NYU Doctor Prevails on Appeal in Life-Support Case

MANHATTAN (CN) – Affirming an order to pull a mentally disabled octogenarian off life support, an appeals court ruled Thursday that the patient’s prior capacity to make health care decisions had little bearing on the case.

Even though New York’s Public Health Law mandates consideration of a competent person’s wishes before any end-of-life decision is made, the five-judge panel of the New York Supreme Court’s First Judicial Department found that a less stringent provision of the Surrogate’s Court Procedure Act fit the bill for the patient here, identified in the ruling only by the initials M.G.

“In our view … any perceived disparity in the treatment of an intellectually or developmentally disabled person who formerly had some capacity to make health care decisions and the treatment of non-disabled persons is rational,” Judge Dianne Renwick wrote for the panel. “The Legislature has made the policy decision that while some intellectually and developmentally disabled persons may be higher-functioning than others, only mentally competent, non-disabled individuals have the full capacity to appreciate the consequences of the decision to end their life and, thus, that intellectually and developmentally disabled persons are not similarly situated to those who were once competent and may be treated differently with respect to an end-of-life decision. Such disparate treatment furthers a legitimate state interest.”

The dispute arose in December 2016, about a week after NYU attending physician Mark Sloane determined that 80-year-old M.G. had no hope of recovery following a cardiac event that left him in a permanent vegetative state with multiple organ failures.

M.G. only had an IQ of 47 before his catastrophic illness, but he had lived up until that point without a guardian at a group home for the developmentally disabled.

Though there was no evidence that M.G. had ever talked to anyone about his preferences for life-sustaining treatment, New York’s Mental Hygiene Legal Service, an agency that advocates on behalf of individuals receiving services for a mental disability, filed an objection when Dr. Sloane petitioned to withdraw M.G.’s life support.

The MHLS said a court was duty-bound to conduct an inquiry of M.G.’s end-of-life issues.

On Dec. 27, 2016, Justice Nancy Bannon sided with Dr. Sloane, saying the disparate statutory application that occurred here was relevant to a “legitimate [government] interest in advancing the right of [intellectually and developmentally disabled] persons to be free from prolonged suffering.”

M.G. died within hours of losing life support, but Judge Renwick noted that the appeal deserved resolution here since “this issue will likely recur and will otherwise evade appellate review.”

Judges John Sweeny, Peter Tom, Angela Mazzarelli and Jeffrey Oing concurrd in full while Judge Peter Tom concurred in a separate opinion.

“I would hold that in order to establish that a guardian has complied with the obligations and decision-making standard under SCPA 1750-b, he or she must comply with the mandates of the SCPA 1750-b and inform the court of the factors that were considered in the best interests analysis, the person’s wishes, or the efforts made to ascertain the person’s wishes, and, to the extent wishes were ascertained, their impact on the best interests analysis,” Tom wrote.

Sloane was represented by Allan Silver of the Rochester firm Abrams Fensterman.

Representatives for the Mental Hygiene Legal Service did not immediately respond to request for comment.

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