Who Should Make End-of-Life Decisions for the Most Vulnerable: the Incapacitated, Frail, and Terminally Ill?

Who Should Make End-of-Life Decisions for the Most Vulnerable: the Incapacitated, Frail, and Terminally Ill?

The Evolution of the End-of-Life Law in New York from the Tort of Battery to the New POLST Paradigm

(The paper is dedicated to the 100-year anniversary of Schloendorff v. Society of New York Hospital, 211 N.Y. 125 (1914), where Justice Cardozo made the famous statement that “[e]very human being of adult years and sound mind has the right to determine what shall be done with his body.”)

TABLE OF CONTENTS

Table of Authorities…………………………………………………………………..………2-4

Introduction……………………………………………………………………………..……  5

I. Background on the End-of-Life Law………………………………………………..………6

A.        The Law of Informed Consent as a Starting Point of End-of-Life Law……7

B.        The New York Statutory Law of Informed Consent………………………..9

C.        The Constitutional Foundation in Refusal to Withdraw Treatment Cases: The Journey from In re Quinlan to Cruzan v. Dir., Missouri Dep't of Health…….....11

II. Health Care Decision-Making by Competent Adults and the Incapacitated in New York….17

A.        Competent Patients Can Usually Determine the Course of their Treatment…….17

B.        Two Prominent New York Cases Involving the Incapacitated…………………..19

C.        Current New York Law………………………………………………………….25

1) Passage of the Health Care Agents and Proxies Law………………...25

2) Health Care Decisions Act for Persons with Mental Retardation (HCDA)...27

3) Family Health Care Decisions Act (FHCDA)…………………………...…30

III. Analysis of the Latest Trends in the End-of-Life Law in New York and Other States…...34

A.                A Gap between Medical-Legal Principle and the Reality of Medical Practice….35

B.                 New York State Should Fully Embrace the New POLST Paradigm………….....36

Conclusion……………………………………………………………………………………44

TABLE OF AUTHORITIES

Cases

Borenstein v. Simonson, 8 Misc. 3d 481 (N.Y. Sup. Ct. 2005)…………………25

Cruzan v. Mo. Dept. Health, 497 U.S. 261 (1990)……………………………..passim

Fiorentino v. Wenger, 19 N.Y.2d 407 (1967)…………………………………..8

Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990)…………………………………...17-19

Griswold v. Connecticut, 381 U.S. 479 (1965)………………………………...43

In re Guardianship of Chantel Nicole R., 34 A.D.3d 99 (1st Dep’t 2006)……27-28

In re M.B., 6 N.Y.3d 437 (2006)………………………………………………24, 27-30

In re Storar, 52 N.Y.2d 363 (1981)……………………………………………19-22, 24, 27

Matter of Quinlan, 70 N.J. 10 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976)…………………………………………………………………………6, 11-12, 19

Matter of Westchester Cnty. Med. Ctr. on Behalf of O'Connor, 72 N.Y.2d 517 (1988)…passim

Murriello v. Crapotta, 51 A.D.2d 381 (2d Dep’t 1976)………………………9

Retkwa v. Orentreich, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992)………………10

Salgo v. Leland Stanford Junior University Board of Trustees, 317 P.2d 170 (Cal. Dist. Ct. App. 1957)……………………………………………………………………………8

Schloendorff v. Soc'y of New York Hosp., 211 N.Y. 125 (1914), abrogated by Bing v. Thunig, 2 N.Y.2d 656 (1957)……………………………………………………………...7-9

Washington v. Glucksberg, 521 U.S. 702 (1997)………………………………5, 7

In re Zornow, 31 Misc. 3d 450 (N.Y. Sup. Ct. 2010), decision clarified, 34 Misc. 3d 1208(A) (N.Y. Sup. Ct. 2011)…………………………………………………………………...34

Constitutional Provisions, Statutes and Regulations

U.S. Const. amend. V ………….……………………………………………………6-7

U.S. Const. amend. XIV ……………………………………………………………6-7

N.J. Const. (1947), Art. I, par. 1……………………………………………………..12

N.Y. Pub. Health Law § 2504 (McKinney 2014)……………………………………10, 18

N.Y. Pub. Health Law § 2805-d (McKinney 2014)……………...…………………..10, 18

N.Y. Pub. Health Law §§ 2980-2994 (McKinney 2014)…………………………….25

N.Y. Pub. Health Law § 2982 (McKinney 2014)……………………………………26

N.Y. Pub. Health Law § 2994 (McKinney 2014)……………………………………31-32

N.Y. Pub. Health Law § 2994-d (McKinney 2014)………………………………….33

N.Y. Pub. Health Law § 2994-dd (McKinney 2014)………………………………...39-40

N.Y. Surr. Ct. Proc. Act Law § 1750-b (McKinney 2014)…………………………...29-30

10 NYCRR § 400.21 (2014)………………………………………………………….40

2014 NY REG TEXT 345626 (NS)…………………………………………………..41

Secondary Sources

Lisa Belkin, New York Rule Compounds Dilemma Over Life Support, N.Y. Times (May 12, 1992), http://www.nytimes.com/1992/05/12/us/new-york-rule-compounds-dilemma-over-life-support.html...................................................................................................................23

Compassion and Support at the End of Life, About Us Background and Mission, https://www.compassionandsupport.org/index.php/about_us.......................................42

Compassion and Support at the End of Life, Checklist for Adult Patients, MOLST Instructions and Legal Requirements Checklists for Adult Patients, http://www.compassionandsupport.org/index.php/for_professionals/molst/checklists_for_adult_patients...................................................................................................................................40

Compassion and Support at the End of Life, Checklist for Patients with Developmental Disabilities, https://www.compassionandsupport.org/index.php/for_professionals/molst/checklist_for_patients_with_developmental_disabilities.........................................................................................41

Compassion and Support at the End of Life, eMOLST, https://www.compassionandsupport.org/index.php/for_professionals/molst_training_center/emolst (last updated July 2013)……………………………………………………………41-42

Compassion and Support at the End of Life, eMOLST, https://dl.dropboxusercontent.com/u/69456301/1pgeMOLSTWhyDoeMOLST.pdf....42

Kim Dayton, Standards for Health Care Decision-Making: Legal and Practical Considerations, 2012 Utah L. Rev. 1329 (2012)…………………………………………………6, 8-9, 11-13

Anemona Hartocollis, Law Dictates Who Decides on Care for the Incapable, N.Y. Times (Mar. 17, 2010), http://www.nytimes.com/2010/03/18/health/policy/18decisions.html?_r=1&....31

Jill Hollander, Health Care Proxies: New York's Attempt to Resolve to the Right to Die Dilemma, 57 Brook. L. Rev. 145 (1991)…………………………………………………………25-27

Institute of Medicine, Dying in America: Improving Quality and Honoring Individual Preferences near the End of Life (Sept. 17, 2014), http://iom.edu/Reports/2014/Dying-In-America-Improving-Quality-and-Honoring-Individual-Preferences-Near-the-End-of-Life.aspx ............43-44

Catherine J. Jones, Decisionmaking at the End of Life, 63 Am. Jur. Trials 1 (Originally published in 1997)………………………………………………………………………………14

Luis Kutner, Due Process of Euthanasia: The Living Will, A Proposal, 44 Ind. L.J. 539 (1968).......................................................................................................................10

NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), http://www.health.ny.gov/professionals/patients/patient_rights/molst/..................40-41

NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), Checklist # 3 (Mar. 2012), available at http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_3.pdf..40-41

NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), Checklist # 4 (Dec. 1, 2010), available at http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_4.pdf..40-41

NY Health Access, Family Health Care Decisions Act, http://www.wnylc.com/health/entry/142/...................................................................32

Or. POLST Registry, Oregon POLST Registry Annual Report 1 (2013), available at http://www.orpolstregistry.org/wp-content/uploads/2012/09/Oregon-POLST-Registry-Annual-Report_2013_Final_ electronic_version.pdf…………………………………………37

Thaddeus Mason Pope, Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, and Disciplinary Sanctions, 9 J. Health & Biomedical L. 213 (2013)…………………………………………………………………………………35

Bernadette Tuthill, Want to Terminate Life Support? Not in New York: Time to Give New Yorkers A Choice, 26 Touro L. Rev. 675 (2010)……………………………………19, 26, 31

Linda S. Whitton & Lawrence A. Frolik, Surrogate Decision-Making Standards for Guardians: Theory and Reality, 2012 Utah L. Rev. 1491 (2012)……………………………23

Robert B. Wolf et. al., The Physician Orders for Life-Sustaining Treatment (Polst) Coming Soon to A Health Care Community Near You, 49 Real Prop. Tr. & Est. L.J. 71 (2014)…36-37, 39

 “[The right to refuse treatment] is an aspect of a far broader and more basic concept of freedom that is even older than the common law. This freedom embraces not merely a person's right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive long after her death.”

Washington v. Glucksberg, 521 U.S. 702, 743 (1997) (Stevens, J., concurring).

Introduction

Among myriad important life decisions, ranging from education to life partner selection, individuals also face end-of-life decisions.  People often express desires to die with dignity and avoid efforts to sustain their lives under circumstances which they might consider degrading and demeaning.  End-of-life decisions raise a multitude of the moral, ethical, religious, philosophical, social, and legal questions.  For instance, a determination of “terminal illness” and a decision about discontinuance of “life-sustaining treatment” are not solely a province of medical professionals.  These complex bioethical decisions may also involve the patient, her family, court-appointed guardians, a hospital committee, the judiciary, and the legislature. 

