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Life and the Law in New York State
In the 1980s, a series of NYS Court of Appeals cases created a
disturbing body of case law in regard to decision making for incapacitated
patients. In 1981, a pair of cases were decided together
(Eichner/Storar).
From this point on, the Court has held to the position that NYS law
demands a competent refusal in order to forgo life sustaining treatment.
Never competent adults (like John Storar, a 52 year old profoundly
retarded man with bladder cancer) would be forced to endure ANY
treatment, if deemed "life sustaining." If a previously competent patient
were fortunate enough to anticipate the EXACT treatment to refuse
in advance (like Brother Fox in Eichner), that would be honored. If not
however, there could be no substituted judgment. That view was upheld in
the 1989 O'Connor case,
which also set the evidence standard at "clear and convincing" (the
highest civil standard available).
Even jurists who concurred with the O'Connor opinion,
such as Judge
Stewart F. Hancock Jr, felt the Storar precedent left them no choice,
but that it
was seriously deficient. In his concurring opinion, Hancock wrote: "In
my view, however, there are serious deficiencies in Storar, making it
particularly unrealistic and
unsatisfactory for deciding cases involving circumstances more extreme
than those presented here. I believe that a critical need exists for a
change in the present New York rule -- either through legislative action
or judicial decision," and went on to describe the New York rule as,
"unrealistic,
often unfair or inhumane and, if applied literally, totally
unworkable." Judge Hancock later wrote (in another concurring
opinion)
in Elbaum
v. Grace Plaza:
"There could be few more compelling demonstrations of the need for
legislative change than the history of this prolonged struggle over the
continuance of gastrointestinal feeding between a nursing home and the
family of an irreversibly comatose and hopelessly ill elderly woman."
In 1992, the
New York State Task Force on Life and the Law published When Others
Must Choose; deciding for patients without capacity. This report
included a legislative proposal for surrogate decision making in those
cases where the patient has not (or could not) execute a Health Care
Proxy. The legislation (with some modifications) was introduced in the
Assembly soon thereafter.
The Task Force on Life and the Law has been recognized as the model of
sound public policy study of important issues of life and death. The Task
Force members include leaders in the fields of law, medicine, nursing,
philosophy and bioethics, as well as patient advocates and representatives
of diverse religious communities.
The Task Force's reports and recommendations have been cited in a number
of important federal and state court decisions, including decisions by the
United States Supreme Court and the New York Court of Appeals. The Task
Force has provided a sane voice in the debate over assisted suicide with a
1994 report:
When Death is Sought opposing
assisted suicide, and a 1997
Supplement that reinforces that opposition to euthanasia and assisted
suicide.
Read more about the Task Force
activities on the Department
of Health website.
One issue which has been part of the debate is the question of artificial
hydration and nutrition. This is a complex issue that is not easily
resolved by slogans and simple answers. A full discussion of this issue
is available on this site: Artificial Hydration and
Nutrition page
A literacy study done at Sarah Lawrence
College is summarized here. The Health Advocacy Program at the college
conducted the study and feels the data reinforces the need for FHCDA type
legislation in NYS.
For more information, E-mail Family Decision Coalition
For questions about website, E-mail Jack Freer
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