United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2007 Decided June 12, 2007

No. 05-7190

JANE DOE, I, BY HER NEXT FRIEND LINDA J. TARLOW, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA AND

MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

ADMINISTRATION,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02398)

Mary T. Connelly, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellants. With her on the brief were Robert J. Spagnoletti,

Attorney General at the time the brief was filed, Todd S. Kim,

Solicitor General, and Edward E. Schwab, Deputy Solicitor

General.

Robert A. Dybing, pro hac vice, argued the cause for

appellees. With him on the brief was Harvey S. Williams.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: This case involves the District

of Columbia’s 2003 policy for authorizing surgeries for

intellectually disabled persons who are in the District’s care and

have never had the mental capacity to make medical decisions

for themselves. The District of Columbia authorizes surgeries

for such persons when: (i) two physicians have certified that the

proposed surgery is “clinically indicated to maintain the health”

of the patient; (ii) D.C. caregivers have made efforts to discuss

the surgery with the patient at the level of patient

comprehension; and (iii) no guardian, family member, or other

close relative, friend, or associate is available to otherwise

consent or withhold consent. Plaintiffs argue that the 2003

policy is inconsistent with D.C. statutes and the Due Process

Clause of the Fifth Amendment. We disagree and therefore

reverse the judgment of the District Court. 

I

 1. Jane Doe I, Jane Doe II, and Jane Doe III live in District

of Columbia facilities for the intellectually disabled. They are

plaintiffs here, and they represent a class certified by the District

Court of intellectually disabled persons who live in District of

Columbia facilities and receive medical services from the

District of Columbia. These individuals have never had the

mental capacity to make medical decisions for themselves.

(Some District of Columbia statutes and cases use the term

“mentally retarded”; we will use the more common term

“intellectually disabled.”) 

The District of Columbia Mental Retardation and

Developmental Disabilities Administration (commonly referred

to as the MRDDA although the official name has now changed

to the Department of Disability Services) ensures that those
3

intellectually disabled individuals receive necessary medical

services, including necessary surgeries. Many of the surgeries

MRDDA authorizes are relatively routine; MRDDA also

authorizes more significant surgeries when medically necessary.

The District of Columbia’s Health Care Decisions Act

provides that any individual, including persons who have been

determined to be intellectually disabled, “shall be presumed

capable of making health-care decisions unless certified

otherwise” in accordance with D.C. law. D.C. Code § 21-2203.

Of course, some individuals may not have the mental capacity

to make healthcare decisions for themselves. The D.C. Code

sets out a procedure to make the mental incapacity

determination. The Code provides: “Mental incapacity to make

a health-care decision shall be certified by 2 physicians who are

licensed to practice in the District and qualified to make a

determination of mental incapacity.” Id. § 21-2204(a). At least

one of the two certifying physicians must be a psychiatrist, and

at least one must have examined the individual in question

within one day of the certification of incapacity. Id. The

physicians must apply the following standard: A person lacks

mental capacity to make healthcare decisions if he or she “lacks

sufficient mental capacity to appreciate the nature and

implications of a health-care decision, make a choice regarding

the alternatives presented or communicate that choice in an

unambiguous manner.” Id. § 21-2202(5). “All professional

findings and opinions forming the basis of [the] certification . . .

shall be expressed in writing . . . and provide clear evidence that

the person is incapable of understanding the health-care choice,

making a decision concerning the particular treatment or

services in question, or communicating a decision even if

capable of making it.” Id. § 21-2204(b). 

Mental incapacity to make a healthcare decision “shall not

be inferred from the fact that an individual . . . [i]s mentally
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retarded.” Id. § 21-2203(2). In other words, under D.C. law, not

all intellectually disabled persons lack the mental capacity to

make healthcare decisions. The two inquiries are separate.

Plaintiffs’ counsel here agrees, however, that all of the class

members in this case lack the mental capacity to make

healthcare decisions. See Tr. of Oral Arg. at 21, 27; see also

Does I Through III v. District of Columbia, 232 F.R.D. 18, 32

(D.D.C. 2005). 

