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Total Life Choices (TLC) provides free legal services to promote and protect the dignity of each individual.  TLC attorneys and volunteers empower individuals in articulating and documenting crucial lifetime, incapacity, and end-of-life choices through education and legal planning.  TLC counsels families on complex court procedures for probate, administration and guardianship.

 

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Total Life Choices (TLC)
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Family Health Care Decisions Act (FHCDA) (Public Health Law § 29-CC)

2994-b. Applicability; priority of certain other surrogate decision-making laws and regulations.

            1. This article shall apply to health care decisions regarding health care provided in a hospital to a patient who lacks decision-making capacity, except as limited by this section.

            2. Prior to seeking or relying upon a health care decision by a surrogate for a patient under this article, the attending physician shall make reasonable efforts to determine whether the patient has a health care agent appointed pursuant to article twenty-nine-C of this chapter. If so, health care decisions for the patient shall be governed by such article, and shall have priority over decisions by any other person except the patient or as otherwise provided in the health care proxy.

            3. Prior to seeking or relying upon a health care decision by a surrogate for a patient under this article, if the attending physician has reason to believe that the patient has a history of receiving services for mental retardation or a developmental disability; it reasonably appears to the attending physician that the patient has mental retardation or a developmental disability; or the attending physician has reason to believe that the patient has been transferred from a mental hygiene facility operated or licensed by the office of mental health, then such physician shall make reasonable efforts to determine whether paragraphs (a), (b) or (c) of this subdivision are applicable:

                        (a) If the patient has a guardian appointed by a court pursuant to article seventeen-A of the surrogate’s court procedure act, health care decisions for the patient shall be governed by section seventeen hundred fifty-b of the surrogate’s court procedure act and not by this article.

                        (b) If a patient does not have a guardian appointed by a court pursuant to article seventeen-A of the surrogate’s court procedure act but falls within the class of persons described in paragraph (a) of subdivision one of section seventeen hundred fifty-b of such act, decisions to withdraw or withhold life-   sustaining treatment for the patient shall be governed by section seventeen hundred fifty-b of the surrogate’s court procedure act and not by this article.

                        (c) If a health care decision for a patient cannot be made under paragraphs (a) or (b) of this subdivision, but consent for the decision may be provided pursuant to the mental hygiene law or regulations of the office of mental health or the office of mental retardation and developmental disabilities, then the decision shall be governed by such statute or regulations and not by this article.

            4. If, after reasonable efforts, it is determined that a health care decision for the patient cannot be made pursuant to subdivision two or three of this section, then the health care decision shall be made pursuant to this article.

 

§ 2994-d. Health care decisions for adult patients by surrogates.

            1. Identifying the surrogate. One person from the following list from the class highest in priority when persons in prior classes are not reasonably available, willing, and competent to act, shall be the surrogate for an adult patient who lacks decision-making capacity. However, such person may designate any other person on the list to be surrogate, provided no one in a class higher in priority than the person designated objects: 

                        (a) A guardian authorized to decide about health care pursuant to article eighty-one of the mental hygiene law;

                        (b) The spouse, if not legally separated from the patient, or the domestic partner;

                        (c) A son or daughter eighteen years of age or older;

                        (d) A parent;

                        (e) A brother or sister eighteen years of age or older;

                        (f) A close friend.

            2. Restrictions on who may be a surrogate. An operator, administrator, or employee of a hospital or a mental hygiene facility from which the patient was transferred, or a physician who has privileges at the hospital or a health care provider under contract with the hospital may not serve as the surrogate for any adult who is a patient of such hospital, unless such individual is related to the patient by blood, marriage, domestic partnership, or adoption, or is a close friend of the patient whose friendship with the patient preceded the patient’s admission to the facility. If a physician serves as surrogate, the physician shall not act as the patient’s attending physician after his or her authority as surrogate begins.

            3. Authority and duties of surrogate.

                        (a) Scope of surrogate’s authority.

                                    (i) Subject to the standards and limitations of this article, the surrogate shall have the authority to make any and all health care decisions on the adult patient’s behalf that the patient could make.

