§ 2983 — Determination of lack of capacity to make health care decisions for the purpose of empowering agent

§ 2983. Determination of lack of capacity to make health care\ndecisions for the purpose of empowering agent. 1. Determination by\nattending practitioner. (a) A determination that a principal lacks\ncapacity to make health care decisions shall be made by the attending\npractitioner to a reasonable degree of medical certainty. The\ndetermination shall be made in writing and shall contain such attending\npractitioner's opinion regarding the cause and nature of the principal's\nincapacity as well as its extent and probable duration. The\ndetermination shall be included in the patient's medical record. For a\ndecision to withdraw or withhold life-sustaining treatment, the\nattending practitioner who makes the determination that a principal\nlacks capacity to make health care decisions must consult with another\nphysician, physician assistant, or nurse practitioner to confirm such\ndetermination. Such consultation shall also be included within the\npatient's medical record.\n (b) If an attending practitioner of a patient in a general hospital or\nmental hygiene facility determines that a patient lacks capacity because\nof mental illness, the attending practitioner who makes the\ndetermination must be, or must consult, for the purpose of confirming\nthe determination, with a qualified psychiatrist. A record of such\nconsultation shall be included in the patient's medical record.\n (c) If the attending practitioner determines that a patient lacks\ncapacity because of a developmental disability, the attending\npractitioner who makes the determination must be, or must consult, for\nthe purpose of confirming the determination, with a physician, nurse\npractitioner, physician assistant, or clinical psychologist who either\nis employed by a developmental disabilities services office named in\nsection 13.17 of the mental hygiene law, or who has been employed for a\nminimum of two years to render care and service in a facility operated\nor licensed by the office for people with developmental disabilities, or\nhas been approved by the commissioner of developmental disabilities in\naccordance with regulations promulgated by such commissioner. Such\nregulations shall require that a physician, nurse practitioner,\nphysician assistant, or clinical psychologist possess specialized\ntraining or three years experience in treating developmental\ndisabilities. A record of such consultation shall be included in the\npatient's medical record.\n (d) A physician, physician assistant, or nurse practitioner who has\nbeen appointed as a patient's agent shall not make the determination of\nthe patient's capacity to make health care decisions.\n 2. Request for a determination. If requested by the agent, an\nattending practitioner shall make a determination regarding the\nprincipal's capacity to make health care decisions for the purposes of\nthis article.\n 3. Notice of determination. Notice of a determination that a principal\nlacks capacity to make health care decisions shall promptly be given:\n(a) to the principal, orally and in writing, where there is any\nindication of the principal's ability to comprehend such notice; (b) to\nthe agent; (c) if the principal is in or is transferred from a mental\nhygiene facility, to the facility director; and (d) to the guardian of\nthe principal, if any.\n 4. Limited purpose of determination. A determination made pursuant to\nthis section that a principal lacks capacity to make health care\ndecisions shall not be construed as a finding that the patient lacks\ncapacity for any other purpose.\n 5. Priority of principal's decision. Notwithstanding a determination\npursuant to this section that the principal lacks capacity to make\nhealth care decisions, where a principal objects to the determination of\nincapacity or to a health care decision made by an agent, the\nprincipal's objection or decision shall prevail unless the principal is\ndetermined by a court of competent jurisdiction to lack capacity to make\nhealth care decisions.\n 6. Confirmation of lack of capacity. (a) The attending practitioner\nshall confirm the principal's continued incapacity before complying with\nan agent's health care decisions, other than those decisions made at or\nabout the time of the initial determination made pursuant to subdivision\none of this section. The confirmation shall be stated in writing and\nshall be included in the principal's medical record.\n (b) The notice requirements set forth in subdivision three of this\nsection shall not apply to the confirmation required by this\nsubdivision.\n 7. Effect of recovery of capacity. In the event the attending\npractitioner determines that the principal has regained capacity, the\nauthority of the agent shall cease, but shall recommence if the\nprincipal subsequently loses capacity as determined pursuant to this\nsection.\n