DOCTOR-PATIENT PRIVILEGE IS ALIVE AND WELL

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Guardianship proceedings, if successful, must involve an ability to prove by clear and convincing evidence that the alleged incapacitated person needs the assistance of another in order to protect that person’s personal needs and rights and to protect that person’s property and assets.  Guardianship proceedings for adults are generally brought under Article 81 of the Mental Hygiene Law of the State of New York.

The test is a functional one-that is, is there proof that on a functional level, as opposed to medical level, that the person for whom the guardianship is sought needs assistance.  The issue is can the person seemingly in need of a guardian provide for her/himself his food, clothing, shelter, medical care and safety.  Can the alleged incapacitated person provide for her mobility, eating, toileting, dressing, grooming, housekeeping, cooking, shopping, money management, banking, driving, or using public transportation, and other activities related to what is termed “activities of daily living.”

There is no specific requirement that proof be supplied by a physician.  Yet, courts around the state have insisted in some cases that physicians testify regarding the issue of whether the person needs assistance in activities of daily living.  So in most guardianship proceedings around the state, the testimony of a physician was requested if the alleged incapacitated person did not otherwise consent to the appointment of a guardian.  Each court had its own rules but the general tenure was that a physician’s testimony was to be expected.

Physicians were in many cases willing to testify and few raised the issue of the physician-patient privilege.  The argument in favor of allowing the physician to testify notwithstanding the privilege is that the very issue of the functional abilities of the alleged incapacitated person was put in issue.

Now it seems that unless the person for whom the guardianship is sought, himself or herself, puts the question in issue (which would not be usual because the person has already shown signs of dementia and could not have the wherewithal to think through the matter), the privilege may not be ignored.  This means that proof of functional limitations must come from other sources.

In one very recent case in New York, In the Matter of Rosa B.-S, 767 N.Y.S. 2d 33 (App Div 2d Dept.), the Appellate Division determined that while allowing the physician to testify was a violation of the privilege, the children of the alleged incapacitated person could (and did) testify regarding the limited ability of the parent to conduct and carry out activities of daily living.  The testimony of the children was sufficient for the court to determine that the parent needed the protection of a guardian.  Moreover, others may testify at the hearing regarding the limitations of the alleged incapacitated person and whether that person needs the assistance of one or more other people to insure the person’s health and safety.

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