Consent in Incompetent Patients

Facts of the Case

The plaintiffs were three intellectually disabled women who lived in facilities run by the D.C. Mental Retardation and Developmental Disabilities Administration (MRDDA). They filed a class-action lawsuit in the U.S. District Court for the District of Columbia (Jane Does I through III v. District of Columbia, 232 F.R.D. 18 (D. D.C. 2005); see also Does v. District of Columbia, 374 F. Supp.2d 107 (D. D.C. 2005)). In the lawsuit, the plaintiffs alleged that the MRDDA authorized elective surgical procedures on their behalf without considering their wishes. They argued that the MRDDA policy, which had been amended in 2003, violated the Health Care Decisions Act, D.C. Code § 21-2201 et seq. (2007), and the plaintiffs' Fifth Amendment rights. In addition to an injunction against the MRDDA's 2003 policy, the plaintiffs sought monetary awards for damages.

Each plaintiff in the suit had been subjected to surgical procedures authorized by the MRDDA. In 1984, the MRDDA had authorized the abortion of Jane Doe I's pregnancy. Jane Doe II had had exotropia, for which the MRDDA authorized surgical correction in 1994. Jane Doe III had had an abortion of her pregnancy authorized by the MRDDA in 1978.

The reader may be wondering how the MRDDA could be sued for authorizations it provided years before the adoption of its 2003 policy. In its ruling, the district court noted that the 2003 policy largely “duplicates the agency's earlier policies.” That is, those portions of the disputed policy remained essentially unchanged between 1978 and 2003.

Jane Does I, II, and III argued that the MRDDA's 2003 policy was incompatible with D.C. law, which states, “Mental incapacity to make a health care decision shall be certified by [two] physicians who are licensed to practice in the District and qualified to make a determination of mental incapacity. One of the [two] certifying physicians shall be a psychiatrist” (D.C. Code. § 21-2204(a)(2007)). The fact that none of the members of the class had ever possessed medical decision-making capacity was accepted by both the plaintiffs and the defense.

D.C. law distinguishes between those patients who were once able to make medical decisions for themselves and those who have always lacked competence. For those patients who were once competent, D.C. law specifies that the “known wishes of the patient” should apply with regard to medical decisions made on their behalf. Such patients may have made known their wishes before their incapacitation, especially if it resulted from age, disease, or injury. For those whose known wishes cannot be ascertained, D.C. law specifies that the medical decision should be made with a “good faith belief as to the best interests of the patient” (D.C. Code § 21-2210(b)(2007)). The plaintiffs asserted that this best-interests standard was improperly applied by the MRDDA in their situation and that the known-wishes standard should have been applied instead.

The U.S. District Court for the District of Columbia, granting summary judgment, found for the plaintiffs. The court permanently enjoined the MRDDA from future authorization of elective surgeries under its 2003 policy and declared the policy unconstitutional and in violation of D.C. law. In the preliminary injunction, the district court wrote, “even a legally incompetent, mentally retarded individual may be capable of expressing or manifesting a choice or preference regarding medical treatment” (Does, 374 F. Supp.2d 107, p 115). In the permanent injunction, the district court stated, “Before granting, refusing, or withdrawing consent for any elective surgery on any MRDDA consumer, the District of Columbia must attempt to ascertain ‘the known wishes of the patient’…” (Jane Does I through III, 232 F.R.D., p 34). The D.C. MRDDA appealed the decision to the U.S. Court of Appeals for the District of Columbia.

Ruling and Reasoning

The U.S. Court of Appeals for the District of Columbia Circuit overturned the district court's finding for the class plaintiffs. In its decision, the court wrote that it “reversed the district court's grant of summary judgment, vacated the district court's injunction, and directed the entry of judgment for D.C. and MRDDA with respect to the class plaintiffs' claims for declaratory and injunctive relief” (Doe, 489 F.3d, p 384). The court declined to address the class plaintiffs' individual damage claims.

The court noted that it was undisputed that each of the class plaintiffs had always been incompetent to make medical decisions. Addressing this situation, the court wrote: Because plaintiffs have never been able to make informed choices regarding their medical treatment, their true wishes with respect to a recommended surgery ‘are unknown and cannot be ascertained’ for purposes of [D.C. code] § 21-2210(b). Therefore, the District of Columbia is correct that the ‘best interests' standard applies … [Doe, 489 F.3d, p 381].

