N.Y. Public Health Law § 2983: Determination of lack of capacity to make health care decisions for the purpose of empowering agent

§ 2983. Determination of lack of capacity to make health care

decisions for the purpose of empowering agent. 1. Determination by

attending practitioner. (a) A determination that a principal lacks

capacity to make health care decisions shall be made by the attending

practitioner to a reasonable degree of medical certainty. The

determination shall be made in writing and shall contain such attending

practitioner's opinion regarding the cause and nature of the principal's

incapacity as well as its extent and probable duration. The

determination shall be included in the patient's medical record. For a

decision to withdraw or withhold life-sustaining treatment, the

attending practitioner who makes the determination that a principal

lacks capacity to make health care decisions must consult with another

physician, physician assistant, or nurse practitioner to confirm such

determination. Such consultation shall also be included within the

patient's medical record.

(b) If an attending practitioner of a patient in a general hospital or

mental hygiene facility determines that a patient lacks capacity because

of mental illness, the attending practitioner who makes the

determination must be, or must consult, for the purpose of confirming

the determination, with a qualified psychiatrist. A record of such

consultation shall be included in the patient's medical record.

(c) If the attending practitioner determines that a patient lacks

capacity because of a developmental disability, the attending

practitioner who makes the determination must be, or must consult, for

the purpose of confirming the determination, with a physician, nurse

practitioner, physician assistant, or clinical psychologist who either

is employed by a developmental disabilities services office named in

section 13.17 of the mental hygiene law, or who has been employed for a

minimum of two years to render care and service in a facility operated

or licensed by the office for people with developmental disabilities, or

has been approved by the commissioner of developmental disabilities in

accordance with regulations promulgated by such commissioner. Such

regulations shall require that a physician, nurse practitioner,

physician assistant, or clinical psychologist possess specialized

training or three years experience in treating developmental

disabilities. A record of such consultation shall be included in the

patient's medical record.

(d) A physician, physician assistant, or nurse practitioner who has

been appointed as a patient's agent shall not make the determination of

the patient's capacity to make health care decisions.

2. Request for a determination. If requested by the agent, an

attending practitioner shall make a determination regarding the

principal's capacity to make health care decisions for the purposes of

this article.

3. Notice of determination. Notice of a determination that a principal

lacks capacity to make health care decisions shall promptly be given:

(a) to the principal, orally and in writing, where there is any

indication of the principal's ability to comprehend such notice; (b) to

the agent; (c) if the principal is in or is transferred from a mental

hygiene facility, to the facility director; and (d) to the guardian of

the principal, if any.

4. Limited purpose of determination. A determination made pursuant to

this section that a principal lacks capacity to make health care

decisions shall not be construed as a finding that the patient lacks

capacity for any other purpose.

5. Priority of principal's decision. Notwithstanding a determination

pursuant to this section that the principal lacks capacity to make

health care decisions, where a principal objects to the determination of

incapacity or to a health care decision made by an agent, the

principal's objection or decision shall prevail unless the principal is

determined by a court of competent jurisdiction to lack capacity to make

health care decisions.

6. Confirmation of lack of capacity. (a) The attending practitioner

shall confirm the principal's continued incapacity before complying with

an agent's health care decisions, other than those decisions made at or

about the time of the initial determination made pursuant to subdivision

one of this section. The confirmation shall be stated in writing and

shall be included in the principal's medical record.

(b) The notice requirements set forth in subdivision three of this

section shall not apply to the confirmation required by this

subdivision.

7. Effect of recovery of capacity. In the event the attending

practitioner determines that the principal has regained capacity, the

authority of the agent shall cease, but shall recommence if the

principal subsequently loses capacity as determined pursuant to this

section.