, Jan. 26,
2000, p. S-4, Jan. 26,
2000, p. S-4Robert N. Swidler, Chair of the NYSBA Health Law Section, is Corporate Counsel to Northeast Health, a system of hospitals, primary care centers, nursing homes, home care, and senior residences in New York's Capital District.
Health care professionals face this situation with depressing familiarity: a patient is terminally ill and not able to make decisions on her own behalf. Her physician can offer a range of treatments, from highly invasive procedures to modest steps, such as medications aimed at treating infections. These might extend her life by weeks or months; none will cure her deteriorating condition.
The patient, like most, did not leave a living will or appoint a health care agent. However, she does have family members who appear to be loving and concerned, and who seem to have her interests at heart. They ask the staff to try to keep her comfortable, to hold off on measures that will extend her dying process, and to let her go peacefully. They are confident she would want that. The attending physician and staff are comfortable with their decision from a professional and ethical standpoint.
I expect that most of would want to respect this family's difficult but reasonable decision. New York law does not. Rather, Court of Appeals rulings on end-of-life care require that, in the absence of "clear and convincing evidence" that the patient held a "firm and settled commitment" to refuse life-extending treatment under the circumstances, it is necessary to provide or continue those measures. [1] As a result, health care professionals often feel compelled to impose intrusive treatments on dying patients -- even in cases where the patient probably would have refused it, the family opposes it, and the physician feels it is medically inappropriate.
To be sure, physicians and hospitals -- and their counsels -- strive to apply New York's rule flexibly to avoid clinically intolerable results. They may accept as "clear and convincing evidence" the family's recollection of a patient's isolated, informal remarks. Or they may rule out certain treatments as "futile" because they would not restore the patient's health. But in the process, the participants face anxiety about legal liability, and they lose respect for the law.
The proposed Family Health Care Decisions Act (A. 4114) (Gottfried et al.), based on a proposal by the New York State Task Force on Life and the Law, would empower family members and others to authorize the withdrawal or withholding of life-sustaining treatment in carefully defined circumstances. Those decisions would have to be based on the patient's wishes and values, or best interests. The bill would also repeal much of New York's cumbersome statute on do-not-resuscitate orders, and make DNR decisions by family members subject to the principles that apply to other end-of-life decisions.
In addition, the bill would clarify the general authority of family members and close friends to consent to or decline treatment on behalf of an incapable patient. And it would provide a hospital-based process for securing a health care decisions for patients who lack capacity and who have no family or close friends.
Significantly, the bill would not authorize euthanasia (mercy killing) or physician-assisted suicide. Those are criminal offenses in this state and would remain so. [2]
This legislative proposal is not the only possible way to overturn New York's harsh rule. Indeed, a legislative or judicial decision that simply imposed a less exacting level of evidence of the patient's wish to forgo treatment than clear and convincing evidence would go far to relieving the problem (although it would not empower families to make end-of-life decisions for children and others who never had decisional capacity). But the Family Health Care Decisions Act has a range of merits, and appears to be the most promising approach from a political standpoint -- despite the fact that it has been stalled in the state legislature for several years. The Health Law Section formally supported the bill in 1997.
Members of the Bar can help address the problem of New York's harsh rule in a few ways. First, encourage your individual clients to consider completing health care proxies and/or living wills, or at least make their wishes about end-of-life treatment known to their friends and family. These advance steps will remove a great deal of legal and ethical uncertainty should such decisions arise.
[1] See In re Westchester County Med. Ctr. (O'Connor) 72 N.Y.2d 517 (1988); Matter of Storar, 52 N.Y.2d 363(1981).
[2] N. Y. Penal Law §125.15 (McKinney 1987)