Health Care Decisionmaking and Declarations in New York

Elizabeth G. Clark, Esq.


Historical Legal Basis

The ability of an individual in New York to communicate his or her feelings regarding medical care is based on the common-law right of an individual to make decisions regarding his or her own body. This right is not limited to the ability to consent to treatment and an adult with capacity is generally entitled to refuse treatment or to have existing treatment terminated. [Schloendorff v. Society of New York Hospital , 211 NY 125 (1914); Matter of Eichner, 52 NY2d 363 (1981); see also New York Public Health Law Section 2803-c(3)(e)]. This right has been held to extend to mentally ill persons [Rivers v. Katz, 67 NY2d 485 (1986)] although there must then be a judicial determination of the patient's capacity to make decisions.

Compelling state interests may in certain circumstances override the individual's right to refuse treatment. New York generally recognizes four such interests:

Any state interest must be weighed against the individual right. Where an adult with capacity has made an informed decision, a state interest will rarely be found to override the individual right. [Fosmier v. Nicoleau, 144 AD2d 8 (2nd Dept 1989), right of adult patient with capacity to refuse blood transfusion; Rivers v. Katz, mental patient has right but must yield to compelling state interest if patient presents a danger to self or others.]

New York courts have drawn no legal distinction between the standard to be applied to a decision to withhold treatment or to one to withdraw or discontinue treatment. Even so, although it is generally felt that an individual who agreed to the institution of treatment could later have it stopped on the same basis on which he or she (or his or her agent) could have refused it initially, there is great confusion in this area on the part of both patients and practitioners.

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. 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.

Although it found the patient's interests to override those of the Home, the court did not simply order the Home and its physicians to remove the feeding tube. Instead, the court ordered:

In Matter of Delio v. Westchester County Medical Center, 129 AD2d 1 (2nd Dept 1987), the court found that an incompetent patient in a hospital had made sufficiently clear prior statements to constitute a decision made while competent to refuse food and water in his present condition. The court found the patient's interests in refusing treatment overrode all asserted state interests, including the ethical integrity of the medical profession. Since the hospital had stated at one point that it had an ethical objection to removing the feeding tube, but at another point had indicated it might be willing to remove the tube if ordered to do so by the court, the court, in an attempt to accommodate the facility, framed its order in the alternative, directing the hospital:

In neither case did the court address what would happen if the patient objected to a transfer.

There is no substituted judgment in New York except as specified in the Do Not Resuscitate law (DNR) and under the new Health Care Proxy law. [See Matter of O'Connor; Matter of Storar 52 N.Y.2d 363 (1981) (companion case to Matter of Eichner); see also exception for minors pursuant to 14 NYCRR Section 27.9(b) and the provision for Surrogate Decision-making Committees under Mental Law Article 80.]

In March, l992, the NYS Task Force on Life and the Law issued a report titled "When Others Must Choose: Deciding for Patients Without Capacity". This report recommends legislation to authorize surrogate decision-making in cases where a patient lacks capacity and has not appointed a health care agent, signed a health care declaration or made prior statements that meet the "clear and convincing" standard, and the DNR law does not apply. To date, no such law has been enacted even though one has been introduced in each of the past 3 legislative sessions.


Execution of Health Care Declarations

Although Health Care Declarations are not statutorily authorized in New York and, therefore, do not have independent legal status, they are recognized by New York courts as the best evidence of an individual's wishes concerning medical treatment in the event that treatment is proposed at a time when he or she cannot personally communicate those wishes.

There is no required form in New York for a Health Care Declaration but it is important that the document be sufficiently specific and unequivocal that it will meet the 'clear and convincing' evidence standard set by the O'Connor case and yet broad enough to cover unanticipated situations or treatments. In order to meet the O'Connor three-part test a Health Care Declaration should:


Communication of Intent

The execution of a Health Care Declaration should be accompanied by frank discussions with family members, doctors, nurses, religious advisors and even friends. Photocopies of the Health Care Declaration should be furnished to any or all of the above but particularly to all person(s) appointed as agent and to any doctors involved with the individual's care. Photocopies should also be furnished to any hospital or nursing home to which the individual is admitted. In this way, there will clearly be ample evidence of the individual's desires.

In addition, one of the primary reasons for making doctors and institutions aware of an individual's desires is to be sure that the individual's wishes will be honored by them. There is no substitute for choosing doctors and institutions sympathetic to the individual's preferences.

The Patient Self-determination Act (enacted as part of the 1990 Omnibus Budget and Reconciliation Act), effective November 1991, requires health care providers (primarily hospitals and nursing homes) to have institutional policies regarding advance directives. It also requires them to give patients information under state law and to document whether or not the patient has made an advance directive. The New York State Health Department has published a guide to the Health Care Proxy law and a sample form for the appointment of an agent that institutions should now give to all patients on admission.


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.

At present there are three primary approaches to this matter:


Virtually every state has at least one of these approaches and the number of states with more than one is increasing. According to information from Choice in Dying, the majority of states (and the District of Columbia) have statutes recognizing advance directives as valid expressions of an individual's desires for final care and treatment while many states and the District of Columbia have health care agent or durable power of attorney laws that permit agents to make medical decisions. Other states have court decisions, attorney general opinions or other statutes that indicate that the general legal power of attorney statute also permits agents to make medical decisions. A number of states and the District of Columbia have statutory surrogate decision-making provisions. Choice in Dying publishes a state by state compilation of enacted and model statutes. It can be contacted at 200 Varick Street, New York, New York 10014 (212-366-5540 or 5337), and can provide significant help and information in this area.

Although the laws vary from state to state, most

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.


Elizabeth G. Clark, Esq.
Hodgson, Russ, Andrews, Woods & Goodyear, LLP
1800 One M&T Plaza
Buffalo, New York 14203
(716) 848-1271
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