Honorable Mention  – Brandon Legal Group’s Legal Scholarship.

While this essay was not a winner of our Legal Scholarship it was absolutely worth publishing.  Below find an honorable mention from our legal scholarship essay competition.   Thank you Derek Heffernan  of WMU Cooley Law School.

Before reading this essay, it is important to note that this is NOT written or endorsed by Brandon Legal Group, and does not represent legal advice.  The following document is a submission for our Legal Scholarship program, and is presented here only as an “honorable mention”.

Should Florida Allow Physician-Assisted Suicide

Derek P. Heffernan

WMU Cooley Law School, Concentration: Litigation

Imagine a thirty-year-old man, with a beautiful wife and two children. Lately, he has been feeling off with a sense of weakness, so he decides to go to see his primary care physician. After several tests, the laboratory results come back–Amyotrophic Lateral Sclerosis (“ALS” or “Lou Gehrig’s Disease”). As the doctor begins to explain the next step, he cannot listen. He is in a trance, stuck in thought. All he can think of is, “how am I going to tell my wife and kids?” At this moment he realizes that his life will never be the same. He catches the doctors last few words, “currently, there is no cure.”

ALS “. . . is a progressive neurodegenerative disease that affects nerve cells in the brain and spinal cord.” “Nerve cells [are] responsible for controlling voluntary [and involuntary] muscle movement.” In laymen’s terms, ALS causes the brain to lose its ability to control movement.

He will want to move, but his body will not respond. He is rendered eternally motionless. “In ALS, both the upper . . . and the lower motor neurons degenerate or die, and stop sending messages to the muscles.”

Florida Statute § 765.309 distinguishes mercy killing or euthanasia with suicide, but if a person assists in killing of another, they face first-degree premeditated murder. First-degree premeditated murder is a capital crime, which in Florida, is punishable by death or life imprisonment. Florida Constitution, Article I, subsection 16(a) states that, “[i]n all criminal prosecutions the accused shall . . . have a speedy and public trial, by an impartial jury in the county where the crime was committed.” Will future jury instructions include physician-assisted suicide or euthanasia? Would a Living Will or “Do Not Resuscitate” Order be a precursor to the legalization of physician-assisted suicide or euthanasia?

A Living Will provides that “[a]ny competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such a person has a terminal condition, has an end-stage condition, or is in persistent vegetative state.” The principal or person making the will must give notice to their treating physician in order for this will to become effective and the Living Will must have “two subscribing witnesses”. This means that in order for a Living Will to become effective, a person must be on the verge of death or in a daily vegetative state. This requisite under the law differs with a person who has ALS because they are still mentally competent and not on the verge of death, whereas a person who is in a persistent vegetative state is completely incoherent. ALS kills your body, not you or your mind. Put realistically, a person with ALS will be in a prison of his or her own mind. “The mean of survival time with ALS is three to five years, [but] many people live five, 10 [ten] or more years.”

“Do Not Resuscitate” orders have faced much scrutiny because they allow interested parties to challenge the ruling at any time prior to the death of the individual, In re Schiavo, 792 So. 2d 551 (2011). In In re Schiavo, “Theresa Marie Schiavo had been in a vegetative state for nearly a decade… and the court found by clear and convincing evidence that Mrs. Schiavo would then elect to cease life-prolonging procedures if she were competent to make her own decision.” Id. In re Schiavo did not end at the Final Order. Mrs. Schiavo’s parent then attacked the Final Order and prolonged the process, which became known as In re Schiavo II, 792 So. 2d at 560. A parent would never wish their child to predecease them, but in certain situations, there is no other choice.

Physician-assisted suicides allow the individual to choose how they want to end their life. A Living Will must have two subscribing witnesses, a “Do Not Resuscitate” order requires a probate court to issue a final order and a major surgery requires a conversation with multiple doctors for their opinions on the subject matter. This allows the individual to make an accurate decision to determine if they want to end their life.

In this story the husband and father should be able to determine his own fate, rather than living years waiting for the inevitable death.

References:

  1. The ALS Ass’n., Symptoms & Diagnosis, http://www.alsa.org/about-als/symptoms.html?referrer=http://www.alsa.org/about-als/what-is-als.html?referrer=https://www.google.com/?referrer=http://www.alsa.org/about-als/symptoms.html.
  2. Off. of the Communications & Public Liaison, The National Institute of Neurological Disorders & Stroke, Amyotrophic Lateral Sclerosis (ALS) Fact Sheet, https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Amyotrophic-Lateral-Sclerosis-ALS-Fact-Sheet.
  3. Gilbert v. State, 487 So. 2d 1185 (Fla. 4th DCA 1986).
  4. Fla. Stat. § 765.309
  5. U.S. Const. amend. VI.
  6. Fla. Const. art. I, § 16(a)
  7. Fla. Stat. § 782.04(1)(a)(1).
  8. Fla. Stat. §782.04(1)(b).
  9. Fla. Stat. § 765.302.
  10. In re Guardianship of Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2011).
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