Doe ex rel. Tarlow v. District of Columbia

• Decision Date: 12 June 2007
• Docket Number: No. 05-7190.,05-7190.
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

489 F.3d 376

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.

No. 05-7190.

United States Court of Appeals, District of Columbia Circuit.

Argued February 6, 2007.

Decided June 12, 2007.

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.

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 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 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 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, MRDDA 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 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...