WASHINGTON – The Supreme Court on Tuesday refused to block Lyme disease testing on an incapacitated 64-year-old Annapolis woman, despite her husband’s objection to the tests.
Sophia Foley appointed her husband, Michael, as her health care agent to make medical decisions for her, according to court documents. Michael Foley said his wife purposely avoided doctors, and that ordering additional tests on Sophia would violate her right to self-determination and bodily integrity.
Foley said he already had his wife tested for Lyme disease, and that the test came back negative. He believes that she suffers from a form of Alzheimer’s disease.
But Sophia’s sister, Eugenia Berg, charged that Michael Foley was neglecting his wife’s condition, and she went to court so she and her sisters could become co-guardians of Sophia. Berg also asked the court to order a routine medical examination of her sister as well as blood and urine tests to determine whether Sophia has Lyme disease — which Berg said is sometimes misdiagnosed as Alzheimer’s disease.
“Maybe Mr. Foley wasn’t doing exactly what Eugenia Berg wanted him to do, but that’s not the standard,” said Foley’s attorney, Michael Davis.
But in May 2001, an Anne Arundel Circuit Court judge granted Berg’s motion to allow the testing.
Foley appealed, and the Court of Special Appeals agreed to block the testing order. But the Court of Appeals overturned that ruling, saying the circuit court’s order could not be appealed, and the Supreme Court on Tuesday declined to step in to the case.
Maryland’s Health Care Decisions Act, passed in 1993, established a person’s right to appoint a health care agent to make medical decisions consistent with the patient’s wishes. But the law also allows close relatives to file a petition challenging the authority of the agent, said Mitchell Mirviss, one of Berg’s attorneys.
Health care agents can be challenged if they refuse to allow necessary medical care, just as parents can be charged for neglecting their children, Mirviss said.
Foley took the case to the Supreme Court in large part because the court, earlier this year, established standards for when it is appropriate to involuntarily medicate a nonviolent person with a serious mental disorder. In its ruling in U.S. v. Sell, the court said that medical intrusion into a person’s body violated privacy, Foley argued.
“There should be no question that Mrs. Foley has a protected fundamental liberty interest in avoiding involuntary medical testing and treatment,” Foley’s attorneys wrote in their appeal to the high court.
But Berg’s attorneys said the standards in Sell, which dealt with forced drugging, did not apply here. “This extreme measure is a far cry from the routine medical tests” Berg is asking for, they wrote.
Berg’s attorneys said they hope to have Mrs. Foley tested by Oct. 22, and sent a letter late Tuesday asking Foley to comply with the original order.
If Foley allows his wife to be tested, the results will be used in the next circuit court hearing on guardianship for Sophia. The county could allow guardians to serve along with the health care agent, said Berg’s attorney, Rudolph DeMeo.