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The Pennsylvania Supreme Court has affirmed the holding of the Superior Court in In Re: D.L.H., an incapacitated person, but disapproved portions of the Superior Court's ruling.

This was a case of the guardian parents of a never competent profoundly retarded individual requesting that life preserving treatment in the form of a ventilator be withheld, despite the fact that the incompetent was neither in an end-stage medical condition nor permanently unconscious. The Superior Court held that a guardian could conceivably make a case under such circumstances, but held that the case would have to show by clear and convincing evidence that death was in the best interests of the incapacitated person, which the guardians did not do in the instant case.

How might this possibly be shown? Presumably by circumstances that demonstrated extraordinary suffering and indignity, one would suppose. So the Superior Court left the door slightly open to such a rare situation.

The Supreme Court closed that door, holding that:

"We hold that, where, as here, life-preserving treatment is at issue for an incompetent person who is not suffering from an end-stage condition or permanent unconsciousness, and that person has no health care agent, the Act [Act 169] mandates that the care must be provided."

The key statutory provision was found to be Section 5462(c)(1):

"Health care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will."

The appellants argued that because a guardian had the power under Act 169 to revoke or amend a health care power of attorney, and the agent is accountable to a guardian, the guardian must have power equal or greater than the agent, and thus has the power to refuse treatment necessary to preserve life, but the Supreme Court rejected the approach, holding that such power in the guardian in fact gave an extra level of protection to the patient by allowing a guardian to revoke the power to decline life preserving care. Section 5460 provides as follows:

"(a) Accountability of health care agent.--If a principal who has executed a health care power of attorney is later adjudicated an incapacitated person and a guardian of the person to make health care decisions is appointed by a court, the health care agent is accountable to the guardian as well as to the principal. The guardian shall have the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated but may not revoke or amend other instructions in an advance health directive absent judicial authorization." (emphasis added)

The foregoing underlined language seems on the surface to support the Superior Court's holding that a guardian might have the power to decline care necessary to preserve life under extraordinary circumstances with Court approval, but one must remember that an advance health care directive can only direct the withdrawal of care where the patient is in an end-stage medical condition or is permanently unconscious. So even this power does not support an extension to decline such care under such circumstances.

There are likely cases where extreme suffering might make the per se rule announced by the Supreme Court seem too inflexible. But the line drawn is a clear one--

Health care necessary to preserve life must be provided unless a competent principal objects, or his or her health care agent, so empowered, objects on behalf of the patient.

That is what the statute says, and the Supreme Court has advised, there are no exceptions.

Best regards,
Bob Wolf, Moderator