This paper examines a patient’s right to decline life-sustaining treatment and presents recommendations for reform.  It describes the careful balance between the patient’s desires and the countervailing societal interest in the preservation of life.  In addition, the paper discusses the challenges in allocating decision-making authority over end-of-life decisions.  The paper further suggests that even though end-of-life law in New York has considerably evolved from the common-law tort doctrine to a complicated statutory framework, at times doctors still provide unwanted life-sustaining treatment, overriding their patients’ wishes.  The paper recommends that New York State should fully espouse shared decision-making between doctors and patients, where physicians would have dialogues with frail, elderly, and terminally ill patients about Physician Order for Life Sustaining Treatment (POLST) forms.  The paper also suggests that the state should adopt the best practices and procedures from the Oregon POLST implementation and implement the recommendations by the MOLST Statewide Implementation Team.

The paper proceeds in three parts.  Part I provides the background on the end-of-life law, which stems from the law of informed consent.  Part II discusses health care decision-making by competent adults and by the incapacitated.  Part II also reviews major end-of-life pieces of legislation enacted in New York.  Finally, Part III analyzes the latest trends in the end-of-life law in New York and other states.  Part III also suggests that New York should fully embrace the new POLST paradigm which is recommended by the Institute of Medicine.

I.                   Background on the End-of-Life Law

American common and constitutional law pertaining to patient autonomy with respect to medical treatment have considerably evolved over the last hundred years.  In that time, the legal right of patients to self-determination in health care decisions has transitioned from a relatively simple tort-based principle relating to the law of battery to complex statutory schemes with constitutional implications.[1]

This section offers the history of patient autonomy in health care decision-making, starting from the law of informed consent and continuing to the New York statutory law.  It also focuses on the highly-publicized New Jersey Supreme Court’s decision in Matter of Quinlan[2] and proceeds to the discussion of the landmark United States Supreme Court’s opinion in Cruzan v. Director, Missouri Dep't of Health,[3] which implicitly acknowledged that the right to autonomy in health care decision-making is protected by Due Process Clauses of the Fifth and Fourteenth Amendments to the federal Constitution.[4]  Together, the common-law informed consent doctrine, the New York statutory law, and the seminal constitutional decisions in Cruzan and Washington v. Glucksberg[5] have formed underlying principles in the latest New York State jurisprudence concerning the patient’s right to refuse medical treatment. 

A.    The Law of Informed Consent as a Starting Point of End-of-Life Law

A patient’s right to decline medical treatment stems from the common-law doctrine of informed consent.  Legal scholars opine that the doctrine originated with the 1914 decision by Judge Cardozo in Schloendorff v. Soc'y of New York Hosp.[6]  As Chief Justice Rehnquist observed: “The informed consent doctrine has become firmly entrenched in American tort law... The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”[7]

In Schloendorff, a patient only consented to an “ether examination” of her lump but did not authorize physicians to operate on her.[8]  Despite her express wishes, her physicians performed surgery to remove the fibroid tumor while she was etherized.[9]  Because the patient had later developed complications from the surgery, she sued the hospital on a state law claim of battery.[10]  As Judge Cardozo noted, “the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.”[11]

Even though the principles expressed in Schloendorff were an interpretation of New York state law, other states embraced them as well.[12]  The term “informed consent,” which was coined in the 1957 Californian decision of Salgo v. Leland Stanford Junior University Board of Trustees,[13] has come to mean that, “before health care providers may undertake treatment of a patient, the patient must be provided with basic information about the risks and benefits of the treatment and give consent to it.”[14]  Ten years later, relying on Salgo, the New York Court of Appeals observed that “the physician must place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action.”[15]  One alternative is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote, which may result in alarming a patient who is already unduly apprehensive and who may as a result refuse to undertake surgery in which there is in fact minimal risk.[16]  It may result in actually increasing the risks by reason of the physiological results of the apprehension itself.[17]  The other alternative is “to recognize that each patient presents a separate problem, that the patient's mental and emotional condition is important and in certain cases may be crucial, and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent.”[18]

As the Second Department declared in 1976, a patient has the right to determine what shall be done with his body, and, under such right, a physician is obligated to make “reasonable disclosure of the available choices and the potential dangers, and the test of such reasonableness is for the jury to decide.”[19]  The parameters of the doctrine of informed consent have expanded to include not only surgery and other invasive procedures, but all kinds of medical treatment, including medical and psychological research conducted by academics, scientists, and even the federal government.[20]

While Judge Cardozo in Schloendorff set forth the principles underlying recovery due to an unconsented treatment, he also emphasized that there might be exceptions to the recovery “where it is necessary to operate before consent can be obtained.”[21]  Currently, courts recognize three major exceptions to the informed consent doctrine.  First, the most notable exception includes medical emergencies when the patient is not capable to give informed consent and a failure to treat would have dire consequences.[22]  Second, public health emergencies can sometimes justify demands by the state for certain types of treatment, such as vaccinations to prevent epidemics or treatment to stop the spread of particularly dangerous contagious disease to be imposed on patients over their objection.[23]  Third, there is also a psychiatric treatment exception to the informed consent doctrine.[24]

B.     The New York Statutory Law of Informed Consent

In New York State, the doctrine of informed consent has evolved from the common-law doctrine of battery to the statutory law.  Due to problems with the battery approach in the 1960s, courts moved away from the theory of battery towards negligence law for failure to obtain consent without full disclosure of all known risks.[25]  Codified by the legislature in Article 28 of New York Public Health Law, informed consent is measured not by what a reasonable patient would want or need to know, but what a competent physician believes the patient ought to know under his or her circumstances.[26]  Further, Article 25 of New York Public Health Law provides that any person who is 18 years of age or older may give effective consent for medical, dental, health and hospital services for himself, and the consent of no other person shall be necessary.[27]  Also, Article 28 states that failure to obtain effective consent for medical treatment can result in a lawsuit based on negligence.[28]

At the end of 1960s, the doctrine of informed consent and patient autonomy have been expanded to create a concept of a “living will.”[29]  In his law review article, civil right attorney Luis Kutner placed the right to refuse life-sustaining treatment in the context of the informed consent doctrine:

Where a patient undergoes surgery or other radical treatment, the surgeon or the hospital will require him to sign a legal statement indicating his consent to the treatment. The patient . . . while still retaining his mental faculties and the ability to convey his thoughts, could append to such a document a clause providing that, if his condition becomes incurable and his bodily state vegetative with no possibility that he could recover his complete faculties, his consent to further treatment would be terminated. . . . [A] patient may not have had, however, the opportunity to give his consent at any point before treatment. He may have become the victim of a sudden accident, or a stroke or coronary. . . . [T]he suggested solution is that the individual . . . indicate to what extent he would consent to treatment. The document indicating such consent may be referred to as “a living will.”[30]

In the 1960s, the notion that the informed consent doctrine and patient autonomy could be carried this far was revolutionary in an era when doctors often practiced the principle of “benevolent lying” as a means of concealing from patients information about the terminal nature of their conditions.[31]  The treatment of living wills in New York and other health care directives will be further discussed in Part II.  Before that, though, the next section focuses on the formal recognition of patient autonomy in health care decision-making by the United States Supreme Court and the boundaries of the Constitutional framework for end-of-life decisions.

C.    The Constitutional Foundation in Refusal to Withdraw Treatment Cases: The Journey from In re Quinlan to Cruzan v. Dir., Missouri Dep't of Health

The constitutional questions of patient autonomy in health care decision-making were first raised in the New Jersey Supreme Court’s decision in Matter of Quinlan.[32]  In that tragic case, twenty-two-year-old Karen Ann Quinlan was in a chronic persistent vegetative state.[33]  Because Karen's neurological condition affected her respiratory ability, she required a respirator to assist her breathing.[34]  She also received her nutrition through a nasal-gastro tube.[35]  Her father was asking the court to appoint him her guardian and explicitly delegate him the authority to discontinue his daughter’s artificial respiration.[36]  In Quinlan, the court granted the guardianship to Karen’s father.[37]  The court also concluded that the attending physicians in consultation with the hospital Ethics Committee should make a determination whether “there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued.”[38]

In Quinlan, the New Jersey Supreme Court determined that Karen’s father had standing to assert his daughter's constitutional rights because she was incompetent to do so.[39]  The court analyzed the three constitutional claims raised by Karen’s father: free exercise right under the First Amendment, cruel and unusual punishment under the Eight Amendment, and the right of privacy.[40]  While examining the claims, the New Jersey Supreme Court did not recognize an independent parental right of religious freedom to support the relief requested.[41]  The court also found that the Constitution's Eighth Amendment protection against cruel and unusual punishment was “inapplicable to the case.”[42]  Relying on the United States’ Supreme Court’s decision in Griswold v. Connecticut[43] and the New Jersey Constitution,[44] the court concluded that Karen's right of privacy may be asserted on her behalf by her guardian.[45]  The Quinlan court observed that the right to privacy is “broad enough to encompass a patient's decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman's decision to terminate pregnancy under certain conditions.”[46]

