N.Y. Mental Hygiene Law § 80.07: Procedures of the committees and panels

§ 80.07 Procedures of the committees and panels.

(a) The committee shall receive declarations filed on behalf of

patients, as follows:

1. A declaration may be filed by a declarant on behalf of any patient,

residing within the geographic area served by the committee, who is

believed to be in need of major medical treatment and to lack the

capacity to consent to or refuse major medical treatment. Jurisdiction

by the surrogate decision-making committee may continue throughout all

subsequent proceedings related to the major medical treatment proposed

in the initial declaration notwithstanding the patient's transfer

outside of the geographic region or discharge from the facility.

2. A declaration shall be signed by the declarant and shall state the

following:

(i) the patient does not have a parent, spouse, adult child, committee

of the person, conservator or legal guardian, or other available

surrogate authorized by regulation in accordance with section 33.03 of

this chapter; or that the patient's parent, spouse, adult child,

committee of the person, conservator, legal guardian, or other available

surrogate authorized by regulation in accordance with section 33.03 of

this chapter is willing to allow the panel to act upon the declaration;

(ii) the reasons for believing that the patient lacks the capacity to

consent to or refuse major medical treatment and the factual and

professional basis for this belief, which may include an independent

evaluation by a person qualified to assess the patient's capacity to

make such medical decisions;

(iii) a description of the proposed major medical treatment and of the

patient's medical condition which requires such treatment; the risks,

alternatives and benefits to the patient of such treatment; a statement

of declarant's opinion of whether the best interests of the patient

would be promoted by such treatment and the basis for the opinion; the

patient's view of the proposed treatment, if known; and such other

information as may be necessary to establish the need for such

treatment.

(b) Upon receipt of the declaration, the committee shall send a copy

of the declaration forthwith to the patient and to the patient's parent,

spouse, adult child, or other available surrogate authorized by

regulation in accordance with section 33.03 of this chapter, committee

of the person, conservator, legal guardian or correspondent, if known,

the director of the patient's residential mental hygiene facility, if

any, or such director's designee and the mental hygiene legal service

which serves the same region as the committee. The chairperson of the

committee or his or her designee shall assign the declaration to one of

its panels, whose members will also receive a copy of the declaration.

The declaration shall be accompanied by a notice of the time, place and

date of the panel hearing on the declaration. The hearing shall be

scheduled no earlier than five days after such declaration is sent,

except where medical circumstances require a more immediate hearing or

where the consent of the patient's parent, spouse, adult child,

committee of the person, conservator, legal guardian or correspondent,

if known, the director of the patient's mental hygiene residential

facility, if any, or such director's designee and the mental hygiene

legal service has been obtained for conducting a more immediate hearing.

The notice shall inform recipients of the procedures of the panels,

including the opportunity for the recipient to be present and to be

heard.

(c) The declaration shall, prior to the date of the panel hearing, be

reviewed by the panel chairman or his designee to ascertain whether

additional information may be necessary to assist the panel in

determining the patient's need for surrogate decision-making and in

determining whether the patient's best interests will be served by

consenting to or refusing major medical treatment on the patient's

behalf. The panel chairman or his designee may:

1. Request and shall, notwithstanding any other law to the contrary,

be entitled to receive from any physician, mental hygiene facility or

health care facility or person licensed to render health care, any

information which is relevant to the patient's need for surrogate

decision-making or for the proposed major medical treatment.

Information, books, records or data which are confidential as provided

for by law shall be kept confidential by the panel and any limitations

on the further release thereof imposed by law upon the party furnishing

the information, books, records or data shall apply to the panel.

2. Order an independent assessment of the patient, or of information

concerning the patient, to be undertaken, including obtaining an

independent opinion, where such independent assessment or opinion is

determined by the panel chairman to be necessary.

3. Consult with any other person who might assist in such a

determination of the best interests of the patient, including

ascertainment of the personal beliefs and values of the patient.

(d) The panel shall conduct a hearing, at which the patient, any other

person requested by the patient to appear on his or her behalf, and the

mental hygiene legal service have the right to be present and to be

heard. Where practicable, the panel members shall personally interview

and observe the patient prior to making their decision. The panel shall

be empowered to administer oaths to and to take testimony from any

person who might assist the panel in making its decision. Such hearing

shall be recorded and any information, record, assessment or

consultation submitted to or considered by the panel shall be maintained

as part of the record of the deliberations of the panel. Formal rules of

evidence shall not apply to the proceedings of the panel.

(e) The panel shall make a determination, based on clear and

convincing evidence, as to whether the patient is in need of surrogate

decision-making; provided, however, that minor patients shall be deemed

to lack such capacity, to the extent that minors generally are deemed to

lack such capacity. Unless three panel members concur in the

determination that the patient is in need of surrogate decision-making,

the patient shall be deemed not to need surrogate decision-making. In

such event, a record of such determination shall be made and the

patient's consent to such treatment, if given, shall constitute legally

valid consent.

(f) For any patient determined to be in need of surrogate

decision-making, the panel shall make a further determination as to

whether the proposed major medical treatment is or is not in the best

interests of the patient based on a fair preponderance of the evidence;

provided, however, that evidence of a previously articulated preference

by the patient concerning the proposed treatment shall be given full

consideration by the panel. The panel shall provide a record of its

determination which consents to or refuses major medical treatment on

the patient's behalf, which shall reflect the opinion of at least three

of the panel members. If the panel determination consents to such

treatment, such consent shall constitute legally valid consent to such

treatment in the same manner and to the same extent as if the patient

were able to consent to or refuse such treatment on his or her own

behalf.

(g) If at anytime during the pendency of a proceeding, a parent,

spouse or adult child, or other available surrogate authorized by

regulation in accordance with section 33.03 of this chapter objects to

the panel acting upon the declaration or a committee of the person,

conservator or legal guardian who is legally authorized to consent to or

refuse such treatment on the patient's behalf, objects to the panel

acting upon the declaration, the proceedings regarding such patient

shall cease. A record of such person's objection shall be included as

part of the record as provided for by this section.

(h) A copy of any determination made pursuant to this section shall

contain a statement describing the right to appeal set forth herein and

shall promptly be sent or provided to the patient; other persons

requested by the patient to appear on his or her behalf; declarant;

parent, spouse, adult child, legal guardian, committee of the person, or

other available surrogate authorized by regulation in accordance with

section 33.03 of this chapter or, in the absence of such persons, known

correspondents of the patient; the director of the patient's mental

hygiene residential facility, if any; and the mental hygiene legal

service. Where practicable, the panel shall reach its determination or

determinations at the time of the hearing and provide notice to the

above persons forthwith. The terms of such determinations and the giving

of such notice shall be made a part of the record. The decision shall

state when the consent shall become effective after such determination

has been provided or mailed to the parties specified in this section.

The panel may delay the effective date of its decision for up to five

days in order to enable an objecting party to exercise the right of

appeal, pursuant to section 80.09 of this article.