N.Y. Public Health Law § 2994-c: Determination of incapacity

§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For

purposes of this article, every adult shall be presumed to have

decision-making capacity unless determined otherwise pursuant to this

section or pursuant to court order, or unless a guardian is authorized

to decide about health care for the adult pursuant to article eighty-one

of the mental hygiene law.

2. Initial determination by attending practitioner. An attending

practitioner shall make an initial determination that an adult patient

lacks decision-making capacity to a reasonable degree of medical

certainty. Such determination shall include an assessment of the cause

and extent of the patient's incapacity and the likelihood that the

patient will regain decision-making capacity.

3. Concurring determinations. (a) An initial determination that a

patient lacks decision-making capacity shall be subject to a concurring

determination, independently made, where required by this subdivision. A

concurring determination shall include an assessment of the cause and

extent of the patient's incapacity and the likelihood that the patient

will regain decision-making capacity, and shall be included in the

patient's medical record. Hospitals shall adopt written policies

identifying the training and credentials of health or social services

practitioners qualified to provide concurring determinations of

incapacity.

(b) (i) In a residential health care facility, a health or social

services practitioner employed by or otherwise formally affiliated with

the facility must independently determine whether an adult patient lacks

decision-making capacity.

(ii) In a general hospital a health or social services practitioner

employed by or otherwise formally affiliated with the facility must

independently determine whether an adult patient lacks decision-making

capacity if the surrogate's decision concerns the withdrawal or

withholding of life-sustaining treatment.

(iii) With respect to decisions regarding hospice care for a patient

in a general hospital or residential health care facility, the health or

social services practitioner must be employed by or otherwise formally

affiliated with the general hospital or residential health care

facility.

(c) (i) If the attending practitioner makes an initial determination

that a patient lacks decision-making capacity because of mental illness,

either such physician must have the following qualifications, or another

physician with the following qualifications must independently determine

whether the patient lacks decision-making capacity: a physician licensed

to practice medicine in New York state, who is a diplomate or eligible

to be certified by the American Board of Psychiatry and Neurology or who

is certified by the American Osteopathic Board of Neurology and

Psychiatry or is eligible to be certified by that board. A record of

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

(ii) If the attending practitioner makes an initial determination that

a patient lacks decision-making capacity because of a developmental

disability, either such physician, nurse practitioner or physician

assistant must have the following qualifications, or another

professional with the following qualifications must independently

determine whether the patient lacks decision-making capacity: a

physician 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 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) If an attending practitioner has determined that the patient lacks

decision-making capacity and if the health or social services

practitioner consulted for a concurring determination disagrees with the

attending practitioner's determination, the matter shall be referred to

the ethics review committee if it cannot otherwise be resolved.

4. Informing the patient and surrogate. Notice of a determination that

a surrogate will make health care decisions because the adult patient

has been determined to lack decision-making capacity shall promptly be

given:

(a) to the patient, where there is any indication of the patient's

ability to comprehend the information;

(b) to at least one person on the surrogate list highest in order of

priority listed when persons in prior classes are not reasonably

available pursuant to subdivision one of section twenty-nine hundred

ninety-four-d of this article;

(c) if the patient is in a hospital as defined in subdivision ten of

section 1.03 of the mental hygiene law or was transferred from a mental

hygiene facility, to the director of the mental hygiene facility and to

the mental hygiene legal service under article forty-seven of the mental

hygiene law.

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

this section that an adult patient lacks decision-making capacity shall

not be construed as a finding that the patient lacks capacity for any

other purpose.

6. Priority of patient's decision. Notwithstanding a determination

pursuant to this section that an adult patient lacks decision-making

capacity, if the patient objects to the determination of incapacity, or

to the choice of a surrogate or to a health care decision made by a

surrogate or made pursuant to section twenty-nine hundred ninety-four-g

of this article, the patient's objection or decision shall prevail

unless: (a) a court of competent jurisdiction has determined that the

patient lacks decision-making capacity or the patient is or has been

adjudged incompetent for all purposes and, in the case of a patient's

objection to treatment, makes any other finding required by law to

authorize the treatment, or (b) another legal basis exists for

overriding the patient's decision.

7. Confirmation of continued lack of decision-making capacity. An

attending practitioner shall confirm the adult patient's continued lack

of decision-making capacity before complying with health care decisions

made pursuant to this article, other than those decisions made at or

about the time of the initial determination. A concurring determination

of the patient's continued lack of decision-making capacity shall be

required if the subsequent health care decision concerns the withholding

or withdrawal of life-sustaining treatment. Health care providers shall

not be required to inform the patient or surrogate of the confirmation.