Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

authorized chapter 2003- 418 that the Legislature intended the under this act at any time. The Governor may Governor' s discretion to be limited in any way. revoke the stay upon a finding that a change in the Even if we were to read chapter 2003- 418 in pari condition of the patient warrants revocation." materia with chapter 765, as the Governor suggests, Q 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. A561- 497D- 9703- 0CFDA... 8/ 3/ 2006 https:// web2. westlaw .comlprint/printstream. aspx?utid=%257b87F 1 E849-  Page 14 of 17 885 So. 2d 321 Page 14 885 So.2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) there is nothing in chapter 765 to guide the i] nfonned consent, refusal of consent, or Governor's discretion in issuing * 335 a stay because withdrawal of consent to any and all health chapter 765 does not contemplate that a proxy will care, including life-prolonging procedures." have the type of open- ended power delegated to the Ch. 92- 199, 9 2 at 1840, Laws of Fla.; 9 Governor under the Act. 765. 101( 5)( a) Fla. Stat. ( 2003). When the statute was enacted in 1992, the We also reject the Governor' s argument that this Legislature defined life-prolonging legislation provides an additional layer of due procedures as: process protection to those who are unable to any medical procedure, treatment, or communicate their wishes regarding end- of-life intervention which: decisions. Parts I, II, III, and IV of chapter 765, a) Utilizes mechanical or other artificial enacted by the Legislature in 1992 and amended means to sustain, restore, or supplant a several times, FN4 provide detailed protections for spontaneous vital function; and those who are adjudicated incompetent, including b) When applied to a patient in a tenninal that the proxy' s decision be based on what the condition, serves only to prolong the patient would have chosen under the circumstances process of dying. or is in the patient' s best interest, and be supported Ch. 92- 199, ~ 2 at 1840- 41. However, in substantial evidence. See 1999, the Legislature rewrote the by competent, 9 definitions section and defined 765.401( 2)-( 3). Chapter provides for 765 also life- prolonging procedures as: judicial review if "[t] he patient' family, the health s care facility, or the attending physician, or any other any medical procedure, treatment, or interested person who may reasonably be expected intervention, including artificially provided to be directly affected by the surrogate or proxy' s sustenance and hydration, which sustains, decision ... believes [ that] [ t] he surrogate or proxy' s restores, or supplants a spontaneous vital decision is not in accord with the patient' s known function. The tenn does not include the desires or * 336 the provisions of this chapter." 9 administration of medication or 765. 105( 1), Fla. Stat. (2003). perfonnance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to FN4. Prior to this Court' s decision in In re alleviate pain. Ch. 99- 331, 9 16 at 3464, Laws of Fla.; ~ Guardianship of Browning, 568 So.2d 4 Fla. 1990), law 765. 101( 10), Fla. Stat. (2003). statutory provided a which adult In order to detennine who is to act as a procedure by a competent could provide a declaration instructing his patient' proxy, the Legislature set forth a s or her physician to withhold or withdraw detailed order of priority. See ch. 92- 199, life- prolonging procedures, or designating 9 5 at 1851. This order of priority has another to make the treatment decision. been amended only once since 1992 to See 99 765. 01- 765.17, Fla. Stat. (1991). allow a clinical social worker to act as the This law had been in effect since 1984. patient' s proxy if none of the other In 1992, the Legislature repealed sections potential proxies are available. See 765. 01- 765. 17, see ch. 92- 199, 9 10 at ch.2003- 57, 9 5, Laws of Fla. The 1852, Laws of Fla., and enacted Parts I, II, Legislature also provided that a " proxy' s III, and IV of chapter 765. See id. ~~ 2- 5. decision to withhold or withdraw The Legislature provided that in the life- prolonging procedures must by absence of an advance directive, a proxy supported by clear and convincing evidence that the decision would have may make health care decisions for an been the one the patient would have incapacitated patient. See ch. 92- 199, 9 5 at 1850 Laws of Fla.; 765.401 Fla. Stat. chosen had [ the patient] been competent." 9 2003). " Health care decisions" include " Ch. 92- 199, 9 5 at 1851, Laws of Fla.; see g 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 8/ 3/ 2006 https:/ /web2. westlaw .com/print/printstream. aspx?utid=%257b87F 1 E849- A561- 497D- 9703- 0CFDA...  Page 15 of 17 885 So. 2d 321 Page 15 885 So. 2d 321, 29 Fla. L.Weekly S5l5 Cite as: 885 So. 2d 321) also ~ 765. 401( 3), Fla. Stat. (2003). not authorize the Governor to intervene if a person Finally, the Legislature provided for in persistent vegetative state is dependent upon a judicial review of a proxy' s decision if " another form of life support. Nor does the Act t] he patient' s family, the health care apply to a person who is not in a persistent facility, or the attending physician, or any vegetative state but a court finds, contrary to the other interested person who may wishes of another family member, that life support reasonably be expected to be directly should be withdrawn. In theory, the Act could affected by the surrogate or proxy' s have applied during its fifteen- day window to more decision ... believes ( 1) The surrogate or than one person, but it is