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Clear And Convincing Evidence Standards

presented (Meadow, 1997). It is a standard method of establishing the desires and wishes of an incapacitated person who is unable to make decisions on his or her own and who has not left any written or verbal wishes. It is used in cases where a decision on whether to terminate or continue the life supporting treatment is needed.

The decision to terminate life supporting treatment is usually a difficult decision. This is especially so if it falls upon the family members when the incapacitated patient is incompetent and therefore cannot state his or her wishes about termination or continuation of the life supporting treatment. The family members left with the obligation of making a decision about the withholding or continuation of this treatment may differ on what course of action to take (Buckley et al 2004). When this situation arises, the matter becomes complicated. It is in such a situation that clear and convincing evidence comes into play to determine or to try and determine what the wishes of the incapacitate patients are. The issues of who has the right to determine who lives and who dies has sparked a major debate in the United States and the world over. Some argue that life is more important than the personal choice that one makes. It is this debate that has presented the United States government with a strong challenge on the matter of life and death and who should determine who lives and who don’t.

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. It is this that Made Terri’s parents to go back to court and argue on the basis of their daughters Catholic teachings. They argued that their daughter was a staunch and devoted Catholic who followed its teachings and doctrines and therefore she would not go against the teachings of the Catholic Church. This argument was however rejected by the judge (Moore, 2005). The Clear and convincing evidence that was presented by the husband was the one that was eventually used to determine the fate of Terri. Based on it, the court decided to end Terri’s life. The decision to end Terri’s life was based on the assumption of her feelings towards the continuation or the withholding of the life support treatment. The assumptions were arrived at based on the allegations and declaration presented by her husband and her parents. It is these that were used to determine what her feelings would have been.

Some states have passed laws that allow hospitals to terminate life support treatment even without the consent of the family members. This can be seen as a contradiction to the past procedures whereby the patients continued to receive life support even when they have expressed their desires and wishes to die. Today, the medical fraternity has been known to pressure family members to consent with the termination of the life support. This is probably due to high cost of medical expenses that are incurred when one is in a life support for a long period (Belluck, 2005)

But since the field of medicine is aimed at prolonging the life of patients and not ending it, why is clear and convincing evidence necessary to determine ones fate? This is what has triggered a huge debate on this issue.

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. The state requires that the standard should be followed strict. In case the physicians’ fails to do so, they can put themselves and the institution in great jeopardy.

The US Supreme Court in 1990 gave the right of patients who are competent to decide their fate and refuse continuation of life support treatment. When the patient is incapacitated and therefore incompetent to make a decision, the court gave the state the right to produce clear and convincing evidence to determine whether the life support treatment of the patient should be terminated. With this regard, the courts have allowed the hospitals to terminate life support treatment to an incapacitated patient who had expressed his or her desires and wishes or where clear and convincing evidence is presented. Where there are no verbal or written consent from the patient, or there is no clear and convincing evidence, the courts have refused to allow for the removal of the life support treatment. The Supreme Court has accepted the fact that the state has a duty to protect the life of all the citizens .With this regard there has to be a written consent or verbal evidence from the patient to end the life support treatment. When this is not present, the life support should be only terminated upon presentation of clear and convincing evidence. In what is referred a the Elbaum case, of 1993, the court reaffirmed its stand on refusal to terminate life support treatment when there is no clear and convincing evidence or where the wishes of the incapacitated patients are not well stated.. The courts also reaffirmed that the hospitals and healthcares have a duty and an obligation to continue offering life support treatment until there is sufficient evidence that gives the go ahead of the same. The evidence provided by the family should be appropriately considered and carefully weighed and if found conclusive, the hospitals have no otherwise than to withdraw the life support treatment. The courts have also affirmed that where the family members have not reached a decision or are divided on the same, a judicial resolution on the matter should be sought. Here are some of the guidelines that have been stated by the state of New York.

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. This becomes clear and convincing evidence when the situation is the same as what has been described by the patient and the treatment he is been given is the same as that which the patient has described. A living will or any other written document expressing the wishes and desires of the patient should be regarded as final unless there is any other evidence present that is foolproof and which state otherwise.

Where there are no written directives, oral directives may be considered. But these should be carefully evaluated on issues like:

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


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.

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