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Transcript of Florida Supreme Court Oral Argument in McIver v. Krischer
IN THE SUPREME COURT OF FLORIDA
BARRY KRISCHER, in his official capacity as the State Attorney of the 15th Judicial Circuit, Appellant,
v.
Dr. CECIL McIVER, M.D.; C.B. ("CHUCK") CASTONGUAY; ROBERT G. CRON; AND CHARLES E. HALL, Appellees
CASE NO. 89,837
ON DISCRETIONARY REVIEW OF A JUDGMENT OF THE FIFTEENTH JUDICIAL CIRCUIT, CERTIFIED BY THE FOURTH DISTRICT COURT OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION
Transcript of Oral Argument
Conducted on May 8, 1997
Tallahassee, Florida
APPEARING FOR THE APPELLANT:
PARKER D. THOMSON, ESQUIRE
THOMSON, MURARO, ET AL
1 SE 3rd Avenue, Suite 1700
Miami, Florida 331311710
APPEARING FOR THE APPELLEE:
ROBERT RIVAS
Rivas & Rivas
P.O. Box 2177
Boca Raton, FL 334272177
Tel: 5613683344
Fax: 5613670689
THE SUPREME COURT OF THE STATE OF FLORIDA
Chief Justice Gerald Kogan
Justice Ben F. Overton
Justice Leander J. Shaw, Jr.
Justice Stephen H. Grimes
Justice Major B. Harding
Justice Charles T. Wells
Justice Harry Lee Anstead (recused)
(Whereupon, the following proceedings were had before the Supreme Court of the State of Florida.)
CLERK: Ladies and gentlemen, the Florida Supreme Court. Please be seated.
CHIEF JUSTICE KOGAN: Good morning, ladies and gentlemen, and welcome to the Florida Supreme Court. The first case this morning is Barry Krischer versus Cecil McIver, et al. Justice Harry Lee Anstead is not here this morning. He is recused in this particular case. In the event the court is unable to come to a majority opinion with the six justices, then the court will appoint another judge to act as an acting justice to decide the case. So with that, we will proceed. Mr. Thomson, will you be speaking first?
MR. THOMSON: Thank you. May it please the court. Parker Thomson appearing as Special Assistant Attorney General on behalf of the appellant. In this case, there have been characterizations of many rights. The press has referred to this case as involving a right to die. Although all people die, that is certainly beyond judicial cognition. It may be referred to as the right to prevent another from keeping us alive when we reject that intervention or a right to die of natural causes or a right to die with dignity, but those issues were decided initially in this court 20 years ago. The appellee's characterization of this is a right to cease living and by a method and at a time of one's choosing or maybe a right to control one's destiny. That too, like illness, a subset of terminal illness, is way beyond our control.
JUSTICE SHAW: Let me get a clarification. Are we saying here it's all right for him, Mr. Hall rather, to die by his own hand, but not be assisted by a doctor? Is that the issue we're focusing on?
MR. THOMSON: No, your Honor. That is not the issue we are focusing on.
JUSTICE SHAW: Can you clarify it for me?
MR. THOMSON: There is no direct statutory prohibition in the state of a person committing suicide. In connection with suicide, statutory prohibitions were eliminated for a lot of common law reasons because they were punitive to the descendants of the decedent; and also because we have moved to a therapeutic or treatment mode with respect to suicide. There is in this case an assertion that there is, while no statutory prohibition of suicide, that there is ingrained in the constitution of the State of Florida a right to commit suicide. But, in fact, your Honor, the statute that is involved in this case, 782.08, called Assisting SelfMurder, says that "every person deliberately assisting another in the commission of selfmurder shall be guilty of manslaughter." That is not Mr. Hall, who is in this courtroom, that is Doctor McIver.
JUSTICE WELLS: Let me ask you to deal with the statement in Browning [In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990)] in which the majority of this court said that, "recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices." Doesn't that logically follow that a patient then has a right to call upon a doctor for any medical treatment?
