Health Care Decision Making

Published on May 24th, 2021

Memorandum of Opposition

Re: A2634 Rosenthal L / S4967 Rivera
In relation to health care decision-making

The above-referenced bill would remove important safeguards currently in the Public Health Law that guard against the intentional starvation and dehydration of patients. It does this by a) defining “health care” to include nutrition and hydration, even if administered orally, and b) allowing health care agents under the proxy law to make decisions about nutrition and hydration without knowing the patient’s wishes about them. Unlike the sponsor’s memorandum which states that this legislation makes only “technical/minor, clarifying and coordinating amendments,” this legislation takes a huge step off the slippery slope into the abyss of euthanasia.

We strongly oppose this legislation and urge you to vote “no” on the bill.

Under the current Health Care Proxy law (Article 29-C Public Health Law), the reasonably known wishes of the patient must be ascertained prior to an agent making any decisions regarding medically-assisted nutrition and hydration. This bill eliminates this requirement of respecting the wishes of the patient. Instead, it would allow the surrogate decision-maker to make their own subjective judgment about the patient’s “best interests” – even if that means denying the patient water and letting them die by dehydration.

Moreover, it allows this surrogate to make decisions not just about medically-assisted nutrition and hydration (tube feeding), but about simple mouth feeding; a surrogate could determine that it is in the patient’s best interests to deny them pudding or applesauce by mouth, thereby allowing them to be starved to death.

Removing these protections would be particularly dangerous for the most powerless, isolated, vulnerable, incapacitated populations, and patients with dementia and other limitations. Following a year of pandemic, illness and loss, much of it in nursing facilities, we should be enhancing and improving protections for these patients, not eliminating them.

We would note that the language of this bill has significantly changed since the last legislative session when the bill, then A730-A, only applied to “hydration and nutrition provided by means of medical treatment.”

The New York State Catholic Conference has for many years been actively engaged on the issue of health care decision-making, and has long advocated for respect for each and every human life, including those who are disabled, vulnerable and incapacitated. During legislative debate and deliberation on these issues, it has always been understood that food and water are part of the ordinary care individuals owe to one another. All who are sick should rightfully expect, and accept, appropriate food, water, pain control, warmth, personal hygiene measures and comfort care. These are not medical treatments, but basic caregiving. This legislation would turn this principle on its head and allow for the denial of ordinary nourishment to extremely vulnerable individuals.

We strongly urge you to leave current law in this area alone; it sets reasonable and prudent standards for making life-sustaining treatment decisions for individuals who lack decision- making capacity.

To ensure appropriate legal protection for all persons who are unable to make their own healthcare decisions, particularly life-or-death decisions, we oppose this legislation and urge that it be defeated.