Matter of CK
Annotate this CaseDecided on March 22, 2006
Surrogate's Court, Albany County
Proceeding for the Appointment of a Guardian for CK Pursuant to SCPA Article 17-A
2006-59
Maney, McConville & Liccardi,
Stanley B. Segal, Esq., of counsel
Attorney for petitioner
77 Troy Road
East Greenbush, NY 12061
John Dorfman, Esq.
Mental Hygiene Legal Services
40 Steuben Street, Suite 501
Albany, NY 12207
Iseman, Cunningham, Riester & Hyde LLP
Lydia Meunier, Esq., of counsel
Attorney for St. Peter's Hospital
9 Thurlow Terrace
Albany, NY 12203
Cathryn M. Doyle, J.
On January 23, 2006, LW filed a verified petition with Surrogate's Court, Albany County, seeking guardianship of her sister CK, pursuant to SCPA Article 17-A. The petitioner has been active in the care and treatment of her sister for her entire life, and has maintained a bedroom for her sister in her own home to ensure CK's comfort during her frequent visits.
CK was a fifty year old woman suffering from Down's Syndrome with severe mental retardation, complicated by progressive dementia (see affidavit of examining physician John W. Morris, M.D., dated January 19, 2006), and advanced Alzheimer's (see affidavit of examining physician Daniel Jay Silverman, M.D., dated January 31, 2006). These allegations are un-controverted, and sufficient to support the need for an appointment pursuant to SCPA 17-A, including the granting of health care decision making under 1750-b.
Both of CK's parents have executed and filed consents to the appointment of LW as guardian of CK, as has the Director of her residential facility provider.
Mental Hygiene was afforded notice of the within proceeding, as required by statute, and appeared by John Dorfman, Esq. Additionally, an affidavit of petitioner's counsel was filed in support of the application, which provided the following pertinent information:
"On the 23rd day of January I faxed to Laureen Faulkner, Esq., attorney for Mental Hygiene Legal Service a copy of the petition, medical affidavits and waivers. I have since been advised that Ms. Faulkner has had conversations with representatives of St. Peter's Hospital and staff at the Center for Disability Services regarding this proceeding.This affidavit is being made in support of an application for emergency relief and a temporary order of Guardianship appointing [LW] Guardian of the person of [CK] with authority to make end of life decisions.[CK] is presently in the intensive care unit of St. Peter's Hospital where she has been for a little over two weeks since her admission. As more fully set forth in the medical affidavits, [CK] is suffering from end-stage Alzheimers. She has been on a respirator since her admission to St. Peter's Hospital and it is believed that she is presently incapable of breathing on her own and that she will not gain the capacity to breathe on her own in any meaningful way or for any extended period of time.On January 30, 2006, a meeting and conference was held at St. Peter's Hospital. I was in attendance along with LW, RK and Janet Kosco, Dr. Greenhouse, Lisa Siedel and two nurses and additional staff from the Center for Disability Services and other hospital staff.At the conference, Dr. Greenhouse reviewed [CK's] status with the family and advised them of the fact that Dr. Daniel Silverman had entered on her chart that he believed the performance of a tracheotomy and the insertion of a PEG feeding tube would be "medically futile" and that the same would impose a [sic] "undue burden" on her. Dr. Greenhouse advised those present, that, in his medical [*2]opinion, [CK's] condition was not likely to improve and that there was little likelihood that she would ever regain the ability to breathe on her own.The family (mother, father, and sister, LW) all agreed that it would not be in [CK's] best interest to have these medical procedures performed and advised and authorized Dr. Greenhouse of the same and that they did not want a feeding tube inserted or a tracheotomy performed. The family also unanimously agreed that CK should be withdrawn from the ventilator an d afforded hospice/palliative care.The hospital has now been advised that Mental Hygiene Legal Service is objecting to the withdrawal or removal of [CK] from the ventilator without the appointment of a 17a Guardian.It is respectively [sic] requested that the court entertain this application for Guardianship on an emergency basis and appoint [LW] 17A Guardian, or temporary Guardian of the person of [CK] with end of life decision making authority without further delay to avoid undue and unnecessary suffering to [CK].
Based upon the medical affidavits, [CK's] presence was dispensed with, and at the conclusion of the hearing held January 31, 2006, letters of guardianship with 1750-b health care decision making powers were granted to petitioner. The newly appointed guardian immediately served MHLS with personal notice of intent to withdraw life-sustaining treatment, as previously discussed with the treating physicians.
