It May Be the Law, But Not Everyone Likes It: The Authority of a Health Care Agent to Make Health Care Decisions By Miriam Davidson

Prior to the Supreme Court's decision in Cruzan v. Commissioner, Missouri Department of Health, 497 U.S. 261 (1990), New York did not have a healthcare decisionmaking law. Following Cruzan, New York enacted legislation granting competent adults the authority to appoint health care agents, and granting guardians for incapacitated and mentally retarded adults the authority to make health care decisions for their wards. Given the much -publicized issues raised recently in the right-to-die case of Terry Schiavo, a brain-damaged woman whose guardian was permitted to remove her feeding tube in accordance with Florida law, and the similar polarizing effect on the country that the Cruzan case had in its time, it may be instructive to look back at the Cruzan decision and how our society has evolved in its beliefs about medical decisionmaking authority.

In 1983, Nancy Cruzan, a 25-year-old married woman living in Joplin, Missouri, was involved in a one-car collision that left her in a persistent vegetative state. Doctors expressed the opinion that she had no hope of recovery. Her parents were appointed her co-guardians, and they obtained a divorce for their daughter, without objection from her spouse. Nearly five years later, her parents, with the approval of Nancy's siblings, petitioned the probate court for permission to remove her feeding tube. The Missouri Department of Health objected, claiming that under the Missouri Living Will Law adopted in 1985, a procedure to provide nutrition and hydration was not considered a 'medical treatment', therefore a person could not use a Missouri Living Will to refuse food and water provided through a tube. In other words, a Missouri citizen, even one with a Living Will, had no right to refuse food and water.

The Missouri law was modeled after the Model Health Care Consent Act of 1982 which was drafted by the National Conference of Commissioners of Uniform State Laws. It differed significantly, however, in that it emphasized the legislative desire to protect life, and explicitly stated that "this law does not condone, authorize, or approve mercy killing or euthanasia nor permit any affirmative or deliberate act or omission to shorten or end life." See, Colby, William H.. Long Goodbye. The Deaths of Nancy Cruzan, Hay House, Inc. (© 2002) p. 92.

The impetus for the Model Health Care Consent Act was the increase in survival of patients with traumatic brain injuries as a result of technological advances in accident-site resuscitation, including such procedures as closed chest massage, cardiopulmonary resuscitation (CPR), portable respirators, intravenous fluid injections and medicines delivered in the field. Long Goodbye, p. 34. Accident, stroke or heart attack victims resuscitated in the field after being without oxygen for periods in excess of six minutes likely suffer extensive brain injuries, culminating, for some, in a persistent vegetative state, a relatively new syndrome defined in 1972 by Drs. Plum and Jennett in the medical journal The Lancet. Long Goodbye, p. 130.

A persistent vegetative state refers to a condition in which an individual has lost cognitive neurological function and awareness of the environment but retains non-cognitive function and a pre-served sleep-wake cycle. In the persistent vegetative state, the individual loses the higher cerebral powers of the brain, but the functions of the brainstem, such as respiration and circulation, remain relatively intact. Spontaneous movements may occur and the eyes may open in response to external stimuli, but the patient does not speak or obey commands. Patients in a vegetative state may appear somewhat normal. They may occasionally grimace, cry, or laugh. See, Healthlink, Medical College of Wisconsin, http://healthlink.mcw.edu/921394859.html.

In the Cruzan decision, the Supreme Court recognized a right of a competent individual to decide all aspects of his or her own health care in all circumstances, including the right to decline heath care or to direct that health care be discontinued, even if death ensues as a result. Under federal law, a competent individual can execute a directive in advance of his or her medical need for one. In January 1991, in response to the Cruzan decision, the New York Health Agents and Proxies Law, Article 29-C of the Public Health Law, went into effect. Public Health Law § 2981 states that a competent adult (the principal) may appoint a health care agent to make medical decisions on his or her behalf. An agent is appointed pursuant to a form called a Health Care Proxy. The Health Care Proxy becomes effective when the principal lacks capacity to make health care decisions. The Health Care Proxy may include the principal's wishes or instructions about health care decisions and limitations on the agent's authority. The principal must sign and date the document in the presence of two witnesses (neither of whom may be the agent) who also sign and date the document. A competent principal who is unable to sign may request another person to sign and date the document at his or her direction.

Unlike the legislation involved in the Cruzan dispute that prohibited even competent adults from refusing nutrition and hydration, the New York law permits an agent to refuse artificial hydration and nutrition (provided by feeding tube or intravenous line) if the agent knows the principal's wishes from what the principal has said to him or her, or what the principal has written. The New York Health Care Proxy legislation does not mandate the use of specific language. Careful practitioners, however, recommend that the principal state that he or she does not wish artificial nutrition and artificial hydration, if this is the principal's wish, since both the Cruzan and Terry Schiavo cases demonstrate that having a feeding tube inserted is far simpler than having it removed. The agent is obligated to make his or her decisions based on the principal's wishes, so a principal wishing to refuse artificial hydration and nutrition should be encouraged to state this in the document, in order to bolster the agent's position.

