2nd Circuit Holds Vermont Durable Power of Attorney Law Discriminatory
(August 6, 2003) -- On August 1, the United States Court of Appeals for the
2nd Circuit held that Vermont’s “Act 114,” discriminated
against individuals with mental disabilities under Title II of the Americans
with Disabilities Act and Section 504 of the Rehabilitation Act.
The case, Hargrave v. State of Vermont, centered
around the rights of individuals with mental disabilities to exercise durable
powers of attorney (or advance directives) as a way to guide health care
providers in the event of incapacitation, by appointing a surrogate decision-maker
and,
if desired, by articulating preferences for or limitations on treatment.
The plaintiff, Nancy Hargrave, is a woman with paranoid schizophrenia who had
exercised
an advance psychiatric directive designating a proxy decision maker in the
case of incapacity and refusing the administration of “any and all anti-psychotic,
neuroleptic, psychotropic or psychoactive medications” and electroconvulsive
therapy.
Vermont's Act 114 allowed for the State to override the advance directive
of an individual with mental illness who had been civilly committed, using
standards
that differed from those that would apply to an advance directive of an
equally incompetent individual who did not have a mental disability. The Second
Circuit,
affirming the judgment of a lower court, held that Act 114 discriminates
against people with mental disabilities by allowing the application of
a different standard than would be used for someone without a mental disability.
Case Citation:Hargrave v. Vermont, __ F.3d __, 2003 WL 21770957 (2nd Cir.
2003)
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite
1212
Washington, DC 20005
