DOES THE INABILITY TO COMMUNICATE CONSTITUTE A LACK OF CAPACITY?

First published in the December 2006/January 2007 issue of Women’s Bar News, A Publication of the Women’s Bar Association of the State of New York

While it is well-settled that a health care agent who has been appointed pursuant to a properly drafted health care proxy has the authority to make health care decisions when the principal lacks capacity to make such decisions, does the agent have authority to act when the principal simply cannot communicate his wishes to the health care providers?

Recently it came to the attention of the Department of Health (DOH) and the Office of Mental Retardation and Developmental Disabilities (OMRDD) that some health care facilities were questioning the authority of health care agents to act where the patient’s capacity to make health care decisions was impeded because of a communication disorder. For example, the facilities were reluctant to recognize the authority of health care agents acting on behalf of patients suffering from cerebral palsy or amyotrophic lateral sclerosis (ALS) who needed but did not have access to augmentative communication devises to communicate their wishes to their health care providers.

To address this issue the DOH and the OMRDD looked at the intent of Public Health Law § 2980 and determined that inherent in an individual’s “capacity to make health care decisions” is that individual’s ability to communicate the decision he or she has reached to health care professionals. Accordingly, an individual who is unable to communicate his wishes with respect to treatment within a reasonable time of when a health care decision must be made lacks the capacity to consent or refuse the treatment. Under such circumstances, the individual’s health care agent is, in fact, authorized to make health care decisions. Of course, the agent’s authority ceases once the individual regains the ability to communicate through an augmentative communication device.

In light of the determination of the DOH and OMRDD, it is not necessary for a health care proxy to contain specific language authorizing the agent to make decisions when the principal is unable to communicate his wishes. However, when preparing a health care proxy for a client with a communication disorder, it would be prudent to include such language to avoid confusion and delay when an agent must act in an emergency situation.

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