Tuesday, April 16, 2019

Testimony on the Amendments to TADA, SB 2089 & SB 2129

These are the two pro-life bills offered to significantly amend Sec. 166.046 of the Texas Advance Directives Act ("TADA") this session, each of which would make a big difference. I discuss them in my written testimony which I provide below the video of my oral testimony. The Senate Health & Human Services Committee took these up at the same time and allowed 3 minutes of testimony.

I wanted to get this post up today with my testimony and that of Elizabeth Graham to set the stage for some future posts on the bills pending in the legislature right now that are truly pro-life. There are going to be additional posts on this subject in the very near future and we're going to get into more of the testimony offered for - and against - these bills. 

You can read the text of SB 2089 and follow its progress as with all legislation in Texas. In summary, SB 2089 would do away with the 10-day deadline. I've written at length why that it a problem, as has Texas Right to Life, as it describes how families basically begged the legislature to fix this.

SB 2129 would completely rewrite the statute and actually insert due process there which does not currently exist. Let me be clear: there is not a modicum of due process in Sec. 166.046. Please do not confuse a "procedure" with "due process." They are not the same. Those who are so enamored of this statute will go on and on about the "process" that is in place in the statute. But it does not constitute "due processwhich is a very specific legal term and has very specific legal requirements. Notably, no one has defended this alleged "due process" in the constitutional challenge in court (despite what a certain attorney for the Amici said under oath at the hearing), but more on that another day. 

The opponents of these bills, who are the proponents of this denial of due process that culminates in the hastened and premature death of a patient against his will, claim TADA provides a means of "dialogue" between health care providers and families. That's bull. It's a total lie. Anyone who has been in the crosshairs of TADA will tell you that. Anyone who has tried to render aid to someone in the crosshairs of TADA will tell you that. You can read the text of the existing law and see that there is no right for a patient or his surrogate to speak at the hearing, no right to representation, no right to an appeal, not even a right to an impartial tribunal free of conflicts of interest, among the many other due process protections that one should be entitled to when one's life is at stake. This is basic stuff. And vitally important. 

And, there are two other things I want you to know right now. First, despite the claims by the TADA lovers to the contrary, NO ONE on our side says that a patient should have all the medical procedures he wants indefinitely. Elizabeth Graham addresses this as well in her testimony in the video below. That's a straw man argument; a classic logical fallacy. What we are saying and have focused on is that life-sustaining care should not be withdrawn from a patient against his wishes and certainly not in 10 days. I have readily admitted on this blog that many of these people are critically ill, but they want the process to take place naturally. (To the extent that some might argue that being hooked up to anything is not natural, I submit to you that Methodist Hospital argued in the Dunn case that Chris Dunn was allowed to die a "natural death" - their term - because they did not withdraw his life-sustaining care but only after the lawsuit was filed. Thank you. We've been saying that for years. Finally, an entity in support of TADA tells the truth at least on that one detail.) 

The people I am talking about, and doing my little part to support, want the diseases or whatever they suffer from (be it simply old age or a disability) in these situations to be the cause of their death, if they have to die at that point, and not to be killed through lack of ventilator, nutrition and hydration, etc. Now, again, as I have said before on this blog, there are situations where continuing care is actually doing more harm than good and is hastening the person's death. However, that is far more rare than what the proponents of euthanasia would have you believe. 

I've not run into a case of it any time I've been called. In Chris Dunn's case, he was conscious and begging for his life on video. (How do you explain the use of TADA on him? Well, I'm going to show you in a future post.) In two of the cases I worked on, the person was unconscious, but he was assimilating food and nutrition just fine. His lungs and kidneys weren't filling up with fluid, etc. There was no sign of distress. He was just unconscious and the doctors said he had no quality of life. I've blogged about that here before and you'll see it in my testimony below. 

Now let's look at that scenario a bit more closely: the patient who might make a full or partial recovery but who at the moment is critically ill. The classic example is one who is in a "coma" or "persistent vegetative state" or "brain dead." These are all inherently nebulous, vague, and ambiguous terms. They can mean, in many cases, whatever the doctor or hospital wants them to mean. The effect of their usage, however, is that rights start being taken away, then life-sustaining care or treatment, with the result of hastening a person's death against their or their surrogate's wishes, perhaps even denying that person a chance to fully or even partially recover. But they might recover and they need to be given time for a fuller evaluation to be made and for the body to have a chance to fully heal. If a doctor thinks it's pointless, transfer care. But they resist this. They fight it. They make it hard. The time ticks down and they pull the plug. That's wrong. That's where SB 2089 comes in. 

