United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2007 Decided June 12, 2007
No. 05-7190
JANE DOE, I, BY HER NEXT FRIEND LINDA J. TARLOW, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA AND
MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
ADMINISTRATION,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02398)
Mary T. Connelly, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellants. With her on the brief were Robert J. Spagnoletti,
Attorney General at the time the brief was filed, Todd S. Kim,
Solicitor General, and Edward E. Schwab, Deputy Solicitor
General.
Robert A. Dybing, pro hac vice, argued the cause for
appellees. With him on the brief was Harvey S. Williams.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge: This case involves the District
of Columbia’s 2003 policy for authorizing surgeries for
intellectually disabled persons who are in the District’s care and
have never had the mental capacity to make medical decisions
for themselves. The District of Columbia authorizes surgeries
for such persons when: (i) two physicians have certified that the
proposed surgery is “clinically indicated to maintain the health”
of the patient; (ii) D.C. caregivers have made efforts to discuss
the surgery with the patient at the level of patient
comprehension; and (iii) no guardian, family member, or other
close relative, friend, or associate is available to otherwise
consent or withhold consent. Plaintiffs argue that the 2003
policy is inconsistent with D.C. statutes and the Due Process
Clause of the Fifth Amendment. We disagree and therefore
reverse the judgment of the District Court.
I
1. Jane Doe I, Jane Doe II, and Jane Doe III live in District
of Columbia facilities for the intellectually disabled. They are
plaintiffs here, and they represent a class certified by the District
Court of intellectually disabled persons who live in District of
Columbia facilities and receive medical services from the
District of Columbia. These individuals have never had the
mental capacity to make medical decisions for themselves.
(Some District of Columbia statutes and cases use the term
“mentally retarded”; we will use the more common term
“intellectually disabled.”)
The District of Columbia Mental Retardation and
Developmental Disabilities Administration (commonly referred
to as the MRDDA although the official name has now changed
to the Department of Disability Services) ensures that those
3
intellectually disabled individuals receive necessary medical
services, including necessary surgeries. Many of the surgeries
MRDDA authorizes are relatively routine; MRDDA also
authorizes more significant surgeries when medically necessary.
The District of Columbia’s Health Care Decisions Act
provides that any individual, including persons who have been
determined to be intellectually disabled, “shall be presumed
capable of making health-care decisions unless certified
otherwise” in accordance with D.C. law. D.C. Code § 21-2203.
Of course, some individuals may not have the mental capacity
to make healthcare decisions for themselves. The D.C. Code
sets out a procedure to make the mental incapacity
determination. The Code provides: “Mental incapacity to make
a health-care decision shall be certified by 2 physicians who are
licensed to practice in the District and qualified to make a
determination of mental incapacity.” Id. § 21-2204(a). At least
one of the two certifying physicians must be a psychiatrist, and
at least one must have examined the individual in question
within one day of the certification of incapacity. Id. The
physicians must apply the following standard: A person lacks
mental capacity to make healthcare decisions if he or she “lacks
sufficient mental capacity to appreciate the nature and
implications of a health-care decision, make a choice regarding
the alternatives presented or communicate that choice in an
unambiguous manner.” Id. § 21-2202(5). “All professional
findings and opinions forming the basis of [the] certification . . .
shall be expressed in writing . . . and provide clear evidence that
the person is incapable of understanding the health-care choice,
making a decision concerning the particular treatment or
services in question, or communicating a decision even if
capable of making it.” Id. § 21-2204(b).
Mental incapacity to make a healthcare decision “shall not
be inferred from the fact that an individual . . . [i]s mentally
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retarded.” Id. § 21-2203(2). In other words, under D.C. law, not
all intellectually disabled persons lack the mental capacity to
make healthcare decisions. The two inquiries are separate.
Plaintiffs’ counsel here agrees, however, that all of the class
members in this case lack the mental capacity to make
healthcare decisions. See Tr. of Oral Arg. at 21, 27; see also
Does I Through III v. District of Columbia, 232 F.R.D. 18, 32
(D.D.C. 2005).
