Wisconsin Lawyer
Vol. 78, No. 9, September
2005
Letters
Letters to
the
editor: The Wisconsin Lawyer publishes
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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
Wisconsin
Lawyer
