The right to die versus the right to live, who decides? The long and wandering road to a legislative solution.

• Author: Mazzeo, Kathryn E.
• Position: New York

1. INTRODUCTION

   The decision whether or not to remove life-sustaining treatment is an important factor in determining when and how a person's life comes to an end. For terminally ill patients, the right to refuse medical treatment is often termed the right to die. The issue becomes more complicated, however, when patients are not competent to make their own medical decisions. Incompetence can be the result of a developmental disability such as mental retardation, or it can be the outcome of a medical condition such as one sustained from a car accident, from a complication of surgery, or from the progression of a disease.

   In Cruzan v. Missouri Dep't of Health, (1) the United States Supreme Court held that a state could require clear and convincing evidence of the patient's wishes to be shown in order to allow close family members to make medical decisions for an incapacitated patient. (2) Nancy Cruzan had been seriously injured in a car accident and was in a "persistent vegetative state." (3) When it became apparent that there was no hope for recovery, Nancy Cruzan's parents requested termination of her nutrition and hydration. (4) After the hospital refused their request, they sought review by the state trial court. (5) The trial court granted their request, (6) but the Missouri Supreme Court reversed. (7) The United States Supreme Court affirmed the Missouri Supreme Court's decision that the parents had failed to show by clear and convincing evidence that their daughter would have desired to have life-sustaining treatment withdrawn under these circumstances. (8) The Supreme Court's holding gave states free reign to regulate these decisions for their citizens. In the years following Cruzan, every state enacted legislation that allowed their citizens to use advance health-care directives--such as the health-care proxy. (9) The scope of the freedom to decide the fate of incapacitated loved ones remains a state based decision. (10) Unfortunately, this has led to "a system of fragmented, incomplete and often inconsistent legislation, both among states and within single states." (11)

   This comment discusses both current New York statutes and case law that applies to advance health-care directives. (12) Second, presently pending legislation is discussed, which, if enacted, will alleviate restrictions for all families of incapacitated, terminally ill people. (13) This section discusses pending legislation that would apply to all New Yorkers (14) and the legislation specifically tailored to mentally retarded or developmentally disabled individuals--which has just recently been signed by the Governor. (15) This section explores the support for legislation tailored to mentally retarded individuals and the legislation's limitations. (16) Third, the Uniform Health-care Decisions Act (UHCDA) is examined as an alternative to New York's current and proposed law. (17) Part V discusses the laws of Connecticut, Massachusetts, and Maine to illustrate variances relating to this area of law within a small geographic region. (18) Finally, Part VI suggests recommendations for changing New York State law to benefit its citizens. (19)

2. NEW YORK STATE LAW

   New York's history reveals both a combination of common-law and statutory law that pertains to health-care decision making. For those whom have the capacity to make their own health-care decisions, the law recognizes the right to make medical decisions--including the refusal of life-sustaining treatment. (20) Even a person who has been involuntarily committed to a mental institution can have the capacity to make medical treatment decisions. (21) A patient's right to refuse life-saving medical treatment has been recognized by both the courts and the legislature. (22) New York, however, has not allowed families of patients, who lack capacity to make their own health-care decisions, the right to refuse treatment on behalf of their terminally ill family member. This problem is especially difficult for families of the developmentally disabled because in many instances, the developmentally disabled person never possessed the capacity to make health-care decisions, nor executed a health-care proxy. (23)

   1. Statutory Law

      In 1985, Governor Mario Cuomo convened the New York State Task Force on Life and the Law (Task Force). (24) The Task Force was charged with making recommendations on issues raised by medical advances such as the determination of death, the withdrawal or withholding of life-sustaining treatment, and the issuance of Do Not Resuscitate (DNR) orders. (25) The Task Force's early publications recommended legislation for DNR orders and health-care proxies. (26) Then, in 1992, the Task Force published their report and recommendations for legislation that would address the needs of those who lacked both the capacity to make their own health-care decisions and a health-care proxy. (27) To date, the New York legislature has enacted statutes that regulate the use of DNR orders and health-care proxies, but the legislature has yet to enact a statute applicable to the general population that addresses the needs of those who lack capacity to make their own health-care decisions and have not executed a health-care proxy.