MR. THOMSON: Your Honor, there are two problems with that proposition. First problem is that giving people the means to take lethal dosage is medical treatments. And the second is the characterization of what Browning itself held. Now it takes a bit to look at the privacy provision of the Florida Constitution, which says that "every natural person has the right to be let alone and free from governmental intrusion into his private life." Now what was involved in Browning was clearly the right to be let alone and free from governmental intrusion into her private life; to allow her, speaking through a next friend, to remove a, I believe it was, a nasogastric tube, and allow her to proceed through the rest of her life, which was stated in Browning; because with the deprivation of food and water, it would occur in seven to ten days. It allowed that individual, Browning, to die of natural causes; to be let alone, to be free from intrusion into her private life; to be free from, as is clear, from all medical ethics. Just as the privacy provision of the Florida Constitution creates rights of personal autonomy, the medical profession, through its ethics, respects those and refers to patient autonomy. Mrs. Browning, speaking that through a next friend, had a right to assert that autonomy and be free from the interference to reject medical treatment, the nasogastric tube. The medical profession rejects any concept that providing drugs to kill is medical treatment or a medical procedure.
JUSTICE WELLS: Your argument is that this should be a decision that is made by the doctor; is that your argument?
MR. THOMSON: This is a decision
JUSTICE WELLS: Made in accordance with accepted medical standards.
MR. THOMSON: Not at all, your Honor. The principle in Browning was that it's patient autonomy. The patient has a right to refuse medical treatment. The doctor has no right to insist on medical treatment. That's what Browning is all about all the way back to Satz and Perlmutter [Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980)] and developing through a whole series of cases in this court, including Wons [Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989)], including Browning. It has been made clear that the individual has a right to refuse lifesustaining or lifesupporting equipment and devices because of personal patient autonomy, a right to refuse medical treatment. I am saying with respect to assisted suicide, providing drugs for a lethal dose is not medical treatment.
JUSTICE WELLS: Well, then you're saying that's not accepted medical standards?
MR. THOMSON: I am most certainly saying I am certainly saying that it is not an acceptable medical standard. But I'm also saying, your Honor, that the doctor doesn't have a right to insist on treatment that the patient would refuse. And I thought I may have misunderstood your question, but I thought that was what your question suggested. The difference between the right to refuse life support systems and a putative right to assisted suicide is huge.
JUSTICE WELLS: What I'm having a struggle with, Mr. Thomson, I don't want to take too much of your time I'm having a struggle with how the state doesn't have the right to say that a person cannot refuse medical treatment, but does have the right to say that a person cannot obtain medical treatment and leave to the doctors the determination as to what is or is not proper medical treatment.
MR. THOMSON: In the first place, your Honor, it is not just for any doctor to determine what is medical treatment. Medical treatment is itself defined in the statutes of the State of Florida. The definitions in the statutes of the State of Florida are in accord with the ethics of the medical profession as established through the medical associations, the Florida Board of Medicine and the legislature. There is, in fact, concepts of medical treatment. Any old doctor simply has no right to determine what those are. Medicine is a profession. Medicine as a profession is regulated. People go to the regulators to be licensed, to get a license to practice medicine in accordance with the requirements of the State of Florida, requirements with medical ethics. It's not just sort of whatever they wish. The state has a clear right to regulate how the medical profession practices.
CHIEF JUSTICE KOGAN: Mr. Thomson, let me ask you this question: Does an individual in Florida, under the privacy amendment, or any other provision of our state constitution or law, have the right to take their own life?
MR. THOMSON: The answer to that, I believe, your Honor, is no. To answer that question takes some analysis of what the privacy provision of the Florida Constitution says; and then a look at what this Court has said and what the Florida legislature has confirmed in light of what this Court has said. What the trial court said at the instance of the appellees was that the right to refuse life support treatment is suicide; and therefore, under an equal protection standard, there is a right to have assisted suicide. They are two parts of the same thing. The answer is they are very, very different. The right to reject life support systems is involved in the right to be let alone and not have government intrusion into your private life. This court in so determining in Satz and Perlmutter, in Browning, in Wons, made it very clear that that was because that death was from natural causes, either from the underlying illness itself or the processes that would occur naturally from the removal of those devices
CHIEF JUSTICE KOGAN: Let me ask this question.
