Critical Perspectives on Assisted Suicide by Jennifer Peters

Author:Jennifer Peters
Language: eng
Format: epub
Publisher: Enslow Publishing, LLC
Published: 2019-08-27T00:00:00+00:00

EXCERPT FROM BOUVIA V. SUPERIOR COURT, BY JUDGE J. BEACH, FROM THE COURT OF APPEALS OF CALIFORNIA, SECOND DISTRICT, DIVISION TWO, APRIL 16, 1986

Petitioner, Elizabeth Bouvia, a patient in a public hospital, seeks the removal from her body of a nasogastric tube inserted and maintained against her will and without her consent by physicians who so placed it for the purpose of keeping her alive through involuntary forced feeding.

Petitioner has here filed a petition for writ of mandamus and other extraordinary relief after the trial court denied her a preliminary injunction requiring that the tube be removed and that the hospital and doctors be prohibited from using any other similar procedures. We issued an alternative writ. We have heard oral argument from the parties and now order issuance of a peremptory writ, granting petitioner, Elizabeth Bouvia, the relief for which she prayed.

DISCUSSION

1. AVAILABILITY OF IMMEDIATE RELIEF HERE.

It is appropriate for this court to immediately determine the issues raised by this petition. We realize that by deciding the pivotal issue presented our ruling will affect the entire lawsuit, including causes of action on which there has yet been no plenary trial. But this is an unusual case. Although important to real parties in interest, it is urgent to petitioner.

The trial court denied petitioner’s request for the immediate relief she sought. It concluded that leaving the tube in place was necessary to prolong petitioner’s life, and that it would, in fact, do so. With the tube in place petitioner probably will survive the time required to prepare for trial, a trial itself and an appeal, if one proved necessary. The real party-physicians also assert, and the trial court agreed, that physically petitioner tolerates the tube reasonably well and thus is not in great physical discomfort.

Real parties’ counsel therefore argue that the normal course of trial and appeal provide a sufficient remedy. But petitioner’s ability to tolerate physical discomfort does not diminish her right to immediate relief. Her mental and emotional feelings are equally entitled to respect. She has been subjected to the forced intrusion of an artificial mechanism into her body against her will. She has a right to refuse the increased dehumanizing aspects of her condition created by the insertion of a permanent tube through her nose and into her stomach.

To petitioner it is a dismal prospect to live with this hated and unwanted device attached to her, through perhaps years of the law’s slow process. [1135] She has the right to have it removed immediately. This matter constitutes a perfect paradigm of the axiom: “Justice delayed is justice denied.”

By refusing petitioner the relief which she sought, the trial court, with the most noble intentions, attempted to exercise its discretion by issuing a ruling which would uphold what it considered a lawful object, i.e., keeping Elizabeth Bouvia alive by a means which it considered ethical. Nonetheless, it erred for it had no discretion to exercise. Petitioner sought to enforce only a right which was exclusively hers and over which neither the medical profession nor the judiciary have any veto power.

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