D.C. law creates a hierarchy of individuals authorized to

make healthcare decisions for persons who have been certified

under § 21-2204 as lacking mental capacity. See D.C. Code §

21-2210(a), (d), (f). That list includes, in order of priority: a

court-appointed guardian or conservator; a spouse or domestic

partner; an adult child; a parent; an adult sibling; a religious

superior, if applicable; a close friend; or the nearest living

relative. Id. § 21-2210(a). The MRDDA Administrator makes

healthcare decisions for an incapacitated patient only if none of

the above individuals is available and willing to do so. See In re

Estate of Gillis, 849 A.2d 1015,1018-19 (D.C. 2004) (providing

overview of MRDDA’s statutory authority to make healthcare

decisions for intellectually disabled patients). The D.C. Code

also explicitly provides that abortions, sterilizations, and

psycho-surgeries may not be authorized, at least absent a court

order. D.C. Code § 21-2211. 

Of relevance to this case, D.C. law distinguishes between

two categories of persons who lack mental capacity: (i) those

who once possessed mental capacity, such as those in a coma or

who have lost their mental capacity due to age, disease, or an

accident; and (ii) those who have always lacked mental capacity,

such as certain intellectually disabled persons. For patients who

once had mental capacity, the decision must be based on the

“known wishes of the patient” if those wishes can be

“ascertained” – for example, as expressed in a durable power of
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attorney. Id. § 21-2210(b); see also id. §§ 21-2206(c)(1), 21-

2207. For those who have never had the mental capacity, the

decision must be based on “a good faith belief as to the best

interests of the patient.” Id.

In 2003, MRDDA adopted a new policy for medical care of

intellectually disabled persons in order to meet – and exceed –

the statutory requirements. The policy, entitled “Procedures for

Securing Medical and Dental Care for MRDDA Consumers,”

provides that those intellectually disabled patients who are

“deemed competent to make informed decisions” are “allowed

to refuse examination/treatment.” Joint Appendix at 196-97. 

For intellectually disabled patients who do not have the

mental capacity to make medical decisions, the 2003 policy

allows the MRDDA Administrator to authorize medical

treatment only when, among other requirements, the patient has

been “certified as an incapacitated individual” and “two (2)

licensed physicians have certified, in writing, that the health care

service, treatment, or procedure is clinically indicated to

maintain the health of the [patient].” Id. at 204. The policy

further provides that “[e]fforts should be made to provide

information and explanations at the level of [patient]

comprehension.” Id. at 203. In other words, MRDAA must

discuss the proposed treatment with the intellectually disabled

patient. The policy also states that family members and

guardians should receive notice of recommended medical

treatment and be “given an opportunity to grant consent.” Id. at

204. If “there is no family member[] or other person available

or willing to provide consent,” however, the MRDDA

Administrator may authorize the surgery. Id.

2. Plaintiffs filed suit and alleged that MRDDA violated

District of Columbia law, as well as their due process rights

under the Fifth Amendment, by authorizing surgeries on them
6

without considering their wishes. It is undisputed that plaintiffs

have always lacked “sufficient mental capacity to appreciate the

nature and implications of a health-care decision, make a choice

regarding the alternatives presented or communicate that choice

in an unambiguous manner.” D.C. Code § 21-2202(5); see also

Does I Through III, 232 F.R.D. at 32; Tr. of Oral Arg. at 21, 27.

The District of Columbia has argued that it legally and logically

cannot consider the wishes of patients who lack – and always

have lacked – mental capacity to make independent medical

decisions because “there is no information about what they

would want if they were not incapacitated.” Does v. District of

Columbia, 374 F. Supp. 2d 107, 115 (D.D.C. 2005) (internal

quotation marks omitted) (emphasis in original). The District of

Columbia points out that consideration of the wishes of a patient

who lacks mental capacity to make healthcare decisions could

lead to denial of essential medical care to a patient who

purportedly did not want it – even though the patient by law has

always lacked the mental capacity to make such a decision.

The District Court concluded that “[e]ven a legally

incompetent, mentally retarded individual may be capable of

expressing or manifesting a choice or preference regarding

medical treatment.” Id. (internal quotation marks omitted). The

court thus held that the District of Columbia’s 2003 policy –

which is based on the statutory “best interests” standard rather

than the “known wishes” standard – is inconsistent with D.C.

statutory law, “violates plaintiffs’ and the class members’ liberty

interest to accept or refuse medical treatment and is therefore an

unconstitutional infringement of the substantive and procedural

due process rights of plaintiffs and their fellow class members.”

