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| Jennifer Cona |
The common law principle is well-settled that every individual of
sound mind and adult years has a right to determine what should be done
with his or her own body. The right to accept or reject medical
treatment has long been recognized for
competent adults.
However, for individuals who lack capacity, this right was not always
recognized, often times forcing individuals to be subjected to
treatments that went against their beliefs and desires. Unfortunately,
the imposition of unwanted medical treatment still happens today in the
context of incapacitated patients who reside in hospitals and nursing
homes due to an apparent conflict between limitations placed on the
powers of a guardian in some court jurisdictions versus the standards
set forth under the Family Health Care Decisions Act.
Signed into
law in 2010, the Family Health Care Decisions Act (FHCDA) (N.Y. PUB.
HEALTH LAW §2994-d) reflected a major departure regarding the standard
under which life sustaining treatment may be terminated for a mentally
incompetent person. The FHCDA flipped the switch from the prior
"presumption of life" to a "presumption of termination" (absent
indication from the principal to the contrary), and did so especially in
the context of artificial nutrition and hydration. See
In re Zornow, 919 N.Y.S.2d 273, 31 Misc.3d 450 (Sup. Ct. Monroe Cty. 2010).
Intending
to fill a gap in New York law by establishing a decision-making process
applicable for patients lacking decision-making capacity in hospitals
and nursing homes who do not have advance directives, the FHCDA allows
surrogate decisions regarding the withdrawal or withholding of
life-sustaining treatment based on a best interests standard, subject to
the medical standards set forth in the statute. See N.Y. PUB. HEALTH
Law §2994-d(4); see also
In re Doe, 37 N.Y.S.3d 401, 53 Misc.3d
829 (Sup. Ct. Kings Cty. 2016). Guardians pursuant to Article 81 of New
York's Mental Hygiene Law are given the highest priority to act as a
surrogate decision maker, followed by a priority order of family members
and other persons close to the patient.
In enacting the
guardianship statutes codified in Article 81 of the Mental Hygiene Law
in the early nineties, the legislature found that the personal wishes,
preferences and desires of the person should be followed when making
determinations on behalf of individuals with incapacities. Historically,
decisions to withdraw life-sustaining treatment made by court-appointed
guardians have been held to the clear and convincing standard. However,
this standard is at odds with the legal and medical framework set forth
in the FHCDA, which has become problematic in various circumstances.
Two Standards
The
authority of a guardian of the Person under Article 81 of the Mental
Hygiene Law extends well beyond the authority to make medical decisions
as granted by the FHCDA. As such, the appointment of a guardian is often
warranted to ensure the complete protection of an incapacitated
individual's interests. The courts generally favor the appointment of a
family member as guardian, particularly with regard to personal needs.
See, e.g.,
In re Naquan S., 767 N.Y.S.2d. 906 (N.Y. App. Div.
2003). As guardian, a family member is in the first position of possible
surrogate appointees under the FHCDA. Although one would suppose that
holding the top priority as the surrogate decision-maker would expand
one's powers, in some counties within the state, it has actually limited
a family member's ability to make health care decisions, in particular
decisions with regard to life sustaining treatment.
In practice,
the FHCDA has been interpreted differently across the counties
throughout the state regarding end-of-life decisions. As the FHCDA
states that a guardian is authorized to make decisions regarding health
care pursuant to Article 81 of the Mental Hygiene Law, some court
jurisdictions have interpreted this to mean that such decisions must
comply with the standards expressed under Article 81, therefore holding
guardians to the common law "clear and convincing" standard while other
counties apply the statutory, less restrictive "best interests" and
medical standards set forth in the FHCDA. See N.Y. PUB. HEALTH LAW
§2994-d(1)(a).
With the passage of the FHCDA, §81.29 of the Mental
Hygiene Law was repealed and the "personal needs" provisions in §81.22
was amended. See FHCDA, A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y.
2009); N.Y. MENTAL HYG. LAW §§81.22, 81.29. Pursuant to amended section
81.22, for decisions in hospitals and residential health care
facilities, the court may grant to the guardian the power to act as the
patient's surrogate pursuant and subject to the FHCDA. Based on the
inclusion of the changes to the guardianship statutes with the passage
of the FHCDA, it would appear that the "clear and convincing" standard
no longer applies to personal needs decisions.
However, present
day experiences with guardianship courts across the state of New York
reveal that the counties are interpreting these rules in different ways.
