Delaware House Passes Nonbinding Resolution on Protecting People with Cognitive Disabilities from Medical Killing

Some bloggers and activists alerted us to a resolution passed by the House in the state of Delaware on June 30th.

The resolution follows. After the text, I’ll explain why the wording may mislead people to make more of this resolution than it merits.

Here is the legislation:

HOUSE OF REPRESENTATIVES
144th GENERAL ASSEMBLY
HOUSE RESOLUTION NO. 75

ESTABLISHING PROTECTIONS FOR PERSONS WITH SEVERE BRAIN INJURY, IMPAIRED CONSCIOUSNESS, OR WHO ARE OTHEREWISE MENTALLY DISABLED.

WHEREAS, the Universal Declaration of Human Rights asserts that “everyone has the right to recognition as a person before the law” and that “all are equal before the law”; and
WHEREAS, the Americans with Disabilities Act clearly identifies the rights of the disabled to access essential needs and have essential services provided to them; and
WHEREAS, it is becoming increasingly apparent that persons who are suffering from severe brain injuries often have cognitive functions significantly beyond what medical science previously estimated; and
WHEREAS, it is also becoming increasingly apparent that the diagnosis of “persistent vegetative state” or “PVS” is a category that recent science shows is far more uncertain and overly broad than had been previously thought, including a high rate of misdiagnoses of PVS patients who have not been able to exhibit responses, but whose consciousness can now sometimes be measured with medical advances such as neuroimaging and drug treatment.

NOW THEREFORE:
BE IT RESOLVED by the House of Representatives of the 144th General Assembly of the State of Delaware that it is against the public policy of this State and this State’s interest in life, health and safety, for hydration and nutrition that is not harming a patient to be involuntarily removed from a non-terminal, apparently brain-incapacitated patient if doing so will cause the individual’s death. Furthermore, such withholding of hydration and nutrition without: 1) clear written direction from a legally competent patient or, 2) a valid written advance health-care directive that was previously executed by a patient who is now incapacitated and that either allows
such withholding under such circumstances or grants an agent authority to make that decision by an incapacitated patient is also against the public policy of the State of Delaware.
SYNOPSIS
This Resolution establishes protections for mentally disabled individuals in the State of Delaware. The impetus for this Resolution comes from the case of Lauren Richardson, a 24-year-old Delaware woman who, after suffering brain injuries and impaired consciousness, now faces the possible removal of her nutrition and hydration, despite the absence of her clearly specified and legal consent to any such a course of action. The State of Delaware has, through recent legislation prompted by the abuses at the Delaware Psychiatric Center, endeavored to protect the rights of
mentally disabled patients in the First State. Lauren, as a mentally disabled person, is enumerated those same protection and rights.

Warning: the title of this resolution is a lie. While the resolution states that it’s “establishing protections for persons with severe brain injury, impaired consciousness, or who are otherwise mentally disabled,” it doesn’t establish anything, at least not in terms of legislation or enforceable standards.

Here they are, with their definitions, taken from Delaware’s legislative website:

A resolution is the formal expression of the opinion, sentiment or will, of one or both Houses of the General Assembly. There are three types of resolutions:

SIMPLE RESOLUTIONS – A simple resolution is a motion of the house, and deals with the internal affairs of that house only. The effect of its passage does not go
beyond the bounds and the authority of that house.

CONCURRENT RESOLUTIONS – A concurrent resolution is used to accomplish the same purpose in relation to the entire legislature that a simple resolution accomplishes for either the House or Senate singly. A concurrent resolution adopted by the legislature does not become a statute, nor does it have the force and effect of law, nor can it be used for any purpose that requires the exercise of
legislative power.

JOINT RESOLUTIONS – A joint resolution is the most formal, and is addressed to matters that are not the internal affairs of either house individually, nor the internal affairs of the General Assembly as a whole. It is of no legal effect unless it
is passed by both Houses and signed by the Governor. A joint resolution is not a
law but is used to employ temporary measures and has the force of law while in
effect.

As you can see, the “simple resolution” is the weakest of the types of resolutions that can be passed in Delaware’s legislature. And no type of resolution has the “force or effect of law.”

I’m told that resolutions vastly outnumber actual bills in most state legislatures – since they don’t require any change in the law, expenditure of money, and other things that tend to drag debates out, they are vehicles to show their constituents they are trying very hard to look like they’re doing something.

But advocates in Delaware can have the last laugh on this. My hope is that this resolution, which reportedly passed unanimously in the House, can be used as an advocacy tool. It seems reasonable to challenge legislators who were willing to vote these powerful protections into a nonbinding resolution can be challenged to adapt this resolution — so these protections can be put into actual legislation — and making these symbolic protections as real as the force of law can make them. –Stephen Drake