MR. THOMSON: and determined that it was not suicide.
CHIEF JUSTICE KOGAN: In the event an individual is definitely dying from a terminal illness; is suffering great pain, both physical and mental; that there is no hope for recovery; there is no known cure; and that person desires to end their life simply because their quality of life is gone; life remains a painful thing, physically and mentally; is it your position that that person does not have the right to terminate their life any way they desire?
MR. THOMSON: I believe that a person has a right to do things to themselves. I do not think they have a constitutional right ingrained in a right of privacy that encaptures what their condition is into the Florida Constitution. And everything this court has said about the privacy provision confirms that.
JUSTICE SHAW: What does that mean, what you just said? Let's say the person has decided that he will not eat anymore, that he is going to just starve himself to death; and his doctor and he confides this to his doctor. Ten days later, 15 days, eight days later, his doctor decides agrees with him that this is cruel and inhumane; can the doctor then assist this person by easing his final days by giving him something that would shorten his life?
MR. THOMSON: The answer to that is no, because the Florida legislature said no in 1868; confirmed it in 1984; confirmed it in 1994. There are a lot of factors, Mr. Justice Shaw, that are involved in that determination. You have to determine that the Florida legislature had no right to prevent the physician from assisting in that suicide. You have to determine that that doctor had a right to break his licensed professional standards, that he had a right to break the legislature's standards. Now, why would you do that?
JUSTICE SHAW: Does a person have a right to refuse food?
MR. THOMSON: Yes, sir; and to die of natural causes.
JUSTICE SHAW: He has a right to starve himself to death?
MR. THOMSON: Yes. Very often, your Honor, elderly people do exactly that; not with the intention, necessarily, of starving themselves to death; they just stop eating and they die.
JUSTICE SHAW: All right.
MR. THOMSON: Just as Mrs. Browning had a right to refuse an intervention in her life, a life support system, so that she would die of exactly those natural causes.
JUSTICE SHAW: And the doctor is subject to criminal charges if he he has this choice: To watch the person die a very horrible debilitating type of death or assist them in some manner.
MR. THOMSON: There are so many assumptions.
JUSTICE SHAW: If he does anything to assist this person, then
MR. THOMSON: No.
JUSTICE SHAW: he is subject to criminal charges to hasten their demise then he is subject to criminal charges?
MR. THOMSON: No. The doctor is supposed to do many things. That question assumes that medicine has not done what it has done in the last 10 years. Palliative care often done through hospices and recognized by the medical profession as the obligation of the doctor.
JUSTICE SHAW: He can do anything short of hastening the demise, is that what you're saying?
MR. THOMSON: He can do anything short of assisting that person or doing for that person the commission of suicide, yes.
JUSTICE SHAW: So, your answer to my question is he cannot hasten the demise.
MR. THOMSON: That is correct.
JUSTICE SHAW: That's the linchpin; that's the critical point.
MR. THOMSON: Other than, incidentally, the thing he would normally do in connection with palliative care: The stopping of pain. For instance, your Honor, Mr. Hall who is here at least through the trial, and it seems to be agreed in the appellee's brief, does not have a problem with physical pain. It is manageable through things that doctors do. In this case, Mr. Hall tragic as his condition is, and there can be no doubt about that is on morphine and the morphine takes care of his pain. That is true of 99 percent of all people. Physical pain is not a problem. Now, what is the other? Most people who commit suicide, the overwhelming majority, do so from depression. Depression, likewise is manageable. Although not very well managed by many doctors, it is manageable. And the hospice effort of team control, bringing in priests, counselors and so forth, deals with that issue. There is an assumption here that death is horrible. All of us fear you, I fear a lingering death. Of course we do. We fear death, most of us. But medicine has gone a long, long ways. And unless you free something in the Florida Constitution, will continue to do so. So there is hope that the one percent that do have intractable pain not Mr. Hall, but others those too, will be taken care of. Medicine moves and medicine improves the ability to deal with these situations, but what the doctor can't do
CHIEF JUSTICE KOGAN: Mr. Thomson, you're in your rebuttal period. I just want to remind you of that so that you don't run out of time without time for rebuttal.