By letter dated February 3, 2006 addressed and mailed to the Court, the guardian, counsel for the guardian and St. Peter's Hospital, Bruce S. Dix, as Director of MHLS, Third Department advised that "...The Mental Hygiene Legal Service has completed its investigation into this SCPA §1750-b proceeding and have no objection to the guardian's 1750-b decision to withdraw life sustaining treatment from [CK]. Our service is also waiving, at this time, the remainder of the 48 hour time period as provided by the above cited statute." (emphasis added)
MHLS having actively declined to file an objection to the guardian's decision eliminated the need for the guardian to commence a special proceeding pursuant to 1750-b (6) to obtain judicial approval to enforce her decision. The decision was made and consented to by MHLS: CK was suffering from end stage Alzheimer's, she was terminal, and would be afforded palliative care for the remainder of her limited days; life-sustaining treatment would be an undue burden.
St. Peter's Hospital, in accordance with the guardian's decision, removed CK from a ventilator, and transferred her from the hospital into the Community Hospice unit for care of the imminently terminally ill. A prerequisite for admission to hospice care is a limited life expectancy, standards for which are strictly regulated by federal, state and program guidelines; it is only available for those terminally ill and nearing the end of life.
Apparently, MHLS unilaterally determined that "imminent" meant "immediate" and when CK had the good fortune to have a temporary rally, MHLS took it upon itself to "withdraw" its consent. The following letter was sent on February 8, 2006:
[*3]STATE OF NEW YORK
SUPREME COURT, APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT
MENTAL HYGIENE LEGAL SERVICES
40 STEUBEN STREET, SUITE 501
BRUCE S. DIXALBANY, NY 12207-2109DAVID M. LEVINE
DIRECTORDEPUTY DIRECTOR
February 8, 2006
Hon. Cathryn M. Doyle, SurrogateHand Delivered
Albany County Surrogate's Court
Eagle Street
Albany, NY 12207
[LW]Fax: 869-6587
Guardian of [CK]
3 Erlynn Place
Niskayuna, NY 12309
Stanley B. Segal, Esq.Fax: 463-0837
77 Troy Road
East Greenbush, NY 12061
St. Peter's HospitalFax: 525-1075
319 So. Manning Blvd. 525-1446
Albany, NY 12208
Attn: Lisa Seidel
Community Hospice InnFax: 525-1936
319 So. Manning Blvd.
Albany, NY 12208
Re:[CK]
Dear Surrogate Doyle and Gentle Persons:
Reference is made to my letter dated February 3, 2006, advising that the Mental Hygiene Legal Service had no object to the guardian's 1750-b decision to withdraw life sustaining treatment for [CK].
It is my understanding that the respirator was removed on Friday, February 3, 2006, and that [CK] has rallied and is taking food and nutrition at this time. In light of her obvious improved medical condition, our agency is withdrawing its consent to the withdrawal or [*4]withholding of any life sustaining treatment.
Hon. Cathryn M. Doyle, Surrogate
[LW, Guardian]
Stanley B. Segal, Esq.
St. Peter's Hospital
Community Hospice Inn
February 8, 2006
Page 2
As a result of the withdrawal of our consent, [CK] must be afforded efficacious and life sustaining treatment. Should the guardian wish to withhold or withdraw such treatment in the future, the procedures of SCPA 1750-b must re-instituted [sic].
Please feel free to contact me should you have any questions or concerns with respect to this correspondence. Thank you.
Very truly yours,
Bruce S. Dix, Director
BSD/cac
cc:Lydia Meunier, Esq.
Sadly, as a result of this letter which both St. Peter's Hospital and Hospice understood to be an Appellate Division order, CK was discharged from the comforts and care of Hospice, where her treatment had enabled her temporary rally, and she was sent back through the emergency room for readmission, with all its mandated medical tests and rigors. Because of the very late day timing of the letter faxed to the hospital and hospice, counsel was not available. CK was transferred at 2:30 a.m.; she was subjected to an MRI, a CAT scan, blood was drawn, and full work-up was performed, resulting in the reinstitution of oxygen to support breathing. All this under the mistaken belief that such action had been ordered by the Appellate Division of the Third Department. This mistake was inevitable. The letter says "Appellate Division." It says CK MUST be afforded efficacious life sustaining treatment...the procedures of 1750-b MUST be re-instituted.
The next day, when counsel to St. Peter's received her faxed copy of the now infamous letter, the Court was notified of these unfortunate events, and all parties were directed to appear.
MHLS objected to the proceeding claiming the Court had no basis to inquire into its actions.
MHLS' actions in this matter are egregious. Having consented to the guardian's decision, MHLS, without benefit of notice of intent to withdraw consent (assuming that they even have the [*5]ability to do so), and without the courtesy of consultation with the duly appointed 17-A guardian, the Court or the care providers, summarily substituted its medical judgment for that of the guardian.
