THE CLINICAL, LEGAL, AND

ETHICAL CONTEXT

CHAPTER 4

DECISIONS AT LIFE'S END: EXISTING LAW page 49

New York law distinguishes between four types of practices

that can arise at the end of a person's life: the withdrawal and

withholding of life-sustaining treatment, whether based on the

consent of patients or others close to them; suicide; assistance to

commit suicide; and active euthanasia. The laws governing each of

these practices reflect a judgment about the appropriate balance

between individual autonomy and society's interest in preventing

harm. At one end of the spectrum, the law covering treatment

decisions embraces individual autonomy as its central concern,

granting competent individuals a broad right to refuse medical

treatment necessary to sustain their lives. Decisions about suicide

and euthanasia fall at the other end of the continuum, where the law

constrains individuals' actions for their own benefit and for the

sake of the common good. Societal limits on suicide are reflected

in laws that prohibit assisted suicide and euthanasia, regardless of

the individual's consent. Likewise, while it is no longer illegal

in New York State to commit suicide, there is no "right" to commit

suicide as a matter of constitutional or common law.

The Right to Decide About Treatment

Under New York law, competent adults have a firmly established

right to accept or reject medical treatment. This right includes

the right to refuse medical interventions necessary to prolong the

patient's life. The New York Court of Appeals, the state's highest

court, first enunciated this principle in a 1981 decision, In re

Eichner.(1) While the Court of Appeals in Eichner based its decision

on the common-law right to refuse treatment,(2) it later recognized

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(1) 52 N.Y.2d 363, 438 N.Y.S.2d 266 (authorizing the withdrawal

of a respirator from an 83-year-old permanently unconscious man

who had clearly expressed his opposition to the artificial

prolongation of his life), cert. denied, 454 U.S. 858 (1981).

(2) For an early articulation of this common law principle, see

Schloendorff v. Society Of Ny Hosp., 211 N.Y. 125, 129-30,105

N.E. 92 (1914) (Cardozo, J.) ("[E]very individual of sound

mind and adult years has a right to determine what should be

done with his own body.").

page 50 WHEN DEATH IS SOUGHT

that "[t]his fundamental common-law right is coextensive with

the patient's liberty interest protected by the due process clause

of [the New York State] Constitution."(3) In Cruzan v. Director,

Missouri Department of Health,(4) the United States Supreme Court

similarly concluded that the right to refuse treatment is a

protected "liberty interest" under the due process clause of the

United States Constitution.

Courts have identified several state interests that, in

theory, could overcome a patient's right to refuse life-sustaining

treatment in a particular case. Most often, courts have mentioned

the state's interest in preserving life, preventing suicide,

protecting third persons, and maintaining the ethical integrity of

the medical profession.(5) In cases decided to date, however, the

competent patient's right to refuse life-sustaining treatment has

generally prevailed over these interests.(6) Moreover, the New York

Court of Appeals has expressly held that the right to refuse

life-sustaining interventions should prevail even when the patient

is not terminally or hopelessly ill.(7)

In New York, as in all other states, competent adults have the

right to create advance directives regarding treatment decisions,

including life-sustaining measures, to be used in the event they

lose the capacity to make medical decisions for themselves. The

most comprehensive type of advance directive is the "health care

proxy," also known as the "health care durable power of

attorney."(8) By executing a health care proxy, adults can

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(3) Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 78 (1996).

(4) 497 U.S. 261, 1 10 S. Ct. 2841 (1990).

(5) See, e.g., In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987).

In Farrell, the court concluded that these state interests did

not outweigh the right of a competent, paralyzed patient to be

disconnected from the respirator that sustained her breathing.

(6) See, e.g., Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.Y.S.2d

876 (1990) (upholding the right of a 36-year-old pregnant

patient to refuse blood transfusions following a Cesarean

section delivery despite the fact that the patient was

responsible for the care of her infant).

(7) Ibid, The New Jersey Supreme Court, when first confronted

with this issue, suggested that the patient's tight to refuse

treatment is weaker when the chance of recovery is great and

the invasiveness of the treatment is minimal. See In re

Quinlan, 70 N.J. 10, 355 A.2d 647, 664, cert. denied sub nom.

Garger v. New Jersey, 429 U.S. 922 (1976). In In re Conroy, 98

N.J. 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme

Court rejected this formulation.

(8) N.Y. Public Health Law, Article 29-C (McYinncy 1993).

See generally New York State Task Force on Life and the Law,

Life-Sustaining Treatment: Making Decisions and Appointing a Health

Care Agent (New York: New York State Task Force on Life and the

Law, 1987) (providing social, ethical, and legal background to New

York's health care proxy law); see also New York State Department of

Health, The Health Care Proxy Law: A Guidebook for Health Care

Professionals (New York: New York State Department of Health,

1991)(explaining key provisions of the health care proxy law).

CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 51

delegate to a trusted individual (referred to as an "agent")

the authority to make health care decisions in the event of a future

loss of capacity.

New York's health care proxy law permits adults to grant an

agent the authority to make some or all treatment decisions,

including decisions about life-sustaining measures. Under the law,

the agent must decide in accord with the patient's wishes, if they

are reasonably known, or, if they are not reasonably known, in

accord with a judgment about the patient's best interests. The only

exception applies to decisions about artificial nutrition and

hydration. If the agent does not have reasonable knowledge of the

patient's wishes about these measures, the agent cannot decide about

them. Health care professionals must honor decisions by the agent

to the same extent as if they had been made by the patient, and they

are protected from liability for doing so.(9)

In addition to appointing a health care agent, adults can also

provide specific advance instructions about treatment, commonly

known as a "living will." A living will contains treatment

instructions to be followed in the event the individual becomes

incapable of making decisions directly. Unlike health care proxies,

living wills usually apply only to life-sustaining treatment. While

New York does not have a statute governing living wills,(10) the New

York Court of Appeals has indicated that living wills can provide

the basis for withdrawing or withholding life-sustaining measures if

the instructions qualify as "clear and convincing evidence" of the

patient's wishes.(11) Advance oral instructions can also satisfy the

clear and convincing evidence standard, provided they are

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(9) Under the health care proxy law, hospitals and other health

care facilities must provide patients with a health care proxy

form and information about creating a proxy. See N.Y. Public

Health Law 2991 (McKinney 1993). In addition, the federal

Patient Self-Determination Act requires health care facilities

to notify patients of their rights under state law to create

advance directives. See 42 U.S.C. 1395cc(f) (1992).

(10) Forty-seven states and the District of Columbia have

enacted living all statutes that delineate the circumstances

under which living wills are valid and set forth the rights and

obligations of patients and health care providers under the

documents. See Choice in Dying, Refusal of Treatment

Legislation (1991 & Supp.). The states without living will

legislation are Massachusetts, Michigan, and New York. Ibid.

(11) See In re Westchester County Medical Center (O'Connor), 72

N.Y.2d 517, 531, 534 N.Y.S.2d 886, 892 (1988).