MR. THOMSON: I'm perfectly prepared to cease at this time. The statute prohibits one thing and that is assisting in suicide. All things call on the doctor to assist, in every way they can is the elimination of pain and the dealing with that amorphous thing, that unknowable thing, called suffering.
CHIEF JUSTICE KOGAN: Mr. Rivas.
JUSTICE SHAW: What do you see the issue
MR. RIVAS: Thank you and good morning, Mr. Chief Justice and members of the Court. I'm Robert Rivas for the appellees. We see the issue as simply being a matter of whether Charles Hall has a right to instruct the State of Florida to leave him alone, get out of his dying process. There are many ways to die. Many of your Honors' questions have raised many issues about subtle aspects of how to die. And the state says there's only one way in Florida that's legal to die for those persons who are in a condition that like such as AIDS, typically, AIDS or cancer that causes a long, slow and relatively predictable dying process: They are to submit to dying in a state approved script. They are to submit to suffering to a certain point. And at some certain point when their doctor and your Honors are not required to check your common sense and life experience at the door on the way in. We all know that doctors do not have candid discussions with patients about when they're going to die before they induce a condition that I'll refer to as slow euthanasia, induce a condition of incompetence, induce a condition in which the patient is incapable of taking a drink of water.
JUSTICE HARDING: I know we're dealing with a doctor in this case, but is the principle which you espouse limited to the medical profession involvement in assisting suicide or assisting the death
MR. RIVAS: It is conceivable that a state could dream up a statute that could go in some other different direction, but we have framed this at this time in terms of what Charles Hall has asked for and it's a reasonable request on his part. Your Honor's question leads directly to another question that was asked by Mr. Justice Shaw pertaining to what it is that the state actually wants to prohibit. And what the state means to do by this statute, assisting selfmurder, as it is now interpreted by the current occupants of the Department of Legal Affairs I'm sorry is that this statute prohibits just what Mr. Justice Shaw suggested: That a doctor do anything but provide palliative care, provide drugs for the sole purpose of alleviating pain.
JUSTICE HARDING: Let's go back to my question: Did you answer it by saying that the state could draft a statute which would prohibit anyone other than a doctor from assisting in selfmurder?
MR. RIVAS: Yes, the state could do that.
JUSTICE HARDING: And that statute would stand the scrutiny that you give this statute?
MR. RIVAS: Well, that gets into what the state wants us to do today, which is to pose all kinds of hypotheticals about different things that would need to be tested against a compelling state interest standard.
JUSTICE HARDING: Well, we have to be concerned about that.
MR. RIVAS: And let me answer your question directly, your Honor. The problem here is that there is a right that we're expressing, a privacy right. The legislature certainly can, and probably ought to, step in and engage in some regulatory processes. It could theoretically, let's say and this is wild speculation the state could theoretically preserve this right to an individual by saying no, doctors, appoint a special class of people who are trained in this area, after the doctors have signed off on it, to actually do the deed. Conceivably, the state could do that. The state could do that. The state could regulate to protect its actual legitimate compelling interest in a variety of things; but the state can't use this statute, which can't even be interpreted to mean what the state now says it means: To prohibit a physician from assisting his patient in his death in the state of the law as it is now.
JUSTICE HARDING: We talked about lethal injection or whatever the terminology. Is there any restriction on the method or would that be within the privacy right of the patient to demand a certain method of death? Would the physician have anything to say about that?
MR. RIVAS: The physician is being consulted precisely because he is the one who is competent and whose assistance is needed to assure the patient that the patient will not be made to suffer and will not be made to suffer the adverse consequences of a selfinduced attempt to cause one's own suicide, which is that he may go into a coma and not actually die. The physician is being consulted precisely because he is competent to accomplish the purpose that the patient seeks, of ensuring an instantaneous and painless death. And it is the physician's purpose to accomplish that.