In re Quinlan was the first attempt to frame the query about the right to discontinue life-sustaining treatment in terms of the rights guaranteed by the United States Constitution.[47]  Although the United States Supreme Court declined to hear the constitutional issues raised in Quinlan,[48] fifteen years after the Quinlan case the Supreme Court in Cruzan finally had an occasion to consider whether there is a right to direct one's own medical treatment under the Federal Constitution.[49]  In Cruzan, “[p]etitioner Nancy Beth Cruzan was rendered incompetent as a result of severe injuries sustained during an automobile accident.”[50] The co-petitioners, Nancy's parents and co-guardians, sought a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment after it became apparent that she had virtually no chance of recovering her cognitive faculties.[51]  The United States’ Supreme Court granted certiorari to determine whether Cruzan had a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances.[52]  Analyzing the issue, the Supreme Court affirmed the decision by the highest court of Missouri, which held that because there was no clear and convincing evidence of Nancy's desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request.[53]  Writing for the majority, Chief Justice Rehnquist stated Cruzan was “the first case in which we have been squarely presented with the issue whether the United States Constitution grants what is in common parlance referred to as a ‘right to die.’”[54]

While recognizing that a competent person has a “liberty interest” under the Due Process Clause of the Fourteenth Amendment, the Court proceeded cautiously to analyze whether an incompetent person should possess the same right in this respect as is possessed by a competent person.[55]  The Court observed: “An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate.”[56]  The Court held that the United States Constitution does not forbid the establishment of the procedural safeguard requested by the Missouri highest court to assure that the action of the surrogate conforms as best it can to the wishes expressed by the patient while competent, and that the evidence of the incompetent's wishes as to the withdrawal of treatment be proved by clear and convincing evidence.[57]

Concluding that “a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state,”[58] the Supreme Court in Cruzan noted the State is entitled to guard against potential abuses by family members acting as surrogate decision-makers in “some unfortunate situations in which family members will not act to protect a patient.”[59]  Even though the Supreme Court held that requiring clear and convincing evidence of an incompetent patient's wishes as to the withdrawal or withholding of treatment does not violate that person's federal constitutional rights, the Court did not mandate that states adopt that burden of proof before allowing surrogate decision-making for incompetents.[60]  As Justice O'Connor emphasized in her concurrence, Cruzan only decided that a state has a constitutional authority to establish its own evidentiary standard for the withdrawal or withholding of life-prolonging medical treatment:

Today's decision, holding only that the Constitution permits a State to require clear and convincing evidence of Nancy Cruzan's desire to have artificial hydration and nutrition withdrawn, does not preclude a future determination that the Constitution requires the States to implement the decisions of a patient's duly appointed surrogate. Nor does it prevent States from developing other approaches for protecting an incompetent individual's liberty interest in refusing medical treatment .... Today we decide only that one State's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents' liberty interests is entrusted to the “laboratory” of the States, in the first instance.[61]

Seven years after Cruzan was decided, the Supreme Court returned to end-of-life medical decision-making in Washington v. Glucksberg,[62] where the Court held that Washington's prohibition against causing or aiding a suicide does not offend the Fourteenth Amendment to the United States Constitution.[63]  Examining the Court’s substantive-due-process jurisprudence, the majority observed: ”We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.”[64]  Glucksberg clarified that in Cruzan, the Court “assumed that the Constitution granted competent persons a ‘constitutionally protected right to refuse lifesaving hydration and nutrition.’”[65]

Analyzing the question whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance, the Court noted: “The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct.”[66]  Furthermore, the Court emphasized that in Cruzan, it recognized that most States outlawed assisted suicide and that it “certainly gave no intimation that the right to refuse unwanted medical treatment could be some-how transmuted into a right to assistance in committing suicide.”[67]

Balancing the rights of individuals to privacy and self-determination with alleged state interests in both Cruzan and Glucksberg, the Supreme Court recognized a number of important state interests raised in these end-of-life matters.  First, Missouri asserted “a general interest in the preservation of life” in Cruzan.[68]  Responding to this concern, the Court observed that “the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment.”[69]  Second, Missouri as a parens patriae in Cruzan had an interest in safe-guarding the accuracy of the determination of how the incompetent would exercise her rights under these circumstances.[70]  In addition to recognizing “unqualified interest in the preservation of human life,”[71] the Glucksberg Court identified the following state interests: interest in preventing suicide,[72] maintaining integrity and ethics of medical profession,[73] protecting vulnerable persons who might be pressured into physician-assisted suicide,[74] and protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes and societal indifference.[75]

In sum, the common-law informed consent doctrine, the New York statutory law, and the landmark opinions in Cruzan and Glucksberg often serve as foundational jurisprudence in New York State’s decisions in cases of the patient’s right to discontinue unwanted treatment for adults with capacity and the incapacitated.  The following section discusses health care decision-making by competent adults and the incapacitated in New York State.

II.                Health Care Decision-Making by Competent Adults and the Incapacitated in New York

A.    Competent Patients Can Usually Determine the Course of their Treatment

This section examines a New York body of law that involves a competent patient’s right to make decisions to forgo life-sustaining treatment.  Relying on a number of its prior decisions, the New York Court of Appeals in Fosmire v. Nicoleau[76] reaffirmed that a competent adult had a right to determine the course of her own treatment, which included the right to decline blood transfusions.[77]  Fosmire was the first case in New York in which a patient refusing lifesaving treatment had a minor child.[78]  In Fosmire, an adult Jehovah's Witness, a nurse by profession, refused to consent to blood transfusions prior to delivery of her baby and persisted in the refusal after losing a substantial amount of blood following the Cesarean birth of the child.[79]  On the hospital admission form, she consented generally to medical procedures that may be necessary but specifically excluded “the administration of blood, pooled plasma or other derivatives.”[80] 

In Fosmire, the threshold inquiry was whether there was an identifiable State interest in intervening in the patient's medical choice and whether the State's interest was sufficiently substantial to outweigh the individual's right.[81]  The hospital argued that the State had an interest in preserving the life of the patient for the benefit of her child.[82]  Recognizing that the State has an interest in protecting the welfare of children, the court, however, stated that “at common law the patient's right to decide the course of his or her own medical treatment was not conditioned on the patient being without minor children or dependents.”[83]  Furthermore, the court noted that when the New York Legislature codified the common-law rule, it imposed no such restriction under New York Public Health Law §§ 2504, 2805-d.[84]  Thus, the court concluded that there was no showing that the State had a superior interest in preventing the patient from exercising that right under the circumstances of the case.[85]  It further observed: “The citizens of this State have long had the right to make their own medical care choices without regard to their physical condition or status as parents.”[86]

However, two out of seven judges in Fosmire subscribed to the holding but disagreed with the majority’s reasoning.  In the concurring opinion, Judge Simons emphasized that “[m]ost courts, before approving a patient’s decision to forego life-sustaining treatment, would consider the nature of the patient’s condition, the prescribed treatment and the probability of its success.”[87]  Those courts would strike the balance between the patient's right and the State interest by considering whether (1) the patient's condition is terminal, has lessened life expectancy or has drastically reduced the quality of life; (2) the treatment is painful or will result in permanent injury or disfigurement; and (3) the treatment offers a reasonable prospect of success, i.e., it will cure or improve the patient's condition rather than merely prolong life.[88]  Further, in his concurrence, Judge Hancock emphasized that he “cannot agree with the majority that the right to refuse medical treatment is absolute in the absence of a legislative enactment ‘manifesting’, with particularity, a countervailing societal interest in the preservation of life or the protection of affected third parties.”[89]  Judge Hancock stressed that, in the refusal of treatment cases, the court must consider the following factors: “the precise nature, extent and intensity of the patient's objection to the proposed medical treatment; the type, invasiveness and effects of that treatment; the nature of the patient's illness; the necessity or not of the treatment; the patient's prognosis with and without treatment; the age, maturity and understanding of the patient; the welfare of the patient's family, particularly their dependency on the patient and the impact on them if treatment is withheld.”[90] 

As New York State courts have held that competent individuals have a right to refuse medical treatment, including life support measures,[91] the judicial landscape changes dramatically as far as the rights to forgo medical treatment are concerned for incompetent patients. 

B.     Two Prominent New York Cases Involving the Incapacitated

One of the seminal New York decisions that involved incompetent patients was In re Storar.[92]  Decided in 1981, between the Quinlan controversy and the Cruzan decision, In re Storar cites In re Quinlan and was cited by the majority in Cruzan.  As Chief Justice Rehnquist stated, in In re Storar, the New York Court of Appeals declined to base a right to refuse treatment on a constitutional privacy right.[93] Instead, it found such a right “adequately supported” by the informed consent doctrine.[94]  In re Storar is a duology of cases.[95]  In the first one, in In Matter of Eichner, Brother Fox, an 83-year-old member of the Society of Mary, was being maintained by a respirator in a permanent vegetative state.[96]  Pursuant to article 78 of the Mental Hygiene Law, the local director of the society applied to have the respirator removed on the ground that it was against the patient's wishes as expressed prior to his becoming incompetent.[97]  In the companion Storar case, a State official applied for permission to administer blood transfusions to a mentally retarded 52-year-old man with terminal cancer of the bladder.[98]  The patient's mother, who was also his legal guardian, refused consent on the ground that the transfusions would only prolong his discomfort and would be against his wishes if he were competent.[99]