The court emphasized that considering the wishes of a lifelong incompetent patient may have detrimental consequences for her or his health and would be both legally and ethically tenuous.

The court defended the fairness of the 2003 MRDDA policy, noting that it bestowed medical decision-making powers on its administrators only when a family member, guardian, close friend, or associate was not available to grant or withhold consent. The 2003 MRDDA policy specified that guardians and family members should be given notice of recommended medical treatment and be given an opportunity to grant consent. Further, the policy specified that two physicians must certify that the surgery is clinically indicated before it can be authorized. The court illustrated that, under these administrative requirements, every conceivable effort was made to ensure a fair and ethical medical decision-making process. Accordingly, the policy fulfilled the requirements of D.C. law.

In examining the issue of whether the 2003 MRDDA policy comports with the U.S. Constitution, the court reiterated that the administrative safeguards provide ample protection of individuals' rights under due process of law. Specifically addressing the plaintiffs' assertion that the Constitution requires their wishes be considered, the court wrote, “as we explained above, accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense …” (Doe, 489 F.3d, p 382).

Finally, the court turned its attention to the extraordinary breadth of the plaintiffs' constitutional claims. It was concerned that the plaintiffs' proposed system of allowing lifelong incompetent patients to participate in their own medical decisions ran contrary to the status quo of each state. The court wrote, “so far as we are aware, no state applies the rule suggested by plaintiffs.” The court noted that the plaintiffs were essentially arguing that “all states' laws and practices with respect to medical treatment for intellectually disabled individuals who have never been competent are inconsistent with the Constitution” (Doe, 489 F.3d, p 383). The court concluded, “[the] plaintiffs' constitutional claims are meritless.”

Discussion

This case highlights some complex questions surrounding consent for medical procedures in mentally incapacitated adults. The courts have adopted the concept of substituted judgment to address this dilemma, either by deciding the proper course of action directly or bestowing such authority on a separate entity. In this circumstance, the MRDDA was charged with making such decisions.

The concept of substituted judgment is thought to have been originated by Lord Eldon, who presided as Chancellor in the Court of Chancery in the 1816 case of Ex parte Whitbread, in the matter of Hinde. Mr. Hinde, a lunatic by English definition, was ordered to pay monies from his surplus to his close relatives (Beyleveld D, Brownsword R: Consent in the Law. Portland, OR: Hart Publishing, 2007, pp 114–17). The case reads, “[T]he court will act with reference to the lunatic, and for his benefit, as it is probable that the lunatic himself would have acted had he been of sound mind” (35 Eng. Rep. 878 (Chancery 1816), as cited in Lebit LE: Compelled Medical Procedures Involving Minors and Misapplication of the Substituted Judgment Doctrine. J Law Health 7:107, 1992). The supposition was that, if Mr. Hinde had had his wits about him, he would have willed that these payments be made.

While Lord Eldon is credited with the concept of substituted judgment, it was not widely recognized in the United States until many years later (Beyleveld and Brownsword). In 1969, the Kentucky Court of Appeals affirmed a lower court's ruling, ordering the removal of one of Jerry Strunk's kidneys for transplantation into his dying brother (Strunk v. Strunk, 445 S.W.2d. 145 (Ky. Ct. App. 1969)). Mr. Strunk, who had an IQ of 35, clearly could not consent to the procedure. The court reasoned that he would suffer more emotional harm from the loss of his brother than he would suffer physical harm from the loss of one kidney. In its opinion, the court gave a detailed history regarding the doctrine of substituted judgment. It traced the origins of the concept of substituted judgment from Lord Eldon's court to its introduction in American courts in 1844 with the New York case In the Matter of Willoughby, a Lunatic, 11 Paige Ch. 257 (N.Y. Ch. 1844).

In the case of Jane Does I through III v. District of Columbia, three women who had never been competent to make medical decisions were faced with health care concerns. Each of these women was afflicted with unfortunate circumstances in life. However, it was clear to the court of appeals that the D.C. MRDDA utilized a variety of measures to ensure the preservation of liberty interests for those entrusted to its care. Lord Eldon, we believe, would have approved of this decision.