D.C. law creates a hierarchy of individuals authorized to
make healthcare decisions for persons who have been certified
under § 21-2204 as lacking mental capacity. See D.C. Code §
21-2210(a), (d), (f). That list includes, in order of priority: a
court-appointed guardian or conservator; a spouse or domestic
partner; an adult child; a parent; an adult sibling; a religious
superior, if applicable; a close friend; or the nearest living
relative. Id. § 21-2210(a). The MRDDA Administrator makes
healthcare decisions for an incapacitated patient only if none of
the above individuals is available and willing to do so. See In re
Estate of Gillis, 849 A.2d 1015,1018-19 (D.C. 2004) (providing
overview of MRDDA’s statutory authority to make healthcare
decisions for intellectually disabled patients). The D.C. Code
also explicitly provides that abortions, sterilizations, and
psycho-surgeries may not be authorized, at least absent a court
order. D.C. Code § 21-2211.
Of relevance to this case, D.C. law distinguishes between
two categories of persons who lack mental capacity: (i) those
who once possessed mental capacity, such as those in a coma or
who have lost their mental capacity due to age, disease, or an
accident; and (ii) those who have always lacked mental capacity,
such as certain intellectually disabled persons. For patients who
once had mental capacity, the decision must be based on the
“known wishes of the patient” if those wishes can be
“ascertained” – for example, as expressed in a durable power of
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attorney. Id. § 21-2210(b); see also id. §§ 21-2206(c)(1), 21-
2207. For those who have never had the mental capacity, the
decision must be based on “a good faith belief as to the best
interests of the patient.” Id.
In 2003, MRDDA adopted a new policy for medical care of
intellectually disabled persons in order to meet – and exceed –
the statutory requirements. The policy, entitled “Procedures for
Securing Medical and Dental Care for MRDDA Consumers,”
provides that those intellectually disabled patients who are
“deemed competent to make informed decisions” are “allowed
to refuse examination/treatment.” Joint Appendix at 196-97.
For intellectually disabled patients who do not have the
mental capacity to make medical decisions, the 2003 policy
allows the MRDDA Administrator to authorize medical
treatment only when, among other requirements, the patient has
been “certified as an incapacitated individual” and “two (2)
licensed physicians have certified, in writing, that the health care
service, treatment, or procedure is clinically indicated to
maintain the health of the [patient].” Id. at 204. The policy
further provides that “[e]fforts should be made to provide
information and explanations at the level of [patient]
comprehension.” Id. at 203. In other words, MRDAA must
discuss the proposed treatment with the intellectually disabled
patient. The policy also states that family members and
guardians should receive notice of recommended medical
treatment and be “given an opportunity to grant consent.” Id. at
204. If “there is no family member[] or other person available
or willing to provide consent,” however, the MRDDA
Administrator may authorize the surgery. Id.
2. Plaintiffs filed suit and alleged that MRDDA violated
District of Columbia law, as well as their due process rights
under the Fifth Amendment, by authorizing surgeries on them
6
without considering their wishes. It is undisputed that plaintiffs
have always lacked “sufficient mental capacity to appreciate the
nature and implications of a health-care decision, make a choice
regarding the alternatives presented or communicate that choice
in an unambiguous manner.” D.C. Code § 21-2202(5); see also
Does I Through III, 232 F.R.D. at 32; Tr. of Oral Arg. at 21, 27.
The District of Columbia has argued that it legally and logically
cannot consider the wishes of patients who lack – and always
have lacked – mental capacity to make independent medical
decisions because “there is no information about what they
would want if they were not incapacitated.” Does v. District of
Columbia, 374 F. Supp. 2d 107, 115 (D.D.C. 2005) (internal
quotation marks omitted) (emphasis in original). The District of
Columbia points out that consideration of the wishes of a patient
who lacks mental capacity to make healthcare decisions could
lead to denial of essential medical care to a patient who
purportedly did not want it – even though the patient by law has
always lacked the mental capacity to make such a decision.
The District Court concluded that “[e]ven a legally
incompetent, mentally retarded individual may be capable of
expressing or manifesting a choice or preference regarding
medical treatment.” Id. (internal quotation marks omitted). The
court thus held that the District of Columbia’s 2003 policy –
which is based on the statutory “best interests” standard rather
than the “known wishes” standard – is inconsistent with D.C.
statutory law, “violates plaintiffs’ and the class members’ liberty
interest to accept or refuse medical treatment and is therefore an
unconstitutional infringement of the substantive and procedural
due process rights of plaintiffs and their fellow class members.”
