The New York Mental Hygiene Law Article 81 Guardian of a 92-year-old incapacitated person (IP), brought an emergency show cause order to withhold consent to the IP’s intubation with a feeding tube and the grantingof “Do Not Resuscitate” and “Do Not Intubate” orders.

The IP’s treating physician testified that the IP had mere weeks or months to live. With or without medical intervention, the IP would not live beyond six months. The doctor said insertion of the feeding tube could cause the IP pain and be medically futile. It would create risks of other complications, including a faster spread of malignancy of his cancer.

Intubation would not prolong any meaningful life, but would enhance the IP’s discomfort. The doctor felt that any medical measures would be burdensome, painful and without benefit. The New York Supreme Court, New York County stated the New York Family Health Care Decision Act (Article 29-CC of the New York Public Health Law) provided that decisions by surrogates to withhold life-sustaining treatment should be authorized if several conditions were met.

New York Health Law Section 2994-d (5) provides that decisions by surrogates to withhold or withdraw life-sustaining treatment shall be authorized if the following conditions are satisfied:

(a) (i) Treatment would be an extraordinary burden to the patient and an attending physician determines, with the independent concurrence of another physician, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; or (ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical standards.

Finding that the evidence and testimony established that §2994-d(5) of the act was met, the court authorized the Guardian to withhold consent to the IP’s intubation with a feeding tube and to execute the “Do Not Resuscitate ” and “Do Not Intubate” orders.

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