In a prior entry, I discussed how Massachusetts probate courts are supposed to make decisions on behalf of incapacitated persons when a guardian asks the court for authorization to obtain an abortion or sterilization surgery, using the “substituted judgement” standard. This standard asks the judge to stand in the shoes of the incapacitated person and ask what that person would want to do based on whatever evidence of an opinion which the incapacitated person might be able to give and other factors such as whether there is family support, the impact of any known religious belief, benefits and risks of the procedure, and so forth.

Whether that happens is another story. The recent story of In re Mary Moe is a case in point. At the time the case was brought, Mary was a 32 year old woman who was two to three months pregnant and suffered from severe mental illness. She had had a prior abortion and also had a boy, who lived with Mary's parents. The Department of Mental Health (DMH) filed a petition asking the Probate Court to appoint Mary's parents as her temporary guardian with the legal authority to consent to an abortion. During the preliminary hearing, Mary stated that she would not have an abortion and denied that she was pregnant and made other statements which demonstrated her delusional state. After being found incompetent to make a decision about an abortion, a guardian ad litem (GAL) was appointed to investigate and report on the issue of substituted judgment. Mary denied she was pregnant and told the GAL that she was “very Catholic,” although her parents denied that she was an “active” Catholic. The GAL submitted a report stating that Mary would not want an abortion if she was competent. There was also a court-ordered consultation, in which a physician found that the risk of stopping Mary's medication while she was pregnant in order to avoid any effects on the fetus was greater than any risk to the fetus from the medicine. (Funds were also made available to hire a medical expert.)

Without having a further hearing, where Mary's attorney could have presented evidence from his medical expert and argued the points raised by the GAL, the judge found that Mary would not want to be delusional, and if she was not delusional, she would opt for an abortion in order to take anti-psychotic medication that would harm the fetus. The judge further ordered — without any of the parties ever raising the issue and without notice — that Mary be subject to an involuntary sterilization so as  “to avoid this painful situation from recurring in the future.”

This decision — and the way it came about — did not go over well with the Appeals Court.

In a scathing decision, the Appeals Court found that Mary's rights to due process were violated. The Court first noted that “the decision to procreate was such a fundamental right,” such that there are four points of due process that must be touched:

• adequate notice of the proceedings;
• an opportunity to be heard in the trial court on the issue of the ability to give informed consent;
• a determination on the issue of substituted judgment if no such ability is found; and 
• the right to appeal.

The Court overturned the order for forced sterilization, finding that the decision concerning sterilization came “out of thin air.”

Moving on to the issue of the order for abortion, the Court looked at the law concerning the determination of competency. The Court noted that the level of delusion here expressed by Mary — denying the existence of the pregnancy,  or false beliefs that she had a daughter or had met the judge before — did not by themselves support a finding of incompetency; but there was adequate evidence in the written records before the court to support such a finding.

The court vacated the abortion order because of the judge's failure to use substituted judgment and ordered the matter to be reheard as soon as possible by a different judge. The Court noted that substituted judgment did not depend on determining the decision the protected person might have made if competent — whether that would be a good decision or not, and that evidence must be of what that judgment would be must be presented and reviewed. Any actual preference — such as Mary's repeated opposition to abortion based on her religion — must be taken into account. If there is no dispute as to the facts, the judge can dispense with a formal hearing and make findings based on the pleadings presented by the lawyers for the parties and the GAL.

So — what's the moral here? Having practiced guardianship law since 1995, I've observed that it's very easy to conflate “substituted judgement” with the “best interest” standard used in other states. This is particularly true where the subject person is unable to articulate a preference (as may occur with dementia patients or persons with severe developmental disability). Under such circumstances and where there is no family involvement, the judge — and all the lawyers — may be stuck inferring facts in a vacuum. However, when the incapacitated person is capable of articulating an opinion, attention must be paid, no matter how odd that opinion may be.