Does I Through III, 232 F.R.D. at 34. The District Court
permanently enjoined the District of Columbia from authorizing
elective surgeries for MRDDA patients under its present policy,
ruling that MRDDA must follow the “known wishes of the
patient” standard in determining whether to authorize surgeries
7
on MRDDA patients. Id. The court ordered the District of
Columbia to make “documented reasonable efforts to
communicate” with patients “regarding [their] wishes.” Id. If
a patient’s wishes still remain unknown after such inquiry,
however, the court held that the District of Columbia should
determine the patient’s “best interests” by considering the
“totality of [the] circumstances.” Id.
On appeal, the District of Columbia argues that neither
(i) D.C. statutory law nor (ii) the Due Process Clause of the Fifth
Amendment requires MRDDA to consider the healthcare wishes
of intellectually disabled patients (such as the plaintiffs here)
who have always lacked mental capacity to make healthcare
decisions for themselves. We exercise de novo review over
those legal questions. Arrington v. United States, 473 F.3d 329,
333 (D.C. Cir. 2006).
II
We first consider whether the 2003 policy is consistent with
D.C. statutory law. Under the 2003 D.C. policy, the MRDDA
Administrator may authorize medical treatment for an
intellectually disabled patient who has always lacked the mental
capacity to make medical decisions only if: (i) two physicians
have certified that the proposed surgery is “clinically indicated
to maintain the health” of the patient; (ii) D.C. caregivers have
made efforts to discuss the surgery with the patient at the level
of patient comprehension; and (iii) no guardian, family member,
or other close relative, friend, or associate is available to
otherwise consent or withhold consent. When those conditions
are met, the Administrator’s practice is to authorize the surgery,
because the surgery is deemed in the patient’s “best interests”
under D.C. law.
8
The class representatives argue that D.C. statutory law
requires more, however, and that MRDDA must consider the
wishes even of persons who have always lacked mental capacity
to make medical decisions, such as the class members here. In
other words, plaintiffs argue that the “known wishes” standard
of the D.C. Code applies rather than the “best interests”
standard. The District of Columbia responds that D.C. statutes
do not (and logically could not) require MRDDA to consider the
wishes of those intellectually disabled patients who have always
lacked the mental capacity to make medical decisions for
themselves. See D.C. Code § 21-2204(b) (providing that
determination of incapacity requires certifying physicians to
provide in writing “clear evidence that the person is incapable
of understanding the health-care choice, making a decision
concerning the particular treatment or services in question, or
communicating a decision even if capable of making it”).
Moreover, the District of Columbia points out that considering
the wishes of a patient who has always lacked mental capacity
could result in the incorrect denial of medical treatment, cause
the death or serious injury of patients, and trigger a host of
ethical and legal problems.
We agree with the District of Columbia that the “best
interests” standard – not the “known wishes” standard – applies
to medical decisions for intellectually disabled individuals who
have always lacked the mental capacity to make those decisions
for themselves. The D.C. Code provides that a “decision to
grant, refuse or withdraw consent” on behalf of a patient who
lacks the mental capacity to make medical decisions “shall be
based on the known wishes of the patient” if those wishes are
ascertainable. Id. § 21-2210(b) (emphasis added). But “if the
wishes of the patient are unknown and cannot be ascertained,”
the decision “shall be based on . . . a good faith belief as to the
best interests of the patient.” Id. (emphasis added). It is
undisputed here that plaintiffs have always lacked “sufficient
9
mental capacity to appreciate the nature and implications of a
health-care decision, make a choice regarding the alternatives
presented or communicate that choice in an unambiguous
manner.” Id. § 21-2202(5); see also Does I Through III v.
District of Columbia, 232 F.R.D. 18, 32 (D.D.C. 2005); Tr. of
Oral Arg. at 21, 27. Because plaintiffs have never been able to
make informed choices regarding their medical treatment, their
true wishes with respect to a recommended surgery “are
unknown and cannot be ascertained” for purposes of § 21-
2210(b). Therefore, the District of Columbia is correct that the
“best interests” standard applies to the class of plaintiffs in this
case.