JUSTICE HARDING: And we would assume that would be by an injection as opposed to any other method?
MR. RIVAS: It wouldn't have to be necessarily by injection. In this particular case, the evidence was that Mr. Hall has a permanently installed port for injections, a metal device installed in his upper left shoulder. And Doctor McIver would set up an intravenous device; but it would be up to Mr. Hall, through an act of conscious intention, an intentional act of his own, to flip the switch or device or whatever it takes to cause the flow to begin. That's what specifically the trial court considered in this case.
JUSTICE GRIMES: Has this statute been declared facially unconstitutional or unconstitutional as applied to Mr. Hall?
MR. RIVAS: Unconstitutional as applied to an individual who is clearly demonstrably terminally ill and imminently dying, who seeks to have his physician's assistance in his death.
JUSTICE GRIMES: The way I read it was the final judgment was he said what you just said, but he declared the statute facially unconstitutional because it didn't permit that. In other words, if we affirm, it's just off the books. Isn't that the way it would be?
MR. RIVAS: No, your Honor, I don't believe the trial court's final judgment could be interpreted to apply to anybody but an imminently dying, terminally ill patient, secure in his relationship and in this key, crucial, so important cocoon his relationship with his own physician and his family. For example, this statute clearly was intended when it was written and you can just glance at it it's perfectly obvious this statute was clearly intended to prevent somebody from providing a shotgun to a despondent teenager to help him kill himself. This statute is intended to stop real suicide, not the thing that the state is now calling suicide in this case. It was intended to stop real suicide, which is willful selfdestruction it's an irrational act of selfdestruction driven by mental illness. And the state certainly has a compelling interest in the preservation of human life and the prevention of suicide when it comes to stopping people from committing an irrational act of selfdestruction driven by mental illness. We're talking here and this is why it is only an asapplied challenge it is asapplied to a person who is posing or proposing to commit a rational act of what is not selfdestruction, because his destruction is imminent. All he's attempting to do is control the manner, a few details of how it takes place; a rational act of selfdetermination that is driven by perfectly legitimate and rational considerations, not by considerations of mental illness or some other
JUSTICE OVERTON: Let me ask you with regard to that statement. How do we determine that it is in fact a rational act? What is the check that's is it only the physician? Does is a second opinion required? Must there be agreement by all the family involved? Should it require judicial approval? Now, how do you determine that it is, in fact, rational?
MR. RIVAS: All those possibilities and all those considerations are ones which the legislature is certainly free to address. And in the event the legislature were to do that by imposing a specific requirement that three doctors sign off, that one of them be a psychiatrist, that a different independent doctor with a certain specialty certify the person's death is otherwise actually imminent, any of these specific requirements could be applied by the legislature. And when those requirements are imposed, it could well be back before this court to decide whether the requirements as imposed create an undue burden on this basic right of an individual to self terminate himself in a manner and style
JUSTICE OVERTON: You do realize that we you do realize that we did set those standards in both Browning and in Wons?
MR. RIVAS: You did. And basically well, those standards were set; but they were set in a manner that said having set these standards, it is up to families, patients and doctors to apply them, to decide whether they have been properly applied. And they're all free, should there be a big problem in the application in a particular case, to come to our courts to decide; but in the first instance, it's the families. That's as it should be and should be in this case. This is a relatively this is a much smaller than the state would have the court believe change from existing practices.
JUSTICE OVERTON: Should there be any kind of a check, given the facts of the matter, for instance on families and making the decision that the families are the beneficiaries of the decision?
MR. RIVAS: Should there be some sort of a conflict of interest check on it?
JUSTICE OVERTON: Yes.