Second, before we get to my testimony, I want to address one more thing. A few who testified of their love of TADA slapped at Texas Right to Life for their opposition to it now when they are alleged to have supported it before. I addressed that in my epic post where I covered not just the Dunn case, but Texas Alliance for Life's admitted support of euthanasia, and the battle between it and Texas Right to Life. If you are new to the pro-life workings in Texas (or this blog), it would be worth your time to read it. It is also worth your time to listen to Executive Director of Texas Right to Life, Elizabeth Graham's, testimony addressing this (again). 

You need to know that others who may have initially supported this law in the beginning have come to regret that because whatever was intended, assuming arguendo that there was ever anything benevolent intended here by the doctors' and hospitals' lobbies, that is not what happened and that is not what goes on behind closed doors. We have to fix what is in this law and how it is used and be honest about those problems. Having some misguided loyalty (or worse) to a law you helped create 20 years ago that is a disaster only speaks to your issues but not to the realities of the law. Nor does that undermine or shine a negative light on the others who saw the error in the law and have worked tirelessly to fix it and help those affected by it. Those who attack Texas Right to Life on this point are wrong to do so. Their arguments are as unpersuasive as they are illogical, absurd, and, in some cases, based on outright lies (and I'm going to prove that to you soon). And, if Texas Right to Life is a little less likely to believe the medical lobby and those supporting the medical lobby, well, the old saying "Fool me once...." applies here in spades. 

Now, without further ado, here are my testimonies:

Testimony in Support of SB 2129 and SB 2089
April 10, 2019
By: Kassi Dee Patrick Marks, JD

I submit this written testimony in support of both SB 2129 and SB 2089. These bills reflect two efforts to reform a draconian and utterly unconstitutional statute that is at least two decades overdue. The current state of §166.046 and related provisions of the Texas Advance Directives Act (“TADA”), contain no patients’ rights protections whatsoever. There is no due process for the patient or his or her family, despite the fact that the end result of the exercise of TADA in this context results in withdrawal of his life-sustaining treatment (“LST”) against the patient’s will and hastens his unnatural death. 
I have been quite involved in the Chris Dunn appeal which is challenging the constitutionality of the law and am extremely aware of the flaws in it. Prior to this I have written and analyzed the provision extensively. Reform efforts to this shameful law have been nearly impossible for a variety of political reasons and those having to do with an inherent disregard – and even contempt – for the lives of those who are simply ill. Some are infants who are ill, disabled who are ill, or elderly who are ill. Some are severely injured. But their only crime is that they are ill or injured and a doctor has decided their lives are not worthy of receiving LST. Some will never be cured or be fully well again or as they were before, but they desire that their illnesses are what they die of – not a lack of LST withdrawn early to hasten their death. While much needs to be fixed in this law which is addressed in SB 2129 – and in the way society views the ill – addressing this the 10-day deadline as is done in SB 2089 and allowing more than 10 days – is meaningful reform which affirms life and the ability of people to make their own healthcare decisions without having their deaths hastened by the withdrawal of their LST. 
Due process requires, among other things, that the patient be given a right to be heard, be given proper notice of the hearing, be given an ability to prepare for it (by knowing what the reasons are for withdrawing care), be entitled to have representation at the hearing, that there be an impartial tribunal free of conflicts of interest, and that there be an appeals process.  In this case, hospitals act under color of state law to exercise power reserved to the state to sentence patients to premature deaths. Section 166.046 gives hospitals the power to decide a patient is no longer worthy of life-sustaining treatment. This grant of authority allows even a private hospital, which is taking action under the statute, to performing a State function. The ability to take formal action which will result in death is not available to the public. 
