Health Care Decisionmaking and Declarations in New York
"...In the case of artificial nutrition and hydration, the New York Department of Health issued a Memorandum (#89-84 dated 10-20-89, "Honoring a Patient's Wishes for Nutrition and Hydration") that makes it clear that the requirements of state law to provide suitable and sufficient nutrients for patients do not require a nursing home to provide a patient with such nutrients and fluids when there is clear and convincing evidence that the patient wishes to refuse such care and understands the consequences of such refusal. Said memorandum specifies the precautions and procedures to be followed to be followed in regard to either withholding or withdrawal of adequate nutrition and hydration, without distinction between what is required in either case.
Although New York has no statutory law regarding advance directives other than its Health Care Proxy law, discussed earlier, its courts have also consistently upheld the right of an adult without capacity to have medical treatment withheld or withdrawn when there is evidence that the individual made statements setting forth his or her intent in regard to treatment while he or she had capacity.
New York requires, under Matter of O'Connor, 72 NY2d 517 (1988), that the evidence of such intent be clear and convincing. It must indicate that the individual, if he or she now had capacity, would wish to forego this type of treatment, in his or her particular circumstances. The evidence must also be such as to demonstrate that this was a firmly held (not casual) decision. Under Cruzan v. Director, Missouri Dept. of Health, 497 US 26l, 111 L.Ed2d 224, (1990), the Supreme Court has said that a state can require that evidence meet such a standard.
Although the O'Connor court said that written evidence is best, the required evidence does not have to be in the form of a document executed by the patient but can be based upon oral statements made by the patient to others that indicate his or her desires. (see Matter of Eichner, supra.)
Where an incompetent patient has made no prior statements and has not appointed a health care agent (or was never competent) a facility must maintain and treat that patient in accordance with accepted medical standards (except for CPR if there is a valid DNR order in effect).
Under New York law, the appointment of an agent for legal affairs by a power of attorney does not (and cannot) give the agent the authority to make health care decisions. Family members also have no legal right to make such decisions for the patient in the absence of evidence of the patients previously expressed wishes although physicians and institutions have traditionally looked to them for decisions and may in some cases follow their wishes.
b>A Conservator for an individual has no right to make medical decisions although a Committee appointed for an incompetent patient may make medical decisions to authorize, but not withhold, treatment. [see Matter of Storar, 52 NY2d 363 (1981) (companion case to Matter of Eichner.]
As of April 1, 1993, New York has a new Guardianship law (replacing the prior Conservator and Committee laws) under which the Guardian may be granted full medical decision-making powers (other than the power to withhold or withdraw artificial nutrition and hydration absent evidence of the patient's previously expressed wishes in that regard).
New York courts have granted orders directing nursing homes and hospitals to remove feeding tubes based on a patient's prior statements while competent. Elbaum v. Grace Plaza of Great Neck, 148 AD2d 244 (2nd Dept 1989) involved an incompetent patient being fed with a feeding tube in a nursing home whom the court found had made sufficient statements while competent to constitute a firm and settled decision to refuse food and water. The court found that the patient's right to refuse treatment outweighed all asserted state interests, including the "perceived ethical integrity of Grace Plaza." In so finding, the court emphasized that the nursing home had failed to make its policy known to the patient prior to her admission..." and
Validity in Other States.
"Given the mobility of our society, it is extremely likely that an individual who executes a Health Care Declaration could be a resident of, or traveling through, another state at the time a medical decision had to be made. While it would, therefore, undoubtedly be desirable to have a national approach to this issue, such is not presently the case and we must be prepared to deal with the legislative or judicial solutions of the various states. In fact, in the Cruzan decision, while acknowledging that each competent individual has a constitutional liberty interest to be free of unwanted medical treatment, the Court left the issue of how to regulate this right for incompetent patients up to the states..."
and
"...Although the laws vary from state to state, most
- define the condition the patient must be in for either the health care declaration to become effective or the agent or surrogate to be empowered to make decisions on the patient's behalf,
- define the type of treatment that can be foregone,
- require certain certification procedures to ensure that the patient is in the requisite condition, and
- define who can serve as agent or have surrogate decision- making authority.
An individual may not wish to limit the circumstances under which medical treatment could be withdrawn or withheld to those provided in the law of the particular state in which he or she resides at the time of execution. For example, Florida law limits withdrawal of medical treatment to situations where the patient has a "terminal condition" and death is "imminent". As a result, language such as the following is found in many forms:
"If at any time I should have a terminal condition and if my attending physician has determined that there can be no recovery from such condition and that my death is imminent..."
A terminal condition is defined in Florida law as a condition caused by injury, disease or illness from which, to a reasonable degree of medical certainty, there can be no recovery and which makes death imminent. The word "imminent", however, is not defined in the law. A Florida resident who wished treatment terminated even when he or she was not imminently terminal might not wish to include such limiting language in his or her health care declaration. Such individual should, however, be made aware of any limitations contained in Florida law that may affect the degree to which his or her wishes will be followed.
An individual may also not wish to limit the treatment to be withdrawn or withheld to the specific kinds set forth in a particular state law. Florida, for example, again, limits the application of its law to what are called to "life-prolonging procedures" which are defined in the law as "any medical procedure, treatment or intervention that (a) utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; (b) when applied to a patient in a terminal condition, serves only to prolong the process of dying".
That term could be more narrowly interpreted than the individual would wish and specifically does not include the provision of sustenance or the administration of medication or performance of any medical procedure deemed necessary to provide comfort care or alleviate pain but it does provide that sustenance can be included as a life-prolonging procedure where the patient has executed a declaration expressly authorizing the withholding of withdrawal of such, where the attending physician and one other physician document that sustenance in a life-prolonging procedure for that patient and that death is imminent, and where the patient's next- of-kin do not negate the decision to withhold or withdraw sustenance. Therefore, an individual who would want artificial nutrition and hydration withheld or withdrawn, should clearly say so and, in any case, it would be preferable not to rely on a term such as "life-prolonging procedure".
Clearly, it will be important that each individual give careful thought to these issues before executing any Health Care Declaration. It is important to make sure that his or her wishes are expressed in a way that is most likely to result in meeting the requirements of whatever state he or she is a resident or in which he or she may be receiving treatment at the time a decision has to be made so that his or her wishes will be honored, but without including language in the document limiting its application so it conforms to the requirements of the law of one particular state, if such restrictions are not what the individual desires.
Health Care Decisionmaking and Declarations in New York
There is a new proposed NY law, however, which may change all this.
Also, in my opinion, this presents good reason why it is a Federal issue. Post 221