Editor: W. Patrick Tandy
Foley: The Health Care Decisions Act Finally Worked
By Angela B.
Last year, we
reported on the case of In re Sophia E. Foley. In the Foley case, the
Circuit Court for Anne Arundel County, Maryland, issued an order for a
physical examination pursuant to a discovery request filed by the
petitioner for guardianship (Mrs. Foley’s sister). Over the objection of
Mrs. Foley’s husband and health care agent, the order was issued, despite
the acknowledgement by the court that (1) Mrs. Foley had executed a valid
advance directive in 1992; (2) that Mr. Foley was his wife’s designated
health care agent; (3) that, as the health care agent, Mr. Foley was
granted “broad powers;” (4) that the purpose of the advance directive was
to permit Mr. Foley to manage his wife’s health care; and (5) that Mr.
Foley was trying to follow his wife’s doctor’s orders “as best he can.”
Regardless of these findings, the trial court held that a “reasonable
health care agent” ought to have the tests performed; this is a standard
that is unsupported by Maryland
On appeal, the
Court of Special Appeals vacated that order; however, that ruling was
overturned by the Court of Appeals, which held that the trial court’s
discovery order was not subject to interlocutory appeal. The Court of
Appeals specifically indicated that the ruling was not on the subject
matter of the appeal but was based on a procedural issue. After a petition
for review was denied by the United States Supreme Court and the case sent
back to the trial court, Mr. Foley requested that the trial court
reconsider its original opinion, an opinion that effectively granted Mrs.
Foley’s sister the relief sought in the guardianship case without
appointing her guardian.
The trial court
granted Mr. Foley’s motion for reconsideration and dismissed the
guardianship petition on Mr. Foley’s motion for summary judgment. In its
opinion, the trial court, for the first time in the State of Maryland,
incorporated the three-step, decision-making matrix set forth in
Maryland’s Health Care Decisions Act (HCDA) into its determination of
whether a guardian should be appointed when a valid advance directive is
in existence. This is significant because in Maryland there is little case
law interpreting the HCDA or the guardianship statute, let alone the
interplay between the two when there is a disagreement between two
surrogate decision makers about the care of a disabled person.
matrix of the HCDA provides as a first step that medical decisions are to
be made in accordance with the expressed wishes of a competent individual
in a written (or oral) advance directive. If the declarant did not
specifically address a particular situation in his advance directive, then
decisions are to be made in accordance with the HCDA’s considerations for
determining a patient’s wishes. Lastly, if the wishes of the patient are
unknown or unclear, the health care agent shall base his decision on the
best interest of the patient, as defined in the HCDA.
The trial court
stated that although Mrs. Foley had not expressed her wishes regarding her
examination, testing and treatment for Lyme disease (which were requested
by her sister) Mrs. Foley did not have to provide such specificity in her
advance directive. The court went on to state that Mrs. Foley’s advance
directive, specifying her husband as her health care agent, “should end
the inquiry.” Based on the record before it, the court held that Mrs.
Foley’s sister had not met her burden to prove that Mr. Foley was not
acting in accordance with his wife’s best interest, and therefore it was
not necessary for the court to superintend and direct Mrs. Foley’s care
through a guardianship.
opinion has no precedential effect beyond the Foley case, it is the first
time that a Maryland court at any level has incorporated the
decision-making matrix of the HCDA into a determination of when or how the
decisions of a health care agent or surrogate should be overruled by a
court. Further, this decision places the burden squarely on a challenger
to prove that a health care agent or surrogate is not acting in accordance
with the decision-making matrix set forth in the HCDA.
As a sad postscript
to this already tragic family situation, Mrs. Foley passed away on
February 26, 2004. Mrs. Foley’s legacy is a better understanding of our
ability to control our own health care decisions, even through a lengthy
period of disability.
Angela B. Grau is an associate with the law firm of Davis, Agnor, Rapaport
& Skalny, LLC, in Columbia, where she concentrates her practice in