Four bills regarding the denial of life-preserving medical treatment have been introduced to the New York State Senate by Kemp Hannon (R-6th SD), chair of the Senate Committee on Health.
These bills would weaken the safeguards currently in place for the very ill and developmentally disabled patients.
Below you’ll find the “Opposition Memo” from the New York State Right to Life Committee, who strongly opposes these measures and has fought for years to protect from euthanasia those who can no longer make health decisions for themselves. The links will take you to the text of the bills.
Denial of Treatment Legislation
The language of S4796 would create subjective standards for physicians seeking to impose a DNR order. A physician could impose a DNR if, in a reasonable degree of medical certainty, the patient would only live for “a short time.” However, without a defined period of time, physicians who believe a patient’s “quality of life” is unacceptably poor could consider a “short time” to be months or even a year or more. Further, the standard for physicians is subjective (not objective like a medical malpractice standard.) If two doctors simply claim (“determine”) they have made their judgment “to a reasonable degree of medical certainty,” that claim cannot be successfully challenged by anyone, no matter how clearly inaccurate it is. In this instance, the language used is unacceptably broad and chips away at the rights of the patient and their surrogate.
Current law protects patients who have completed a health care proxy document appointing a health care agent from being starved or dehydrated to death unless they have specifically authorized it. S. 4794 would allow health care agents to decide to starve and dehydrate patients based on “best interests” judgments by the health care agent even if the agent does not know the patients’ wishes. Removing this protection will lead to patients being starved and dehydrated to death against their wishes, having had no opportunity to express their wishes in that circumstance.
Currently, when a surrogate directs provision of life-preserving treatment, the health care provider must give it pending transfer or judicial review. This bill would allow the provider to deny treatment while the surrogate seeks judicial review. Very possibly, therefore, the patient could die before the surrogate can even get to court. Moreover, the health care provider need only make “diligent efforts…. To notify the surrogate prior to implementing the decision” to deny treatment- so the surrogate may not even know of the denial in time to challenge it. A health care provider who contends that the patient had rejected the treatment the surrogate directed may present that evidence to the court, which, if persuaded, can then override the surrogate’s direction. A surrogate may well have evidence to offer that the health care provider misinterpreted the patient’s direction, or that the patient later expressed a contrary desire for the treatment the surrogate directed.
The new language would require only that the physician seeking to deny treatment recall the patient expressing orally (in front of the physician and another witness) or in writing a decision regarding life-sustaining treatment. There is no requirement that a notation be made in the patients file at the time of the conversation.
A competent patient who in fact wishes to reject life-saving treatment can do so in a written advance directive, which under NY law has a variety of safeguards such as warning statements and a requirement of witnesses. Health care providers certainly could advise their patients of this option at the time they allegedly state they want to reject treatment. But under the law, any writing rejecting treatment, lacking witnesses or informed consent safeguards is sufficient to let a health care provider override a family health care decision to provide treatment.
S 4791 would add language to existing law to require only that a hospital “make diligent efforts” to notify a parent of an emancipated minor patient before withholding or withdrawing life-sustaining treatment. Even when a difficult family situation or a rebellious teen has resulted in “emancipation,” a child who is a minor should not be abetted in throwing away his or her young life without the opportunity, at least, for parental input.