April 2005 "Terri Shiavo: How Does Indiana Health Care Consent Work?"

PLANNING FOR WEALTH & SECURITY
By Attorneys Jennifer & Jeff Hawkins

TERRI SHIAVO: HOW DOES INDIANA HEALTH CARE CONSENT WORK?

The Terri Shiavo case has drawn the nation’s attention to health care consent issues. Unfortunately, health consent “experts” are pouring out of the woodwork with advice and opinions that are not uniformly reliable. The Shiavos are Floridians – not Hoosiers. A “cookie-cutter” health care solution does not fit equally well in both Florida and Indiana.

The Indiana General Assembly established Hoosier health care consent laws in Indiana Code Chapter 16-36-1. Section 16-36-1-5 says if a person does not appoint a healthcare representative before becoming ill, consent to health care may be given:

(1) by a judicially appointed guardian or representative of the person; or
(2) by a spouse, a parent, an adult child, or an adult sibling, unless the patient previously disqualified one of them in writing under section 16-36-1-9, if:
(A) there is no guardian or other representative described in section 16-36-1-5(1);
(B) the guardian or other representative is not reasonably available or declines to act; or
(C) the existence of the guardian or other representative is unknown to the health care provider; or

(3) by the individual's religious superior, if the individual is a member of a religious order and:
(A) there is no guardian or other representative described in section 16-36-1-5(1);
(B) the guardian or other representative is not reasonably available or declines to act; or
(C) the existence of the guardian or other representative is unknown to the health care provider.

The problem with this statute is that the patient’s family members may not agree whether to consent to or withhold health care. This is precisely the kind of fight that has raged for years between Terri Shiavo’s husband and parents. Without agreement, a court battle may engulf the patient.

Many people are promoting “Living Wills.” However, an Indiana Living Will offers no help in a Terri Shiavo case because her condition would not cause her death in a “short time.” Indiana Code section 16-36-4-10, which contains the exact text of the Indiana Living Will, provides that a Living Will only works if the patient’s attending physician certifies in writing that:

(1) The patient has an incurable injury, disease, or illness;
(2) The patient’s death will occur within a short time; and
(3) The use of life prolonging procedures would serve only to artificially prolong the dying process.

Terri Shiavo lived for more than a decade in her brain-damaged condition. Her parents obviously believed that she could have lived for several more years with her feeding tube and intravenous tube. Therefore, her death would not have occurred within a “short time” and an Indiana Living Will would not have permitted a feeding tube to be removed from a person in her condition.

A person can empower a health care representative to make these decisions. Indiana Code section 16-36-1-7 spells out how a person may make a written appointment of a health care representative, who may consent or withhold consent to health care. Indiana Code section 16-36-1-1 says "health care" means any care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition.

These are emotionally and ethically challenging issues for our society to consider. You may have strong feelings, but you should consult with both your physician and your spiritual leaders about end of life issues before deciding what is right and wrong for you and your family. You should also share your preferences with your family and your attorney so that your wishes will be known and honored.

THIS ARTICLE IS NOT LEGAL ADVICE. ALWAYS CONSULT AN ATTORNEY DIRECTLY BEFORE RELYING UPON THIS ARTICLE OR CHANGING AN ESTATE PLAN.