FAMILY HEALTH CARE DECISION ACT
PURPOSE:
The Family Health Care Decision Act (FHCDA) was signed into law on March 16, 2010. The purpose of this act is to establish procedures for making health care decisions on behalf ofpatients unable to decide about treatment for themselveswhere the patient does not have in place a Health Care Proxy Living Will or other mechanism for surrogate decision making.
SUMMARY OF PROVISIONS:
The bill enables family members and others close to an incapacitated patient to make health care decisions in accord with special procedures, standards and safeguards. The bill amends the Public Health Law by adding new Articles 29-CC and 29CCC, entitled "Family Health Care Decisions Act" and"Non Hospital Orders Not To Resuscitate".
The FHCDA establishes procedures authorizing family members, or other persons close topatients who lack decision-making capacity, to decide about treatment,in consultation with health care professionals and in accord with specified safeguards. The article includes special procedures and standardsfor decisions about life sustaining treatments.
If a patient has a health care agent, decisions for the patient are governed by the health care proxy law, article 29-c of the public health law. Similarly, if the patient has a guardian appointed under article 17-A of the surrogate's court procedure act, or if surrogate decisions could be made forthe patient pursuant to section 1750-b of the surrogate's court procedure act or pursuant to OMH or OMRDD regulations, then decisions for the patient are governed by those laws or regulations and not by the provisions of this act.
The new provisions govern the determination of patient incapacity for
purposesof authorizing surrogate decisions for adult patients. It
creates a presumption that every adult has capacity to decide about
treatment unless determined otherwise pursuant to procedures set forth
in the section, or pursuant to court order. The section requires an
attending physician to determine that a patient lacks capacity to make
health care decisions. In a residential health care facility, at least
one other health or social service practitioner employed by or otherwise
formally affiliated with the facility must concur. In a general hospital, this concurrence is required for a surrogate decision to forgolife-sustaining treatment. Hospitals must adopt written policies identifying the training and credentials of professionals qualified to providethe concurring opinion. For patients with a mental illness or developmental disability, a professional with training or expertise in diagnosing or treating the mental illness or developmental disability mustprovide the concurring opinion. Health care professionals must informthe patient of the determination of incapacity, if there is any indication that the patient can understand the information. The person highest on the surrogate list must also be informed. If the patient objects to the determination of incapacity, the appointment of a surrogate, orto a surrogate's decision, the patient's objection prevails, unless a
court determines otherwise. The attending physician must confirm that
the patient lacks decision making capacity before complying with health
care decisions. This confirmation is not required for treatments
provided as part of a course of treatment authorized by consent provided
at the time of the initial determination of incapacity.
For adult patients who lack capacity to make particular health care decisions, the new law lists, in order of priority, the persons
who may act as a surrogate, excluding administrators, employees and
independent contractors of the hospital caring for the patient, unless
they are related to the patient, or were a close friend of the patient
before the patient's admission to the facility. A court-appointed guar-
dian is the first person on the list, followed by the spouse or domestic
partner, 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.
The FHCDA requires the surrogate to decide about the treatment
based on the patient's wishes, including the patient's religious and
moral beliefs, or, if the patient's wishes are not reasonably known and
cannot with reasonable diligence be ascertained, based on the patient's
best interest.
The new law authorizes decisions to withhold or withdraw life-sustaining treatment if treatment would be an extraordinary burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or excessively burdensome under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted standards of medical practice. The surrogate must determine if treatment would be an extraordinary burden in light of the patient's own wishes, preferences, and values, to the extent possible. In residential health care facilities, a surrogate can decide to forgo life-sustaining treatment for patients who are not terminally ill or permanently unconscious only if the Ethics ReviewCommittee, including at least one physician not directly responsible forthe patient's care, or a court, reviews the decision and determine thatthe decision meets the standards set forth in the article for such decisions. In a general hospital, if the attending physician objects to asurrogate's decision to forgo artificial nutrition and hydration for apatient who is not terminally ill or permanently unconscious, the decision may not be implemented until the Ethics Review Committee, includingat least one physician who is not directly responsible for the patient'scare, or a court, reviews the decision and determines that it meets thestandards set forth in the article for such decisions. The words "exces-
sive" and "excessively", in earlier versions of the bill, have been
changed to extraordinary" and extraordinarily". This change of words was
made to follow the wording under Surrogate's Court Procedure Act §
1750-b. However this change in wording does not change the meaning of
this provision.
Provisions of the new law set forth specific policies for do-not-resuscitate (DNR) orders, requiring all such orders to be written in the patient's record
and clarifying that the orders provide consent to withhold only cardiopulmonary resuscitation, not other treatments.
The new law also establishes that a patient, surrogate, or parent or guar-
dian of a minor patient may at any time revoke consent to withhold or
withdraw life-sustaining treatment by notifying a physician or member of
the nursing staff.
Private hospitals and individualhealth care providers have the right to refuse, on grounds of moral or religiousconscience, to honor health care decisions made pursuant to Article29-CC. For a hospital to assert a conscience objection the decision mustbe contrary to a formally adopted policy of the facility expressly basedon sincerely held religious beliefs or sincerely held moral convictions. The law requires the hospital to cooperatein transferring the patient to another facility willing to honor thedecision. If the transfer does not occur, the facility must seek judicial relief or honor the decision.