FAMILY HEALTH CARE DECISION ACT
PURPOSE:
The Family Health Care Decision Act (FHCDA) was signed into law on
March 16, 2010. The purpose of this act is to establish procedures for
making health care decisions on behalf of patients unable to decide about
treatment for themselves where the patient does not have in place a Health
Care Proxy & Living Will or other mechanism for surrogate decision
making.
SUMMARY OF PROVISIONS:
The bill enables family members and others close to an incapacitated
patient to make health care decisions in accord with special procedures,
standards and safeguards. The bill amends the Public Health Law by
adding new Articles 29-CC and 29CCC, entitled "Family Health Care
Decisions Act" and "Non Hospital Orders Not To Resuscitate".
The FHCDA establishes procedures authorizing family members, or other
persons close to patients who lack decision-making capacity, to decide
about treatment, in consultation with health care professionals and in
accord with specified safeguards. The article includes special procedures
and standards for decisions about life sustaining treatments.
If a patient has a health care agent, decisions for the patient are governed
by the health care proxy law, article 29-c of the public health law. Similarly,
if the patient has a guardian appointed under article 17-A of the surrogate's
court procedure act, or if surrogate decisions could be made for the patient
pursuant to section 1750-b of the surrogate's court procedure act or
pursuant to OMH or OMRDD regulations, then decisions for the patient are
governed by those laws or regulations and not by the provisions of this act.
The new provisions govern the determination of patient incapacity for
purposesof authorizing surrogate decisions for adult patients. It
creates a presumption that every adult has capacity to decide about
treatment unless determined otherwise pursuant to procedures set forth
in the section, or pursuant to court order. The section requires an
attending physician to determine that a patient lacks capacity to make
health care decisions. In a residential health care facility, at least
one other health or social service practitioner employed by or otherwise
formally affiliated with the facility must concur. In a general hospital, this
concurrence is required for a surrogate decision to forgo life-sustaining
treatment. Hospitals must adopt written policies identifying the training and
credentials of professionals qualified to provide the concurring opinion. For
patients with a mental illness or developmental disability, a professional
with training or expertise in diagnosing or treating the mental illness or
developmental disability must provide the concurring opinion. Health care
professionals must inform the patient of the determination of incapacity, if
there is any indication that the patient can understand the information. The
person highest on the surrogate list must also be informed. If the patient
objects to the determination of incapacity, the appointment of a surrogate,
or to a surrogate's decision, the patient's objection prevails, unless a
court determines otherwise. The attending physician must confirm that
the patient lacks decision making capacity before complying with health
care decisions. This confirmation is not required for treatments
provided as part of a course of treatment authorized by consent provided
at the time of the initial determination of incapacity.
For adult patients who lack capacity to make particular health care
decisions, the new law lists, in order of priority, the persons
who may act as a surrogate, excluding administrators, employees and
independent contractors of the hospital caring for the patient, unless
they are related to the patient, or were a close friend of the patient
before the patient's admission to the facility. A court-appointed guardian is the first person on the list, followed by the spouse or domestic
partner, child older than 18, a parent, a sibling or a close adult
friend or relative familiar with the patient's personal, religious and
moral views regarding health care.
The FHCDA requires the surrogate to decide about the treatment
based on the patient's wishes, including the patient's religious and
moral beliefs, or, if the patient's wishes are not reasonably known and
cannot with reasonable diligence be ascertained, based on the patient's
best interest.
The new law authorizes decisions to withhold or withdraw life-sustaining
treatment if treatment would be an extraordinary burden to the patient and
the patient is terminally or permanently unconscious, or if the patient has
an irreversible or incurable condition and the treatment would involve such
pain, suffering or other burden that it would reasonably be deemed
inhumane or excessively burdensome under the circumstances. The
determination of terminal illness, permanent unconsciousness, or
irreversible or incurable condition must be made by two physicians in
accord with accepted standards of medical practice. The surrogate must
determine if treatment would be an extraordinary burden in light of the
patient's own wishes, preferences, and values, to the extent possible. In
residential health care facilities, a surrogate can decide to forgo lifesustaining treatment for patients who are not terminally ill or permanently
unconscious only if the Ethics Review Committee, including at least one
physician not directly responsible for the patient's care, or a court, reviews
the decision and determine that the decision meets the standards set forth
in the article for such decisions. In a general hospital, if the attending
physician objects to a surrogate's decision to forgo artificial nutrition and
hydration for a patient who is not terminally ill or permanently unconscious,
the decision may 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, reviews the decision and determines that it meets
the standards set forth in the article for such decisions. The words "excessive" and "excessively", in earlier versions of the bill, have been
changed to extraordinary" and extraordinarily". This change of words was
made to follow the wording under Surrogate's Court Procedure Act §
1750-b. However this change in wording does not change the meaning of
this provision.
Provisions of the new law set forth specific policies for do-not-resuscitate
(DNR) orders, requiring all such orders to be written in the patient's record
and clarifying that the orders provide consent to withhold only
cardiopulmonary resuscitation, not other treatments.
The new law also establishes that a patient, surrogate, or parent or guardian of a minor patient may at any time revoke consent to withhold or
withdraw life-sustaining treatment by notifying a physician or member of
the nursing staff.
Private hospitals and individual health care providers have the right to
refuse, on grounds of moral or religious conscience, to honor health care
decisions made pursuant to Article 29-CC. For a hospital to assert a
conscience objection the decision must be contrary to a formally adopted
policy of the facility expressly based on sincerely held religious beliefs or
sincerely held moral convictions. The law requires the hospital to cooperate
in transferring the patient to another facility willing to honor the decision. If
the transfer does not occur, the facility must seek judicial relief or honor the
decision.