Updates below – scroll down.
A short while back I posed some rhetorical questions regarding the burden of proof in the case of Terri Schiavo. The following are principles which I believe should be followed in making a determination in this and similar cases dealing with persons in a PVS.
Burden, Presumption and Standard of Proof – Greater than Beyond a Reasonable Doubt
In any forum of advocacy the burden of proof usually rests with the party making the assertion. In the present case the burden rests with the party requesting the cessation of feeding. But what is the standard of proof? In civil cases (I understand Terri’s case is being treated as such) the proof is on a balance of probabilities, although civil law permits flexibility within the standard to require proof commensurate with the severity of the allegations. Thus, allegations of fraud usually requires a higher level of proof. Criminal law requires that all of the essential elements of the offence be proven beyond reasonable doubt. As stated previously, this involves a recognition of the severity of the state denying a person’s liberty and is based on the premise that it is better to let 10 guilty men go free that put one innocent man in jail.
There can be no graver decision than the decision to stop someone’s life. Life is the essence of being and humankind’s desire to stay alive is self evident. Moreover, we are discussing the decision to end an innocent person’s life. The standard of proof therefore ought to be even higher than in the criminal context. Accordingly the burden of proof should be greater than beyond reasonable doubt – as near to certainty as evidence can permit. As in the criminal context, this threshold must be met with respect each essential element required to permit the ending of life. This threshold is a reflection of society’s revulsion at the notion of the state erroneously ending the life of a person whose only “crime” is to be among society’s most vulnerable.
Evidence Required to Prove PVS
Assuming the definition of Persistent Vegetative State is sufficiently definitive (it appears that the current definition may be lacking in many jurisdictions), given the above presumption and standards, overwhelming and uncontradicted scientific and medical evidence would be required to prove PVS. The courts cannot decide to end someone’s life if there is the slightest credible evidence which suggests the individual is not in a PVS. The contradictory evidence must have a credible basis. Fanciful or unscientific studies should not override otherwise sound conclusions. But any credible evidence to the contrary ought to override a decision to terminate someone’s life.
Evidence of Prior Wishes or Consent
While in many areas of the law courts recognize oral statements or agreements as legally binding, the decision to terminate someone’s life based on prior consent should not be one of them. Only in the rarest of cases where the evidence is overwhelmingly substantiated by extraneous factors and corroborating evidence should unwritten wills or testamentary statements be conclusive. To put this matter in perspective, in many if not most jurisdictions in the US and other common law systems, real estate cannot be transferred unless it is evidenced in writing. Written instruments add specificity to the transaction (for instance, can we say with any certainty what Terri Schiavo actually consented to, assuming she consented at all – did she consent even in circumstances where she exhibited moments of happiness).
Written instruments also add solemnity to the occasion. If one has gone to the effort of reducing it to writing, in specific terms, perhaps with the aid of a lawyer, one can be fairly sure that the person is serious about what he or she is getting into. How often have you said something you didn’t really mean or on reflection wished you hadn’t said?
Perhaps most importantly, having it in writing reduces the chance for mischief or improper motive. Take Michael Schiavo, for instance. Although his intentions may be bona fides, the circumstances sure look questionable. He’s living with another woman with whom he’s had children. In all other respects he’s no longer Terri’s husband, yet he maintains the right to make life ending decisions for Terri qua husband. Now the court is being asked to rule, in large part, on his say-so.
While I have not read the specific points of evidence in Terri’s case, from what I have read, it does not appear that the aforementioned principles have been applied. Proponents of Michael Schiavo base their support in large part out of a respect for the process. But support on that basis requires that the process is worthy of our respect in the first place.
UPDATE: Here is the definition of PVS under Florida Statute § 765.101(12):
“Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:
(a) The absence of voluntary action or cognitive behavior of any kind.
(b) An inability to communicate or interact purposefully with the environment.
Get that. “Of any kind.”
UPDATE II: Here’s a portion of the trial judge’s finding of PVS from Abstract Appeal:
Also, Mr. Schindler tried several more times to have her eyes follow the Mickey Mouse balloon but without success. Also, she clearly does not consistently respond to her mother. The court finds that based on the credible evidence, cognitive function would manifest itself in a constant response to stimuli.
Emphasis added. Note how the court seems to require a consistent cognitive response where the legislation clearly requires the inverse: the absence of any cognition whatsoever. (Hat tip to reader Anomalocaris)