In an ominous new development, New York State law has now vastly expanded the authority of health care providers to “pull the plug” on incapacitated patients – even to withhold from them food and water, thereby causing them to starve to death.

Governor David Paterson has signed into law the Family Health Care Decisions Act, over the strong opposition of Agudath Israel of America and other groups who consider it an attack on patients’ rights and personal autonomy.

According to Rabbi Mordechai Biser, Associate General Counsel of Agudath Israel, the law, which the medical establishment promoted for 17 years, was designed in part for a beneficial purpose.

Until now, he explains, New York State law offered no mechanism for determining who should make health care decisions for an unconscious patient who did not designate anyone to make decisions should he or she be in such a state.  That void did create problems, as evidenced by a case brought to Agudath Israel’s attention a year ago.

A New York hospital placed a “Do Not Resuscitate,” or DNR, order on an elderly Orthodox Jewish woman’s medical chart and then allegedly administered morphine to hasten her death, over the strong objections of her son, her primary caregiver. The hospital claimed that the woman had told its personnel that this was what she wanted. The son lacked the signed health care proxy that would have made him the decision-maker for his mother’s treatment, and the law did not identify who else should assume that role. And so the hospital simply dismissed the son’s protest.

Under the newly enacted law, if a patient does not designate an agent in writing, a designated-by-law relative or friend of the patient is automatically assigned the power to act as the patient’s “surrogate” and make whatever health care decisions on his behalf.

But the new law creates its own problems, too, some of them quite serious from the perspective of an Orthodox Jew or anyone who feels that preservation of even compromised life is a moral mandate. For it radically alters the position the New York courts have taken for over twenty years regarding decisions about incapacitated patients. In the past, only where there was “clear and convincing evidence” that the patient himself would have directed the termination of life support could such treatment have been withheld or withdrawn.   As the state’s highest court put it, “Nothing less than unequivocal proof will suffice when the decision to terminate life support is at issue.”

The new law abolishes that standard, empowering a surrogate – even one never chosen by the patient – to make life-and-death decisions for him, including the withdrawal of food and water. While the law does require the surrogate to make decisions in accordance with the wishes of the patient to the extent they are known, and only authorizes the withdrawal of life sustaining treatment under certain circumstances, if the wishes of the patient are unknown or if there is a dispute among family members, the law gives the surrogate sweeping powers over life and death.

Rabbi Biser, who fought the bill on behalf of Agudath Israel for many years, explains that now, if an incapacitated patient did not designate a health care agent or proxy in writing and has no legal guardian, his automatic proxy for making health care decisions will be his spouse. If there is no spouse, the power is given to an adult son or daughter. If there are no such children, a parent of the patient is next in line.  In the absence of parents, the power falls to an adult sibling – and if there are none, to a close friend of the patient.

“No one should think that the new law will not affect them,” warns Rabbi Biser, and he urges members of the Jewish community to take immediate steps to protect themselves and their families.

“We have dealt with many cases,” he recounts, “involving disputes between family members of a patient and a hospital, and between family members themselves, over health care decisions for incapacitated patients.  Until now, at least in New York State, the ‘clear and convincing evidence’ standard enabled us to persuade hospitals, and in some cases judges, to respect the wishes of the family to keep patients alive.

“Now, however, that standard has been abolished, and the fate of incapacitated patients will be largely up to the whim of whoever happens to rank highest on the new law’s ‘pecking order’ of surrogates.”

Rabbi Biser describes several of what he calls “nightmare scenarios” that could easily take place now in cases where incapacitated patients lack a properly executed health care proxy:

* A recently married young man falls on the ice and suffers a serious head injury that leaves him unable to communicate.  His doctor says the condition is irreversible but his parents refuse to give up hope and, in accordance with their family rabbi’s ruling, want their son to receive all possible medical treatment.  The patient’s young wife, distraught at the prospect of remaining married to a possibly permanent invalid, orders the doctors to withdraw life support.  Under the new law, they must follow her directive.

* After a car accident, a mother of young children is on life support; the hospital doctor says she is permanently unconscious but other medical experts disagree.  Her bitterly estranged husband, no longer religiously observant and who has lived apart from her for some time but is not yet legally separated or divorced, holds the power to “pull the plug” and has no compunctions about using it.

* An observant elderly man whose only adult son is no longer observant will require a feeding tube to stay alive.  He is conscious and alert but cannot communicate his wishes.  The hospital doctor says that he has less than six months to live; other experts disagree.  The patient’s siblings insist that he would want to stay alive, but they have nothing in writing to prove it.  The son orders the doctors to not place the feeding tube and to withdraw intravenous hydration.  They must comply, and the patient dies days later from lack of nutrition and water.

“Lest anyone think these scenarios are far-fetched,” says Rabbi Biser, “Agudath Israel has been called in several cases similar to the last one.  And in each case the attorney we found for the family was able to persuade a judge to order the insertion of a feeding tube over the objections of the patient’s adult child.  Under the new law, though, we might well have lost those cases – and those lives.”

“But even under the new law,” the Agudath Israel attorney continues, “people still have a way to avoid an unchosen surrogate from making health care decisions for them:  Completing and signing a health care proxy form that designates a decision-maker.”

No attorney is necessary to create such a proxy, Rabbi Biser explains.  “For observant Jews,” he says, “the simplest path is to contact Agudath Israel of America and request a Halachic Living Will” that will ensure that Jewish religious law will govern treatment in case of incapacitation.   Halachic Living Wills for many states can be obtained by calling Agudath Israel at 212-797-9000.

“Then,” Rabbi Biser adds, “register the document with a national registry, which Agudath Israel can help you do at no charge, and make sure that appropriate family members have a copy of the document.”

Several years ago, Rabbi Yaakov Perlow, the Novominsker Rebbe and Rosh Agudas Yisroel, stated:  “Every Jew in America should fill out and sign a Halachic Living Will.  We are living in an era in which many doctors and hospitals are no longer committed to the concept of the sanctity of human life.  Having a Halachic Living Will helps ensure that halacha will be upheld in life and death health care decisions.”

A New York attorney who helped Agudath Israel develop its Halachic Living Will, Jonathan Rikoon, notes that it “fills a vital need.”

“It is, he says, “intended to be a legally binding document that doctors and hospitals must respect.  No Orthodox Jew should be without one.”

(YWN World Headquarters – NYC)