P.C. v. Dr. K.

187 P.3d 457, 2008 WL 2469361

• Court: Alaska Supreme Court
• Decided: June 19, 2008
• Docket: S-13123
• Status: Published

Opinions

ORDER

1. The appeal of P.C. from the order of the superior court disqualifying him from acting as surrogate for M.C. under AS 18.52.030 is DismissEp as Moor. Surrogates may make healthcare decisions for a patient only if a guardian has not been appointed or is not reasonably available.¹ In this case a guardian has been appointed and is available and therefore there is no occasion for a surrogate to make healthcare decisions for M.C.

2. The Office of Public Advocacy is the guardian for M.C. The guardian takes the position that it "does not participate in end-of-life decisions for any of its clients.² The guardian bases this position on AS 13.26.150(e)(8) which provides:

A guardian may not ... consent on behalf of the ward to the withholding of lifesaving medical procedures; however, a guardian is not required to oppose the cessation or withholding of lifesaving medical procedures when those procedures will serve only to prolong the dying process and offer no reasonable expectation of effecting a temporary or permanent cure of or relief from the illness or condition being treated unless the ward has clearly stated that lifesaving medical procedures not be withheld[.]

8. We interpret this statute to require a guardian of a ward whose physicians are proposing to withhold lifesaving medical procedures to decide whether or not to oppose the withholding of such procedures. In particular, the guardian may decide not to oppose the withholding of lifesaving medical procedures only if the procedures are futile, as defined in the statute. Further, even if the procedures are futile, the guardian must oppose withholding them if "the ward has clearly stated that lifesaving medical procedures not be withheld."

4. This case is RemanpED to the superior court. On remand the guardian shall decide whether to oppose or not oppose the withholding of lifesaving procedures.

5. If the guardian decides to oppose the withholding of lifesaving medical procedures and the appellees continue to disagree with this decision, the superior court shall hold a hearing under AS 13.52.060(e) and (£) as to whether the appellees are justified in withholding lifesaving medical procedures. If the court concludes that the appellees are so justified, the requirements of AS 18.52.060(g) must be observed. In particular, the guardian must in that event consider a transfer of M.C. in accordance with AS 18.52.060(g)(8).

6. If the guardian decides not to oppose the withholding of lifesaving medical procedures, P.C., or any other person interested in M.C.'s welfare, may petition the court pursuant to AS 18.26.125(a) for a review of whether the guardian's decision is in accordance with the standards set out in AS 13.26.150(e)(8). With respect to the second standard (whether "the ward has clearly stated that lifesaving medical procedures not be withheld"), the guardian has suggested that it needs evidence in its own files of M.C.'s position on end-of-life decisions. The guardian should not rely on any such lack of evidence and instead should attempt to determine what evidence there is of M.C.'s statements regarding end-of-life care.

7. The guardian in making its decision whether to oppose or not oppose the withholding of lifesaving medical procedures shall consult with the parties and their representatives, and may consult with such other persons, including potential expert witnesses, as in the judgment of the guardian is necessary and appropriate. The guardian shall expedite its decision in a manner consistent with its responsibilities and upon making its decision the guardian shall promptly advise the parties and the superior court.

8. The stay entered by this court shall remain in effect until further order of this court. Any party may move to transfer the administration and responsibility for the stay to the superior court, or upon a showing of good and sufficient cause, to vacate the stay.

1 . AS 13.52.030(a).

2 . Explanation of Position, filed in this court June 13, 2008.