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In re D.L.H.

August 17, 2010


Appeal from the Order of the Superior Court at No. 336 MDA 2008 dated 2/10/09 reargument denied 4/16/09 affirming the order of the Cumberland County Court of Common Pleas, Orphans' Division, at No. 21-02-293 dated 1/24/08

The opinion of the court was delivered by: Mr. Justice Saylor


ARGUED: May 11, 2010


In this appeal, we consider whether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks -- and has always lacked -- the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious.

D.L.H. ("David"), age 53, has suffered from profound mental retardation since birth and has resided at the Ebensburg Center, a Department of Public Welfare ("DPW") facility, for nearly his entire life. He is an incapacitated person under the guardianship provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§5501-5555. See id. §5501 (delineating the meaning of "incapacitated person"). In 2002, Appellants, David's parents, were duly appointed his plenary guardians under such authority. See id. §5512.1(c).

In 2007, David became ill with aspiration pneumonia and was transferred from the Ebensburg Center to a local hospital. There, treating physicians determined that his condition required that he be placed on a mechanical ventilator. Appellants attempted to decline that treatment on his behalf, asserting that mechanical ventilation was not in his best interest. See generally id. §5521(a) ("It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person."). The hospital denied that request, however, and David remained on a ventilator for several weeks. Subsequently, his condition improved to the point where he no longer required this treatment.

In light of the dispute over David's medical care, Appellants petitioned the orphans' court to be appointed his "health care agents" for purposes of the Health Care Agents and Representatives Act.*fn1 The Act is part of a larger statutory scheme recognizing a qualified right of individuals to make decisions related to their own health care, see id. §5423(c)(1), and establishing a framework for substitute health care decision-making for persons who are "incompetent" to do so.*fn2 The mechanics include the use of "advance health care directives," such as "health care powers of attorney," as well the potential involvement of "health care representatives," where no previous agency relationship has been established. Id. §§5422, 5456, 5461.

A "health care agent," designated by an advance health care directive, normally has the same authority as a competent principal to make health care decisions concerning the principal's care with no requirement of court approval. See id. §5456(a), 5454(e).*fn3 Additionally, and of central relevance to the present appeal, Section 5462(c)(1) of the Act imposes an affirmative duty of care on attending physicians and health care providers, as follows:

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.

20 Pa.C.S. §5462(c)(1).

In their petition seeking the status of health care agents, Appellants took the position that the Act "does nothing more than codify the Supreme Court's rule [derived from In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996)] that parents may exercise exactly the kind of judgment that [Appellants] seek to exercise here." Petition at 3 ¶14. See generally 20 Pa.C.S. §5423(a) ("Nothing in this chapter is intended to . . . affect or supersede the holdings of In re Fiori[.]"). Furthermore, they relied on their broad powers as plenary guardians for David.

DPW opposed the petition, and the orphans' court appointed counsel for David. Despite the technical mootness of the issues raised in Appellants' petition, the court decided to resolve the matter, evidently reasoning that the case fell within an exception to the mootness doctrine. A hearing was scheduled; however, the facts as related above were agreed, and the parties merely advanced their legal positions.

Appellants maintained the position that, although David had been incapacitated since birth, he retained the inherent right to make medical decisions under Fiori --including the right to refuse life-preserving treatment -- and such right extended to them as his plenary guardians. In response, David's counsel expressed concern that a guardian's decision-making should be consistent with the medical recommendations where the life of the incapacitated person is at stake.

DPW offered a more concrete legal position, namely, that Section 5462(c)(1) of the Act requires caregivers to take medical measures necessary to preserve life on behalf of an incompetent person, where such a person does not suffer from an end-stage condition or permanent unconsciousness. According to DPW, Section 5462(c)(1) allows for a single exception, entailing displacement of the caregivers' obligation to provide treatment by the decision of a health care agent, i.e., "[a]n individual designated by a principal in an advance health care directive." 20 Pa.C.S. §5422; see also id. §5452 (governing the execution of health care powers of attorney). Since David was never competent to so provide, this procedure was unavailable on the governing terms of the statute. DPW acknowledged that this Court's Fiori decision, as invoked by Appellants, does in fact vindicate the right of incompetent persons -- in some situations -- to make medical decisions via a surrogate. However, DPW highlighted that the decision ...

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