MR. RIVAS: Your Honor, there's never been a conflict of interest check regarding the question of termination of life support and we don't see any reason for it in this case; given that the doctor will be there and will be certifying that or two doctors, should the court feel it appropriate to impose an additional requirement certifying that the person is terminally ill; is imminently dying; and certifying that the doctor has spoken with the patient and the patient perhaps even with a waiting period the patient has clearly articulated the rational intention; and finally, the final act is up to the patient. With those safeguards in place, there is no real reason to treat this matter any differently than the court has historically treated the right of a patient to refuse additional medicine.
JUSTICE WELLS: Are you basing your argument here on the equal protection? On the privacy amendment? What is the basis that you would ask the court to declare this unconstitutional as applied?
MR. RIVAS: First and foremost, given this courts' history of adjudication under the privacy amendment, we do rely on the privacy amendment. That's simply because this court turns to its own privacy amendment under its own precedents, that that's the appropriate thing to do first and foremost. And we think the question is so clearly resolved under the privacy amendment that we see it as virtually implausible that the court should need to reach the equal protection claim. The equal protection claim would only be reached if the court denies relief under the privacy amendment; in which case, this court would have to say
JUSTICE WELLS: The trial court did it on the equal protection basis.
MR. RIVAS: That was secondary. The trial court's primary framework for the analysis was under the privacy amendment. The state would have the court believe or adopt the proposition here that we're asking for something radical, something that's a departure from existing law. On the contrary, your Honors, the existing law in this state under the privacy amendment points so clearly, so directly to the correctness of the trial court's conclusions I can't say it often enough. Read the final judgment, the trial court's final judgment and its articulation of the standards. Apply the law. That's all the trial court did is apply the law to a slightly different factual scenario. It would take a radical proposition for the court to retreat from its existing privacy amendment jurisprudence and find a way to rule that this statute prohibits Charles Hall from exercising his right of privacy. One of the alternatives, incidentally, that I think I ought to mention for this court, is given that this statute is a hundred and thirty years old now and it is not at all clear whether the legislature ever intended to prohibit physicianassisted death, it may well be perfectly appropriate to say that this statute under these circumstances is unconstitutional as applied here and even leave the door open for the legislature to come back and say if they really mean if they really mean to illegalize physicianassistance in death, any affirmative act toward assistance in death in Florida, make them do it. Make them articulate compelling interests.
JUSTICE SHAW: Don't we have an additional overlay here when the doctor becomes involved? I understand your argument relative to the privacy provision involving Mr. Hall when he decides to hasten his demise with death being imminent in the immediate future; but then when a doctor becomes involved in it, don't we have an added factor that we haven't dealt with so far?
MR. RIVAS: We do. It's a factor that plays into this case in many ways. First and foremost, this statute is being applied when it doesn't necessarily clearly indicate that a physician's assistance in a patient's death when he's terminally ill is within it to begin with. But this statute, as interpreted by the Department of Legal Affairs at this time, is taken to mean that a physician can't provide the slightest affirmative act to help induce the patient's death; and to that extent, it now makes it illegal in the State of Florida for the physician to candidly speak with the patient about what we all know happens all the time. They can't talk about whether or not the physician is actually going to help the patient cross the River Stix in a slightly quicker manner than otherwise would have taken place. And this statute simply forces current practices underground, makes everybody deny that they happen and makes it impossible for a candid discussion between the physician and patient as to just what they're going to do
JUSTICE SHAW: I guess my point is we're not talking about Mr. Hall's right to privacy now, we're talking about the doctor.
