In re M.B. Mental Hygiene Legal Service , 797 N.Y.S.2d 510 ( 2005 )

OPINION OF THE COURT

Goldstein, J.

By amended decree of the Surrogate’s Court, Richmond County, dated January 24, 2003, M.B.’s brother, R.B., was appointed “guardian of the person only” of M.B. The amended decree made no mention of any powers to make health care decisions. Thereafter, M.B. was admitted to Staten Island University Hospital suffering from pneumonia, hypertension, and hypoxia. In early October 2003, he was placed on a respirator for breathing and a nasal-gastric tube for feeding and hydration. On or about October 14, 2003, R.B., as guardian of the person of M.B., requested pursuant to SCPA 1750-b that life-sustaining treatment be withdrawn and withheld from M.B.

SCPA 1750-b is part of the “Health Care Decisions Act for Persons with Mental Retardation” (L 2002, ch 500), effective March 16, 2003. This act of the Legislature also amended SCPA 1750 relating to the appointment of guardians for mentally-retarded persons. SCPA 1750-b (1) provides that “[u]nless specifically prohibited by the court” the guardian for a mentally-retarded person appointed pursuant to SCPA 1750 has the authority to make health care decisions on behalf of the mentally-retarded person which “may include decisions to withhold or withdraw life-sustaining treatment” as defined in Mental Hygiene Law § 81.29 (e). Mental Hygiene Law § 81.29 (e) defines life-sustaining treatment as “medical treatment” including “artificial nutrition and hydration” that “is sustaining life functions and without which, according to reasonable medical judgment, that patient will die within a relatively short time period.”

The appellant Mental Hygiene Legal Service (hereinafter MHLS) commenced the instant proceeding to determine that R. B. did not have the authority to withhold or withdraw life-sustaining treatment pursuant to SCPA 1750 and 1750-b on the ground that those provisions are not to be applied retroactively to guardians appointed prior to their effective date. MHLS contended that R.B., as guardian of the person of M.B., could “only exercise authority under SCPA 1750-b if his authority is specifically expanded by the Surrogate.” The order appealed from (see Matter of M.B., 2 Misc 3d 328, 331), held that the Health Care Decisions Act for Persons with Mental Retardation “applies to all guardians, whether appointed before or after its effective date.”

At the outset, we note that the issue of the powers of the guardian for M.B. is now academic, since M.B. died within hours of the termination of life-sustaining treatment. However, in view of a likelihood of the repetition of this issue in the future, the fact that the issue could tend to evade review, and that the questions raised by this appeal are substantial, an exception to the mootness doctrine applies (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

The constitutionality of the Health Care Decisions Act for Persons with Mental Retardation is in no way contested on this appeal. The only question before this Court is whether its provisions are to be applied retroactively.

In determining whether the amendments should be applied retroactively, one must examine the legislative intent. “[T]he clearest indicator of legislative intent is the statutory text” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). The retroactive application of statutes is not favored (see id. at 584). Substantive statutes which create new rights are generally not applied retroactively; indeed, even statutes which are remedial in nature are not applied retroactively if vested rights would be impaired (see Matter of Marino S., 100 NY2d 361, 371 [2003], cert denied 540 US 1059 [2003]; Alliance of Am. Insurers v Chu, 77 NY2d 573, 586 [1991]; McKinney’s Cons Laws of NY, Book 1, Statutes § 51, at 98-100).

The amendments were enacted to address a problem discussed in the relevant case law. New York case law holds that a competent adult has the right to refuse life-saving medical treatment (see Matter of Fosmire v Nicoleau, 75 NY2d 218). When the patient is not competent, a decision to withhold or withdraw life-sustaining treatment may be made if there is clear and convincing evidence that the patient, when competent, did not wish to have his or her life prolonged by medical means with no hope of recovery (see Matter of Storar, 52 NY2d 363 [1981], cert denied 454 US 858 [1981]). Such a determination can only be made if the patient “had been competent and capable of expressing” his or her wishes at some point (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517, 529 [1988]). In the case of Storar, who was profoundly retarded and was never able to competently express his wishes, the Court of Appeals held that the guardian could not withhold or withdraw life-sustaining treatment (see Matter of Storar, supra).

Like all individuals, mentally-retarded persons are not all the same. The levels of mental retardation have been classified as (1) mildly retarded with IQ of 50 to 70, (2) moderately retarded with an IQ of 35 to 50, (3) severely retarded with an IQ of 20 to 35, and (4) profoundly retarded with an IQ below 20 (Matter of Baby Boy W., 3 Misc 3d 656, 666 [2004]). Mentally-retarded persons can be competent to make their own medical decisions (see Matter of Baby Boy W., supra at 666; Matter of B, 190 Misc 2d 581 [2002] [retarded person with IQ of 62 can give informed consent to sterilization]) and can be capable of pursuing their legal rights without the aid of a guardian (see Matter of Individual with Disability for Leave to Change Name, 195 Misc 2d 497 [2003]).

The new SCPA 1750 (2) properly recognizes that there are mentally-retarded persons who are capable of making their own health care decisions. Every certification by two physicians or a physician and a psychologist that the mentally-retarded person is incapable of managing his or her affairs “shall include a specific determination . . . as to whether the mentally retarded person has the capacity to make health care decisions.” (SCPA 1750 [2].) A determination by the examining physicians and/or psychologist that the mentally-retarded person is capable of making health care decisions “shall not preclude the appointment of a guardian pursuant to this section to make other decisions on behalf of the mentally retarded person” (id. [emphasis supplied]).