Does I Through III, 232 F.R.D. at 34. The District Court

permanently enjoined the District of Columbia from authorizing

elective surgeries for MRDDA patients under its present policy,

ruling that MRDDA must follow the “known wishes of the

patient” standard in determining whether to authorize surgeries
7

on MRDDA patients. Id. The court ordered the District of

Columbia to make “documented reasonable efforts to

communicate” with patients “regarding [their] wishes.” Id. If

a patient’s wishes still remain unknown after such inquiry,

however, the court held that the District of Columbia should

determine the patient’s “best interests” by considering the

“totality of [the] circumstances.” Id.

On appeal, the District of Columbia argues that neither

(i) D.C. statutory law nor (ii) the Due Process Clause of the Fifth

Amendment requires MRDDA to consider the healthcare wishes

of intellectually disabled patients (such as the plaintiffs here)

who have always lacked mental capacity to make healthcare

decisions for themselves. We exercise de novo review over

those legal questions. Arrington v. United States, 473 F.3d 329,

333 (D.C. Cir. 2006). 

II

We first consider whether the 2003 policy is consistent with

D.C. statutory law. Under the 2003 D.C. policy, the MRDDA

Administrator may authorize medical treatment for an

intellectually disabled patient who has always lacked the mental

capacity to make medical decisions only if: (i) two physicians

have certified that the proposed surgery is “clinically indicated

to maintain the health” of the patient; (ii) D.C. caregivers have

made efforts to discuss the surgery with the patient at the level

of patient comprehension; and (iii) no guardian, family member,

or other close relative, friend, or associate is available to

otherwise consent or withhold consent. When those conditions

are met, the Administrator’s practice is to authorize the surgery,

because the surgery is deemed in the patient’s “best interests”

under D.C. law.
8

The class representatives argue that D.C. statutory law

requires more, however, and that MRDDA must consider the

wishes even of persons who have always lacked mental capacity

to make medical decisions, such as the class members here. In

other words, plaintiffs argue that the “known wishes” standard

of the D.C. Code applies rather than the “best interests”

standard. The District of Columbia responds that D.C. statutes

do not (and logically could not) require MRDDA to consider the

wishes of those intellectually disabled patients who have always

lacked the mental capacity to make medical decisions for

themselves. See D.C. Code § 21-2204(b) (providing that

determination of incapacity requires certifying physicians to

provide in writing “clear evidence that the person is incapable

of understanding the health-care choice, making a decision

concerning the particular treatment or services in question, or

communicating a decision even if capable of making it”).

Moreover, the District of Columbia points out that considering

the wishes of a patient who has always lacked mental capacity

could result in the incorrect denial of medical treatment, cause

the death or serious injury of patients, and trigger a host of

ethical and legal problems. 

We agree with the District of Columbia that the “best

interests” standard – not the “known wishes” standard – applies

to medical decisions for intellectually disabled individuals who

have always lacked the mental capacity to make those decisions

for themselves. The D.C. Code provides that a “decision to

grant, refuse or withdraw consent” on behalf of a patient who

lacks the mental capacity to make medical decisions “shall be

based on the known wishes of the patient” if those wishes are

ascertainable. Id. § 21-2210(b) (emphasis added). But “if the

wishes of the patient are unknown and cannot be ascertained,”

the decision “shall be based on . . . a good faith belief as to the

best interests of the patient.” Id. (emphasis added). It is

undisputed here that plaintiffs have always lacked “sufficient
9

mental capacity to appreciate the nature and implications of a

health-care decision, make a choice regarding the alternatives

presented or communicate that choice in an unambiguous

manner.” Id. § 21-2202(5); see also Does I Through III v.

District of Columbia, 232 F.R.D. 18, 32 (D.D.C. 2005); Tr. of

Oral Arg. at 21, 27. Because plaintiffs have never been able to

make informed choices regarding their medical treatment, their

true wishes with respect to a recommended surgery “are

unknown and cannot be ascertained” for purposes of § 21-

2210(b). Therefore, the District of Columbia is correct that the

“best interests” standard applies to the class of plaintiffs in this

case. 