Understanding how these decisions are made is critical to understanding why even a small reform can be so impactful, but also why an overall redrafting of the law is absolutely required to make it even remotely constitutional. After denial of one basic due process right after another – rights that even murder suspects and those convicted of murder receive – a patient can be involuntarily passively euthanized (by withdrawal of his LST, done expressly to hasten his death) in 10-days after the final decision is made by the hospital “ethics” committee. All that can be done now under the statute is to attempt to hastily find a new facility, but that is nearly impossible in this mere 10-day window. The ability to go to court for more time is difficult because the movant has to show “by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility [] will honor the patient’s directive will be found if the time extension is granted.” Sec. 166.046(g). That is the sole recourse to court that a patient or his family has. 
My experiences, and those of others, is that these decisions are not made because a doctor’s conscience is pricked by continuing care that he deems is causing the suffering of the patient. Moreover, removing care to alleviate suffering would be mercy killing which is prohibited by Sec. 166.050. The very definition of euthanasia, according to Merriam-Webster, is: “the act or practice of killing or permitting the death of hopelessly sick or injured individuals (such as persons or domestic animals) in a relatively painless way for reasons of mercy.”[1] Thus, the law prohibits euthanasia on the one hand, yet permits that very thing on the other – and without due process and against the will of the patient or his family. And, it should go without saying that persons are not animals and should not be treated as such. But as you will see, that is exactly one doctor’s attitude about a patient in one ethics hearing I attended. 
If a doctor’s conscience actually should be pricked by continuing LST, and I have only heard that in the context of legal briefs (but not with supporting affidavits or evidence by doctors, just unsupported argument by counsel) and legislative committee hearings, but never in a hospital hearing, why not just move the patient or have another doctor in that facility provide care until transfer is completed? Why make moving him so hard and place obstacles in the way as so many hospitals do? Further, whether the patient actually is “suffering” or wishes to continue LST until his condition resolves itself one way or the other – naturally – while LST is continued, is a decision that the patient or his family or surrogate makes, not the doctor or hospital committee. He has the superior interest, as it is literally his life at stake. 
It is also worth noting that in the case challenging the constitutionality of this provision of TADA, that the hospital defendant has admitted that continuing LST allows the patient a “natural death.” In fact, one of the arguments that the hospital made is that it did nothing wrong and no rights were violated because the patient died a “natural death” when the hospital did not withdraw LST “voluntarily” but notably only after the lawsuit was filed. While the hospital is wrong about the nature of due process rights and how they manifest at every step of the procedure, it is a very important point for this committee to consider that maintaining LST for even a terminal patient allows that patient a natural death from his disease or injury rather than hastening it – rather than euthanizing him involuntarily and passively through the removal of his care. 
I have attended medical ethics committee hearings at hospitals in the DFW Metroplex. I share with you a few of my experiences attending these hospital ethics committee hearings to demonstrate why – at a minimum – the 10-day deadline should be extended. During one such hearing, the first I ever attended, I sat through more than an hour of “testimony” where three doctors explained why they wanted to end the life of an ill patient before a committee that rubber-stamped their decision. The family sat and listened to the doctors repeat at least a dozen variations of: “He has no qualify of life.” The doctors had no stated or implied conscientious objections to continuing care; they just simply did not see the point in continuing to care for this patient. Meanwhile, the patient’s family pleaded for more time for their patient to respond and to find another facility. On that day, it fell on deaf ears. Among the things said to the family by the doctors were the following, and these are direct quotes:

·      “Man was not meant to be sedentary this long; if he were an animal in the wild and had been still this long, he would have been eaten.” Stated by the neurologist advocating for the termination of this patient’s care and life to the family of the patient.
·      “What we are saying is his quality of life will never change.” Primary doctor recommending termination.
·      “The person Mr. ___ was is gone because that resides in the brain and that is gone.”
·      “The person is not going to return.”
·      “The real action is the person he was…that person is gone and is not coming back.”

Because this person had a poor prognosis at becoming the person he was, according to the doctors who never knew him before he was ill, these doctors did not want to give more time. This is despite the family reporting seeing improvement, such as turning toward sounds, being startled when something fell and made a loud sound, and sobbing when the doctors discussed amputating his leg in front of him and his family. All of this was dismissed – illogically – as reflexes by the doctors who proceeded to make the comments above, among others. The main doctor – a neurologist – advocating for this man’s death likened him to an animal several times in front of the family. This is also despite the growing record of cases where patients recover from a PVS or comatose state years later. The brain can recover. It just needs time. 
The doctors also refused to consider less expensive in home care for the patient provided by a family member who was a trained ICU nurse. When the subject was broached, they were silent – they were unprepared for that. Then they all quickly said that was “not in the best interest of the family or the patient” without stating why except for resorting back to the “quality of life” mantra. 
Later, I was asked to attend another “ethics committee” meeting where the hospital was seeking to withdraw LST from a young man against his family's wishes. That family is here today to testify and I am grateful to them. The family had never heard of this law, were taken aback by what was happening to them, and could not believe that this was possible in America at all, let alone “pro-life” Texas. The family was unanimous and unified in their opposition to the withdrawal of LST for their loved one. It violated their religious beliefs, among others. I met with the family and we attended the hearing together. 
The committee members could not have cared less what the family had to say. In fact, by the time we were allowed in, the meeting about the patient’s condition had already occurred without us - even as we were standing in the waiting room waiting to be allowed in. When we were finally called in, the chairman let us know in no uncertain terms that they had already discussed the patient's condition without us. The family asked why the treating doctors who made the decision as to their loved one's “futility” were not in the meeting. We were told it was because it was their day off. (I hope you can see the lack of due process here, how the cards are stacked against a family, the farcical nature of this proceeding, and even the flippancy with which it is conducted.)  
The family was allowed to speak and expressed – with medical literature – why they believed their loved one should not be killed by withdrawal of his LST. The two primary members of the committee dozed off repeatedly during the meeting, including the one who was chairing it. That's right. The two members of the committee most eager and vocal about withdrawing care to hasten a man's death against his family's wishes SLEPT during parts of the meeting while the family addressed them. THEY. SLEPT.  
When those two sleeping members were awake, they were overtly hostile and rude to the family members who could not have been more prepared, gracious, and composed under extraordinarily difficult circumstances. How did these two committee members respond - that is, when they were awake? They were hostile toward the family and actually raised their voices to those representing the family when fine points of the law were calmly presented to them.  
It was abundantly clear that anyone who would dare oppose the hospital’s edict to kill a man prematurely by withdrawing his care enraged these members. Another one of the committee members, a doctor, asked what law we were even talking about. He was completely ignorant of the legal authority they were using even as he sat on the committee that would potentially render the final decision to kill a man. It was as if he was shocked that they even needed to have a law to allow them to make these determinations. That says so much.  
I have never been in a meeting with more blatant hostility and anger than this one toward a family, who remained calm and composed. Besides the lack of civility and kindness exhibited by these committee members, I was also appalled by the aforementioned doctor who was totally ignorant of the law. He was utterly confused by references to law at all. I had to explain to him that there was a statute and that that was why they could even have this meeting in the first place. Only two of the 12 or so there uttered a single kind, calm word; the two already mentioned two were hostile when they were not sleeping; one was ignorant of the law and confused; and the others were dead silent, avoided interaction with anyone, avoided eye contact, and/or looked bored or disinterested, if not annoyed by being there at all. When the family finished their presentation, not a single member asked a question.  
In another committee hearing I attended at this same hospital, one of the same members was there and again slept through parts of that hearing as well.  
I relay these experiences to make clear that TADA must be reformed. I would like to see it completely rewritten and compliant with every facet of due process – at a minimum, which is only right in as much as hospitals are using it to sentence people to premature and, admittedly, unnatural deaths. But I am wary of any law that would ultimately take someone’s life against their will. Understand also that the use of this provision of TADA is commonplace. 
Time is of the essence. If the committee cannot see to a full scale rewriting of the law under SB 2129, it should at least vote for SB 2089 and repeal the 10-day deadline to provide some sort of mitigation of what will still be an otherwise unconstitutional law as it will still lack due process for patients. The mitigation will be that the patient cannot have that final deprivation of due process – his unjust death sentence carried out.  
Let us all do what we can to establish as a matter of law that all life has value and needs to be protected, especially the most vulnerable among us. One of these days, that vulnerable person could be you or your loved one. It is not pro-life to hasten death by the withdrawal of LST against a patient or his family's wishes without due process and with a mere 10 days to find another facility. We err, if we err at all, on the side of life. Always. 

[1] https://www.merriam-webster.com/dictionary/euthanasia (Last accessed 4/09/19) (Emphasis added).

Those supporting patients' rights outnumbered those in favor of killing them against their will 9:1.

Again, as I said in my prior post, those numbers matter. Two witnesses in particular, Bobby Schindler and Wesley J. Smith traveled across the country to give a few minutes of testimony to help Texas fix this mess because it's so important. I'm going to dedicate a blog post to them and what else we can take from that in the near future.

Significantly, what did not happen here is that there were not dozens of families testifying about how great it was when TADA was used to pull their family members' plugs against their will. No affected person got up to say how that denial of due process was the highlight of their lives and how they hope others go through the same. All you had were the usual suspects testifying against these due process and patients' rights reform efforts: Texas Alliance for Life, Dr. Robert Fine, the Texas Catholic Conference of Bishops, the Texas Medical Association, the Texas Hospital Association, some Catholic hospital ethicist guy who works for Christus, an attorney for those who submitted the Amici Brief in support of Methodist Hospital, etc. In other words, those who are paid to support this law in some fashion or who benefit financially from it or its existence and those who - by the words they chose to describe their view of patients and, especially Catholic Church teaching - betray what can only be characterized as a euthanasia mentality and dehumanizing view of ill and disabled individuals.

Like the others, these bills were left pending in the Senate HHS Committee. I share Texas Right to Life's sentiments:

So that's our second update about the big hearing and Pro-Life Activism Day last week. More in the very near future!

Thanks for reading! 

NOTE: This was updated to correct the Senate Bill number and link to SB 2129. In two places, it was incorrectly written as SB 2191.