subject: Clear and convincing evidence [print this page] Clear and convincing evidence Clear and convincing evidence
Clear and convincing evidence can be defined as that evidence that is so clear as to leave any substantial doubt and that which is strong sufficiently to command the unhesitating assent of even reasonable mind (Meadow, 1997). It is a standard of proof for determining the wishes of an individual when he or she is incapacitated and is not in a position to make healthcare decisions or has not appointed a health care agent, and the decision that needs to be made involves withdrawing of life sustaining treatment. The life sustaining treatment may include feeding tube, dialysis, respirator, hydration and artificial nutrition.
Usually the decision to withdraw or withhold this life supporting treatment leading to the imminent death of the patients is difficult in any circumstance. This is because when the patient becomes incapacitated, they become incompetent and cannot therefore clarify their wishes regarding the continuation or the withholding of this treatment. The surrogates or the family members sometimes cannot agree on decision and this complicates matters even more (Buckley et al 2004). Clear and convincing evidence comes into play when there are precisely expressed wishes that the incapacitated patient would not wish to continue with the treatment if his or her death is imminent and inevitable. There are many conservatists who strongly support the right to life over personal choice. There are many worldviews on matters of life and death and which are so consistent that they have presented the federalism structure of the United States with such a great challenge.
The Terry Schiavo case in Florida in 2005 brought the issue of withdrawal of life sustaining treatment into the public eye. Terri Schiavo suffered a cardiac arrest on February 25, 1990 and was under life treatment until 2005. She had been diagnosed as being in a persistent vegetative state (PSV) for many years and up until her death, there had been many legal battles between her husband Michael and Terri's parents, Robert and Mary Schindler. Her parents argued that she was still conscious but her husband wanted her to be discontinued from life support. It was after this that Michael took the matter to court which decided that Terri would wish the life sustaining treatment to be discontinued. The case involved many legal battles but the court decided to end Terri's life supporting treatment and she was disconnected from the life support on March 18, 2005. Many Right to Life groups who were allied to Terri's parents maintains that her death was judicial murder (Washington Times, 2005). Pope John Paul the second sparked new debate when he stated in 2004 that those who provide health care have a moral obligation to provide food and water to patients in PSV. This made Terri's parents go back to court and argue whether their daughter who as a devout Catholic would want to go against the teachings of the church. But Judge Greer rejected this request (Moore, 2005). The court used clear and convincing evidence to reach the decision of ending Terri's life supporting treatment. The greatest weakness to this clear and convincing evidence is the fact that there is no stated criterion of the type of evidence that meets this standard. The clear and convincing evidence is based on each individual case. With regard to the Terri Schiavo case there was no written declaration as to her wishes regarding this issue. Therefore the court reached the decision it made based on the declarations made and alleged by parties and non parties regarding her feelings on the subject.
There are some few states which have allowed hospitals and health centers to discontinue life support treatment even contrary to the wishes of the family members and the surrogates. They have passed laws that allow removal of life support when the patient has reached medical futility. In the past medical professionals and hospitals worked extra hard to maintain the life of the patients even when the patient has expressed clearly his or her wishes to die. But nowadays the medical profession culture has changed and these physicians push family members to discontinue life support especially when there is no hope of survival of the patient and the medical bills are sky rocketing (Belluck, 2005)
The debate on life termination by a physician has been made more complex by the fact that the interventions in medicine are aimed at prolonging the life of a patient but not to terminate it
New York State.
This state has adopted a strict "clear and convincing evidence" standard. These standards must be met if the wishes of an incapacitated patient concerning the withdrawing of life sustaining treatment are to be met. The withdrawal of this treatment means that the patient is bound to die. New York state law does not provide a clear definition of this standard but the patients' wishes provides guidance. It is a requirement that the standard should be followed to the letter because it is a strict standard. Failure to do so can put the clinicians, practitioners and the health institution in great jeopardy.
