Amendments to Article 17-A: Life-Sustaining Treatment
By
C. Raymond Radigan and Frank J. Gobes

(Published in The New York Law Journal on January 19, 2006)

 Laws of New York, 2005 Chapter 744 became law on Oct. 18, 2005. This law amends Surrogate's Court Procedure Act (SCPA) § 1750-a and expands § 1750-b to allow health care decisions to be made by the guardian of a developmentally disabled person, on behalf of the developmentally disabled person.

 Prior to this amendment, SCPA § 1750-b applied only to persons classified as mentally retarded and excluded persons classified as developmentally disabled. SCPA § 1750-b states that the health care decisions made by the guardian 'may include decisions to withhold or withdraw life-sustaining treatment.' Given that the latest amendments to SCPA Article 17-A are only three months old and can involve 'life and death' decisions by a guardian on behalf of his or her ward, this statute deserves our attention.

 Health Care Proxies, Living Wills

 Every competent adult in New York State can, and should, execute a health care proxy and living will in order to protect their rights with respect to medical treatment in the event that they should become incapacitated. With a health care proxy, the individual designates a health care agent, usually a close family member, to make health care decisions on the individual's behalf in the event that the individual becomes unable to make his or her own health care decision. Limitations on the agent's authority can be included in the proxy. The effectiveness of a health care proxy is protected by statute (New York Public Health Law, Article 29-C). With a living will, the individual publishes his or her directives and, as a result, furnishes clear and convincing proof of his or her wishes, regarding the withholding or withdrawing or life-sustaining treatment in circumstances of no reasonable hope of recovery or of regaining a meaningful quality of life after he or she sustains substantial and irreversible loss of mental capacity. The effectiveness of living wills in New York State is derived from a long line of case law.

 Surprisingly, recent studies indicate that only 10 percent to 15 percent of the adult population has signed a health care proxy, living will or other advance directive. The unfortunate consequence of failing to sign these advance directives is too often the furnishing of life-sustaining treatment resulting in continuing discomfort and pain even though there is no reasonable hope of recovery or of regaining a meaningful quality of life.

 Responding to the fact that so many competent adults fail to execute advance health care directives, legislation is pending in the New York State Senate. Bill No. 4296 was submitted to the Committee on Health on April 13, 2005 and again on Jan. 4, 2006. If passed, the law would be added to the New York Public Health Law as Article 29-CC entitled 'Family Health Care Decisions Act.' The intent of this proposed legislation is to 'establish [] a decision-making process whereby a surrogate is selected and empowered to make health care decisions for patients who lack capacity to make their own health care decisions and who have not otherwise appointed an agent to make health care decisions pursuant to Article 29-C of the Public Health Law or provided clear and convincing evidence of their treatment wishes.' (See Bill No. S4296). Included in this proposed legislation is a section regarding decisions about life-sustaining treatment for minor patients. Should this proposed legislation become law, it shall certainly be worthy of a future column.

 Mentally Retarded Persons

Mentally Retarded and Developmentally Disabled Persons.Mentally retarded and developmentally disabled persons who do not have the capacity to execute health care proxies or to provide clear and convincing evidence of their health care treatment wishes were, until recently, unable to have life-sustaining treatment withheld or withdrawn because there was no way to determine under what circumstances they would personally make such a decision had they the capacity to make their medical preferences. The inability to have life-sustaining treatment withheld or withdrawn sometimes brought horrific results.

For example, in a letter written to Governor George Pataki dated July 29, 2002 by NYSARC Inc. in support of then pending legislation (which was to become Law 2002, Chapter 500), NYSARC wrote, 'As typically devalued members of society, persons with mental retardation are either undertreated or, because of a gap in state law, they are subject to increasing instances of over-treatment, with barbaric consequences.... Instances of over-treatment are becoming all too familiar. The growing number of cases in which heroic medical treatment is forcibly administered, only serving to prolong the agony of death, is of enormous concern to families across the State.... Some cases, which have come to public attention, include the following:...Despite the shut down of her vital organs, violent seizures and projectile vomiting, the State cancelled a physician's hospice order for a young woman with mental retardation. Subsequently, she was forcibly fed through a G-tube causing her to choke to death on her own vomit. Again, her family looked on in horror, unable to refuse treatment which only prolonged her suffering.' (New York Bill Jacket, 2002 Senate Bill 4622).