                                    (ii) Nothing in this article shall obligate health care providers tom seek the consent of a surrogate if an adult patient has already made a decision about the proposed health care, expressed orally or in writing or, with respect to a decision to withdraw or withholdlife-sustaining treatment expressed either orally during hospitalization in the presence of two witnesses eighteen years of age or older, at least one of whom is a health or social services practitioner affiliated with the hospital, or in writing. If an attending physician relies on the patient’s prior decision, the physician shall record the prior decision in the patient’s medical record. If a surrogate has already been designated for the patient, the attending physician shall make reasonable efforts to notify the surrogate prior to implementing the decision; provided that in the case of a decision to withdraw or withhold life-sustaining treatment, the attending physician shall make diligent efforts to notify the surrogate and, if unable to notify the surrogate, shall document the efforts that were made to do so.

                        (b) Commencement of surrogate’s authority. The surrogate’s authority shall commence upon a determination, made pursuant to section twenty-nine hundred ninety-four-c of this article,  that the adult patient lacks decision-making capacity and upon identification of a surrogate pursuant to subdivision one of this section. In the event an attending physician determines that the patient has regained decision-making capacity, the authority of the surrogate shall cease.

                        (c) Right and duty to be informed. Notwithstanding any law to the contrary, the surrogate shall have the right to receive medical information and medical records necessary to make informed decisions about the patient’s health care. Health care providers shall provide and the surrogate shall seek information necessary to make an informed decision, including information about the patient’s diagnosis, prognosis, the nature and consequences of proposed health care, and the benefits and risks of and alternative to proposed health care.

            4. Decision-making standards.

                        (a) The surrogate shall make health care decisions:

                                    (i) in accordance with the patient’s wishes, including the patient’s religious and moral beliefs; or

                                    (ii) if the patient’s wishes are not reasonably known and    cannot with reasonable diligence be ascertained, in accordance with the patient’s best interests. An assessment of the patient’s best interests shall include: consideration of the dignity and uniqueness of every person; the possibility and extent of preserving the patient’s life; the preservation, improvement or restoration of the patient’s health or functioning; the relief of the patient’s suffering; and any medical condition and such other concerns and values as a reasonable person in the patient’s circumstances would wish to consider.

                        (b) In all cases, the surrogate’s assessment of the patient’s wishes and best interests shall be patient-centered; health care decisions shall be made on an individualized basis for each patient, and shall be consistent with the values of the patient, including the patient’s religious and moral beliefs, to the extent reasonably possible.

            5. Decisions to withhold or withdraw life-sustaining treatment. In addition to the standards set forth in subdivision four of this section, decisions by surrogates to withhold or withdraw life-sustaining treatment shall be authorized only if the following conditions are satisfied, as applicable:

                        (a)       

                                    (i) Treatment would be an extraordinary burden to the patient and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards,

                                                (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or

                                                (B) the patient is permanently unconscious; or

                                    (ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical standards.

                        (b) In a residential health care facility, a surrogate shall have the authority to refuse life-sustaining treatment under subparagraph (ii) of paragraph (a) of this subdivision only if the ethics review committee, including at least one physician who is not directly responsible for the patient’s care, or a court of competent jurisdiction, reviews the decision and determines that it meets the standards set forth in this article. This requirement shall not apply to a decision to withhold cardiopulmonary resuscitation.

                        (c) In a general hospital, if the attending physician objects to a surrogate’s decision, under subparagraph (ii) of paragraph (a) of this subdivision, to withdraw or withhold nutrition and hydration provided by means of medical treatment, the decision shall not be implemented until the ethics review committee, including at least one physician who is not directly responsible for the patient’s care, or a court of competent jurisdiction, reviews the decision and determines that it meets the standards set forth in this subdivision and subdivision four of this section.

                        (d) Providing nutrition and hydration orally, without reliance on medical treatment, is not health care under this article and is not subject to this article.

                        (e) Expression of decisions. The surrogate shall express a decision to withdraw or withhold life-sustaining treatment either orally to an attending physician or in writing.

 

§ 2994-g. Health care decisions for adult patients without surrogates.