D.C. case law confirms our reading of the statutory text. As

the D.C. Court of Appeals has stated, those statutes were

“designed to address situations in which doctors, family

members, and the courts may be required to make treatment

decisions for a patient who has become unable to decide such

matters for himself or herself.” Khiem v. United States, 612

A.2d 160, 169 (D.C. 1992) (emphasis added). As that court has

explained, an incompetent patient can fall into one of two

categories: (i) those who were once competent to make

healthcare decisions for themselves; and (ii) those who have

never been competent. The distinction is critical because the

competent person’s pre-existing wishes (as best they can be

determined) must be followed “in cases of adults who at one

time were competent but later became incompetent.” In re K.I.,

735 A.2d 448, 455 (D.C. 1999). By contrast, if a patient has

never been competent to make medical decisions, D.C. courts

have concluded that D.C. statutes require the decision be made

by assessing the patient’s “best interests,” particularly their

medical needs as determined by medical doctors. In In re K.I.,

the court thus affirmed the trial judge’s determination that “the

best interests of the child rather than the substituted judgment

standard applied ‘in cases involving minor respondents who
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have lacked, and will forever lack, the ability to express a

preference regarding their course of medical treatment.’” Id. at

452, 456. 

The class representatives rely on the decision of the D.C.

Court of Appeals in In re A.C. But that case involved a patient

who had once been competent to make healthcare decisions on

her own. See 573 A.2d 1235, 1249 (D.C. 1990). The decision

in In re A.C. therefore does not support the conclusion that

MRDDA must somehow try to ascertain the wishes of patients

who have never had the mental capacity to make decisions for

themselves. See id. at 1246 (“incompetent patients . . . have just

as much right as competent patients to have their decisions made

while competent respected”) (emphasis added); id. at 1243

(observing “the tenet common to all medical treatment cases:

that any person has the right to make an informed choice, if

competent to do so, to accept or [forgo] medical treatment”)

(emphasis added). Indeed, as explained above, the D.C. Court

of Appeals has noted that the standard set forth in In re A.C.

applies “in cases of adults who at one time were competent but

later become incompetent.” In re K.I., 735 A.2d at 455.

Contrary to plaintiffs’ suggestion, therefore, nothing in the In re

A.C. decision supports the conclusion that the wishes of a patient

who has never been competent must be considered by a person

charged with making medical decisions on his or her behalf. 

It bears mention that the approach of plaintiffs’ counsel has

the potential for grave consequences. Their position would

require MRDDA to give effect, at least in some cases, to the

medical wishes of patients who by definition lack “sufficient

mental capacity to appreciate the nature and implications” of the

preference expressed. D.C. Code § 21-2202(5). As a result,

MRDDA could be required to deny essential medical care to a

patient who purportedly did not want it – even though the

patient by law lacked the mental capacity to make that decision.
11

The result could be serious injury or death to the patient, and

great potential for abuse and confusion. Not surprisingly, so far

as we are aware, no state applies the rule suggested by plaintiffs.

In sum, we hold that the 2003 policy complies with D.C.

law.

III

Plaintiffs also contend that the District of Columbia’s 2003

policy is inconsistent with what they describe as their procedural

and substantive due process rights.

To reiterate, under the 2003 policy at issue here, the

MRDDA Administrator authorizes surgery for an intellectually

disabled patient who has always lacked mental capacity to make

medical decisions only if: (i) two physicians have certified that

the proposed surgery is “clinically indicated to maintain the

health” of the patient; (ii) D.C. caregivers have made efforts to

discuss the surgery with the patient at the level of patient

comprehension; and (iii) no guardian, family member, or other

close relative, friend, or associate is available to otherwise

consent or withhold consent. 

Plaintiffs argue that this policy violates their right to due

process because it does not require the MRDDA Administrator

to consider an intellectually disabled patient’s wishes in

deciding whether to authorize surgery. But as we explained

above, accepting the wishes of patients who lack (and have

always lacked) the mental capacity to make medical decisions

does not make logical sense and would cause erroneous medical

decisions – with harmful or even deadly consequences to

intellectually disabled persons. Consideration of the wishes of

patients who are not and have never been competent is therefore

not required by the Supreme Court’s procedural due process
12

cases. Cf. Washington v. Harper, 494 U.S. 210, 226 (1990)

(upholding state policy allowing prison to administer medication

to mentally ill prisoners); see also Heller v. Doe, 509 U.S. 312,

332 (1993) (“At least to the extent protected by the Due Process

Clause, the interest of a person subject to governmental action

is in the accurate determination of the matters before the

court . . . .”). 

Plaintiffs also try to make out a substantive due process

claim (as distinct from their procedural due process claim).

