of the state constitution applies to all persons, not just to competent adults.
- Assisted suicide could be requested by minors.
- The Florida Supreme Court has clearly noted that the state’s right to privacy provision, as it pertains to medical procedures, extends to every person, not just to adults. (5) Therefore a teenager could exercise the right to request and obtain assisted suicide.
- Assisted suicide could be requested on behalf of children and incompetent patients.
- The Florida Privacy Amendment permits parents to exercise a child’s right to privacy regarding medical treatment. (6) Thus a parent could make the assisted suicide decision for a child.
- In addition, someone else could request assisted suicide for a mentally disabled or senile person. Florida courts have already said that the Florida right to privacy provision “makes no distinction as to whether a natural person is competent to exercise that right” (7) and that incompetent persons’ right to privacy may be exercised for them by guardians, proxies, surrogates, family members or friends. (8)
- A person does not need to be an adult or competent to take the “last act” that would be required for assisted suicide.Assisted suicide advocates argue that — because a person who dies of assisted suicide must take the last act — competency would be necessary. This is not true. For example, the act of swallowing a lethal dose is the “last act” — an act which even an infant or a demented individual could easily perform.
What is the difference between this case and the assisted suicide cases now pending before the U.S. Supreme Court?
At issue in the cases before the U.S. Supreme Court (9) is whether there is anything in the U.S. Constitution that would prohibit states from having laws against assisted suicide. It is expected that the Court will find that states do have the right to prohibit assisted suicide.
The Florida case is based on the state, not the federal constitution. This means that — even if the U.S. Supreme Court decides that states can ban assisted suicide –. the Florida Supreme Court could still declare the assisted suicide law unconstitutional under the state constitution.
Do other states have right-to-privacy provisions in their constitutions?
Florida is one of only five states in the country (10) with a specific privacy provision in its constitution. Of those states, only California has considered whether that right to privacy includes assisted suicide. In that case, the judge ruled that “California’s right to privacy does not include a right to assisted suicide.” (11)
What are the circumstances surrounding the Florida case?
The case is a joint effort of Florida’s Hemlock Society and the Florida ACLU. It was in the strategic planning for several years.
- Hemlock actively recruited patients and doctors for the case.
- In the summer of l994, Hemlock of Florida ran a front-page article in its newsletter recruiting terminally ill patients and cooperative doctors to serve as plaintiffs in a lawsuit challenging the state’s assisted suicide law. (12) The search continued with additional emphasis being placed on the need for a terminally ill patient “who anticipates that he/she will live for 12 months or so.” (13)
- By the end of l995, Hemlock reported that Attorney Robert Rivas of the American Civil Liberties Union had agreed to work pro bono on the case and that “[a]s soon as we find the right patient, we will be able to go to court.” (14) The ACLU would share costs of the case with Hemlock. (15)
- Florida Hemlock president Mary Bennett Hudson said lawsuit organizers traveled statewide, interviewing almost 50 patients and more than 12 physicians to find the ideal plaintiffs for the case. According to Hudson, “We knew we needed people who were articulate, who would make good witnesses.” (16)
- Finally, semi-retired physician Cecil McIver, 74, and Charles Hall, a 35-year-old restaurant manager who contracted AIDS from a blood transfusion, became the plaintiffs in the case which has reached the Florida Supreme Court.
- Doctor and patient had never met before the case began.
- In his opinion, declaring the right for McIver to prescribe lethal medication to Hall, Judge Davis implied a Marcus Welby & patient type of relationship between the two plaintiffs: “:[T]he Court must leave the final determination of when to die to the privacy of the physician patient relationship where it belongs.” (17)However, McIver and Hall had never met before the lawsuit. (18)
- After meeting, McIver’s contact with Hall was limited to a “review of Mr. Hall’s medical and hospital records” and to observing Hall “on several occasions.” (19)
Can’t guidelines be drafted so that assisted suicide would only be used as a last resort to be chosen by a competent adult after considering and rejecting all other options?
As explained above, if the “treatment” of assisted suicide is a medical option, it would be both illogical and discriminatory to limit this treatment to competent, terminally ill adults.
Of additional importance in considering assisted suicide and its implications, is a recognition of the context in which it would be practiced.
