Listening to the Disabled: End-of-Life Medical Decision Making and the Never Competent
![handle is hein.journals/flr74 and id is 2905 raw text is: LISTENING TO THE DISABLED:
END-OF-LIFE MEDICAL DECISION MAKING AND
THE NEVER COMPETENT
Eric C. Miller*
INTRODUCTION
Chantel R. was a twenty-six year old mentally retarded1 woman whom
experts identified as having the intellectual function of a seven-year-old
child2 and no ability to think abstractly.'3 In 2003, her mother sought an
appointment as her guardian with the authority to withdraw life-sustaining
treatment.4 Chantel verbally expressed both to a psychologist at her
residential treatment facility and to the judge in court that she did not want
food or water removed even if she was permanently unconscious because
she did not want [anything] to happen to [her].'5 A judge for the
Surrogate's Court of New York County disregarded Chantel's statements
based on expert testimony that Chantel could not understand the concept of
* J.D. Candidate, 2007, Fordham University School of Law. I would like to thank my
faculty advisor Professor Norton Spritz and everyone at the Mental Hygiene Legal Service,
First Department, especially Karen Gomes Andreasian. In addition, I want to extend a
special thanks to my wife, Brett A. Saarela.
1. Mental retardation is often defined as an intellectual functioning level (as measured
by standard tests for intelligence quotient) that is well below average and significant
limitations in daily living skills (adaptive functioning). The Gale Encyclopedia of Medicine
1911 (Donna Olendorf et al. eds., 1999) [hereinafter Gale Encyclopedia]; see also Martha A.
Field & Valerie A. Sanchez, Equal Treatment for People with Mental Retardation: Having
and Raising Children 30 (1999). The retarded are categorized as borderline, mild, moderate,
severe, or profound. Id. at 33. This Note is primarily concerned with those with moderate,
severe, or profound retardation, who represent approximately ten percent of the retarded
population, but also implicitly applies to any mentally retarded persons that have been
adjudicated incompetent. Id. By implication this Note may also apply to severely and
persistently mentally ill individuals and those with developmental disabilities who have also
never been competent to make medical decisions.
2. Mental age scoring has been criticized by some advocates for the retarded as
encouraging some people, particularly judges, to see the retarded as children. Field &
Sanchez, supra note 1, at 38. An individual's adaptive skills, experience, and ability to
function can continue to increase even if mental age remains fixed. Id. Mental age is more
akin to academic age and therefore a poor proxy for actual age with its assumptions
concerning maturity. Id. at 39. The average mental age of the entire general population
under this metric is only sixteen. 1d. at 38. If most people are considered to be sixteen years
old, the problem of equating mental age to legal age is obvious.
3. In re Guardianship of Chantel R., 791 N.Y.S.2d 324, 326 (Sur. Ct. N.Y. County
2004).
4. Id. at 325.
5. Id. at 326.
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Listening to the Disabled: End-of-Life Medical Decision Making and the Never Competent
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