D.C. case law confirms our reading of the statutory text. As
the D.C. Court of Appeals has stated, those statutes were
“designed to address situations in which doctors, family
members, and the courts may be required to make treatment
decisions for a patient who has become unable to decide such
matters for himself or herself.” Khiem v. United States, 612
A.2d 160, 169 (D.C. 1992) (emphasis added). As that court has
explained, an incompetent patient can fall into one of two
categories: (i) those who were once competent to make
healthcare decisions for themselves; and (ii) those who have
never been competent. The distinction is critical because the
competent person’s pre-existing wishes (as best they can be
determined) must be followed “in cases of adults who at one
time were competent but later became incompetent.” In re K.I.,
735 A.2d 448, 455 (D.C. 1999). By contrast, if a patient has
never been competent to make medical decisions, D.C. courts
have concluded that D.C. statutes require the decision be made
by assessing the patient’s “best interests,” particularly their
medical needs as determined by medical doctors. In In re K.I.,
the court thus affirmed the trial judge’s determination that “the
best interests of the child rather than the substituted judgment
standard applied ‘in cases involving minor respondents who
10
have lacked, and will forever lack, the ability to express a
preference regarding their course of medical treatment.’” Id. at
452, 456.
The class representatives rely on the decision of the D.C.
Court of Appeals in In re A.C. But that case involved a patient
who had once been competent to make healthcare decisions on
her own. See 573 A.2d 1235, 1249 (D.C. 1990). The decision
in In re A.C. therefore does not support the conclusion that
MRDDA must somehow try to ascertain the wishes of patients
who have never had the mental capacity to make decisions for
themselves. See id. at 1246 (“incompetent patients . . . have just
as much right as competent patients to have their decisions made
while competent respected”) (emphasis added); id. at 1243
(observing “the tenet common to all medical treatment cases:
that any person has the right to make an informed choice, if
competent to do so, to accept or [forgo] medical treatment”)
(emphasis added). Indeed, as explained above, the D.C. Court
of Appeals has noted that the standard set forth in In re A.C.
applies “in cases of adults who at one time were competent but
later become incompetent.” In re K.I., 735 A.2d at 455.
Contrary to plaintiffs’ suggestion, therefore, nothing in the In re
A.C. decision supports the conclusion that the wishes of a patient
who has never been competent must be considered by a person
charged with making medical decisions on his or her behalf.
It bears mention that the approach of plaintiffs’ counsel has
the potential for grave consequences. Their position would
require MRDDA to give effect, at least in some cases, to the
medical wishes of patients who by definition lack “sufficient
mental capacity to appreciate the nature and implications” of the
preference expressed. D.C. Code § 21-2202(5). As a result,
MRDDA could be required to deny essential medical care to a
patient who purportedly did not want it – even though the
patient by law lacked the mental capacity to make that decision.
11
The result could be serious injury or death to the patient, and
great potential for abuse and confusion. Not surprisingly, so far
as we are aware, no state applies the rule suggested by plaintiffs.
In sum, we hold that the 2003 policy complies with D.C.
law.
III
Plaintiffs also contend that the District of Columbia’s 2003
policy is inconsistent with what they describe as their procedural
and substantive due process rights.
To reiterate, under the 2003 policy at issue here, the
MRDDA Administrator authorizes surgery for an intellectually
disabled patient who has always lacked mental capacity to make
medical decisions only if: (i) two physicians have certified that
the proposed surgery is “clinically indicated to maintain the
health” of the patient; (ii) D.C. caregivers have made efforts to
discuss the surgery with the patient at the level of patient
comprehension; and (iii) no guardian, family member, or other
close relative, friend, or associate is available to otherwise
consent or withhold consent.
Plaintiffs argue that this policy violates their right to due
process because it does not require the MRDDA Administrator
to consider an intellectually disabled patient’s wishes in
deciding whether to authorize surgery. But as we explained
above, accepting the wishes of patients who lack (and have
always lacked) the mental capacity to make medical decisions
does not make logical sense and would cause erroneous medical
decisions – with harmful or even deadly consequences to
intellectually disabled persons. Consideration of the wishes of
patients who are not and have never been competent is therefore
not required by the Supreme Court’s procedural due process
12
cases. Cf. Washington v. Harper, 494 U.S. 210, 226 (1990)
(upholding state policy allowing prison to administer medication
to mentally ill prisoners); see also Heller v. Doe, 509 U.S. 312,
332 (1993) (“At least to the extent protected by the Due Process
Clause, the interest of a person subject to governmental action
is in the accurate determination of the matters before the
court . . . .”).
Plaintiffs also try to make out a substantive due process
claim (as distinct from their procedural due process claim).