Thousands of Floridians (young and old alike) have no health insurance. They find it difficult to receive any health care. Do we really think that legalized assisted suicide will magically cause health facilities in Florida to offer “all options” to the uninsured?
Even those who have health insurance are finding it difficult to get needed care. That’s because health care is largely dominated by managed care programs and HMO’s where stockholder benefits, not patient well-being, is the bottom line.
No longer do doctors or hospitals get paid for all they do for a patient. Instead, their incomes often depend on how little they do. Some managed care programs require that doctors limit patient visits to 20 minutes for new and 10 minutes for returning patients. And contract terms with the program may prevent doctors from telling patients that physicians who save money for withholding care get cash bonuses.
Within this context of managed care, it may be helpful to consider the following questions:
- Do we really think that transforming a crime into “medical treatment” will cause managed care programs — some of which mandate drive-through mastectomies — to suddenly begin providing “all options?”
- Do we really believe that managed care corporations that currently limit doctors’ time to 10 minutes per patient will let doctors spend hours discussing and providing “all options” before prescribing the fatal overdose?
- Would assisted suicide be permitted as a “compassionate last resort,” but practiced as a cleverly disguised form of medical cost containment?
No matter how one might feel about assisted suicide, two things are certain: Dead patients don’t take up time, and they’re not a drain on the health care budget.
1.) Krischer v. McIver, Case No. 89,837; District Court of Appeal Fourth District No. 97-039; Circuit Court No. CL-96-1504-AF.
2.) Fla. Stat. Ann., § 782.08.
3.) Art. I, Sec. 12., Fla. Const.
4.) McIver v. Krischer, No. CL 96-1504-AF, slip op. at 19, n. 6 (Fla. 15th Cir. Ct. Jan. 31, 1997) (emphasis added).
5.) B.B. v. State, 659 So.2d 256, 258 (Fla. 1995), citing In re T.W.. 551 So.2d 1186, 1193 (Fla. 1989; Jones v. State, 640 So.2d 1084, 1087 (Fla. 1994) and Jones v. State, 640 So.2d 1084, 1087 (Fla. 1994).
6.) In re Guardianship of Barry, 445 So.2d 365 (Fla. App. 2d Dist. 1984) in which parents were permitted to assert a ten-month-old child’s privacy rights.
7.) In re Guardianship of Barry, 445 So.2d 365, 370 (Fla.App.2d Dist. 1984) .
8.) In re Guardianship of Browning, 568 So.2d 4,12-13 (Fla. 1990).
9.) Washington v. Glucksberg, No. 96-110 and Vacco v. Quill No. 95-1858.
10.) Alaska, California, Florida, Hawaii and Montana have distinct provisions in their state constitutions, specifically guaranteeing the right to privacy. (Five additional states have constitutional privacy protections related to search and seizure.)
11.) Kevorkian & Doe v. Arnett, Medical Board of California, & Lundgren, CV-94-6089 CBM (Kx), Order, Sept. 11, 1996.
12.) “Hemlock of Florida Legal Plans Update,” Hemlock Beacon Newsletter (Florida Hemlock Society), Summer 1994.
13.) “The Search Is On,” Hemlock Beacon Newsletter, (Florida Hemlock Society), Fall 1995, p. 1.
14.) “A ‘Pugnacious’ Attorney, Hemlock Beacon Newsletter (Florida Hemlock Society), Fall 1995, p. 1.
15.) “John Lees Spearheads Drive to Achieve Physician Adi in Dying in Florida,” Hemlock Beacon Newsletter (Florida Hemlock Society), Winter 1995/6, p. 3
16.) Lade, “Group carefully orchestrated doctor-patient right-to-die test,” Sun-Sentinel (Ft. Lauderdale), Jan. 12, 1997.
17.) McIver v. Krischer, No. CL 96-1504-AF, slip op. at 22 (Fla. 15th Cir. Ct. Jan. 31, 1997)..
18.) Lade, “Group carefully orchestrated doctor-patient right-to-die test,” Sun-Sentinel (Ft. Lauderdale), Jan. 12, 1997
19.) McIver v. Krischer, No. CL 96-1504-AF, slip op. at 6 (Fla. 15th Cir. Ct. Jan. 31, 1997)..