MR. RIVAS: No, your Honor. We're talking about Mr. Hall's right to privacy. The only reason the state wants to apply this to the doctor is to prohibit Charles Hall from taking his own life. There's no other purpose for this statute. It's not for the benefit of physicians. It's to stop the physician from allowing Charles Hall to do what Charles Hall wants to do. It's the most contorted argument of all in this case that the state has made that his right, that the privacy right being asserted in this case is a privacy right of Doctor McIver. Take a look at In Re: T.W. [In re T.W., 551 So. 2d 1186 (Fla. 1989)] In In Re: T.W., the statute made it a crime for a physician to perform an abortion unless the physician first required the patient to come to him with parental consent or a court order overriding parental consent. Nothing in that statute made any reference to the possibility that the 16 yearold girl would be charged with a crime. The statute was solely directed to burdening her right to an abortion and it did so by making it a crime for the physician to assist. It's exactly analogous to this, your Honor. This type of situation comes up all the time. I just yesterday read the legislature's new partial birth abortion bill. For some reason they felt the need to go out of their way to add a paragraph that says: A woman upon whom a partial birth abortion is performed may not be prosecuted under this section for a conspiracy to violate the provisions of this section. How much more clear could they make it that they intend this section to throw doctors in jail as a means to stop the woman from obtaining an abortion? In the same manner, the way that this statute is now being applied and interpreted by the state is not for any purpose except to hinder Charles Hall's ability to induce his own death when the time comes that he decides he's ready to and force him to do it by well, one of several means. He can attempt a relatively quick suicide and run the severe risk that he's going to make himself worse off than he was before. Or he can do what's legal and he can say I'm not going to eat anymore and I'm not going to drink anymore. I'm going to starve myself to death. And he can do that. And in the existing state of the law, that's legal. And it completely, utterly demonstrates that the state does not have a compelling interest in preservation of human life or the prevention of suicide.
JUSTICE SHAW: The counter argument to that is that, all right, Mr. Hall can do that, and he can do that with impunity. But when he called the doctor in, the doctor decides to give him pills or injections or whatever to hasten it, then that doctor is subject to
MR. RIVAS: This states the law regarding
JUSTICE SHAW: All right, the freedom has been exercised, as I say with impunity, but the doctor himself now is subjected to criminal charges.
MR. RIVAS: Mr. Hall's right is not available to him because the state has enacted a back door means of trying to stop him; and instead, has decided to try to force him to go to alternative means, which are not acceptable and which are not reasonable; number one, starvation; or number two, self inflicted suicide without the reassurance that a physician has seen to it that this is going to be immediately effective and painless and not leave him in a permanent irreversible coma.
JUSTICE SHAW: If you treat the doctor as the instrumentality that in effect, Mr. Hall exercised his right by using the doctor as an instrumentality that is that how you see the doctor's involvement here?
MR. RIVAS: The doctor's involvement is that within is that Charles Hall has a right within his relationship with his doctor to choose between different alternative approaches to his health care and that right is inviolate unless the state can show a compelling interest in overriding it.
JUSTICE GRIMES: If Mr. Hall had a close friend but he otherwise has the same competence, the same determination that he wants to have assisted suicide and this and at the right time he asks his close friend to shoot him in the head with the gun, would not the same or how would you distinguish that from this case, assuming otherwise total competence, determination and the only difference is that it's not a doctor?
MR. RIVAS: It would be murder. Your Honor, we're not talking here about somebody else killing the patient. We're talking about suicide.
JUSTICE GRIMES: No, I mean, this is at the request of Mr. Hall.
MR. RIVAS: It's murder to kill somebody at their request. It's just murder.
JUSTICE GRIMES: Well, isn't that sort of the same thing? How do you distinguish? I'm trying to understand.
MR. RIVAS: No, it's not the same thing. This is a crucial point of our whole theory of the approach to this, that when it is a doctor and this is why it's necessary that it be a doctor there is an enormous safeguard that the activity involved in the treatment process is only going to be to the patient's best interest. And when it's selfinduced by the free will, free act of the individual, that's an additional safeguard to ensure that the person is not being driven to it or it is not being done to him by somebody else. These are safeguards.
JUSTICE GRIMES: That's the reason of having him do it with a switch?
MR. RIVAS: Precisely. Doctor McIver testified that he wouldn't do it any other way. He wouldn't at this time go along with any proposition that involves him actually inducing the death because he thinks that the final act has to be a volitional act of the patient to ensure to make him, Doctor McIver, feel sufficiently comfortable that there's no question that this was the patient's decision at the last second.