Some counties, for example, include a limitation on decisions regarding
the withholding of life-sustaining measures. For example, the language
included in one such county's guardianship order states that the
guardian may "consent to or refuse generally accepted routine or major
medical or dental treatment on behalf of [the incapacitated person],
except
for the power to consent or authorize, in the absence of further order
of the Court, withholding or withdrawal of life sustaining treatment or
to the implementation of either a Do-Not-Resuscitate or Do-Not-Intubate
Order." Arguably, this goes against the FHCDA, which states that
there is a presumption in favor of termination unless there is evidence
to the contrary.
Case Study
Consider
this fact pattern: Mrs. Crake's husband was named the guardian of her
personal needs and property management. However, the court limited Mr.
Crake's powers regarding the withholding of life-sustaining treatment,
requiring further Court order in such event. Mrs. Crake was a woman in
her sixties diagnosed with early onset Alzheimer's disease who exhibited
end-stage dementia. Mrs. Crake required increased levels of residential
care as her condition was quickly deteriorating and she required
frequent hospitalizations. Mr. Crake, as Mrs. Crake's husband and
personal needs guardian, was asked by both hospital staff and nursing
home staff to complete a MOLST (Medical Orders for Life Sustaining
Treatment) form on her behalf in the event of an emergency. However, Mr.
Crake did not have authority to execute a MOLST because of the
provision in the guardianship order limiting his decision-making
authority regarding the withholding or withdrawal of life-sustaining
treatment. In contrast, had Mr. Crake not been appointed guardian for
his wife, as her husband and the second surrogate decision-maker under
the FHCDA, he would have had unquestioned authority to execute the MOLST
form on her behalf. Although Mr. Crake sought the guardianship to have
the authority to assist his incapacitated wife in matters that exceeded
her medical needs, the guardianship order actually limited his powers in
regard to medical decisions. As a result, Mrs. Crake was intubated and
subject to care that her family believes she would have rejected based
on her condition, even though all of Mrs. Crake's family members were in
agreement with Mr. Crake that their wife/mother/sister would not want
life-sustaining measures to be undertaken.
This situation is
exactly what the legislature set out to prevent with the enactment of
the FHCDA. The legislature recognized that these personal decisions are
best left to the families of incapacitated individuals. According to the
legislature, the trial court "must protect itself from inappropriate
involvement in a life-sustaining medical treatment case and should
decline jurisdiction if there is no justifiable controversy." See FHCDA,
A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y. 2009) (citing Memorandum in
Support of Legislation).
Even though Article 81 of the Mental
Hygiene Law specifies that personal needs decisions are subject to the
standards of the FHCDA, Mrs. Crake's case makes evident the conflict of
laws. The legislature intended that the provisions of the FHCDA provide
"responsible policies" for medical decisions for incompetent individuals
as well as a process to review cases and resolve disputes within health
care facilities, thereby eliminating the reliance on the courts except
in situations of last resort. The Department of Health issued
regulations that would further ensure that the standards of the FHCDA
are followed in health care facilities such as nursing homes.
Furthermore, the MOLST form was updated in June 2010 to align with the
standards of the FHCDA and, therefore, the standards for a health care
surrogate to complete a MOLST form are the same standards set forth in
the FHCDA. As such, based on the provision of the FHCDA that subjects
personal needs decisions made by guardians to the FHCDA, it is clear
that the FHCDA has provided the necessary safeguards and procedures to
ensure that decisions regarding life sustaining treatment are properly
made at health care facilities without the intervention of the courts.
Although
the statute purports to make the requirements clear, the misapplication
of the clear and convincing standard with the best interests and
medical standards of the FHCDA by some courts across the state evidences
the fact that New York courts need further guidance on this issue. It
is necessary that the legislature make clear the correct standard to be
applied in the circumstances where an Article 81 guardian makes a
decision regarding life-sustaining treatment.
As evidenced by the
enactment of statutes such as the Family Health Care Decisions Act and
the guardianship statutes, New York has taken extensive measures to
ensure that individuals' wishes are appropriately carried out when they
are no longer able to make decisions on their own behalf. To ensure that
incapacitated individuals are extended the protections that the
legislature recognized were necessary, it is essential that the courts
be provided further guidance to ensure these standards are uniformly
applied across the state.
Full Article & Source:
End-of-Life Decisions for Incapacitated Adults: Caught Between a Conflict of Laws
