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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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Lessons in Legal and Judicial Ethics From Schiavo: The Special Responsibilities of Lawyers and Judges in Cases Involving Persons with Severe Cognitive Disabilities

Lessons in Legal and Judicial Ethics From Schiavo: The Special Responsibilities of Lawyers and Judges in Cases Involving Persons with Severe Cognitive Disabilities

Chapter:
(p.137) 8 Lessons in Legal and Judicial Ethics From Schiavo: The Special Responsibilities of Lawyers and Judges in Cases Involving Persons with Severe Cognitive Disabilities
Source:
The Criminal Justice System and Health Care
Author(s):

Robert A. Destro

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199228294.003.0008

This chapter provides an analysis of the legal sanctioning of the termination of medical treatment in the US case of Schiavo. The author's role as, inter alia, co-counsel for Mrs Schiavo's parents allows him to offer a revealing insight into the theatre of the judicial process. It is argued here that the judiciary went beyond the limits of their moral and legal authority in serving as Terri Schiavo's substituted decision-maker, and did not ensure that she was treated justly. The crucial ethical question is whether the decision not to appoint a guardian ad litem entailed that Schiavo did not receive a fair trial. If the court had been hearing a criminal case involving a person facing the death penalty, the due process argument would have been taken more seriously, and, it is argued, from the patient's perspective, Schiavo's interests would have been better protected had the decision of whether it was appropriate to end her life been one for the criminal law, not civil law.

Keywords:   life-sustaining treatment, withdrawal of nutrition and hydration, substituted judgement, due process

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