Update on Oral Argument in Pennsylvania Supreme Court Guardianship Case

Last week, this blog reported about scheduled oral arguments in front of the Pennsylvania Supreme Court regarding the limits on a guardian’s powers – specifically, whether or not guardians have the right to refuse life-preserving treatment – treatment needed to save the life of a person legally lacking decisionmaking capacity and who is neither dying nor permanently unconscious.  The original decision by the lower court was reported in this 2009 blog entry.
The following is an account of the oral argument from Mark J. Murphy.  Murphy is the Executive Director of the Disability Rights Network of Pennsylvania (DRNPA).  DRNPA filed an amicus brief in this case, and was joined by NDY, the Arc  of Pennsylvania, Achieva, Vision for Equality, Liberty Resources, Inc. and Pennsylvania Developmental Disabilities Council.  Account follows below:
I attended the oral argument held before the Supreme Court of Pennsylvania on May 11 in Harrisburg in the David Hockenberry case.  Here is my brief summary of the argument, along with a few comments.
The parents’ lawyer, Christopher Lucas, presented his argument first.  He began by telling the court that “regrettably” there is language in the Superior Court opinion that seems to frame the case as a “right to life” case.  Mr. Lucas said that they parents’ actions regarding not authorizing the mechanical breathing device was not done in order to end David’s life, although he then said that the “record is unclear” as to why the parents chose not to consent to the use of the breathing device.  This was a very odd way to begin the argument, especially since he seemed to be trying to defend his clients’ motives but then did not offer another, more positive motive for the parents doing what they did.
Mr. Lucas then moved to the substance of his argument, which I think can be summarized in two points: 1) the guardianship law trumps all other laws or policies, including the later-enacted Act 169; and 2) courts must defer to the judgment of a guardian regarding what is in the best interest of the incapacitated person, even when the alleged best interest is the withholding of medical treatment.  Justice Baer asked Mr. Lucas if, given that the guardianship law does not permit a guardian to consent, for example, to a sterilization or an abortion, is it reasonable to think the law would allow a guardian to make a decision that would result in the death of an incapacitated person not at the end of life.  Mr. Lucas responded by arguing that the statute has to be construed literally, i.e., the law lists some powers the guardian does not have, but it does not say a guardian has no power to make life and death decisions, and thus courts should find that the guardian has such a power.  Justice Baer then questioned whether that position wasn’t “absurd” given that the legislature cannot list every possible power a guardian might possess.
Mr. Lucas then returned to an argument he made much of in his brief, i.e., that ruling against the parents means that David’s right to make medical decisions has been denied.  Mr. Lucas argued, as he did in his brief, that David has the right to refuse medical treatment and, since he is incapacitated, someone has to be appointed to exercise that right for him.   As we noted in our brief, this argument is not supported by the law, and I doubt it will make any headway with the court.
Mr. Lucas ended his argument by telling the court that it can decide this case without implicating Act 169.  He emphasized, as he had previously, that the guardianship law is controlling in this situation and that Act 169 does nothing to affect the powers of guardians to make decisions.
Howard Ulan then argued on behalf of the Department of Public Welfare.  Much of his early argument was spent responding to questions from a couple of the justices about the difference between a health care agent and a health care representative and other technical issues, including whether a guardian is automatically a health care agent.  Mr. Ulan dealt with all of those questions appropriately.
Justice Baer then asked if the difference between a guardian and a health care agent or representative is relevant at all in this case.  Mr. Ulan correctly noted that the distinction doesn’t matter because a guardian does not have the power to refuse to consent to life-preserving treatment to someone not at the end of life (or permanently unconscious) and a life-long incapacitated person, like David, cannot have a health care agent.
Mr. Ulan emphasized that the Commonwealth has made a policy decision through the enactment of Act 169 that it is not permissible to withhold life-preserving treatment to incapacitated persons not in an end-of-life situation or permanently unconscious.
At the end of the argument, Jane Adams, the lawyer appointed to represent David, spoke briefly to note her agreement with the arguments made by DPW and to point out that David made a full recovery and is now in good health.
It is often difficult to predict how a court will rule based on what occurs at an oral argument.  It is particularly difficult when, as in this situation, only a few of the justices ask any questions of substance.  Three of the justices did not speak at all, and two others asked only one or two relatively minor questions.  I continue to believe, however, that our side has the far stronger legal argument and so am optimistic that when the justices carefully review the briefs, etc., the arguments made by DPW and that we supported and supplemented will prevail.
As usual, we are thankful to all players involved – especially to Mark Murphy and the DRNPA for their work, leadership and advocacy.  We’ll post the outcome here on this blog whenever it’s known, but that may be a wait of some months.  –Stephen Drake