Even though both patients in the Storar duology had died by the time their controversies rose all the way to the New York highest court, the Court of Appeals decided to hear the cases since the underlying issues were “of public importance” and were “recurring in other courts throughout the State.”[100]  Analyzing Eichner, the Court had to decide “whether, in case of incompetency, a decision to discontinue life sustaining medical treatment may be made by someone other than the patient.”[101]  The Court agreed with the courts below that “the highest standard applicable to civil cases should be required: “Where particularly important personal interests are at stake, clear and convincing evidence should be required.”[102]  The Court emphasized that when a “person, now incompetent, left instructions to terminate life sustaining procedures when there is no hope of recovery,” clear and convincing proof should be required because this standard serves to “impress the factfinder with the importance of the decision” and “forbids relief whenever the evidence is loose, equivocal or contradictory.”[103]  Examining Brother Fox’s “solemn pronouncements” on the subject, the Court concluded that “the evidence clearly and convincingly shows that Brother Fox did not want to be maintained in a vegetative coma by use of a respirator.”[104]

            In contrast to the patient in Eichner, John Storar was never competent during his life, and the Court deemed him mentally an infant.[105]  Assessing his rights through this lens, the Court noted that the parent may not deprive a child of life saving treatment, however well intentioned.[106]  Further, the Court observed: “Even when the parents' decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State's interests, as parens patriae, in protecting the health and welfare of the child.”[107]  The Court concluded that it “should not in the circumstances of this case allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease.”[108]

            Seven years after Storar, Chief Judge Wachtler of the New York Court of Appeals penned another decision that implicated the rights of an incompetent patient to choose life-sustaining treatment in Matter of Westchester Cnty. Med. Ctr. on Behalf of O'Connor.[109]  In O'Connor, as a result of several strokes, elderly patient Mary O'Connor was “mentally incompetent and unable to obtain food or drink without medical assistance.”[110]  Her condition instigated a dispute between her daughters, both nurses, and the hospital concerning the administration of a nasogastric tube to provide her with sustenance.[111]  There was evidence that “prior to becoming incompetent, she made several statements to the effect that she did not want to be a burden to anyone and would not want to live or be kept alive by artificial means if she were unable to care for herself.”[112] 

Relying on the two companion cases in Storar, Judge Wachtler’s analysis in O'Connor focused on what the patient would say if asked at the current time as to whether the treatment in issue should be terminated.[113]  He emphasized that the “clear and convincing” evidence standard established in Storar mandates sufficient proof to convince “the trier of fact that the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented.”[114]  To satisfy the clear and convincing standard, the Court would consider such factors as “[t]he persistence of the individual's statements, the seriousness with which those statements were made and the inferences, if any, that may be drawn from the surrounding circumstances.”[115] 

Judge Wachtler observed that it would be ideal to have patient’s wishes expressed in writing, such as a “living will,” because the “existence of a writing suggests the author's seriousness of purpose and ensures that the court is not being asked to make a life-or-death decision based upon casual remarks.” [116]  The Court further stated: “Although Mrs. O'Connor's statements about her desire to decline life-saving treatments were repeated over a number of years, there is nothing, other than speculation, to persuade the fact finder that her expressions were more than immediate reactions to the unsettling experience of seeing or hearing of another's unnecessarily prolonged death.”[117]  Thus, the Court concluded that “on this record it cannot be said that Mrs. O'Connor elected to die under circumstances such as these.”[118]

While analyzing O’Connor, the judges considered two widely accepted standards of surrogate decision-making, which are “two theoretical reference points used by the law to frame how guardians should make decisions for incapacitated persons.”[119]  One approach is called the substituted judgment standard, and another one is the best interest standard.  The substituted judgment standard directs the guardian to choose the alternative that the incapacitated person would have chosen if still able to make decisions, whereas the best interest standard directs the guardian to choose the alternative that produces the greatest good or benefit for the incapacitated person.[120]  In O’Connor, the Court of Appeals rejected the substituted judgment approach for asserting a common-law right to refuse treatment “because it is inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another. Consequently, we adhere to the view that, despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error.”[121]

O’Connor was a 1988 court ruling, written by the state's chief judge as he was struggling to help his 86-year-old mother recover from a stroke.[122]  At the beginning of the 1990s, hospital administrators interpreted the O’Connor ruling to mean that when a patient had not left written instructions, families must prove the patient would not want to be kept alive by life support equipment.[123]  In 1992, the judge, Sol Watchler, acknowledged that the decision reflected his feelings about his mother's condition, but he stated the ruling had been applied more widely than the court foresaw.[124]  The judge attempted to cabin the O’Connor decision by stating that applying the O'Connor standard to a comatose patient was not appropriate.[125]  He explained that the decision referred specifically to a patient who was conscious but who could not care for herself in any way.[126]  Even though the judge claimed that the decision “should not be extrapolated and applied to situations that were not before us," the result of the O’Connor ruling was that nearly all hospitals in the state at the beginning of the 1990s believed that life support could not be withdrawn if the patient’s family could not provide "clear and convincing evidence" that that was what the patient would have wanted.[127]

Consequently, in response to the advances in life-sustaining technology, the opinions in Storar and O’Connor have provided guidance for New York state courts, and they also influenced the Supreme Court’s decision in Cruzan.[128]  However, as time had passed, it became apparent that these two decisions uncovered major issues that needed to be remedied by the legislature.  The two subsequent acts enacted by the New York legislators, the Health Care Decisions Act for Persons with Mental Retardation (HCDA)[129] and the Family Heath Care Decision Act (FHCDA),[130] were responses to the pitfalls of the Storar and O’Connor decisions.  The following section focuses on these two important pieces of legislation and also discusses the New York laws pertaining to health care proxy.

C.    Current New York Law

As a result of the judicial rulings in Storar, O’Connor, and Cruzan, New York has enacted a number of significant pieces of legislation that provide dignity for the terminally ill and ability for family members and close friends to take part in end-of-life decision-making process. 

1)      Passage of the Health Care Agents and Proxies Law

Two years after the O’Connor opinion, the New York Legislature passed the Health Care Agents and Proxies Law, Article 29-C,[131] an amendment to New York Public Health Law.[132]  Justice O’Connor’s concurrence in Cruzan acted as a catalyst for enactment of the law.  She stated in Cruzan:

Few individuals provide explicit oral or written instructions regarding their intent to refuse medical treatment should they become incompetent.  States which decline to consider any evidence other than such instructions may frequently fail to honor a patient's intent. Such failures might be avoided if the State considered an equally probative source of evidence: the patient's appointment of a proxy to make health care decisions on her behalf. Delegating the authority to make medical decisions to a family member or friend is becoming a common method of planning for the future.[133]

When Governor Mario Cuomo signed this bill on July 22, 1990, he announced: “The United States Supreme Court's recent landmark ruling in Cruzan charged states with the responsibility to craft policies for critical treatment decisions on behalf of incompetent patients. The health law proxy bill is this State's dramatic step toward fulfilling that responsibility.”[134]

This law enables family members or others chosen by the patient to ensure that the patient's wishes about treatment are honored after the patient has lost the capacity to express those wishes directly.[135]  Article 29-C provides for Health Care Agents and Proxies to make certain medical decisions for an incapacitated patient.[136]  However, a Health Care Proxy cannot make decisions concerning the administration of artificial nutrition and hydration unless the patient’s wishes are “reasonably known and cannot with reasonable diligence be ascertained.”[137]  Furthermore, Article 29-C does not overcome the O'Connor standard, which requires that people contemplate their exact situation and treatment over time and “reflect on that decision over time and come to a firm and settled commitment with respect to their decision prior to an actual occurrence and communicate that to their proxy for the proxy to be able to act on their life support wishes.”[138] 

Health Care Proxy forms are most effective when used in conjunction with a living will.[139]  The purpose of a living will is to provide a written directive to the family, physicians and hospital that life-prolonging treatment should not be administered in the event the person becomes incompetent.[140]  In the 1990s, forty-two states and the District of Columbia had legislation recognizing the validity of living will.[141]  The New York Legislature has not enacted a living will law, following the Task Force recommendation.[142]  The Task Force found that living wills had value only in providing evidence of a patient's wishes in the event a healthcare agent had not been appointed.[143] Thus, a living will is only enforceable in New York on a case-by-case basis, where it can be offered as clear and convincing evidence of the incompetent patient's intent.

