N.Y. Public Health Law § 2994-g: Health care decisions for adult patients without surrogates

§ 2994-g. Health care decisions for adult patients without surrogates.

1. Identifying adult patients without surrogates. Within a reasonable

time after admission as an inpatient to the hospital of each adult

patient, the hospital shall make reasonable efforts to determine if the

patient has appointed a health care agent or has a guardian, or if at

least one individual is available to serve as the patient's surrogate in

the event the patient lacks or loses decision-making capacity. With

respect to a patient who lacks capacity, if no such health care agent,

guardian or potential surrogate is identified, the hospital shall

identify, to the extent reasonably possible, the patient's wishes and

preferences, including the patient's religious and moral beliefs, about

pending health care decisions, and shall record its findings in the

patient's medical record.

2. Decision-making standards and procedures. (a) The procedures

specified in this and the following subdivisions of this section apply

to health care decisions for adult patients who would qualify for

surrogate decision-making under this article but for whom no surrogate

is reasonably available, willing or competent to act.

(b) Any health care decision made pursuant to this section shall be

made in accordance with the standards set forth in subdivision four of

section twenty-nine hundred ninety-four-d of this article and shall not

be based on the financial interests of the hospital or any other health

care provider. The specific procedures to be followed depend on whether

the decision involves routine medical treatment, major medical

treatment, or the withholding or withdrawal of life-sustaining

treatment, and the location where the treatment is provided.

3. Routine medical treatment. (a) For purposes of this subdivision,

"routine medical treatment" means any treatment, service, or procedure

to diagnose or treat an individual's physical or mental condition, such

as the administration of medication, the extraction of bodily fluids for

analysis, or dental care performed with a local anesthetic, for which

health care providers ordinarily do not seek specific consent from the

patient or authorized representative. It shall not include the long-term

provision of treatment such as ventilator support or a nasogastric tube

but shall include such treatment when provided as part of post-operative

care or in response to an acute illness and recovery is reasonably

expected within one month or less.

(b) An attending practitioner shall be authorized to decide about

routine medical treatment for an adult patient who has been determined

to lack decision-making capacity pursuant to section twenty-nine hundred

ninety-four-c of this article. Nothing in this subdivision shall require

health care providers to obtain specific consent for treatment where

specific consent is not otherwise required by law.

4. Major medical treatment. (a) For purposes of this subdivision,

"major medical treatment" means any treatment, service or procedure to

diagnose or treat an individual's physical or mental condition: (i)

where general anesthetic is used; or (ii) which involves any significant

risk; or (iii) which involves any significant invasion of bodily

integrity requiring an incision, producing substantial pain, discomfort,

debilitation or having a significant recovery period; or (iv) which

involves the use of physical restraints, as specified in regulations

promulgated by the commissioner, except in an emergency; or (v) which

involves the use of psychoactive medications, except when provided as

part of post-operative care or in response to an acute illness and

treatment is reasonably expected to be administered over a period of

forty-eight hours or less, or when provided in an emergency.

(b) A decision to provide major medical treatment, made in accordance

with the following requirements, shall be authorized for an adult

patient who has been determined to lack decision-making capacity

pursuant to section twenty-nine hundred ninety-four-c of this article.

(i) An attending practitioner shall make a recommendation in

consultation with hospital staff directly responsible for the patient's

care.

(ii) In a general hospital, at least one other physician, nurse

practitioner or physician assistant designated by the hospital must

independently determine that he or she concurs that the recommendation

is appropriate.

(iii) In a residential health care facility, and for a hospice patient

not in a general hospital, the medical director of the facility or

hospice, or a physician, nurse practitioner or physician assistant

designated by the medical director, must independently determine that he

or she concurs that the recommendation is appropriate; provided that if

the medical director is the patient's attending practitioner, a

different physician, nurse practitioner or physician assistant

designated by the residential health care facility or hospice must make

this independent determination. Any health or social services

practitioner employed by or otherwise formally affiliated with the

facility or hospice may provide a second opinion for decisions about

physical restraints made pursuant to this subdivision.

5. Decisions to withhold or withdraw life-sustaining treatment. (a) A

court of competent jurisdiction may make a decision to withhold or

withdraw life-sustaining treatment for an adult patient who has been

determined to lack decision-making capacity pursuant to section

twenty-nine hundred ninety-four-c of this article if the court finds

that the decision accords with standards for decisions for adults set

forth in subdivisions four and five of section twenty-nine hundred

ninety-four-d of this article.

(b) If the attending practitioner, with independent concurrence of a

second physician, nurse practitioner or physician assistant designated

by the hospital, determines to a reasonable degree of medical certainty

that:

(i) life-sustaining treatment offers the patient no medical benefit

because the patient will die imminently, even if the treatment is

provided; and

(ii) the provision of life-sustaining treatment would violate accepted

medical standards, then such treatment may be withdrawn or withheld from

an adult patient who has been determined to lack decision-making

capacity pursuant to section twenty-nine hundred ninety-four-c of this

article, without judicial approval. This paragraph shall not apply to

any treatment necessary to alleviate pain or discomfort.

5-a. Decisions regarding hospice care. An attending practitioner shall

be authorized to make decisions regarding hospice care and execute

appropriate documents for such decisions (including a hospice election

form) for an adult patient under this section who is hospice eligible in

accordance with the following requirements.

(a) The attending practitioner shall make decisions under this section

in consultation with staff directly responsible for the patient's care,

and shall base his or her decisions on the standards for surrogate

decisions set forth in subdivisions four and five of section twenty-nine

hundred ninety-four-d of this article;

(b) There is a concurring opinion as follows:

(i) in a general hospital, at least one other physician, nurse

practitioner or physician assistant designated by the hospital must

independently determine that he or she concurs that the recommendation

is consistent with such standards for surrogate decisions;

(ii) in a residential health care facility, the medical director of

the facility, or a physician, nurse practitioner or physician assistant

designated by the medical director, must independently determine that he

or she concurs that the recommendation is consistent with such standards

for surrogate decisions; provided that if the medical director is the

patient's attending practitioner, a different physician, nurse

practitioner or physician assistant designated by the residential health

care facility must make this independent determination; or

(iii) in settings other than a general hospital or residential health

care facility, the medical director of the hospice, or a physician

designated by the medical director, must independently determine that he

or she concurs that the recommendation is medically appropriate and

consistent with such standards for surrogate decisions; provided that if

the medical director is the patient's attending physician, a different

physician designated by the hospice must make this independent

determination; and

(c) The ethics review committee of the general hospital, residential

health care facility or hospice, as applicable, including at least one

physician, nurse practitioner or physician assistant who is not the

patient's attending practitioner, or a court of competent jurisdiction,

must review the decision and determine that it is consistent with such

standards for surrogate decisions. This requirement shall not apply to

decisions about routine medical treatment. Such decisions shall be

governed by subdivision three of this section.

6. Physician, nurse practitioner or physician assistant objection. If

a physician, nurse practitioner or physician assistant consulted for a

concurring opinion objects to an attending practitioner's recommendation

or determination made pursuant to this section, or a member of the

hospital staff directly responsible for the patient's care objects to an

attending practitioner's recommendation about major medical treatment or

treatment without medical benefit, the matter shall be referred to the

ethics review committee if it cannot be otherwise resolved.