End of Life Decision Making and Guardianship. The Question of Constitutionality.
This week, the New York Appellate Division, First Department (“First Department”) rendered a decision in the case of Matter of Sloane v. M.G., 2018 N.Y. App. Div. LEXIS 5750, 2018 N.Y. Slip Op 05800, affirming the decision of the trial court, which authorized the termination of life support for an intellectually disabled person.
Matter of Sloane revisits a question previously considered by the First Department in the Matter of Chantel Nicole R. (Pamela R.), 34 A.D.3d 99, 821 N.Y.S.2d 194 (1st Dept. 2006), namely, whether treating an intellectually/developmentally disabled person who previously had but subsequently lost the capacity to make health care decisions for themselves differently from a previously competent, non-disabled person, violates the equal protection rights of the intellectually/developmentally disabled person. The court in both Matter of Chantel Nicole R. and Matter of Sloane held that such differing treatment does not violate the intellectually/developmentally disabled person’s rights because individuals who are intellectually/developmentally disabled are not similarly situated to non-disabled persons who previously had capacity. Furthermore, the Surrogate’s Court Procedure Act (“SCPA”) 1750-b, which is part of SCPA Article 17-A which permits the court to appoint a guardian for an intellectually disabled person, was rationally related to a "legitimate [government] interest in advancing the right of [intellectually and developmentally disabled] persons to be free from prolonged suffering." Matter of Chantel Nicole R., 34 A.D.3d at 105.
In Matter of Sloane, M.G. was an 80-year-old man with a fullscale IQ of 47. Prior to his admission to the hospital, he resided for 35 years without a guardian in a community residence for developmentally disabled persons and had the capacity to make his own health care decisions. Upon admission to the hospital, M.G. suffered various medical emergencies which ultimately placed him in a permanent vegetative state, dependent on a ventilator, and non-responsive to verbal or noxious stimuli. In addition, M.G. suffered from multiple failures of the lungs, kidneys and brain. His attending physician opined that there was no meaningful hope of recovery. Matter of Sloane, 2018 N.Y. App. Div. LEXIS 5750, *4, 2018 NY Slip Op 05800, *2-3. M.G.'s cousin petitioned the Court as his SCPA 17-A Guardian to move M.G. to hospice and gradually withdraw life-sustaining treatment. She continued that, in light of the fact that neither she nor anyone else was aware of M.G.'s healthcare or end of life wishes, as well as M.G.’s vegetative state, multiple organ failures and absence of meaningful hope of recovery, such course of treatment was in M.G.’s best interest. Matter of Sloane, 2018 N.Y. App. Div. LEXIS 5750, *5-6, 2018 NY Slip Op 05800, 3.
Mental Hygiene Legal Services ("MHLS") moved to dismiss the petition, arguing that rather than proceeding under SCPA 1750-b, the court should proceed under Public Health Law Article 29-CC since M.G. previously had capacity to request treatment, and therefore, there should be a meaningful inquiry into what M.G.’s end-of-life wishes were, rather than using a "best interests" analysis, which would violate his equal protection rights. Matter of Sloane, 2018 N.Y. App. Div. LEXIS 5750, *6, 2018 NY Slip Op 05800, *3. M.G.’s doctor argued against conducting such an inquiry because M.G. was in a permanent vegetative state, lacked capacity to make health care decisions, was developmentally disabled with a full-scale IQ of 47, had no advanced directives in place and had not discussed his wishes with his guardian, who lived in Chicago, or anyone at his community residence. The court ultimately held that under these circumstances, it was clear that the best interest standard controls. The court also recognized that in promulgating SCPA 1750-b, the legislature intended the best interests standard to be a "patient-centered" approach. This requires the courts to explicitly deal with a patient's expressed preferences and wishes in conducting a best interests analysis. Matter of Sloane, 2018 N.Y. App. Div. LEXIS 5750, *36, 2018 NY Slip Op 05800, *12.
Matter of Sloane is interesting because it discusses important questions such as, “what is in the best interest of an individual?” and “at what point to we not follow an individual’s wishes in a society which promotes a person-centered approach to allowing an individual to self determine and make their own decisions?” Additionally, if a guardian is appointed under SCPA Article 17-A, the court has made the determination that the individual requires a guardian to make decisions for him or her. However, such a guardianship is not tailored to specific needs and the person in need of a guardian is not rendered incapacitated. This begs the question that, If a person is not incapacitated, what is their opinion and how do they feel regarding end of life decisions? At what point do they no longer have the ability to state what they want, and/or when does the guardian get to make the decision without taking into consideration that which the intellectually disabled person wishes? The best interest standard is difficult; the guardian and the court seek to do what is "best" for the individual, but what is really “best”? Matter of Sloane does not seek to answer these questions, but does make you take a closer look at your feeling toward end of life decision making and that of your family and friends.
In preparing for the possibility of having to make these hard decisions, a good planning tool is to create a life plan, living will, or other advance directions for your agent, if you have the capacity to appoint one, regarding your specific wishes are, so that there is no ambiguity as to what your wishes are. Further, if you are the Guardian of a person with a developmental disability, it is important that you speak with that individual and determine what, if any, wishes that person may have regarding healthcare and end of life decisions. It is important to have these conversations before something happens so that in the event of incapacity, everyone knows what the individual's wishes are.
So is it constitutional for a guardian to make end of life decisions under Article 1750-b? Yes, the court holds clearly, and upholds previous decisions that the guardian holds that power. What this case also clearly shows is that as we move closer toward person-centered planning and self-determination, the court wants to take into account what a person's wishes are and not have the guardian make a unilateral determination.