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    John Ebbott; Jon Schuster; Robyn Shapiro

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 9, September 2005

    Letters

    Letters to the editor: The Wisconsin Lawyer publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may be edited for length and clarity. Letters should address the issues, and not be a personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or

    Achieving True Equal Justice Takes Audacity

    It is far too early to tell what will be the effect of the State Bar's legal needs study on the delivery of legal services in Wisconsin. It is not, however, too early to predict that, at some point, the Needs Study Committee or a related body will be confronted with the choice between 1) pursuing greatly increased funding for legal services or 2) devising systems to touch more people with about the same amount of money.

    The easier (though not easy) road is to assume, as did the Legal Services Corporation a few years ago, that we will never be able to triple or quadruple funding, so we should focus on providing "something" - a pinch of advice, better pro se forms - to more people. This avoids the need to even talk about the fact that $50 million is needed each year for civil legal services, and at least that much more for the Public Defender, if we are at all serious about equal justice. It is hard to summon the audacity that this requires, and thus it will be tempting to use the needs study to attempt to obtain some appropriation from the legislature and then to spread the total funding as broadly as possible. This is what makes kiosks, hotlines, and pro se forms attractive. At the least the poor get something.

    But it is not much. Poor people need lawyers to champion them, not lawyer-coaches who send them, essentially defenseless, into court on their own. This is not equal justice. The affluent don't have to accept this - they hire lawyers when they need them.

    The kind of justice that we accord poor people is at the heart of the current debate. Let's hope we have the audacity to make it equal justice.

    John F. Ebbott, Executive Director
    Legal Action of Wisconsin Inc.

    Ironic Contradiction in L.W. Decision

    I thank Robyn S. Shapiro for her informative article in the June Wisconsin Lawyer regarding the Terri Schiavo case and how it may have been decided in Wisconsin. I have a few comments about the L.W. decision.

    First, according to the article, the L.W. court stated, "The withdrawal of life support does not deprive the ward of life but rather allows the disease to take its natural course." What disease does a person similarly situated to Terri Schiavo die of when the feeding tube is removed? If the answer is being in a persistent vegetative state, such logic taken to its conclusion could have drastic consequences. For instance, all brain-damaged and disabled individuals who are dependent on others, but who can still swallow, may not have their meals delivered.

    Second, the article states, "Additional factors that Michael Schiavo could have used to support his determination that withdrawal of Terri's artificial nutrition and hydration would further her best interests include those suggested by the L.W. court for assessing the value that continuation of life would have had for Terri. … Among these additional factors are: the degree of humiliation, dependence, and loss of dignity resulting from Terri's condition and treatment. … Importantly, as noted by the L.W. court, best interest arguments against treatment termination could not be based on the need to protect Terri Schiavo from the potential pain and discomfort involved in the withdrawal. … As explained by the L.W. court, this concern is inapplicable to individuals in a persistent vegetative state, because they cannot experience pain or discomfort." I concluded that, based on the L.W. court's reasoning, it must be a remarkable experience to be in a persistent vegetative state, since one cannot experience pain or discomfort, but one can still experience humiliation and a loss of dignity, presumably from being in a state of dependency.

    Jon C. Schuster
    Wausau

    Response: I appreciate Mr. Schuster's thoughtful comments and the opportunity to respond to them.

    With respect to Mr. Schuster's question about the cause of death when artificial nutrition and hydration of a persistently vegetative patient are terminated, it should be noted that not only the Wisconsin Supreme Court, but virtually all courts addressing the issue have held that a patient's rejection of invasive life-sustaining treatment is not suicide, but rather it is allowing the disease process (persistent vegetative state, in the case of Terri Schiavo and L.W.) to take its natural course.

    In further explanation, some courts have stated that, in circumstances when artificial nutrition and hydration are withdrawn, unlike in situations when people are able to eat but refuse to do so (for example, hunger strikes), removal of the feeding tube is not the death-producing agent the patient sets in motion with the intent of causing his or her own death. Rather, when artificial nutrition and hydration are withdrawn, death occurs by natural causes related to the disease, not by self-inflicted injury. The difference is between self-infliction, or self-destruction, and self-determination. See, e.g., Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (1986) (withdrawal of feeding tube from patient in persistent vegetative state); McConnell v. Beverly Enters.-Conn. Inc., 553 A.2d 596, 605-06 (Conn. 1989) (and authorities cited therein) (withdrawal of gastrostomy tube); In re Conroy, 486 A.2d 1209, 1226 (N.J. 1986) (withdrawal of nasogastric tube from nursing home resident with severe and permanent mental and physical impairments). Moreover, Wisconsin's advance directive laws explicitly provide that decisions to reject artificial nutrition and hydration incorporated in such documents do not constitute suicide. See Wis. Stat. §§ 154.11, 155.70.

    Mr. Schuster's second comment implies that the L.W. court erred by including "the degree of humiliation, dependence, and loss of dignity probably resulting from the [persistently vegetative patient's] condition and treatment" among factors that a guardian should consider when determining whether treatment termination is in the patient's best interests because a persistently vegetative patient cannot feel or be aware of humiliation, dependence, and loss of dignity. Further discussion of this factor in the L.W. opinion suggests that the court was addressing the reaction that many people may have to the possibility of their own existence in a permanent vegetative state supported by invasive treatments. Quoting the New Jersey Supreme Court's Conroy opinion, the L.W. court stated:

    "The presence of progressive, irreversible, extensive and extreme physical deterioration, such as ulcers, lesions, gangrene, infection, incontinence and the like, which frequently afflict the bed-ridden, terminally ill should be considered. … The medical and nursing treatment of individuals in extremis and suffering from these conditions entails the constant and extensive handling and manipulation of the body. At some point, such a course of treatment upon the insensate patient is bound to touch the sensibilities of even the most detached observer. Eventually, pervasive bodily intrusions, even for the best motives, will arouse feelings akin to humiliation and mortification for the helpless patient. When cherished values of human dignity and personal privacy, which belong to every person living or dying, are sufficiently transgressed by what is being done to the individual, we should be ready to say: enough."

    Robyn S. Shapiro
    Milwaukee




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