Even assuming their complaint about procedures used by
MRDDA can be properly shoehorned into a substantive due
process claim, plaintiffs have not shown that consideration of
the wishes of a never-competent patient is “deeply rooted in this
Nation’s history and tradition” and “implicit in the concept of
ordered liberty,” such that “neither liberty nor justice would
exist if [the asserted right] were sacrificed.” Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997) (internal citations and
quotation marks omitted).
Plaintiffs rely on Cruzan v. Dir., Mo. Dep’t of Health, 497
U.S. 261 (1990), which held that the Due Process Clause permits
a state to require clear and convincing evidence of an
incompetent patient’s wishes – articulated when she was
competent – as to the withdrawal of life-sustaining treatment.
Id. at 284. As the Second Circuit has correctly explained,
however, nothing in Cruzan supports the view that a person who
has never had the capacity “to make an informed and voluntary
choice” with respect to medical treatment has a constitutional
right under the Due Process Clause to have his or her wishes
considered. Id. at 280; see Blouin v. Spitzer, 356 F.3d 348, 360
(2d Cir. 2004) (“Cruzan . . . rests solely on the patient’s capacity
to express her intention regarding the course of her medical
treatment; a capacity that Nancy Cruzan once possessed but that
Sheila Pouliot [the plaintiff] never did.”).
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Finally, we note that the breadth of plaintiffs’ constitutional
claims is extraordinary because no state of which we are aware
applies the rule suggested by plaintiffs. Plaintiffs apparently
are arguing, therefore, that all states’ laws and practices with
respect to medical treatment for intellectually disabled
individuals who have never been competent are inconsistent
with the Constitution. Cf., e.g., In re Christopher, 106 Cal. App.
4th 533, 549 (Cal. Ct. App. 2003) (test based on the presumed
wishes of the patient “assumes some understanding of the
patient’s wants, desires, feelings, and previous mental and
physical states,” and “is therefore an inappropriate tool for
making medical decisions for patients . . . who [have] never
been competent to make [their] own decisions or express [their]
emotions and feelings on the subject”); Guardianship of Doe,
583 N.E.2d 1263, 1268 (Mass. 1992) (requirement that state
determine what incompetent patient would have wanted if
competent is a “legal fiction” as applied to a never-competent
person); In re Storar, 420 N.E.2d 64, 72 (N.Y. 1981) (“it is
unrealistic to attempt to determine whether [a patient suffering
from cancer] would want to continue potentially life prolonging
treatment if he were competent” if patient has been profoundly
intellectually disabled for most of his life); see also Norman L.
Cantor, The Relation Between Autonomy-Based Rights and
Profoundly Mentally Disabled Persons, 13 ANNALS HEALTH L.
37, 42 (2004) (surrogate “cannot protect a never-competent
patient’s right of self-determination” because a “profoundly
disabled person has never been able to make autonomous
choices”); John A. Robertson, Cruzan and the Constitutional
Status of Nontreatment Decisions for Incompetent Patients, 25
GA. L. REV. 1139, 1194 (1991) (best interests test “has wide
support when the patient never was previously competent but a
decision must be made, as occurs with pediatric patients and
patients who have always been retarded”); American
Association on Mental Retardation/Association for Retarded
Citizens Position Statement on Health Care for the Intellectually
14
Disabled, available at http://www.aamr.org/Policies/pos_health-
care.shtml (“decision to accept or refuse treatment requires
informed consent,” which means that “the individual
decision-maker or surrogate decision-maker” must have “the
legal capacity to give consent”; decisionmaking in those
circumstances “must always be consistent with the best interests
of the individual”).
In sum, plaintiffs’ constitutional claims are meritless.
IV
We conclude that, to the extent challenged in this case, the
2003 policy is consistent with D.C. statutory law and the Due
Process Clause of the Fifth Amendment. We therefore reverse
the District Court’s grant of summary judgment, vacate the
District Court’s injunction, and direct the entry of judgment for
defendants with respect to plaintiffs’ claims for declaratory and
injunctive relief. Pending before the District Court are also
individual damages claims brought by Jane Doe I, Jane Doe II,
and Jane Doe III based on alleged incidents that occurred more
than a decade ago, before adoption of the 2003 policy. The
damages claims are not before us, and we therefore do not
address them.
So ordered.