"Pace Kevin Drum, I sometimes think there are no circuses (”clown show” in Kevin’s formulation) in American media culture, that any story that takes hold does so because it speaks to deep personal concerns and social schisms. Like as not, the collective characterizing of a media phenomenon as a “circus” is a social defense mechanism - we set the lid back on the jar and walk away with a nervous whistle. That civil war was probably sour anyway."I fear Mr. Henley is wantonly violating the unwritten rules of Schiavo blogging. Not only does he acknowledge that there are myriad, serious issues inhering in the latest "clown show", he's appears, quite scandalously, to have made a start at exploring the tangled underbrush without either the ritual partisan incantations, or half-informed but positive statements regarding matters legal or medical. You call this Schiavo blogging?
I pretty much have the same reservations, and come to the same conclusions, as Jim does, which is - "you got a better idea for settling these things?" So I'm going to slide off a bit to the side here to ruminate on an aspect of these cases that really interests me - how and why we create useful fictions about a patient's intent. One sees the phrase "clear and convincing evidence" solemnly intoned again and again when reading the debates about this case, but, looking over the court documents, I am struck but how much of an airy nothing that "clear and convincing evidence" is. The fact is, absent explicit instructions, we generally really do not know, and cannot know, the preferences of the patient. So we construct "intent" based on hearsay regarding statements that, particularly for a younger person, have as much relation to considered choice as, say, "hope I die before I get old" or "God, I'd kill myself if I got fat". Apparently, this is not peculiar to the Schiavo case, but is the common procedure in such difficult cases. (Anybody who has facts to add to my limited-knowledge speculations here, please feel free to do so.)
My first reaction is to raise an eyebrow at the charade, and ask why it isn't better simply to acknowledge the truth - that we have no friggin' clue, and that digging through the memory archives for offhand comments, re movies-of-the-week or Grandma's demise, will not enlighten us. But this, of course, leads us back to "you got a better way?" (I tend to agree with the "when in doubt, err on the side of life" position, but am not satisfied that this neatly takes care of all situations - including the Schiavo case.)
That's the "how", but what of the "why"? Do we play little games of legal make-believe simply because it's the best of a bad lot of procedural methods, preferring it to the possible practical mess of "best interest" arguments? Or do we have an implicit philosophical preference toward the principles of individual autonomy and freedom of choice, and wish to persuade ourselves that these remain the foundation of our decisions, even when, in reality, this is impossible? (These may be really dumb questions that have long since been answered, or are simply not germane to the actual facts of law. Just let me know.)
But to get back to "what's the alternative". Jim, remarking the propriety of the legal process, still sighs, "I wish that the court’s decision relied on the testimony of witnesses not named 'Schiavo.'" I have to say that I prefer witnesses named "Schiavo" to witnesses named "Tyler", trailing the credentials of executive director of something called "Georgia Health Discoveries". Spake Tyler:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Is this supposed to mean something? Am I the only one who, looking over the court documents, had a definite wtf moment at the appearance of Ms. Tyler's expert contribution? It is unfortunate that the best we can do is struggle to a decision from scant or nonexistent information, but, um, what is this person doing here? One doesn't know exactly how much weight this testimony was given, but what genius decided to bring in a profiler, as it were, to "verify" the relatives' best understanding of the individual's intent? (With, one imagines, Power Point presentations of polls and demographic trends. Faith Popcorn, bioethicist!)
These cases will always be hard to settle, but people are rightly leery of the intrusion of non-medical "expertise" into fraught and deeply personal decisions, as medical care becomes more and more bureaucratized. Hog on Ice has a long rant on the Schiavo case, not all of which I'm endorsing, but which does have some interesting observations on the "annoying counselors" and self- or bureaucratically-appointed "moral authorities" who talk to you as if you were the mentally incapacitated party, have certificates in right and wrong and the knowledge of good and evil, and Know More Than You Do about what Grandma would have wanted. Yeah, I know the type, these bullies with bioethics degrees, or whatever it is you acquire to become a professional patronizer. One fears that life and death will become more and more infested with these types as time rolls on. (And yes, I realize Moral Authorities crawl in from both sides. Realistically, though, I don't think I'm more likely to fall afoul of people desperate to keep my broken body creaking along against my wishes.)
I'd prefer to cast my lot with the old next-of-kin (insurance beneficiaries though they be), and I will have to trust them, because I can't see how the "put it in writing now!" advice, chronically administered these last weeks, could solve things for me. Because, even at 47, I have have no idea how I'd want every possible contingency handled. Outside of one or two contingencies, I can't know now what I'd want then. And beginning with the spousal unit, I can't think of any possible next-of-kin who might end up with such an obligation to me, whom I wouldn't trust to Do the Right Thing. If they did decide on something I would not have chosen for myself? Hey, they did their best and stumbled, just as I might. We must trust one another and die. (OK, there're Cousin X and Y I might not want coming 'round, but they're too far down the chain to matter). I realize, of course, that there are some families where it indeed behooves the members to attend to every legal jot and tittle to protect their interests against their, ahem, loved ones. (Guess there are some advantages to being of meager net worth, eh?) Pretty sad, though, when I think about it - to have no one that you could trust implicitly with your life. Well, back to court then...
Moira, in my, er, day job I employ the "clear and convincing" standard all the time, in far less drastic circumstances. Ideally, "clear and convincing" means there evidence is strong and uncontradicted, but after that you enter the realm of the personal. Sometimes there are pretty clear standards (usually the result of litigation) about what the highest court of jurisdiction thinks is clear and convincing; sometimes not. The Schiavo case seems a little flimsy to me, but once the matter is brought before the judge, he has to make a call, yes no, up down, on off. Evidence of Mrs. Schiavo's wishes may be pretty vague, but the judge had to make a judgement on what little evidence he had. Normally reviewing judges will check that the original judge considered all appropriate law and all the evidence, and followed all mandated processes, but won't insert themselves into the judgement itself unless it was way off. A horrible, horrible case, unclear factually and far too personalized by now.
Posted by: Captain Yips on March 25, 2005 11:11 AM
Thanks, Capt. Y - it would improve public discussions of such matters if people had a better grasp of what certain terms of art - legal and medical - mean in practice.
(Btw, good post of your own on the topic.)
Posted by: Moira Breen on March 26, 2005 09:16 AM