 Law 2002, Chapter 500, effective March 17, 2003 as part of the 'Health Care Decisions Act for Persons with Mental Retardation,' is part of SCPA Article 17-A, added as § 1750(2) and § 1750-b, and provides clear standards for health care decision-making for mentally retarded persons with Article 17-A guardians. Perhaps as a precaution, the statute omitted from its coverage guardians of persons with developmental disabilities and, as a result, they remained powerless to make any life-sustaining treatment decisions on behalf of their wards.

  'Matter of Darnell Anthony'

 In Matter of Darnell Anthony, New York Law Journal, March 18, 2005, p. 26, col. 1 (Sur. Ct. Bronx Co.), Surrogate Lee L. Holzman stated,

 It is understandable that the Legislature would not want to extend the authority to make life-sustaining treatment decisions to every guardian appointed for a developmentally disabled person. With regard to the mentally retarded, the conventional wisdom is that there are tests that clearly indicate that a person is mentally retarded and that their ability to function can be predicted by the degree of retardation. By contrast, the classification developmentally disabled encompasses a much broader range of cognitive ability including, inter alia, disabilities attributable to 'cerebral palsy, epilepsy, neurological impairment, autism...(which) originates before such person attains age twenty-two' (SCPA § 1750-a). However, the Legislature was able to craft legal and medical safeguards to protect the rights of the mentally retarded while granting authority to their guardians to make life-sustaining treatment decisions so that they would not have to linger in an irrevocable state of anguish as the result of 'unnecessary' medical intervention. The same reasons compel that at least an attempt be made to enact similar legislation for the benefit of those developmentally disabled who never had, or will have, the capacity to articulate an opinion on the issue.

 This issue was referred to the Surrogate's Court Advisory Committee. Bill S. 5323 was passed and, with the signing of L. 2005, Ch. 744, guardians of developmentally disabled persons were granted the same amount of decision-making authority as previously granted to guardians of mentally retarded persons, provided that such developmentally disabled person has been certified by the physicians and/or psychologists specified in SCPA § 1750-b (1) as being incapable of managing himself or herself, and/or his or her affairs by reason of such developmental disability (See SCPA § 1750-a(2), as amended).

 Withdrawal of Treatment

Statutory Rights of the Mentally Retarded and Developmentally Disabled With Regard to the Withholding or Withdrawal of Life-Sustaining Treatment.Article 17-A, as amended, carefully guards the rights of the mentally retarded and developmentally disabled with regard to health care decisions including the withholding or withdrawal of life-sustaining treatment. Before a person can be classified as mentally retarded (SCPA § 1750) or developmentally disabled (SCPA § 1750-a), he or she must be certified as such by one licensed physician and one licensed psychologist, or by two licensed physicians at least one of whom is familiar with or has professional knowledge in the care and treatment of persons with mental retardation or developmental disabilities, respectively. Every such certification shall include a specific determination by such physician and psychologist, or by such physicians, as to whether the mentally retarded or developmentally disabled person has the capacity to make health care decisions (See SCPA § 1750(2) and § 1750-a(2), as amended by L. 2005 Ch. 744).

 When it shall appear to the satisfaction of the court that a person is a mentally retarded or a developmentally disabled person, the court is authorized to appoint a guardian of that person if such appointment is in his or her best interests (SCPA § 1750; § 1750-a). The court shall conduct a hearing on the issue of whether the appointment of a guardian is in the best interests of a mentally retarded or developmentally disabled person 18 years of age or older at which such person shall have the right to jury trial. Upon the application or consent of each parent, the court may in its discretion dispense with a hearing (SCPA § 1754(1)). If a hearing is conducted, the mentally retarded or developmentally disabled person shall be present unless it shall appear to the satisfaction of the court on the certification of the certifying physician that the mentally retarded or developmentally disabled person is medically incapable of being present or attendance would not be in the best interests of that person (SCPA § 1754(3)).