The US Supreme Court in 1990, affirmed this right of competent patients to refuse life sustaining treatment and upheld the right of the state to require and produce "clear and convincing evidence" when the patient is not in a position to make a decision. The New York courts have given a go ahead to the removal of life sustaining treatment in patients who are incapacitated and who had given clear and convincing evidence about their wishes. Likewise they have refused to allow the removal of the life sustaining treatment in incapacitated patients where clear and convincing evidence has not been presented. The Supreme Court has acknowledged that it is the duty of the state to protect life and therefore there has to be clear and convincing evidence to go ahead with the patients wishes. The New York State Court of Appeal has provided a guideline on when life supporting treatment should be discontinued. In what is referred a the Elbaum case, of 1993, the court reaffirmed the right of a provider of healthcare to refuse to discontinue life supporting treatment if there is an uncertainty on the matter up to and until the issue is determined legally. It continued to state that the health care providers will continue to offer the treatment until when the family provide conclusive evidence that allows discontinuation of the same. The evidence provided by the family should be appropriately considered and carefully weighed and if found conclusive, the providers are bound to honor the family request to terminate the life supporting treatment of the incapacitated patient. The court also stated that in case the family members are divided or are uncertain about the patient's wishes, a judicial resolution on the matter should be sought. The guidelines which have been laid down by the New York state are stated below.
Having in mind that the standard of a clear and convincing only applies to a patient who is incapacitated, and who has not appointed a health care agent, the following guidelines are offered.
The clear and convincing evidence that is most reliable is that which has been written by the patient himself and which give detailed specific directives and circumstances in which they are to be followed. A good example is a living will. But this satisfies the clear and convincing evidence when:-the circumstances are similar as those that the patients has described and the treatment are similar as to those the patient has described. This should be regarded as a patient's wishes regarding continuation or termination of life support treatment unless there is foolproof evidence to show that the content is not the true expression of the patient.
In absence of written directives, there may be oral directives. But these should be evaluated carefully in such issues as: Were the issues expressed in a clear and unambiguous manner?
What were the circumstances under which the statements were made?
Were the statements or directives made to many different people over a sustained period of time
Are the situations described by the individual similar to the current situations?
Is there any evidence that conflicts with the wishes of the patient?
In the review process,
The physician in charge is supposed to seek an independent opinion from another physician to confirm the incapacity of the patient. This physician should one appointed by a Medical Director.
The checklist attached should be completed in order to determine whether the standards of clear and convincing evidence have been met.
If ambiguity is evident, a review of the patient's evidence conformance with the clear and convincing evidence standards ought to be sought. This can be obtained by consulting the risk manager or the Ethics Committee
Conclusion
Withholding life support treatment and terminating the life of terminally ill patients with unrelenting pain should be considered as beneficial and humane. This is because as much as we may try to understand and se what the patient is going through, we are in no position to know what they are feeling. We are in a position to describe how these patients look but in no way are we able to describe how they are feeling. Most of the decision to terminate life support comes from the family members of the patient. This is because very few patients leave a clear and convincing statement of their wishes. And when the matter falls to the members of the family, the state get involved. This is because the family members do not carry as much authority as the patient and also the members may differ in their opinion and views. The state having the obligation of protecting the life of the citizens steps in to supersede the wishes of the patient especially when the gray area occurs. The state steps In when there is no clear and convincing evidence to support the termination of life support. When it steps in this capacity, it aims at preserving the life of the patient. But when there is clear and convincing evidence and the rigorous criteria of withholding or withdrawal of life support have been met, the state has no obligation but to support the termination of the life supporting treatment. That is the role that the state of New York plays. Though the matter of life termination is a moral issue, when there is clear and convincing evidence of the patients' wishes, life should be terminated. Where such evidence lacks, the state should step in and review the situation and statements from all the parties concerned to decide on the fate of the patient. The American government has a duty and an obligation to set the standard of clear and convincing evidence.
