Medical Decision on Behalf of Incompetent Patients: Federal Court Upholds Law Allowing Medical Decisions for Incompetent Patients - Doe Ex Re. Tarlow V. District of Columbia1

Article excerpt

The United States Court of Appeals for the District of Columbia held that a District of Columbia policy (the "Policy"), which provides that the wishes of an incompetent patient need not be taken into account by the person charged with making medical decisions on behalf of the patient, is consistent with District of Columbia statutory law, procedural due process, and substantive due process.2

The plaintiffs represented a class of intellectually disabled persons who live in District of Columbia facilities and receive medical services from the District of Columbia.3 They have never had the mental capacity to make medical decisions for themselves.4

The Policy at issue was adopted in 2003 by the District of Columbia Mental Retardation and Developmental Disabilities Administration ("MRDDA") to regulate the medical care of intellectually disabled persons in the District of Columbia.5 For patients who have always lacked the mental capacity to make informed medical decisions, the Policy authorizes an MRDDA Administrator to make a medical decision on behalf of the patient if: (i) two licensed physicians have certified in writing that the proposed treatment is in the best interests of the patient; (ii) the health care providers have attempted to provide an explanation of the proposed treatment to the incompetent patient; and (iii) no guardian, family member, or other close friend or associate is available to consent or withhold consent.6

Meanwhile, the District of Columbia's Health Care Decisions Act - the statute that the plaintiffs alleged was inconsistent with the Policy - provides that an MRDDA Administrator, in making a medical decision on behalf of an incompetent patient, must base the decision "on the known wishes of the patient or, if the wishes of the patient are unknown and cannot be ascertained, on a good faith belief as to the best interests of the patient."7

The trial court concluded that "[e]ven a legally incompetent, mentally retarded individual may be capable of expressing or manifesting a choice or preference regarding medical treatment."8 The trial court thus held that the Policy - which applies the "best interests" standard to MRDDA decisions made on behalf of a patient who has always lacked the mental capacity to make informed medical decisions - is inconsistent with the Health Care Decisions Act, violates the plaintiffs' "liberty interest to accept or refuse medical treatment," and is therefore "an unconstitutional infringement of the substantive and procedural due process rights of plaintiffs and their fellow class members."9

The Court of Appeals reversed.10 The Court began its statutory analysis by observing that the Health Care Decisions Act implicitly distinguishes between two categories of persons who lack mental capacity: (i) those who once possessed the mental capacity to make medical decisions, such as those in a coma, and (ii) those who have always lacked the mental capacity to make medical decisions.11 For patients who once had the mental capacity to make medical decisions, a MRDDA Administrator must base a medical decision on the "known wishes" of the patient, if those wishes can be "ascertained."12 For patients who have never had the mental capacity to make medical decisions, a MRDAA Administrator must base a medical decision on the "best interests" of the patient. …