      In 1987, New York passed a law governing the creation and use of DNR. (28) This law delineates how DNR orders can be obtained for individuals--ranging from those with capacity to make their own medical decisions to those incapacitated with no legal surrogate decision maker. (29) Guardians are not allowed to issue a DNR order for their principal unless there is clear and convincing evidence of the principal's wishes. (30) While this was an important step in addressing the needs of patients lacking capacity to make their own health-care decisions, its narrow scope related only to the use of cardiopulmonary resuscitation (CPR). (31) A more comprehensive statute is needed in light of the many other medical technologies that are used today for saving or extending a patient's life. (32)

      In 1990, New York enacted legislation that regulated the use of health-care proxies. (33) The first requirement for executing a health-care proxy is that the person must be a competent adult. (34) The health-care proxy is used to appoint a surrogate health-care agent for the principal should the principal become incapacitated in the future. (35) The principal may indicate any limitations to the agent's power and may specify what actions are to be taken should the principal become incapacitated or incompetent. (36) This is especially important if the principal wishes to have artificial nutrition and hydration withdrawn, otherwise the agent will not have the authority to make that decision unless the principal's wishes are known or can be reasonably ascertained. (37) Currently, under New York law, a developmentally disabled adult--like any other adult--is presumed competent to execute a health-care proxy so long as that person has not been adjudged incompetent, has not been adjudged incompetent to appoint a health-care agent, (38) or has not had a guardian appointed pursuant to New York's Mental Hygiene Law (39) or New York's Surrogate's Court Procedure Act. (40) The statute enables only some developmentally disabled individuals to take advantage of this law. In Matter of Robert B. Saunderson II, (41) a judge declined to appoint a guardian to make health-care decisions for Robert II, a developmentally disabled adult with an I.Q. between 60-70, because he was not incapacitated under Article 81 of New York's Mental Hygiene Law. (42) A hearing had been scheduled to determine if Robert II could consent to having a guardian appointed for his health-care decisions, but instead, Robert II executed a health-care proxy designating his parents as his health-care agents. (43) After reviewing Robert II's health-care proxy, the judge decided that because Robert II's actions had fulfilled the legislative intent to give those with diminished capacity the ability to act with self-determination and independence, it was determined that Robert II was able to understand the consequences and no further court action was required. (44)

   2. Common-law

      Those who fall outside the scope of New York's statutory law must look to the common-law for protection. If an individual is incapacitated and does not have a health-care proxy, the patient's wishes regarding the removal of life-sustaining treatment are subject to judicial review. (45) The court will allow the treatment to be stopped if it is persuaded by clear and convincing evidence that the patient's wishes were to withhold life support under the patient's current circumstances. (46) This, however, can be an exacting standard. For example, in In re O'Connor, (47) the patient became severely incapacitated by a stroke, yet the patient remained conscious and awake. (48) Evidence of the patient's prior competent wishes needed to pertain "qualitatively" to the same type of illness and treatment that the patient was then enduring. (49) The New York Court of Appeals gave little consideration to the prior competent statements of the patient's wishes regarding her distaste for life-sustaining treatment. (50) The court instead reasoned that a strict standard--such as clear and convincing--was required for end-of-life decisions in New York. (51)

      Although New York does not have a living-will statute, (52) the courts in New York consider a person's living-will an "ideal situation" when looking for clear and convincing evidence of a person's prior competent wishes. (53) A living-will that contains a person's written wishes suggests that the person has seriously considered the issue, and, thus the living-will provides the court with the security that the person's wishes were more than just casual remarks. (54) Even a living-will, however, is subject to the court's scrutiny to ensure that the person's prior wishes were intended to apply to the situation at hand. (55) For...