SO IT HAS ENDED. The nightmare of judicial execution by dehydration is finally over. How could such a thing have happened? Students of law, medicine, and ethics will examine this tragedy for decades to come.
Any system charged with the management of human affairs will fail on occasion. We must recognize that it is often unwise to change procedures long in place, lest unintended adverse consequences supervene. That said, it is time to examine how our system of justice went so badly off the rails, and to ask what lessons might be learned.
A judge in a county probate court assumed for himself, and thus for the judiciary at every level, the power to dehydrate to death a disabled woman because her estranged husband requested it. This cascade of tragedy appears to have been brought about by combining principles, not wrong in themselves, with judgments of fact which were wrong or in dispute.
It is generally recognized that people may indicate, by living will, the extent to which they wish medical assistance at the end of life. This power is reasonably extended to guardians or medical surrogates when the patient is cognitively impaired. Let us grant, for now, that Terri wished to have no extraordinary interventions. In what parallel universe could this reasonable request be perverted so as to assume that she wished to die of thirst while awake and possibly responsive to her environment?
Guardians and medical surrogates have the power to approve or deny medical treatments, provided that they do so in a reasonable way. A deeply comatose person who is unable to swallow because of irreversible brain damage may properly have fluids and food withheld. But guardians do not have the authority to starve a patient who is awake, alert, perhaps responsive, and able to swallow.
This probate judge apparently reasoned that (1) since guardians have the power to withhold fluids from persons in irreversible coma, and (2) since they have the power to withhold medical treatments in general, then (3) they therefore have the power to withhold fluids from patients who are awake, possibly responsive, and able to swallow. This is madness.
This strange conclusion requires that attempts at normal drinking be construed as a medical treatment. But the judge went even farther into the abyss. He . . . er . . . reasoned that to drink normally would be an experimental procedure, and thus he chose to forbid it. To rebut decisively the claim that dehydration is peaceful and painless, we merely need to ask its advocates to apply it to murderers on death row.
To withhold minimal comfort measures such as water is gratuitous cruelty. But the judge must be convinced of his probity and rectitude, for he alerted every sheriff in Florida to be vigilant in preventing a chip of ice from entering Terri's mouth. And appellate courts declined to interfere with this travesty of justice on the grounds that proper procedures were followed. Thus they became complicit in the evolving tragedy.
Much mischief is set loose when the uncertain judgments of medical diagnosis are conflated with the rigid categories of the law. Unlike coma or brain death, persistent vegetative state is a diagnosis that depends on subjective judgment. It requires a finding of unresponsiveness in an awake and alert person. Even skilled diagnosticians may disagree on this assessment. It does not necessarily preclude the possibility of improvement. It has no definitive laboratory tests.
Thus the diagnosis of PVS is not reliable in a forensic sense, and should not be used in life and death decisions. It is a clinical diagnosis, which prescribes treatment measures in normative medical practice.
For several years I had the honor to be the physician for a neuropsychiatric hospital unit which served seriously disabled people. Some of them appeared to be similar in condition to Terri. The nursing staff worked hard to keep these patients alive, comfortable, and stimulated by the environment to the maximal extent possible. They typically had guardians, and their instructions were followed, including the occasional refusal to employ tube feeding. But no one on the treatment team would have dreamed of acceding to a guardian's demand to withhold water. We would not have done it. And no judge would order it.
Yet now one has. The only precedent I can find is in the Germany of the 1930s.
What is to be learned?
(1) Hard cases make bad law, but wrong ideas propelled by formidable legal talent may prevail over decency and common sense.
(2) The judiciary, at every level, appears to have assumed an arrogant lack of accountability to legislatures and to elementary concepts of right and wrong.
(3) Courts that reject laws as unconstitutional if they mandate undesired results are a growing danger to fundamental principles of popular sovereignty and separation of powers.
It is now time for the people to transplant vertebrae into our legislatures so as to restore constitutional balance.
William Anderson is a lecturer at Harvard University and Senior Psychiatrist at Massachusetts General Hospital.