With respect to guardians appointed prior to the effective date of the new provisions, SCPA 1750 (2) provides that the absence of a determination as to whether the mentally-retarded person has the capacity to make health care decisions “shall not preclude such guardians from making health care decisions.” Further, SCPA 1750-b states:

“Unless specifically prohibited by the court after consideration of the determination, if any, regarding a mentally retarded person’s capacity to make health care decisions, which is required by section seventeen hundred fifty of this article, the guardian of such person appointed pursuant to section seventeen hundred fifty of this article shall have the authority to make any and all health care decisions, as defined by subdivision six of section twenty-nine hundred eighty of the public health law, on behalf of the mentally retarded person that such person could make if such person had capacity. Such decisions may include decisions to withhold or withdraw life-sustaining treatment” (emphasis supplied).

In reaching the conclusion that the new provisions should be applied retroactively, the Surrogate relied upon this statutory text. It held that the use of the term “if any” in SCPA 1750-b “contemplates a situation where a guardian would have health care decision making authority, even in the absence of the SCPA 1750 determination” of whether the mentally-retarded person has the capacity to make his or her own health care decisions (Matter of M.B., supra at 330).

In enacting the Heath Care Decisions Act for Persons with Mental Retardation, the Legislature intended to eliminate discrimination against mentally-retarded persons who could never express their wishes with respect to life-sustaining treatment, to afford them “the same choices afforded to competent or formerly-competent patients” to refuse life-sustaining treatment (Mem of Senator Hannon in Support of L 2002, ch 500, 2002 NY Legis Ann, at 280). The “overarching motive” of the Legislature was:

“(1) to clarify that decisions regarding life-sustaining treatment are part of the natural continuum of all health care decisions, (2) to allow decisions to end life-sustaining treatment only where the need is clearest (i.e. where patients are profoundly ill and never had the ability to make such decisions for themselves), (3) to utilize existing legal standards wherever possible, and (4) to maintain judicial oversight of close decisions, with a statutory structure incorporating a workable standard for the court” (Mem of Senator Hannon in Support of L 2002, ch 500, 2002 NY Legis Ann, at 280 [emphasis supplied]).

A retroactive application of the new SCPA 1750 and 1750-b would serve the contrary purpose of depriving mentally-retarded persons with guardians appointed prior to March 16, 2003, of their statutory right under the new SCPA 1750 (2) to a determination of their capacity to make their own health care decisions.

The former statutory scheme also provided protections which will be lost with the retroactive application of the amendments. Guardians for mentally-retarded persons appointed pursuant to SCPA former 1750 were appointed based upon a certification that the mentally retarded person was “incapable to manage him or herself and/or his or her affairs by reason of mental retardation.” No certification was made of the mentally-retarded person’s capacity to make his or her own health care decisions. However, guardians appointed pursuant to SCPA former 1750 had similar powers as guardians appointed pursuant to Mental Hygiene Law article 81 (see Matter of B., 190 Misc 2d 581, 585 [2002]). Mental Hygiene Law § 81.29 (e) authorizes the court to specifically grant or deny a guardian the power to give consent to the withdrawing of life-sustaining treatment. Such a determination is generally made based upon clear and convincing evidence of the patient’s wishes (see Wickel v Spellman, 159 AD2d 576 [1990]; Matter of Kyle, 165 Misc 2d 175 [1995]).

The provision in the new SCPA 1750-b (4) which states that “[i]n the event that a guardian makes a decision to withdraw or withhold life-sustaining treatment from a mentally retarded person” the attending physician must confirm that the mentally retarded person lacks the capacity to make health care decisions (see SCPA 1750-b [4] [a]) provides no protection. This certification occurs when the decision to terminate life-sustaining treatment is made. Generally such a decision is made when a patient who may have been competent when well is unconscious or too sick to make health care decisions. By its terms, it would not protect mentally-retarded persons formerly competent to make health care decisions. Nor would it ensure any mentally-retarded person of an opportunity to be heard at a meaningful time and in a meaningful manner as to whether the guardian should have the power to withdraw or withhold life-sustaining treatment (see Matter of Chantel R., 6 Misc 3d 693).

Under the new statutory scheme, the Surrogate must expressly deny a guardian the power to withhold or withdraw life-sustaining treatment if the Surrogate deems such a limitation appropriate (see SCPA 1750-b [1]). However, with respect to guardians appointed prior to the effective date of SCPA 1750-b, no such limitation was necessary since the guardian would have had to affirmatively seek the authority to withhold or withdraw life-sustaining treatment from the court, based upon clear and convincing evidence of the patient’s wishes and/or the best interests of the mentally-retarded person. The retroactive application of SCPA 1750-b to guardians appointed pursuant to SCPA former 1750 would expand their powers without any consideration by the court as to whether such an expansion of authority would be appropriate.

The amicus curiae NYSARC, Inc., notes that “[u]nless the Court in this case finds that guardians appointed prior to March 16, 2003, the effective date of the Act, have the authority to make end-of-life decisions on behalf of their wards, thousands of guardians will be forced to expend both their own and judicial resources by seeking to have guardianship decrees and other related documents amended.” However, each life is precious. A requirement of judicial intervention is not a waste of resources to insure that mentally-retarded persons are treated fairly and in accordance with all their rights.

Accordingly, we hold that SCPA 1750-b shall not apply to guardians appointed prior to its effective date, without a judicial determination specifically granting such guardians powers pursuant to SCPA 1750-b in accordance with the statutory safeguards set forth in SCPA 1750 (2). The order is reversed insofar as appealed from, on the law, without costs or disbursements, and the petition is granted.

H. Miller, J.P., and Adams, JJ., concur.