N.Y. Public Health Law § 2994-d: Health care decisions for adult patients by surrogates

§ 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, nurse practitioner or physician

assistant 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, nurse practitioner or physician assistant serves as

surrogate, the physician, nurse practitioner or physician assistant

shall not act as the patient's attending practitioner 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 to

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 withhold life-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 practitioner relies on the patient's

prior decision, the physician, nurse practitioner or physician assistant

shall record the prior decision in the patient's medical record. If a

surrogate has already been designated for the patient, the attending

practitioner 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

practitioner 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 practitioner 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 alternatives 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 (including decisions to accept a hospice plan of care that

provides for the withdrawal or withholding of 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 practitioner determines, with the independent concurrence

of another physician, nurse practitioner or physician assistant, 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

practitioner with the independent concurrence of another physician,

nurse practitioner or physician assistant 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, nurse practitioner or physician

assistant 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 practitioner 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, nurse

practitioner or physician assistant 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 practitioner or in writing.