2)      The Health Care Decisions Act for Persons with Mental Retardation (HCDA)

The Storar opinion drew a sharp distinction between two groups of the incapacitated: adults who used to be competent and could make their wishes concerning end-of-life treatment known to their close ones and mentally retarded persons who had never been competent to make their own health care decisions and for whom life-sustaining treatment could not be refused.[144]  As the 2006 New York Court of Appeal’s opinion noted: ”When these mentally retarded individuals became irreversibly, terminally ill they were, in effect, ineligible for hospice or other palliative care because their guardians were unable to refuse more intrusive, acute medical treatments aimed at extending life for as long as possible.”[145]  Invoking the state's interest, as parens patriae, in protecting health and welfare, the Storar Court held that a guardian could not seek to discontinue treatment on behalf of a ward who was never competent.[146]  The Court emphasized that the Legislature was the appropriate body to change the law to “enlarge the role of the courts in cases involving discontinuance of life sustaining treatment for incompetents by establishing ... a mandatory procedure of successive approvals by physicians, hospital personnel, relatives and the courts.”[147]  Storar remained the law for some 20 years until the legislature enacted the Health Care Decisions Act for Persons with Mental Retardation (HCDA) in the fall of 2002.[148]

One of the driving forces behind the enactment of HCDA was a highly-publicized case of Sheila Pouliot.  Ms. Pouliot was a severely mentally retarded woman, who became terminally ill in 1999.[149]  Even though her doctors concluded that any continued care was futile, the law required the care to continue, and as result she suffered greatly and needlessly.[150]  She lived for several weeks, allegedly in pain, over the objections of her sister and the ethics board of the treating hospital.[151]  In the aftermath of the Pouliot case, the Health Care Decisions Act for Persons with Mental Retardation (HCDA) was enacted to afford a guardian some latitude in determining whether medical care should be administered to a ward who was never competent to make decisions regarding medical treatment.[152]  As the Assembly sponsor of HCDA stated, the purpose of the bill was to “allow the legally appointed guardians of mentally retarded individuals to have the authority to make medical decisions on behalf of such person, including decisions dealing with the withdrawal or withholding of life-sustaining treatment.”[153]

Enacted in the fall of 2002, HCDA added a new subdivision to the Surrogate's Court Procedure Act § 1750, the provision that addresses the guardianship of mentally retarded persons.[154]  As the Court of Appeals in In re M.B.[155] analyzed: “[T]he HCDA clarifies that guardians can make health care decisions for mentally retarded persons who themselves were never competent to make those decisions, including a decision to end life-sustaining treatment. But it imposes a series of procedural hurdles—intended to safeguard the interests of the patient and prevent an improvident decision by the guardian—that must be satisfied prior to the implementation of such a decision.”[156]

Besides adding a new provision, SCPA § 1750(2), which imposes an additional certification requirement, the HCDA amended article 17-A of the Surrogate’s Court Procedure Act by adding a new section which governs health care decision-making for mentally retarded persons.[157]  Section 1750-b sets forth a decision-making standard for a guardian which requires that guardians “base all advocacy and health care decision-making solely and exclusively on the best interests of the mentally retarded person and, when reasonably known or ascertainable with reasonable diligence, on the mentally retarded person's wishes, including moral and religious beliefs.”[158] This provision enumerates the factors that must be considered in determining the mentally retarded person's best interests, which encompass “the dignity and uniqueness” of the individual; “the preservation, improvement or restoration of the ... person's health”; “the relief of the mentally retarded person's suffering by means of palliative care and pain management”; the effect of treatment, including artificial nutrition and hydration, on the mentally retarded person; and the patient's overall medical condition.[159]  In addition, a medical decision cannot be based on financial considerations or a failure to afford the mentally retarded individual the respect that would be afforded any other person in the same circumstances.[160]  Furthermore, the statute imposes on the guardian “the affirmative obligation to advocate for the full and efficacious provision of health care, including life-sustaining treatment.”[161]   

If a guardian intends to withdraw or withhold life-sustaining treatment, SCPA 1750–b imposes a decision-making procedure that must be followed before the decision can be carried out.[162]  First, the mentally retarded person's physician must confirm to a reasonable degree of medical certainty, after consultation with another physician or a licensed psychologist, that the person currently lacks the capacity to make health care decisions.[163]  Second, the attending physician and another concurring physician must attest that the mentally retarded person has one of three types of conditions: a terminal condition, permanent unconsciousness, or “a medical condition other than such person's mental retardation which requires life-sustaining treatment, is irreversible and which will continue indefinitely.”[164]  In each of the above cases, the condition must also be met that life-sustaining treatment imposes or would impose an extraordinary burden on the patient.[165]  In the case of the withdrawal or withholding of artificially provided nutrition or hydration, the two physicians must also confirm that “there is no reasonable hope of maintaining life” or that the artificial nutrition or hydration itself “poses an extraordinary burden” on the patient.[166]  As the Court of Appeals emphasized: “These conclusions by medical professionals are a condition precedent to any valid decision to end life-sustaining treatment—without them, life-sustaining treatment must be afforded to the patient.”[167]

3)      The Family Health Care Decisions Act (FHCDA)

As HCDA intended to remedy issues raised in Storar, the purpose of another New York legislation, the Family Health Care Decision Act (FHCDA), was to resolve all the issues created by O’Connor.[168]  O'Connor held that in order to withhold life-sustaining treatment from an incompetent patient, there must be “clear and convincing proof that the patient had made a firm and settled commitment,” while they were competent, to decline a particular type of medical treatment under the specific circumstances the patient finds themselves.[169]   The O'Connor standard proved impossible to satisfy and was far higher than any other in the United States in 2010.[170]  Pursuant to the O'Connor standard, unless a person could predict the exact medical condition they would be suffering from and choose not to have life sustaining treatment for that condition, there could be no guarantee that their wishes will be respected.[171]

In 1992, the Task Force on Life and the Law was formed as a state task force to propose legislation that took into consideration expertise from many disciplines, and opinion and belief about bioethics issues in New York State.[172]  As the Task Force had proposed the legislation in 1992, both houses of New York Legislature incorporated the Task Force recommendations into two separate pieces of legislation in 1996 that would implement a decision making model on when termination of life support for incompetent individuals, who have not made a writing, would be permissible.[173] 

Twenty years after the New York Court of Appeals decided O’Connor, Governor Paterson signed the Family Health Care Decisions Act (FHCDA) into law.[174]  FHCDA, or Article 29-CC of New York Public Health Law, allows a patient’s family member or close friend to make health care decisions for a patient who is in a hospital or nursing home when the patient lacks decisional capacity and did not leave prior instructions or sign a health care proxy.[175]  Private hospitals are not required to honor a health care decision made pursuant to FHCDA if the decision “is contrary to a formally adopted policy of the hospital that is expressly based on sincerely held religious beliefs or sincerely held moral convictions central to the facility's operating principles.”[176]  Article 29-CC establishes “presumption of capacity:” it means that “every adult shall be presumed to have decision-making capacity unless determined otherwise pursuant to this section or pursuant to court order, or unless a guardian is authorized to decide about health care for the adult pursuant to article eighty-one of the mental hygiene law.”[177] 

The determination procedure for lack of capacity consists of two parts: initial and concurring determinations.[178]  The initial determination of incapacity must be made by attending physician “to a reasonable degree of medical certainty.”[179] This determination must “include an assessment of the cause and extent of the patient's incapacity and the likelihood that the patient will regain decision-making capacity.”[180]  A concurring determination of incapacity is mandatory in the following situations: (1) in a residential health care facility, a health or social services practitioner must independently determine whether an adult patient lacks decision-making capacity; or (2) in a general hospital a health or social services practitioner must independently determine whether an adult patient lacks decision-making capacity if the surrogate's decision concerns the withdrawal or withholding of life-sustaining treatment.[181]

If the patient is found incompetent and has not selected a surrogate, the FHCDA provides a list of potential health care decision-making surrogates, in the following order of priority: (1) legal guardian appointed under Article 81 of the Mental Hygiene Law, (2) spouse or domestic partner, (3) adult child, (4) parent, (5) brother or sister, or (6) close friend.[182]  The law provides for the surrogate  to “have the authority to make any and all health care decisions on the adult patient's behalf that the patient could make” for herself prior to losing capacity.[183]  The FHCDA also sets standards for decision making.[184]  The Act requires the surrogate to “make health care decisions: (i) in accordance with the patient's wishes, including the patient's religious and moral beliefs; or (ii) if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the patient's best interests.”[185]  When the treatment decision implicates the withdrawal or withholding of life-sustaining treatment, the law imposes the following additional conditions that must be met:

(i) Treatment would be an extraordinary burden to the patient and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; or

(ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical standards.[186]

Although a number of advocacy groups welcomed the 2010 passage of FHCDA, some courts have responded with criticism and caution toward the new Act.  For instance, a recent New York case of In re Zornow applied the FHCDA conditions for withholding life-sustaining treatment to the facts of the case, where a 93-year-old woman was suffering from advanced Alzheimers and residing in a nursing home.[187]  In Zornow, there was a family dispute between the patient’s children involving previously enacted MOLSTS (Medical Orders on Life-Sustaining Treatments).[188]  The main controversy was over a blanket directive denying the patient food and water if it could not be administered orally.[189]  Also, her medical form further directed that she be denied hospitalization for future medical conditions.[190]  Going through a detailed analysis of Roman Catholic theology, the court held that an authorization by a guardian depriving ward of artificially administered food and water would violate the FHCDA and that a general directive to that effect was not permissible.[191]  While applying the FHCDA, the court observed that the “FHCDA reflects a major departure in who and under what standard life sustaining treatment may be terminated for a mentally incompetent person.”[192]  It further noted that the FHCDA statute reflects a major change from the prior “presumption of life” to “presumption of termination.”[193]  The court also suggested for the Legislature to revive the FHCDA design to “set forth the ‘sanctity of life’ as the main ethic, and allow the limited ‘quality of life’ ethic to be specifically limited to those who so personally indicate under the level of proof required by the O'Connor case.”[194]

III.             Analysis of the Latest Trends in the End-of-Life Law in New York and Other States

A.        A Gap between Medical-Legal Principle and the Reality of Medical Practice

Even though the right to refuse life-sustaining treatment has been established for decades, there remains a wide chasm between legal and ethical principles, on the one hand, and the reality of clinical practice, on the other.[195]  Over the past two decades, legal and medical commentators have consistently asserted that “patients are being saved against their will with some frequency.”[196]  Although advance directives have been widely and heavily promoted and offered as a key means by which patients can avoid unwanted treatment, advance directives have actually had rather little impact.[197] Clinicians often ignore patient instructions.[198]  One survey showed that only 44% of family members agreed that their loved one's wishes were “completely followed and honored.”[199]