Even assuming their complaint about procedures used by

MRDDA can be properly shoehorned into a substantive due

process claim, plaintiffs have not shown that consideration of

the wishes of a never-competent patient is “deeply rooted in this

Nation’s history and tradition” and “implicit in the concept of

ordered liberty,” such that “neither liberty nor justice would

exist if [the asserted right] were sacrificed.” Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997) (internal citations and

quotation marks omitted).

 

Plaintiffs rely on Cruzan v. Dir., Mo. Dep’t of Health, 497

U.S. 261 (1990), which held that the Due Process Clause permits

a state to require clear and convincing evidence of an

incompetent patient’s wishes – articulated when she was

competent – as to the withdrawal of life-sustaining treatment.

Id. at 284. As the Second Circuit has correctly explained,

however, nothing in Cruzan supports the view that a person who

has never had the capacity “to make an informed and voluntary

choice” with respect to medical treatment has a constitutional

right under the Due Process Clause to have his or her wishes

considered. Id. at 280; see Blouin v. Spitzer, 356 F.3d 348, 360

(2d Cir. 2004) (“Cruzan . . . rests solely on the patient’s capacity

to express her intention regarding the course of her medical

treatment; a capacity that Nancy Cruzan once possessed but that

Sheila Pouliot [the plaintiff] never did.”).
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Finally, we note that the breadth of plaintiffs’ constitutional

claims is extraordinary because no state of which we are aware

applies the rule suggested by plaintiffs. Plaintiffs apparently

are arguing, therefore, that all states’ laws and practices with

respect to medical treatment for intellectually disabled

individuals who have never been competent are inconsistent

with the Constitution. Cf., e.g., In re Christopher, 106 Cal. App.

4th 533, 549 (Cal. Ct. App. 2003) (test based on the presumed

wishes of the patient “assumes some understanding of the

patient’s wants, desires, feelings, and previous mental and

physical states,” and “is therefore an inappropriate tool for

making medical decisions for patients . . . who [have] never

been competent to make [their] own decisions or express [their]

emotions and feelings on the subject”); Guardianship of Doe,

583 N.E.2d 1263, 1268 (Mass. 1992) (requirement that state

determine what incompetent patient would have wanted if

competent is a “legal fiction” as applied to a never-competent

person); In re Storar, 420 N.E.2d 64, 72 (N.Y. 1981) (“it is

unrealistic to attempt to determine whether [a patient suffering

from cancer] would want to continue potentially life prolonging

treatment if he were competent” if patient has been profoundly

intellectually disabled for most of his life); see also Norman L.

Cantor, The Relation Between Autonomy-Based Rights and

Profoundly Mentally Disabled Persons, 13 ANNALS HEALTH L.

37, 42 (2004) (surrogate “cannot protect a never-competent

patient’s right of self-determination” because a “profoundly

disabled person has never been able to make autonomous

choices”); John A. Robertson, Cruzan and the Constitutional

Status of Nontreatment Decisions for Incompetent Patients, 25

GA. L. REV. 1139, 1194 (1991) (best interests test “has wide

support when the patient never was previously competent but a

decision must be made, as occurs with pediatric patients and

patients who have always been retarded”); American

Association on Mental Retardation/Association for Retarded

Citizens Position Statement on Health Care for the Intellectually
14

Disabled, available at http://www.aamr.org/Policies/pos_healthcare.shtml (“decision to accept or refuse treatment requires

informed consent,” which means that “the individual

decision-maker or surrogate decision-maker” must have “the

legal capacity to give consent”; decisionmaking in those

circumstances “must always be consistent with the best interests

of the individual”).

In sum, plaintiffs’ constitutional claims are meritless.

IV

We conclude that, to the extent challenged in this case, the

2003 policy is consistent with D.C. statutory law and the Due

Process Clause of the Fifth Amendment. We therefore reverse

the District Court’s grant of summary judgment, vacate the

District Court’s injunction, and direct the entry of judgment for

defendants with respect to plaintiffs’ claims for declaratory and

injunctive relief. Pending before the District Court are also

individual damages claims brought by Jane Doe I, Jane Doe II,

and Jane Doe III based on alleged incidents that occurred more

than a decade ago, before adoption of the 2003 policy. The

damages claims are not before us, and we therefore do not

address them.

So ordered.