 If a hearing is dispensed with, or the mentally retarded or developmentally disabled person is not present at the hearing, the court may appoint a guardian ad litem or mental hygiene legal services attorney who shall personally interview the mentally retarded or developmentally disabled person and shall submit a written report to the court. (SCPA § 1754(4)).

 Decisions of Guardian

 The guardian of the mentally retarded or developmentally disabled person shall have the authority to make health care decisions on behalf of his or her ward only if the licensed physician and psychologist, or two licensed physicians, made a specific determination that the mentally retarded or developmentally disabled person did not have the capacity to make health care decisions. (SCPA § 1750-b(1)).

 The guardian shall base all advocacy and health care decision-making solely and exclusively on the best interests of the mentally retarded or developmentally disabled person and, when reasonably known or ascertainable with reasonable diligence, on his or her ward's wishes, including moral and religious beliefs. An assessment of the ward's best interests shall include consideration of: the dignity and uniqueness of every person; the preservation, improvement or restoration of the ward's health; the relief of the ward's suffering by means of palliative care and pain management; the unique nature of artificially provided nutrition or hydration, and the effect it may have on the ward; and the entire medical condition of the person. (SCPA § 1750-b(2)).

 SCPA § 1750-b(4) is devoted specifically to life-sustaining treatment. The guardian shall have the affirmative obligation to advocate for the full and efficacious provision of health care, including life-sustaining treatment. In the event that a guardian makes a decision to withdraw or withhold life-sustaining treatment from his ward, the ward's attending physician must confirm to a reasonable degree of medical certainty that the ward lacks capacity to make health care decisions. The confirmation must be in writing and include the cause and nature of the incapacity as well as its extent and probable duration. The attending physician who makes the confirmation shall consult with another physician, or a licensed psychologist, to further confirm the ward's lack of capacity. The attending physician, with the concurrence of the consulting physician, must determine with a reasonable degree of medical certainty and note on the ward's medical chart that the ward's condition is terminal (as defined by Public Health Law § 2961(23)) or permanent unconsciousness or a medical condition (other than mental retardation or developmental disability), which requires life-sustaining treatment, is irreversible and which will continue indefinitely and the life-sustaining treatment would impose an extraordinary burden on such ward, in light of such person's medical condition and the expected outcome of the life-sustaining treatment. In the case of a decision to withdraw or withhold artificially provided nutrition or hydration, the attending and consulting physicians must note on the medical chart that there is no reasonable hope of maintaining life or the artificially provided nutrition or hydration poses an extraordinary burden.

 The guardian shall notify the attending physician of a decision to withhold or withdraw life-sustaining treatment (SCPA § 1750-b(4)(c). The attending physician shall either promptly issue an order to withhold or withdraw life-sustaining treatment or promptly object to such decision (SCPA § 1750- b(4)(d)). In the event of an objection to such decision by the attending physician or others, including the ward on whose behalf such decision was made, a parent or adult sibling of the ward or any other health care practitioner providing services to the ward, the decision to withhold or withdraw life-sustaining treatment shall be suspended, pending judicial review, except if the suspension of the decision would in reasonable medical judgment be likely to result in the death of the ward (SCPA § 1750-b(5)).

 Conclusion

 Recent legislation has given SCPA Article 17-A guardians the authority to make life-sustaining treatment decisions on behalf of their wards, the mentally retarded and developmentally disabled. The legislation, and its history, reveals that great efforts have been made to insure that proper safeguards are in place so that decisions are made solely and exclusively on the best interests of the mentally retarded and developmentally disabled persons.

 C. Raymond Radiganis a former surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek. He is also chairman of the advisory committee to the Legislature on estates, powers and trusts law and the Surrogate's Court Procedure Act.Frank J. Gobesis a senior associate at Ruskin Moscou.

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