Several medical survey studies confirm the poor rate of advance directive compliance by clinicians.[200]  One study discovered that clinicians overrode advance directives 25% of the time, while another study found that only 58% of clinicians followed advance directives “most or all of the time.”[201]  Further, a third study found that clinicians deviate from patient instructions in 65% of cases, looking instead to prognosis, perceived quality of life, and family wishes.[202]  One of the explanations for the dismal compliance is that advance directives are often vague and must be reduced to medical orders, leaving clinicians uncertain as to how the instructions apply to the patient’s current clinical circumstances.[203]  Another reason is that directives are often unavailable when they are actually needed.[204]

B.     New York State Should Fully Embrace the New POLST Paradigm

One of the effective ways to address these advance directive issues and to protect a patient’s interests at the end of life is to incorporate the patient’s health care decisions into a physician’s order, the so-called a Physician Order for Life Sustaining Treatment (POLST).  A POLST form serves different purposes from those of the living will declaration. A living will declaration documents a declarant's wishes as to life-sustaining treatment if the declarant is terminally ill, in an end-stage medical condition, or in a permanently unconscious state at some point in the future.[205]  The living will declaration applies in the future, and becomes effective only if the declarant is no longer able to make health care decisions.[206]  By contrast, POLST programs are “designed to elicit and honor the medical treatment goals of persons with advanced progressive illnesses or frailty by creating an immediately effective medical order.^”[207] Thus, the POLST program is not a substitute for an advance health care directive.[208]  Instead, the POLST program complements the advance health care directive for appropriate patients, persons with serious advanced illnesses, frailty, or whose clinicians would not be surprised if they died within the next year.[209]

The POLST paradigm started in Oregon in 1991 since clinical-ethics leaders observed that patients' preferences concerning life sustaining treatment, as embodied in advance directives, frequently were not found or not transferable and, thus, not honored.[210]  The State of Oregon decided to implement a system that would honor patients' values and wishes regarding their end-of-life medical treatment.[211]  By 1999, the administrative rules in Oregon were changed to provide that emergency medical technicians (EMTs) or first responders would respect patients' wishes, including choices regarding life-sustaining treatments reflected in a POLST.[212]  As the POLST paradigm had been widely recognized in Oregon, nurse practitioners and physicians' assistants were allowed to sign POLST medical orders and minors with terminal illnesses became a part of the POLST program.[213]  In 2008, Oregon modified its POLST form to include a section for the special concerns of persons with disabilities.[214] In 2009, the Oregon legislature enacted a statute creating a statewide registry of POLST forms in Oregon that permitted access to the forms as needed, including access by providers of emergency medical care.[215]

Currently the use of POLST forms has become an accepted medical standard of care in Oregon.  As of 2013, the Oregon POLST registry received over 150,000 POLST forms.[216]  The Oregon POLST form is used by almost all hospices and nursing homes in the state.[217]  The experience of Oregon has showed that POLST provides many advantages.[218]  First, because POLST is signed by both the health care provider and the patient, there is no need for interpretation and translation anymore.[219]  Second, since POLST is on a single-page, standardized form, it is easy to follow.[220]  Third, POLST addresses an entire range of life-sustaining interventions, such as IV fluids, antibiotics, a feeding tube, and artificial breathing. ^[221]  Fourth, POLST is a brightly colored, clearly identifiable form that remains in the patient's chart and travels with the patient, from hospital, to nursing home, to ambulance, to the patient's home.[222]   Finally, POLST is recognized and honored across all of these different treatment settings.[223] 

Furthermore, POLST protects and promotes patient autonomy better than advance directives.[224]  First, POLST is usually created with a health care provider at or near the time when an acute or serious chronic condition develops, and it addresses the patient's current situation, not a possible future scenario.[225]  Consequently, POLST has a greater chance of being more informed and more relevant to the specific medical situation at hand.[226] Second, since the POLST form is highly visible, portable, and travels with the patient's medical records, it is more likely available at the time that a decision must be made.[227]  Third, since POLST is written in precise medical language on a standardized form, it is better understood by healthcare providers.[228] Fourth, since POLST is signed by a provider, it has a greater chance of compliance by other providers.[229] 

Moreover, POLST is a tool that provides a framework for end-of-life care conversations between patients, their families, and their health care providers.[230]  During these conversations, providers are encouraged to discuss specific scenarios and treatment options, and patients and families have the chance to ask questions and to make their wishes known.[231]  Thus, POLST gives patients more control over their end-of-life care.[232]  Further, since POLST is a “universal medical order” that is honored across care facilities, health care providers immediately know the patients’ wishes.[233] 

As the POLST paradigm has been developing in Oregon, a nationwide POLST movement has also been underway.  By 2011, approximately one quarter of the states adopted POLST by statute, regulation, or clinical consensus and most of the other states were considering development.[234]   In 2010, the New York Legislature enacted a statute called “Managing a nonhospital order not to resuscitate.”[235]  Under the statute, the attending physician must record the issuance of a nonhospital order not to resuscitate in the patient's medical chart.[236]  Further, a nonhospital order not to resuscitate must be issued upon a standard form prescribed by the Commissioner of Department of Health.[237] The statute also provides that the “commissioner must also develop a standard bracelet that may be worn by a patient with a nonhospital order not to resuscitate to identify that status provided, however, that no person may require a patient to wear such a bracelet and that no person may require a patient to wear such a bracelet as a condition for honoring a nonhospital order not to resuscitate or providing healthcare services.”[238]

Later, the New York State Department of Health (NYSDOH), which is responsible for implementing POLST rules and regulations, promulgated rules to implement the statute in March 2014.  It added a new definition to its Advance Directives regulation for Medical orders for life-sustaining treatment (MOLST), which mean “medical orders to provide, withhold or withdraw life-sustaining treatment.”[239]  The regulation further explains: “The MOLST form is an alternative form authorized by the Commissioner under subdivision 6 of section 2994-dd of the Public Health Law. The MOLST form and guidance and checklists for using the MOLST form for any patient in any setting are posted on the department's website.”[240]  The 2014 amendment to the regulations also provides:

(e) Medical orders for life-sustaining treatment (MOLST). To implement a patient's wishes regarding cardiopulmonary resuscitation (CPR) and other life-sustaining treatment, facilities may, if appropriate, utilize the department approved MOLST form for patients with serious health conditions who:

(1) want to avoid or receive any or all life-sustaining treatment; or

(2) can reasonably be expected to die within one year.[241]

In addition, NYSDOH has developed MOLST instructions and checklists for adult patients setting forth the legal requirements for issuing orders with respect to life-sustaining treatment using the MOLST form.[242]  These documents are posted on the NYSDOH MOLST web page.[243]  The dedicated web page contains several MOLST legal requirements checklists and general instructions for: (1) competent adult patients; (2) adults with health care proxy; (3) adults with FHCDA surrogate; (4) adults without FHCDA surrogate; (5) adults without capacity in the community; and (6) minor patients.[244]  Both checklists # 3 and # 4 incorporate the procedures set forth by FHCDA.[245]  These checklists start with the mandatory initial and concurring determinations of the patient’s medical decision-making capacity and follow other steps under FHCDA.[246]  Further, the NYSDOH website advises that these checklists are not intended for use with patients with developmental disabilities who lack medical decision-making capacity, or patients with mental illness in a mental hygiene facility.[247]  The checklists are intended to assist providers in satisfying the complex legal requirements associated with decisions concerning life-sustaining treatment for all other patients.[248]  They are guidance documents, and the use of these checklists is not mandatory.[249]

In January 2011, the New York State Office For People With Developmental Disabilities (OPWDD) approved use of the revised New York State DOH-5003 Medical Orders for Life-Sustaining Treatment (MOLST) form for the individuals served in the OPWDD system.[250]  However, the MOLST form must be accompanied by the MOLST Legal Requirements Checklist for Individuals with Developmental Disabilities.[251]  Medical decisions, which involve the withholding or withdrawing of life-sustaining treatment for individuals with developmental disabilities who lack capacity and do not have a health care proxy, must comply with the process set forth in HCDA.[252]  This means that the MOLST form may only be completed after the HCDA process has been completed for an individual.[253]  Use of the checklist ensures that the appropriate statutory standards have been met prior to use of the MOLST process.[254]

Before the notice-and-comment period for the 2014 amendment to the regulation 10 NYCRR § 400.21 ended in January 2014, the Department of Health received one comment from the MOLST Statewide Implementation Team, in which the Team “expressed general support for this proposal and stated that the regulation has great merit as it officially recognizes the MOLST for the first time in regulation.”[255]  However, they offered several suggestions: (1) the regulation should expressly refer to the MOLST as an actionable Medical Order, not an Advance Directive, (2) it should refer to the MOLST as both a "form and process", and recognize the eMOLST application, [256] and (3) should require health care facilities to include the MOLST form and process within their existing policies and procedures on Do Not Resuscitate (DNR) Orders and/or Palliative Care.[257]  They also suggested that future proposals should be considered to address other health care settings that would not be covered by this regulation (such as home care, hospice and assisted living facilities).[258]

