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Critics of Obamacare once raised the specter of "death panels" — committees of bureaucrats who would do a cost-benefit analysis on patients to determine whether they were worthy of medical care. Although it was a feared prospect for the future, many Americans don't realize that a type of "death panel" already exists — in Texas, where such committees wield enormous power and make unilateral decisions over vulnerable patients, decisions that can't be appealed by families or reviewed by courts.
The Texas Advance Directives Act (TADA) came to national prominence in 2015 after the highly publicized case of Chris Dunn, a former EMT and Homeland Security employee who was checked in to Houston's Methodist Hospital in Oct. 2015 suffering from a mass on his pancreas and renal failure. His doctor determined his "quality of life" did not warrant further medical treatment, and his decision was adopted by the hospital's ethics panel — in spite of the fact that Dunn was conscious, alert, responsive and clearly indicated his desire to live.
Video shows him practically begging for life, his hands folded in prayer as he is asked if he wants to live. He responds to questions by nodding his head, and he's later shown waving good-bye to a visitor as he leaves.
2016 video appeal on behalf of Chris Dunn
In spite of clear evidence of Dunn's wish to live, none of this mattered to the hospital, which insisted on withdrawing treatment, which would have brought on death within minutes.
TADA gives hospitals this power based on their determination of a patient's "quality of life" — an amorphous, subjective, undefined standard that can differ from doctor to doctor and hospital to hospital. If a doctor determines that a patient's "quality of life" warrants that he no longer receive medical treatment, he can make the recommendation to the hospital ethics panel, which can then adopt his decision as final — over and against the explicit wishes of the patient and his family. That decision can't be appealed or reviewed by a court.
"A criminal on death row has more rights than a patient in a Texas hospital," said Attorney Joe Nixon in a video highlighting Dunn's plight. "The committee of the hospital to terminate the patient's life is final, unappealable. The patient doesn't have a right to have an advocate. The patient doesn't even have a right to speak in their own defense. A court may not review the hospital's decision."
The ethics panel can even override the patient's own written advance directive expressing his wishes with regard to end-of-life care.
"A Texan shouldn't give up their civil liberties when they go into a Texas hospital," Nixon said. "You have due process rights that should not be taken away by the statute. You have the right to life from beginning to end."
The law gave Dunn's family only 10 days to find another hospital that would take him, otherwise he would face imminent death at Houston Methodist. Dunn's mother, Evelyn Kelly, fought against the order, with the support of Texas Right to Life, which secured attorneys to represent her son's interests. They went to court and successfully obtained an injunction against the hospital order.
Dunn passed away peacefully from natural causes on Dec. 23, two days before Christmas, still receiving life-sustaining treatment.
"Chris wasn't in a coma," said Nixon. "He was there and we have indisputable evidence that he wanted to live. This case directly brings into question the constitutionality of these hospital ethics committees and what point they may lawfully terminate a life."
Texas Right to Life has led the vanguard in fighting TADA, the only pro-life group helping to secure attorneys for families in need and helping find alternate hospitals that will take in patients. Texas Right to Life has already helped more than 400 families. But their opposition comes from a surprising source: the Texas bishops.
The Texas Conference of Catholic Bishops filed a friend-of-the-court brief last year, along with various pro-life groups and organizations representing the interests of doctors and hospitals, arguing for the constitutionality of TADA.
"Human intervention that would deliberately cause, hasten, or unnecessarily prolong the patient's death violates the dignity of the human person," the bishops argued (emphasis added by bishops).
Critics have noted, however, that the bishop's phrasing is deceptive, as the issue is about preventing the hastening of a premature death by an ethics panel with power to override the wishes of the patient and family.
"TADA respects the patient's wishes and leaves room for good-faith differences of medical opinion," the amicus brief argued. "Section 166.046 encourages the doctor and patient to have the difficult and critical dialogue that end-of-life care requires."
The argument is based more on theory than fact. As is clear in Dunn's case and many others, when patients and doctors fundamentally disagree, the patient and his family have no recourse but to submit to the final, unappealable, non-reviewable judgment of the ethics panel, or otherwise scramble to find another hospital within the 10-day window — a process that turns out to be unrealistic and arduous.
Among other things, Kelly's attorneys are arguing that TADA needs to be ruled unconstitutional as a matter of public policy and that the 10-day rule be scrapped.
"Ethicists, legal experts, and others have long written of their concern about the state of the law in Texas and elsewhere leaving patients with no rights as involuntary euthanasia creeps forward," the attorneys argued in their reply brief filed in May 2018.
Ken Paxton, attorney general for Texas, filed an amicus brief agreeing that TADA violates due process and therefore he could not defend the law in court.
The right to due process of law is a fundamental bedrock of our Constitution and is one of the most important safeguards against the tyranny of the government. The right traces its origins to arguably the most important clause in the Magna Carta: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
This revolutionary concept that we are all entitled to appropriate legal process before the taking of our life, liberty, or property found even firmer footing with the founding of this nation and the enactment of the Fifth Amendment to the U.S. Constitution, which provides that "No person shall be ... deprived of life, liberty, or property, without due process of law."
This case compels this Court to become part of this tradition and enforce the protections of due process once more. Section 166.046 of the Texas Health and Safety Code allows the government to deny an individual his or her life, and does so without sufficient process of law. That violates due process and cannot stand.
Oral arguments for the Dunn case take place Tuesday in the State Circuit Court of Appeals for the First District in Houston. Kelly and Dunn's estate are represented by attorneys Trey Trainor, Joe Nixon and Kassi Marks.