The principal may appoint an alternate agent. The principal may also provide for expiration of the agent's authority, either upon a specified date or upon the occurrence of a certain condition. If no such date or condition is set forth in the

Evolving Career Opportunities for Women Attorneys

NYWBA sponsored a free CLE program after its annual meeting in April, entitled: "Evolving Career Opportunities for Women Attorneys". The focus of the panel discussion was the question of where women attorneys have the best opportunities for success, a discussion near and dear to the heart of many of us. Our panelists, whom we thank heartily, included Professor Marina Angel of Temple University, a winner of the 2004 ABA Margaret Brent Women Lawyers of Achievement Award; Deborah Epstein Henry, the Founder and President of Flex-Time Lawyers LLC, who was named 2004 Pennsylvania Lawyer on the Fast Track by American Lawyer Media; Carol M. Kanarek Esq., a former Wall Street lawyer who is now a Consultant with Legal Career Management; and Kathryn J. Rodgers Esq., the President of Legal Momentum (formerly known as the NOW Legal Defense and Education Fund). The discussion was moderated by our own Brenda Pomerance, who is in private practice here in Manhattan.

Many thanks to the speakers at our April 21, 2005 CLE Program pictured above with former President Beth Bryson (in the middle); from left to right, they are: Prof. Maria Angel, Deborah Epstein Henry, Kathryn J. Rodgers, and Moderator Brenda Pomerance (not pictured - Carol M. Kanarek). They Had a Ball continued from page 6 sit down until the band broke. "Who knew she could dance" was most often heard the morning after.

In addition to those previously mentioned, our board member - always a convention regular - Marjorie Martin, former WBASNY President Meg Gifford and our Vice President Lisa A. Sokoloff were among the members from the New York Chapter who attended. The convention closed, as it always does, with the plenary session, during the continental breakfast on Sunday. Issues discussed included judicial raises, no-fault divorce, and other upcoming legislative issues. WBASNY President Andrew Phoenix, WBASNY Vice-President Elizabeth A. Bryson and WBASNV Immediate Past President Mindy Zlotogura (i. to r.) proxy, the proxy remains in effect until revoked. Copies of the proxy should be distributed to and discussed with the agent, as well as the principal's doctor, his or her attorney, and any other family members or friends who might have strong feelings about the matter.

In 1993, New York addressed the issue of health care decision-making for incapacitated persons on whose behalf a Guardian has been appointed under Article 81 of the Mental Hygiene Law. Mental Hygiene Law § 81.29(e) provides that "[n]othing in the article shall be construed, to either prohibit a court from granting or to authorize a court to grant, to any person the power to give consent for the withholding or withdrawal of life-sustaining treatment including artificial nutrition and hydration." The New York statute, however, defines life-sustaining treatment as "medical treatment which is sustaining life functions without which, according to reasonable medical judgment, that patient will die within a relatively short time period." M.H.L. § 81.29(e). By contrast, the Cruzan statute specifically stated that "any procedure to provide nutrition and hydration" was not considered medical treatment.

A decade later, the New York legislature addressed the issue of health care decisionmaking for the mentally retarded. On March 16, 2003, the legislature passed the Surrogate's Court Procedure Act Section 1750-b, which allows a guardian to make health care decisions for a mentally retarded person who is unable to make such decisions, including decisions to withhold or withdraw life-sustaining treatment. Procedural safeguards must be followed. The attending physician and another physician must confirm to a reasonable degree of medical certainty that the mentally retarded person lacks capacity to make health care decisions. In the case of a decision to withdraw or withhold artificially provided nutrition or hydration, the attending and consulting physicians must confirm that there is no reasonable hope of maintaining life, or that the artificially provided nutrition or hydration poses an extraordinary burden. The guardian's decision to withhold or withdraw treatment, nutrition or hydration must either be made in writing and witnessed or made orally to the attending physician and one other witness.

The U.S. Supreme Court recognized in Cruzan, the constitutionally protected right of a competent individual to decide all aspects of his or her own health care in all circumstances. The Florida court in the Terry Schiavo case applied federal and state law in its decision granting the guardian permission to withdraw life-sustaining treatment. Nonetheless, the upheaval in response to the Terry Schiavo case exposes a deep-seated ambivalence in our nation to laws which permit health care agents to withdraw food and nutrition from persons in persistent vegetative states.

Miriam Davidson, Esq., is the Co-Chair of the NYWBA Elder Law Committee. She is a member of the Elder Law and Trusts and Estates Sections of the New York State Bar Association, a Panel Member of the City Bar's Legal Referral Service, and a member of the National Academy of Elder Law Attorneys. In her practice, she handles estates and trusts, elder law and guardianship matters.