Up until now, New York, like many other states only allowed an agent or surrogate to make health care decisions for an incapacitated person, including end of life decisions, if the incapacitated person had previously signed a health care proxy appointing the agent to make those decisions. It was a common misconception by many family members that they could act as the health care decision maker because they were the next of kin. However, all that is expected to change in New York this year under the New Family Health Care Decisions Act. The law has been passed by the NY State Senate and Assembly and awaits the Governor’s signature.
The new law would establish procedures authorizing family members, or other persons close to patients who lack decision-making capacity, to decide about treatment, in consultation with health care professionals and in accord with specified safeguards. It includes procedures and standards for decisions about life sustaining treatments.
The new law applies to health care decisions for care provided in a hospital. However, if the patient has a health care proxy designating an agent, then the health care proxy law applies. Similarly if there is a guardian (appointed in the Surrogate’s Court) for someone with Developmental Disabilities, then decisions for that patient are governed by the guardianship law.
An adult patient with capacity can make his or her own decisions. For the new law to come into effect there must be a determination that the patient lacks capacity. First, the attending physician makes the determination. In a residential health care facility, at least one other health or social service practitioner must concur. In a general hospital, this concurrence is required for a surrogate decision to forgo life-sustaining treatment. Hospitals must adopt written policies identifying the training and credentials of professionals qualified to provide the concurring opinion.
If there is any indication that the patient can understand the information, then he or she must informed of the determination of incapacity. If the patient objects, then the patient’s objection prevails, unless a court determines otherwise.
The list of persons who may act as a surrogate are in order of priority: A court-appointed guardian, the spouse or domestic partner, a child older than 18, a parent, a sibling or a close adult friend or relative familiar with the patient’s personal, religious and moral views regarding health care. Administrators, employees and independent contractors of the hospital caring for the patient are excluded, unless they are related to the patient, or were a close friend of the patient before the patient’s admission to the facility.
The surrogate under the new law has authority to make all health care decisions for the patient that the patient could have made for himself or herself. The surrogate will be given medical information and records necessary to make an informed decision.
Another section of the law establishes a procedure for making health care decisions for adult patients who have lost decision-making capacity and have no available family member or friend to act as a surrogate. It applies the same standards and safeguards. The section authorizes the attending physician to decide about routine medical treatment for patients without surrogates. For decisions about major medical treatment, the attending physician must consult with hospital staff directly involved with the patient’s care and at least one other physician selected by the hospital must concur in the appropriateness of the decision. However, in these instances there are special requirements for withholding or withdrawing life-sustaining treatment: The law requires approval by a court or the attending physician to determine that life-sustaining treatment offers the patient no medical benefit because the patient will die imminently, and the provision of life-sustaining treatment would violate acceptable medical standards. Where there is no court approval, one other physician must concur in this determination for life sustaining treatment to be withdrawn or with held.
This new act if signed into law will dramatically change the health care decision-making process in New York for persons who lack capacity.