In addition to the NYSDOH MOLST effort and the MOLST Statewide Implementation Team, the Community-Wide End-of-Life/Palliative Care Advisory Group in New York serves as a steering committee charged with setting direction for, overseeing and ensuring implementation of a set of broad end-of-life/palliative care projects that result in quality improvements in the lives of those facing death.[259]  The Group has been involved in developing eMOLST, a secure web-based application that allows enrolled users to complete the eMOLST form, MOLST Chart Documentation Form (CDF), and mandated OPWDD Checklist for persons with developmental disabilities who lack capacity.[260]  CDFs document the MOLST discussion, including the patient's values, beliefs and goals for care, the ethical framework for medical decisions regarding withholding and withdrawing life-sustaining treatment, and legal requirements.[261]  Forms are created as PDF documents that can be printed for the patient and paper-based medical records, stored or linked to from an EMR, and become part of the NYS eMOLST registry.[262]  Currently, the eMOLST registry is available to providers through the Rochester Regional Health Information Organization (RHIO), and the eMOLST application is being developed following open architectural principles for the benefit of other RHIOs across the state.[263]

Even though the State of New York has been developing its POLST paradigm since 2010, there is still room for improvement.  Both the legislature and NYSDOH should increase their recognition of the POLST program.  First, they should adhere to the suggestions offered by the MOLST Statewide Implementation Team during the notice-and-comment period.  Second, the state should adopt the best practices and procedures from the Oregon POLST implementation, such as the creation of the statewide POLST Registry and the statewide POLST education and advocacy.  Currently, few health care systems in New York State are able to seamlessly share POLST information when a patient is transferred between locations, such as from a nursing home to a hospital.  The absence of a way to share POLST across these settings can often impede providers from upholding patients' wishes. 

The latest 2014 "Dying in America" report by the Institute of Medicine stated that federal government should encourage states to develop and implement a POLST paradigm program in accordance with nationally standardized core requirements.[264]  Both medical community and the general public should educate themselves about this new paradigm in the end-of-life decision-making process and use POLST forms to supplement advance directives.

Conclusion

Exactly a century passed since Judge Benjamin Cardozo articulated the principle that every person has an inherent right to self-determination with respect to one’s own body and a course of one’s medical treatment.  Courts have also recognized that an obvious corollary to this principle also forms a foundation for a competent adult to refuse a life-sustaining treatment.  Both New York judiciary and legislature have grappled for years to find a proper balance between a patient’s autonomy and the State’s interests in recognizing a similar right for the incapacitated.  As a result, New York has a complex statutory system, which spans from New York Public Health Law to the Mental Hygiene Law and the Surrogate Court law, and a body of case law pertaining to discontinuance of life-sustaining treatment. 

This paper discussed a one-hundred-year evolution of the New York end-of-life law.  It described the genesis of the informed consent doctrine, which in turn influenced the birth of advance directives, such as living wills and health care proxies.  The paper also focused on the highly-publicized controversies in Quinlan and Cruzan that established the formal recognition of patient autonomy in health care decision-making by the United States Supreme Court.  The paper shed light on the difficulties faced by the judiciary and the New York legislature in allocating health care decision-making authority for the incapacitated.  It examined two salient New York Court of Appeals cases, In re Storar and O’Connor.  These cases had uncovered major issues that later were remedied by the important pieces of legislation – the Health Care Decisions Act for Persons with Mental Retardation (HCDA) and the Family Health Care Decision Act (FHCDA).

Even though a substantial progress has been made in the area of end-of-life law due to the efforts and advocacy of many groups, families, and patients, there is still room for improvement.  In Part III, the paper demonstrated that physicians regularly administer unwanted life-sustaining treatment and breach their duty to respect patients’ right to refuse.  However, the imposition of the unwanted treatment may be reduced with the increasing implementation of the Physician Order for Life Sustaining Treatment (POLST) paradigm, which is meant to supplement advance directives for frail and terminally ill patients.  The paper proposes that New York State should fully embrace the POLST paradigm by implementing the MOLST Statewide Implementation Team suggestions and by adopting the best practices and procedures from the Oregon POLST implementation.  A seamless integration of shared POLST information between acute care hospitals and nursing facilites would ensure that patients' wishes would be upheld at the end of life.

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[1] Kim Dayton, Standards for Health Care Decision-Making: Legal and Practical Considerations, 2012 Utah L. Rev. 1329, 1330 (2012).

[2] 70 N.J. 10, 18 (1976).

[3] 497 U.S. 261 (1990).

[4] U.S. Const. amend. V; U.S. Const. amend. XIV; Cruzan v. Mo. Dept. Health, 497 U.S. 261, 266 (1990).

[5] 521 U.S. 702 (1997).

[6] 211 N.Y. 125 (1914), abrogated by Bing v. Thunig, 2 N.Y.2d 656 (1957).

[7] Cruzan v. Mo. Dept. of Health, 497 U.S. 261, 269-70 (1989).

[8] Schloendorff, 211 N.Y. at 128.

[9] Id.

[10] Id. at 129-30.

[11] Id. at 129-30.

[12] Dayton, supra n.1, at 1332.

[13] 317 P.2d 170 (Cal. Dist. Ct. App. 1957).

[14] Dayton, supra n.1, at 1332.

[15] Fiorentino v. Wenger, 19 N.Y.2d 407, 416 (1967).

[16] Id.

[17] Id.

[18] Id.

[19] Murriello v. Crapotta, 51 A.D.2d 381, 382 (2d Dep’t 1976).

[20] Dayton, supra n.1, at 1332.

[21] Schloendorff, 211 N.Y. at 130.

[22] Dayton, supra n.1, at 1332.

[23] Dayton, supra n.1, at 1333.

[24] Id.

[25] Retkwa v. Orentreich, 154 Misc. 2d 164, 166 (N.Y. Sup. Ct. 1992).

[26] Id. at 167; N.Y. Pub. Health Law § 2805-d (McKinney 2014).

[27] N.Y. Pub. Health Law § 2504 (McKinney 2014).

[28] N.Y. Pub. Health Law § 2805-d.

[29] Luis Kutner, Due Process of Euthanasia: The Living Will, A Proposal, 44 Ind. L.J. 539 (1968).

[30] Id. at 550-51.

[31] Dayton, supra n.1, at 1337.

[32] 70 N.J. 10, 18 (1976).

[33] Matter of Quinlan, 70 N.J. 10, 24 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

[34] Quinlan, 70 N.J. at 25.

[35] Id. at 25.

[36] Id. at 29.

[37] Id. at 55.

[38] Id.

[39] Id. at 35.

[40] Id. at 35-40.

[41] Id. at 37.

[42] Id. at 37.

[43] 381 U.S. 479 (1965).

[44] N.J. Const. (1947), Art. I, par. 1.

[45] Quinlan, 70 N.J. at 41.

[46] Id. at 40.

[47] Dayton, supra n.1, at 1340.

[48] Garger v. New Jersey, 429 U.S. 922 (1976).

[49] Dayton, supra n.1, at 1341; Cruzan, 497 U.S. at 269.

[50] 497 U.S. 261, 265 (1990).

[51] Id.

[52] Cruzan, 497 U.S. at 269.

[53] Id. at 265.

[54] Id. at 277.

[55] Id. at 279.

[56] Id. at 280.

[57] Cruzan, 497 U.S. at 269.

[58] Id. at 284.

[59] Id. at 281.

[60] Catherine J. Jones, Decisionmaking at the End of Life, 63 Am. Jur. Trials 1 (Originally published in 1997).

[61] Cruzan, 497 U.S. at 292 (O'Connor, J., concurring).

[62] 521 U.S. 702 (1997).

[63] Glucksberg, 521 U.S. at 705-06.

[64] Id. at 720 (relying on Cruzan, 497 U.S. at 278-279).

[65] Id. at 722-23.

[66] Id. at 725.

[67] Id. at 725-26.

[68] Cruzan, 497 U.S. at 313.

[69] Id. at 314.

[70] Id. at 315-16.

[71] Glucksberg, 521 U.S. at 728.

[72] Id. at 730.

[73] Id. at 731.

[74] Id. at 732.

[75] Id. at 732.

[76] 75 N.Y.2d 218 (1990).

[77] Fosmire v. Nicoleau, 75 N.Y.2d 218, 231 (1990).

[78] Id. at 229.

[79] Id. at 221.

[80] Id. at 222.

[81] Id. at 227.

[82] Id. at 229.

[83] Id. at 229-30.

[84] Id.

[85] Id. at 231.

[86] Id.

[87] Fosmire, 75 N.Y.2d at 232-33 (Simons, J., concurring).

[88] Id. at 233 (Simons, J., concurring).

[89] Fosmire, 75 N.Y.2d at 235 (Hancock, J., concurring).

[90] Id. at 238 (Hancock, J., concurring).

[91] Bernadette Tuthill, Want to Terminate Life Support? Not in New York: Time to Give New Yorkers A Choice, 26 Touro L. Rev. 675, 685 (2010).

[92] 52 N.Y.2d 363 (1981).

[93] Cruzan, 497 U.S. at 271.

[94] Id. at 271-72.

[95] Storar, 52 N.Y.2d at 369.

[96] Storar, 52 N.Y.2d at 369.

[97] Id. at 371.

[98] Id. at 369.

[99] Id.

[100] Storar, 52 N.Y.2d at 369-70.

[101] Id. at 378.

[102] Id. at 379.

[103] Id. at 379.

[104] Id. at 380.

[105] Id. at 380.

[106] Id. at 380.

[107] Id. at 380-81.

[108] Id. at 382.

[109] 72 N.Y.2d 517 (1988).