JUSTICE HARDING: Well, then, how about changing my hypothetical and saying that a friend hands me the shotgun, how do you distinguish that?
MR. RIVAS: That would certainly be assisted suicide and the state would have a compelling interest in stopping people from handing others shotguns.
JUSTICE OVERTON: How about if the doctor tells the patient that pills are not going to solve the problem. I'm going to give you an injection, a lethal injection, and that's going to kill you. And the doctor himself administers the injection?
MR. RIVAS: That's another case. And I'll certainly admit that that case is going to have to come back before this court sooner or later to be decided as to whether there's really a rational basis to distinguish between in the 9th Circuit case, Compassion in Dying versus State of Washington [Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rehearing denied, 85 F.3d 1440, cert. granted sub nom Washington v. Glucksberg, 117 S.Ct. 37 (Oct. 1, 1996)], which said in a footnote, they're really not clear at all whether there is an important distinction.
JUSTICE OVERTON: The reason I raise this is obviously while this case may affect Mr. Hall, this court is certainly a policy setting court and a decision of this nature of necessity would govern other cases of this type. So that's why I have to explore these matters with you.
MR. RIVAS: I would suggest that your Honor leave that for a time when in the interest of the due process rights of the state, the state has an opportunity, as they did here, in a six day trial to come up with evidence of a compelling interest. In a six day trial in this case, given the facts that were proposed in this case, the state could not find any compelling interest that was persuasive at all to the trial court judge who watched the evidence. And the record doesn't support a compelling interest in prohibiting Doctor McIver under the facts of this case in assisting Charles Hall in his death.
CHIEF JUSTICE KOGAN: You want us to limit this solely to a situation where the doctor gives the means, but the patient actually uses those means to take his or her own life?
MR. RIVAS: And where a person is clearly terminally ill, clearly imminently dying. Yes, your Honor.
CHIEF JUSTICE KOGAN: Thank you, sir. Mr. Thomson?
MR. THOMSON: Yes, your Honor. Mr. Justice Wells, you asked about the equal protection clause. And in fact, Judge Davis below construed the privacy amendment in terms of the equal protection clause and that is why this court must be concerned with the consequences of the decision. Mr. Rivas correctly told you that the 9th Circuit could see no conceivable difference between self administration and handing it over and letting the patient do it. There's no principal decision between them. And under the equal protection standard, we look back to the right to reject life support systems and we know it cannot be restricted to the terminally ill. It cannot be restricted to the competent. It cannot be restricted to adults. It cannot be restricted. And how is it going to be done? The answer is some maybe maybe somehow regulation. That itself is government intrusion. If in fact there is a privacy right, it is essentially unregulatable as this court found in Browning. It said Chapter 765 didn't provide for what Mrs. Browning wants, but there was a privacy right that simply superseded it. Regulation is not the answer. Judge Davis tried regulation. He said: Subjective decision by Mr. Hall, but it is to be objectively ratified by Doctor McIver. Under what standards? None are set. And I suggest to this court that Judge Davis, who did carefully think about this, could think of no standards. There was to be objective determination that Mr. Hall's decision that life was no longer worth living was objectively right. Why does a physician make that decision? That's a moral decision. But it was an objective ratification. That itself is government imposed control. That's the problem of the putative right that was being asserted. And of course, Mr. Justice Shaw, as you pointed out, it is the doctor that is the subject of the statute, not Mr. Hall. Thank you.
CHIEF JUSTICE KOGAN: Thank you very much, counsel. Court will be in recess for five minutes.
(Whereupon, these proceedings were concluded.)
CERTIFICATE OF REPORTER
I, Shirley P. King, Registered Professional Reporter and Certified Legal Video Specialist, in and for the County of Brevard, do hereby certify that I was authorized to and did transcribe the foregoing proceedings, from the videotape provided and that the transcript is a true and correct record of the proceedings to the best of my ability.
Done and dated this 11th day of June, 1997, at Melbourne, Brevard County, Florida.
SHIRLEY P. KING, RPR, CLVS (My Commission Expires 7/12/00)
