Chapter 5.A.3: The Incompetent Patient

This page has notes for Jobes; Deciding for the Incompetent Patient, Note 3, Note 4 and Note 5; Advance Planning, Notes 1 and 2, and Note 7; and Interpreting and Drafting Advance Directives, Problem 2; Severely Disabled Newborns, Note 1.


As mentioned in the text, this case arose when Ms. Jobes' nursing home refused the request of her family to have her feeding tube withdrawn. After Ms. Jobes' husband sought judicial authorization, the trial court appointed a guardian ad litem for Ms. Jobes, and the guardian supported the family's request. The nursing home sought appointment of a "life advocate" for Ms. Jobes, but the trial court denied that request. The Public Advocate intervened as a party in opposition to the family.

Deciding for the Incompetent Patient, Note 3

There is some ambiguity in the text of the 2010 New York statute.  For patients who are terminally ill or permanently unconscious, treatment may be withdrawn when it imposes an "extraordinary burden," which sounds much like the standard for other patients of "extraordinarily burdensome" treatment.  On the other hand, the structure of the statute suggests a lower threshold than for patients who are neither terminally ill nor permanently unconscious.  Moreover, the legislative history indicates that the requirement of an extraordinary burden for terminally ill or permanently unconscious patients should not be read strictly.  According to the Sponsor's Memo, the term "extraordinary" replaced the term "excessive" (which was used in The New York State Task Force on Life and Law report) not to change the meaning of the statute but to follow the wording used in Surrogate's Court Procedure Act § 1750-b.

Deciding for the Incompetent Patient, Note 4

There has been increasing attention to "minimally conscious patients" and the appropriate standards for withdrawal of treatment.  The Conroy-Wendland-Martin approach would apply strict standards to such patients.  For more discussion, see Jeffrey B. Hammond, "The Minimally Conscious Person: A Case Study in Dignity and Personhood and the Standard of Review for Withdrawal of Treatment," 55 Wayne L. Rev. 821 (2009).

Deciding for the Incompetent Patient, Note 5

For an interesting case involving cardiovascular surgery on a prominent heart surgeon, with important questions about the influence of a patient's denial on decision-making capacity, the freedom of family members to override a patient's stated wishes, and the effect of a patient's fame on the care that the patient receives, see Lawrence K. Altman, "The Man on the Table Was 97, but He Devised the Surgery," N.Y. Times, December 25, 2006.

Advance Planning, Notes 1 and 2

In a Florida case, a court concluded that a living will takes priority over a durable power of attorney when the surrogate's decision would conflict with the wishes expressed in the living will.  In In re Pinette, the trial court judge rejected a wife's effort to maintain life-sustaining treatment for her terminally ill husband.  The husband, Harford Pinette, had executed a living will and a durable power of attorney on the same day, and he appointed his wife as his surrogate.  In his living will, wrote the court, Mr. Pinette "directed that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong the process of dying, that he wanted to die naturally and receive medication only to alleviate pain."  The decision is consistent with Florida statutory law, which states that a living will takes priority over a durable power of attorney "if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise."  Fla. Stat. 709.08(3)(c)(3).

Advance Planning, Note 7

In a case in which there was conflicting evidence regarding the patient's refusal or not of a blood transfusion, a New York trial court judge held that the patient could not allege malpractice to the extent that her claim rested on an allegation that her life was wrongfully prolonged. DiGeronimo v. Fuchs, 927 N.Y.S.2d 904 (N.Y. Sup. Ct. 2011).

Interpreting and Drafting Advance Directives, Problem 2

Problem 2 is an exercise designed to help you understand the human and emotional dimension of making decisions about life-sustaining treatment. You are required before the end of the semester to fill out this Health Care Power of Attorney form with a real person and write a 1 page, single spaced report about the reasoning behind the choices made and your impressions of the process.


Before having your health care agent sign any forms, you should discuss your beliefs and wishes with him or her. When instructing your health care agent about your wishes in the event you become incapacitated and they need to make health care decisions, we suggest you consider the following questions. We suggest no particular answers. Each person should answer these questions based on their own beliefs and convey those beliefs and wishes to their health health care agent. Any other wishes or desires that you feel your health care agent should know should also be given to them so that they can carry out their responsibilities as you would wish.

  • Do you think you would want to have any of the following medical treatments performed on you?
    • Kidney dialysis (used if your kidneys stop working)
    • Cardiopulmonary resuscitation, also called CPR (used if your heart stops beating)
    • Respirator (used if you are unable to breathe on your own)
    • Artificial nutrition (used if you are unable to eat food)
    • Artificial hydration (used if you are unable to drink fluids)
  • Do you want to donate parts of your body to someone else at the time of your death? (This is called "organ donation.")
  • How would you describe your current health status? If you currently have any medical problems, how would you describe them?
  • If you have current medical problems, in what ways, if any, do they affect your ability to function?
  • How do you feel about your current health status?
  • If your have a doctor, do you like him or her? Why?
  • Do you think your doctor should make the final decision about any medical treatments you might need?
  • How important is independence and self-sufficiency in your life?
  • If your physical and mental abilities were decreased, how would that affect your attitude toward independence and self-sufficiency?
  • Do you wish to make any general comments about the value of independence and control in your life?
  • Do you expect that your friends, family and/or others will support your decisions regarding medical treatment you may need now or in the future?
  • What will be important to you when you are dying (e.g., physical comfort, no pain, family members present, etc.)?
  • Where would you prefer to die?
  • What is your attitude toward death?
  • How do you feel about the use of life-sustaining measures in the face of terminal illness?
  • How do you feel about the use of life-sustaining measures in the face of permanent coma?
  • How do you feel about the use of life-sustaining measures in the face of irreversible chronic illness (e.g., Alzheimer's disease)?
  • Do you wish to make any general comments about your attitude toward illness, dying, and death?
  • What is your religious background?
  • How do your religious beliefs affect your attitude toward serious or terminal illness?
  • Does your attitude toward death find support in your religion?
  • How does your faith community, church, or synagogue, view the role of prayer or religious sacraments in an illness?
  • Do you wish to make any general comments about your religious prayer or religious sacraments in an illness?
  • Do you wish to make any general comments about your religious background and beliefs?
  • What else do you feel is important for your agent to know?

If, over time, your beliefs or attitudes in any area change, you should inform your health care agent. It is also wise to inform your health care agent of the status of your health when there are changes such as new diagnoses. In the event that you are informed of a terminal illness, this, as well as the ramifications of it, should be discussed with him or her. How well your health care agent performs depends on how well you have prepared them.

Severely Disabled Newborns, Note 1

The following is an update of paragraphs 2-4 of the note (pages 578-579):

In 2015, HHS withdrew the Child Abuse Amendment regulations in 45 C.F.R. part 1340, writing that the "regulations are no longer necessary or appropriate to ensure coordination because we have provided policy interpretations and program instructions to guide such coordination." (The Child Abuse Amendments are now codified at 42 U.S.C. § 5106a(b)(2)(C).) With regard to the definition of "withholding medically indicated treatment," HHS wrote:

The protections for disabled infants (commonly known as ‘‘Baby Doe’’) are now included in the statute in the form of a State plan assurance. Specifically, States are required under section 106(b)(2)(C) of CAPTA [42 U.S.C. § 5106a(b)(2)(C)] to have procedures to respond to reports of withholding medically indicated treatment from disabled infants with life-threatening conditions. In addition ‘‘withholding of medically indicated treatment’’ is defined in section 111 of CAPTA [42 U.S.C. § 5106g(a)(5)]. No longer is there a specific State grant program and funding for improving the provision of services to disabled infants with life-threatening conditions and their families.