[110] Matter of Westchester Cnty. Med. Ctr. on Behalf of O'Connor, 72 N.Y.2d at 522.

[111] Id. at 522.

[112] Id.

[113] Id. at 530.

[114] Id. at 531.

[115] Id.

[116] Id.

[117] Id. at 532.

[118] Id. at 534.

[119] Linda S. Whitton & Lawrence A. Frolik, Surrogate Decision-Making Standards for Guardians: Theory and Reality, 2012 Utah L. Rev. 1491, 1492 (2012).

[120] Id.

[121] O'Connor, 72 N.Y.2d at 530.

[122] Lisa Belkin, New York Rule Compounds Dilemma Over Life Support, N.Y. Times (May 12, 1992), http://www.nytimes.com/1992/05/12/us/new-york-rule-compounds-dilemma-over-life-support.html.

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] Id.

[128] Cruzan, 497 U.S.at 271-275.

[129] In re M.B., 6 N.Y.3d 437, 440 (2006) (holding that New York Health Care Decisions Act for Persons with Mental Retardation granted existing guardians full health care decision-making authority for mentally retarded persons).

[130] Tuthill, supra n. 91, at 676.

[131] N.Y. Pub. Health Law §§ 2980-2994 (McKinney 2014).

[132] Jill Hollander, Health Care Proxies: New York's Attempt to Resolve to the Right to Die Dilemma, 57 Brook. L. Rev. 145, 147 (1991).

[133] Cruzan, 497 U.S. at 289-90 (O’Connor, J., concurring).

[134] Borenstein v. Simonson, 8 Misc. 3d 481, 492 (N.Y. Sup. Ct. 2005) (citing Governor's Memorandum approving L. 1990, ch. 752, McKinney's 1990 Sessions Laws of NY, at 2742).

[135] Hollander, supra n. 132, at 147.

[136] Tuthill, supra n. 91, at 693.

[137] N.Y. Pub. Health Law § 2982 (McKinney 2014).

[138] Tuthill, supra n. 91, at 693.

[139] Tuthill, supra n. 91, at 693.

[140] Hollander, supra n. 132, at 160.

[141] Id.

[142] Hollander, supra n. 132, at 161-62.

[143] Hollander, supra n. 132, at 162.

[144] In re M.B., 6 N.Y.3d 437, 440 (2006).

[145] Id.

[146] In re Guardianship of Chantel Nicole R., 34 A.D.3d 99, 103-04 (1st Dep’t 2006).

[147] Storar, 52 N.Y.2d at 382-83.

[148] Chantel, 34 A.D.3d at 104.

[149] Id.

[150] Chantel, 34 A.D.3d at 104.

[151] Id.

[152] Id.

[153] In re M.B., 6 N.Y.3d at 449.

[154] Id. at 441.

[155] 6 N.Y.3d 437 (2006).

[156] In re M.B., 6 N.Y.3d at 443-44.

[157] Id. at 441.

[158] N.Y. Surr. Ct. Proc. Act Law § 1750-b (McKinney 2014).

[159] § 1750-b [2][b].

[160] § 1750-b [2][c].

[161] § 1750–b [4].

[162] In re M.B., 6 N.Y.3d at 442-43.

[163] N.Y. Surr. Ct. Proc. Act Law § 1750–b [4][a].

[164] § 1750–b [4][b][i].

[165] § 1750–b [4][b][ii].

[166] § 1750–b [4][b][iii].

[167] In re M.B., 6 N.Y.3d at 442-43.

[168] Tuthill, supra n. 91, at 676.

[169] O'Connor, 72 N.Y.2d at 522.

[170] Tuthill, supra n. 91, at 675.

[171] Tuthill, supra n. 91, at 675.

[172] Tuthill, supra n. 91, at 698-99.

[173] Tuthill, supra n. 91, at 698-99.

[174] Anemona Hartocollis, Law Dictates Who Decides on Care for the Incapable, N.Y. Times (Mar. 17, 2010), http://www.nytimes.com/2010/03/18/health/policy/18decisions.html?_r=1&; N.Y. Pub. Health Law § 2994 (McKinney 2014).

[175] N.Y. Pub. Health Law § 2994-b (McKinney 2014); NY Health Access, Family Health Care Decisions Act, available at http://www.wnylc.com/health/entry/142/.

[176] N.Y. Pub. Health Law § 2994-n (McKinney 2014).

[177] N.Y. Pub. Health Law § 2994-c (1) (McKinney 2014).

[178] § 2994-c (2), (3).

[179] § 2994-c (2).

[180] § 2994-c (2).

[181] § 2994-c (3).

[182] N.Y. Pub. Health Law § 2994-d (1) (McKinney 2014).

[183] § 2994-d (3)(a)(i).

[184] § 2994-d (4).

[185] § 2994-d (4) (a).

[186] § 2994-d (a).

[187] In re Zornow, 31 Misc. 3d 450, 451 (N.Y. Sup. Ct. 2010), decision clarified, 34 Misc. 3d 1208(A) (N.Y. Sup. Ct. 2011).

[188] Id.

[189] Zornow, 31 Misc. 3d at 451.

[190] Id. at 451.

[191] Id. at 453.

[192] Zornow, 31 Misc. 3d at 455 (emphasis original).

[193] Id. at 455.

[194] Id. at 476.

[195] Thaddeus Mason Pope, Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, and Disciplinary Sanctions, 9 J. Health & Biomedical L. 213, 218 (2013).

[196] Pope, supra n. 195, at 221.

[197] Pope, supra n. 195, at 222-23.

[198] Pope, supra n. 195, at 223-24.

[199] Id. at 224.

[200] Id. at 224.

[201] Id.

[202] Id. at 224-25.

[203] Id. at 226.

[204] Id.

[205] Robert B. Wolf et. al., The Physician Orders for Life-Sustaining Treatment (Polst) Coming Soon to A Health Care Community Near You, 49 Real Prop. Tr. & Est. L.J. 71, 74 (2014).

[206] Id.

[207] Id.

[208] Wolf, supra n. 205, at 130.

[209] Wolf, supra n. 205, at 124.

[210] Wolf, supra n. 205, at 76.

[211] Id.

[212] Id.

[213] Id. at 76-77.

[214] Id. at 77.

[215] Id.

[216] See Or. POLST Registry, Oregon POLST Registry Annual Report 1 (2013), available at http://www.orpolstregistry.org/wp-content/uploads/2012/09/Oregon-POLST-Registry-Annual-Report_2013_Final_ electronic_version.pdf.

[217] Wolf, supra n. 205, at 77.

[218] Pope, supra n. 195, at 227.

[219] Id.

[220] Id.

[221] Id.

[222] Id.

[223] Id.

[224] Id.

[225] Id. at 227-28.

[226] Id. at 227-28.

[227] Id. at 228.

[228] Id.

[229] Id.

[230] Id. at 228.

[231] Id.

[232] Id.

[233] Id.

[234] Wolf, supra n. 205, at 79.

[235] N.Y. Pub. Health Law § 2994-dd (McKinney 2014).

[236] N.Y. Pub. Health Law § 2994-dd (1).

[237] N.Y. Pub. Health Law § 2994-dd (2).

[238] N.Y. Pub. Health Law § 2994-dd (2).

[239] 10 NYCRR § 400.21 (b)(6) (2014).

[240] 10 NYCRR § 400.21 (b)(6).

[241] 10 NYCRR § 400.21 (e).

[242] Compassion and Support at the End of Life, Checklist for Adult Patients, MOLST Instructions and Legal Requirements Checklists for Adult Patients, http://www.compassionandsupport.org/index.php/for_professionals/molst/checklists_for_adult_patients.

[243] NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), available at http://www.health.ny.gov/professionals/patients/patient_rights/molst/.

[244] Id.

[245] NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), Checklist # 3 (Mar. 2012), available at http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_3.pdf; Checklist # 4 (Dec. 1, 2010), available at http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_4.pdf.

[246] Id.

[247] NYDOH, Protocols and Advisories, Medical Orders for Life-Sustaining Treatment (MOLST), http://www.health.ny.gov/professionals/patients/patient_rights/molst/.

[248] Id.

[249] Id.

[250] Compassion and Support at the End of Life, Checklist for Patients with Developmental Disabilities, https://www.compassionandsupport.org/index.php/for_professionals/molst/checklist_for_patients_with_developmental_disabilities.

[251] Id.

[252] Id.

[253] Id.

[254] Id.

[255] 2014 NY REG TEXT 345626 (NS).

[256] Compassion and Support at the End of Life, eMOLST, https://www.compassionandsupport.org/index.php/for_professionals/molst_training_center/emolst (last updated July 2013).

[257] 2014 NY REG TEXT 345626 (NS).

[258] 2014 NY REG TEXT 345626 (NS).

[259] Compassion and Support at the End of Life, About Us Background and Mission, https://www.compassionandsupport.org/index.php/about_us.

[260] Compassion and Support at the End of Life, eMOLST, https://www.compassionandsupport.org/index.php/for_professionals/molst_training_center/emolst (last updated July 2013).

[261] Id.

[262] Id.

[263] Compassion and Support at the End of Life, eMOLST, https://dl.dropboxusercontent.com/u/69456301/1pgeMOLSTWhyDoeMOLST.pdf.

[264] Institute of Medicine, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life (Sept. 17, 2014), http://iom.edu/Reports/2014/Dying-In-America-Improving-Quality-and-Honoring-Individual-Preferences-Near-the-End-of-Life.aspx.