            1. Identifying adult patients without surrogates. Within a reasonable time after admission as an inpatient to the hospital of each adult patient, the hospital shall make reasonable efforts to determine if the patient has appointed a health care agent or has a guardian, or if at least one individual is available to serve as the patient’s surrogate in the event the patient lacks or loses decision-making capacity. With respect to a patient who lacks capacity, if no such health care agent, guardian or potential surrogate is identified, the hospital shall identify, to the extent reasonably possible, the patient’s wishes and preferences, including the patient’s religious and moral beliefs, about pending health care decisions, and shall record its findings in the patient’s medical record.

            2. Decision-making standards and procedures.

                        (a) The procedures specified in this and the following subdivisions of this section apply to health care decisions for adult patients who would qualify for surrogate decision-making under this article but for whom no surrogate is reasonably available, willing or competent to act.

                        (b) Any health care decision made pursuant to this section shall be made in accordance with the standards set forth in subdivision four of section twenty nine hundred ninety-four-d of this article and shall not be based on the financial Interests of the hospital or any other health care provider. The specific procedures to be followed depend on whether the decision involves routine medical treatment, major medical treatment, or the withholding or withdrawal of life-sustaining treatment, and the location where the treatment is provided.

            3. Routine medical treatment.

                        (a) For purposes of this subdivision, “routine medical treatment” means any treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition, such as the administration of medication, the extraction of bodily fluids for analysis, or dental care performed with a local anesthetic, for which health care providers ordinarily do not seek specific consent from the patient or authorized representative. It shall not include the long-term provision of treatment such as ventilator support or a nasogastric tube but shall include such treatment when provided as part of post-operative care or in response to an acute illness and recovery is reasonably expected within one month or less.

                        (b) An attending physician shall be authorized to decide about routine medical treatment for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article. Nothing in this subdivision shall require health care providers to obtain specific consent for treatment where specific consent is not otherwise required by law.

            4. Major medical treatment.

                        (a) For purposes of this subdivision, “major medical treatment” means any treatment, service or procedure to diagnose or treat an individual’s physical or mental condition:

                                    (i) where general anesthetic is used; or

                                (ii) which involves any significant risk; or                                                                                       

                                     (iii) which involves any significant invasion of bodily integrity requiring an incision, producing substantial pain, discomfort, debilitation or having a significant recovery period; or

                                  (iv) which involves the use of physical restraints, as specified in regulations promulgated by the commissioner, except in an emergency; or

                                  (v) which involves the use of psychoactive medications, except when provided as part of post-operative care or in response to an acute illness and treatment is reasonably expected to be administered over a period of forty-eight hours or less, or when provided in an emergency.

                        (b) A decision to provide major medical treatment, made in accordance with the following requirements, shall be authorized for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article.

                                    (i) An attending physician shall make a recommendation in consultation with hospital staff directly responsible for the patient’s care.

                                    (ii) In a general hospital, at least one other physician designated by the hospital must independently determine that he or she concurs that the recommendation is appropriate.

                                    (iii) In a residential health care facility the medical director of the facility, or a physician designated by the medical director, must independently determine that he or she concurs that the recommendation is appropriate; provided that if the medical director is the patient’s attending physician, a different physician designated by the residential health care facility must make this independent determination. Any health or social services practitioner employed by or otherwise formally affiliated with the facility may provide a second opinion for decisions about physical restraints made pursuant to this subdivision.

            5. Decisions to withhold or withdraw life-sustaining treatment.

                        (a) A court of competent jurisdiction may make a decision to withhold or withdraw life-sustaining treatment for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article if the court finds that thedecision accords with standards for  decisions for adults set forth in subdivisions four and five of section twenty-nine hundred ninety-four-d of this article.

                        (b) If the attending physician, with independent concurrence of a second physician designated by the hospital, determines to a reasonable degree of medical certainty that:

                                    (i) life-sustaining treatment offers the patient no medical benefit because the patient will die imminently, even if the treatment is provided; and

                                    (ii) the provision of life-sustaining treatment would violate accepted medical standards, then such treatment may be withdrawn or withheld from an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article, without judicial approval. This paragraph shall not apply to any treatment necessary to alleviate pain or discomfort.

            6. Physician objection. If a physician consulted for a concurring opinion objects to an attending physician’s recommendation or determination made pursuant to this section, or a member of the hospital staff directly responsible for the patient’s care objects to an attending physician’s recommendation about major medical treatment or treatment without medical benefit, the matter shall be referred

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