Turning to the statute itself, the procedures for implementation of termination of life sustaining treatment is very specific:
5. Objection to the health care decision. (a) Suspension. A health care decision made pursuant to subdivision four of this section shall be suspended, pending judicial review, except if the suspension would in reasonable judgment be likely to result in the death of the mentally retarded person, in the event of an objection that decision at any time by: (emphasis added)
the mental hygiene legal service; or
(b) Form of objection. Such objection shall occur orally or in writing.
(c) Notification. In the event of the suspension of a health care decision pursuant to this subdivision, the objecting party shall promptly notify the guardian and the other parties identified in paragraph (a) of this subdivision, and the attending physician shall record such suspension in the mentally retarded person's medical chart.
6. Special proceeding authorized. The guardian, the attending physician, as defined in subdivision two of section twenty-nine hundred eighty of the public health law, the chief executive officer identified in subparagraph (ii) of paragraph (e) of subdivision four of this section, the mental hygiene legal service (if the person is in or was transferred from a residential facility or program operated, approved or licensed by the office of mental retardation and developmental disabilities) or the commissioner of mental retardation and developmental disabilities or his or her designee (if the person is not in and was not transferred from such a facility or program) may commence a special proceeding in a court of competent jurisdiction with respect to any dispute arising under this section, including objecting to the withdrawal or withholding of the life-sustaining treatment because such withdrawal or withholding is not in accord with the criteria set forth in this section.
[See, SCPA §§ 1750-b (5) and (6)]
There is absolutely no statutory basis for the summary, ex parte, after-the-fact "withdrawal" of consent by MHLS, and the purported exercise of this "right" by MHLS is the most outrageous abuse of governmental power imaginable. The Legislature has devised a specific method for a challenge to a guardian's medical decision. Here, MHLS not only declined to object, it consented, on behalf of CK, to the decision of the guardian . MHLS was fully aware of the DNR put in place by the guardian. MHLS has absolutely no power or authority to unilaterally over-rule the decision duly made by the guardian.
MHLS is not charged with determining the medical care of its client. It is statutorily charged under Article 47 of the Mental Hygiene Law to provide legal services to classes of [*6]people as defined within the statute. The function of MHLS is that of attorney to a party under disability, and it inures MHLS with the ordinary relationship of attorney-client. It does not designate MHLS as the arbiter of medical treatment, it does not designate MHLS as a policy maker for parties under disabilities, and it does not make MHLS a party to an action. It does make them counsel to a party in whatever legal actions the party may be involved.
In the case sub judice MHLS has not only exceeded the parameters of SCPA §1750-b, it has ignored the very mandate that created and defined its own existence, Mental Hygiene Law Article 47. MHLS has no authority to grant itself powers not otherwise provided by the Legislature, which is clearly what it has attempted to do in this case.
Lastly, and with equal significance, the Court notes that CK died peacefully in hospice care of her existing terminal illness on February 21, 2006. Her sister and elderly parents provided her with a beautiful and tearful funeral, and laid her to rest. MHLS' presence was not noted at the funeral.
However, MHLS has since become aware of CK's death, and since CK's demise, has advised this Court both orally and in writing of MHLS's need for a final written order, so that it may appeal this Court's decision to order CK's return to hospice rendered on February 10, 2006. The Court is at a loss as to the need for both the appeal and its urgency, if in fact the mission of MHLS is representation of its client, CK. Without a client, the Court must wonder about the jurisdictional basis for MHLS' appeal.
As acknowledged by the Legislature in enacting Article 17-A of the SCPA, these guardians have, in most cases, spent their lives providing care to, and loving their wards. In most cases, these guardians are not wealthy, and the financial burden of unnecessary and frivolous legal proceedings should not be an additional burden upon these families who have already sacrificed so much for the care and comfort of their wards. And it should not be the position of MHLS to declare these guardians the enemy of their wards from whom the wards must be protected.
This is the second case before this Court in the last month where MHLS has taken the position of Goliath against David without any basis in fact. The Court takes this opportunity to again remind MHLS that the loving, caring families and the duly screened and appointed17-A guardians of the mentally retarded, against whom there have never been any allegations of mistreatment or maltreatment, are in fact the Davids of this world. They are not the lions in the den awaiting the arrival of Daniel....
These cases should be about the clients, not their attorney, MHLS and its desired power. It appears that MHLS has turned itself into a legal services Willowbrook. It is all about the institution, and not the people it was designed to serve.
This decision is incorporated into the findings, rulings and oral decision of the Court rendered February 10, 2006.
Dated: March 22, 2006
_________________________________
Surrogate
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