Who makes decisions about life-sustaining treatment for patients who cannot decide for themselves, and according to what criteria? In Cruzan v. Director, Missouri Department of Health, the United States Supreme Court held that the states are the proper parties to resolve these questions. The Court acknowledged that competent patients have a liberty interest protected by the Due Process Clause of the Fourteenth Amendment in refusing medical treatment, including life-sustaining treatment. The states, however, are to establish the standards and procedures to govern these decisions. Accordingly, the Court upheld Missouri’s refusal to permit Nancy Cruzan’s parents to authorize the termination of life-sustaining artificial nutrition and hydration because of the lack of clear and convincing evidence, as required by the state, that Ms. Cruzan wanted to forgo this treatment.

The Cruzan decision has important consequences for incapacitated patients who are currently receiving life-sustaining treatment and did not adequately articulate their consent to or refusal of this treatment. The broad discretion given to the states by the Cruzan Court essentially created a class of patients for whom decisions about their medical treatment can no longer be made by others. As a result, many of these patients will receive unsought and often, burdensome life-sustaining treatment which offers them no benefit and from which the law provides no escape. This Article examines the current approaches of New York law, and summarizes the major points and rationales for a proposal to change the New York law.