24 OCTOBER 6 - OCTOBER 12, 2017 BROOKLYN MEDIA GROUP
THE ELDER LAW MINUTE TM
The constitutionality of New
York’s statute criminalizing physician
assisted suicide has, once
again, been tested. In a recent
case, Myers v. Schneiderman, three
individual plaintiffs (mentally
competent terminally ill patients,
individual medical providers, and
an organization called End of Life
Choices) brought suit to establish a
right to physician-assisted suicide
under the Constitution of the State
of New York.
In other words, the plaintiffs argued
that individuals have a fundamental
right to self-determination
and to control the course of their
treatment, which by extension
includes an individual’s right to
choose aid-in-dying.
The New York Court of Appeals
unanimously disagreed with the
plaintiffs. The court reached its
decision by examining the history
of New York State’s case law
in the area of physician-assisted
suicide. For instance, in one
case, a surgeon who performed
surgery on a patient who had
not given consent was deemed
to have committed an assault
because, according to the court,
every adult of sound mind has a
right to bodily integrity.
In another case, the court
concluded that an involuntarily
committed mentally ill individual
had a right to refuse antipsychotic
medication—even though it may
have been necessary to preserve
the patient’s life. The reason that a
person can refuse life-sustaining
treatment is that individuals have
a fundamental right to bodily
integrity and unwanted bodily
invasions.
However, the court drew a clear
distinction between the refusal of
life-sustaining treatment (which,
as the case laws holds, is protected
under our state Constitution) and
physician-assisted suicide.
Physician-assisted suicide, or
aid-in-dying, involves the active
prescription of drugs for the purpose
of causing death. Since physician
assisted suicide is not a fundamental
right, the only mechanism
to declare New York’s statutes
criminalizing physician-assisted
suicide unconstitutional is to
show that such conduct is not rationally
related to a legitimate state
interest.
The court reviewed the state’s
interest in criminalizing physician
assisted suicide, namely
preventing the distribution of
prescriptions in lethal amounts
that could be intentionally or
accidentally misused, preserving
life, and preventing suicide, and
concluded that these interests
were in fact rationally related to a
legitimate state interest.
Accordingly, the court held
that the statute is constitutional,
and that it would be up to the New
York State legislature to legalize
the prescription of life-ending
medications.
Individuals have a constitutional
right to make medical treatment
decisions, which, while it does not
include the right to assisted suicide,
does include the right to forego
life-sustaining treatments.
However, a problem often arises
whereby individuals fail to execute
health care proxies and living wills
appointing someone to make health
care decisions on their behalf in
the event of incapacity and where
specific instructions are not given.
When this occurs, an individual’s
desires regarding treatment
or non-treatment in the event of a
terminal illness may not be known
or followed. It is therefore critical
that an individual execute a health
care proxy and living will as part
of his or her estate plan.
Ronald A. Fatoullah, Esq. is the
principal of Ronald Fatoullah & Associates,
a law firm that concentrates
in elder law, estate planning, Medicaid
planning, guardianships, estate
administration, trusts, wills, and
real estate. Jeffrey P. Gorak, Esq. is an
elder law attorney with the firm. The
law firm can be reached at 718-621-
5300, or toll free at 1-877-ESTATES.
Mr. Fatoullah is also a partner with
Advice Period, a wealth management
firm, and he can be reached at
424-256-7273.
BY RONALD A. FATOULLAH, ESQ. & JEFFREY P. GORAK, ESQ.
The Right to Die is Not Protected by New York’s State Constitution
THE ART OF ELDER LAW
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