§ 2994-C — Determination of incapacity

§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For\npurposes of this article, every adult shall be presumed to have\ndecision-making capacity unless determined otherwise pursuant to this\nsection or pursuant to court order, or unless a guardian is authorized\nto decide about health care for the adult pursuant to article eighty-one\nof the mental hygiene law.\n 2. Initial determination by attending practitioner. An attending\npractitioner shall make an initial determination that an adult patient\nlacks decision-making capacity to a reasonable degree of medical\ncertainty. Such determination shall include an assessment of the cause\nand extent of the patient's incapacity and the likelihood that the\npatient will regain decision-making capacity.\n 3. Concurring determinations. (a) An initial determination that a\npatient lacks decision-making capacity shall be subject to a concurring\ndetermination, independently made, where required by this subdivision. A\nconcurring determination shall include an assessment of the cause and\nextent of the patient's incapacity and the likelihood that the patient\nwill regain decision-making capacity, and shall be included in the\npatient's medical record. Hospitals shall adopt written policies\nidentifying the training and credentials of health or social services\npractitioners qualified to provide concurring determinations of\nincapacity.\n (b) (i) In a residential health care facility, a health or social\nservices practitioner employed by or otherwise formally affiliated with\nthe facility must independently determine whether an adult patient lacks\ndecision-making capacity.\n (ii) In a general hospital a health or social services practitioner\nemployed by or otherwise formally affiliated with the facility must\nindependently determine whether an adult patient lacks decision-making\ncapacity if the surrogate's decision concerns the withdrawal or\nwithholding of life-sustaining treatment.\n (iii) With respect to decisions regarding hospice care for a patient\nin a general hospital or residential health care facility, the health or\nsocial services practitioner must be employed by or otherwise formally\naffiliated with the general hospital or residential health care\nfacility.\n (c) (i) If the attending practitioner makes an initial determination\nthat a patient lacks decision-making capacity because of mental illness,\neither such physician must have the following qualifications, or another\nphysician with the following qualifications must independently determine\nwhether the patient lacks decision-making capacity: a physician licensed\nto practice medicine in New York state, who is a diplomate or eligible\nto be certified by the American Board of Psychiatry and Neurology or who\nis certified by the American Osteopathic Board of Neurology and\nPsychiatry or is eligible to be certified by that board. A record of\nsuch consultation shall be included in the patient's medical record.\n (ii) If the attending practitioner makes an initial determination that\na patient lacks decision-making capacity because of a developmental\ndisability, either such physician, nurse practitioner or physician\nassistant must have the following qualifications, or another\nprofessional with the following qualifications must independently\ndetermine whether the patient lacks decision-making capacity: a\nphysician or clinical psychologist who either is employed by a\ndevelopmental disabilities services office named in section 13.17 of the\nmental hygiene law, or who has been employed for a minimum of two years\nto render care and service in a facility operated or licensed by the\noffice for people with developmental disabilities, or has been approved\nby the commissioner of developmental disabilities in accordance with\nregulations promulgated by such commissioner. Such regulations shall\nrequire that a physician 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) If an attending practitioner has determined that the patient lacks\ndecision-making capacity and if the health or social services\npractitioner consulted for a concurring determination disagrees with the\nattending practitioner's determination, the matter shall be referred to\nthe ethics review committee if it cannot otherwise be resolved.\n 4. Informing the patient and surrogate. Notice of a determination that\na surrogate will make health care decisions because the adult patient\nhas been determined to lack decision-making capacity shall promptly be\ngiven:\n (a) to the patient, where there is any indication of the patient's\nability to comprehend the information;\n (b) to at least one person on the surrogate list highest in order of\npriority listed when persons in prior classes are not reasonably\navailable pursuant to subdivision one of section twenty-nine hundred\nninety-four-d of this article;\n (c) if the patient is in a hospital as defined in subdivision ten of\nsection 1.03 of the mental hygiene law or was transferred from a mental\nhygiene facility, to the director of the mental hygiene facility and to\nthe mental hygiene legal service under article forty-seven of the mental\nhygiene law.\n 5. Limited purpose of determination. A determination made pursuant to\nthis section that an adult patient lacks decision-making capacity shall\nnot be construed as a finding that the patient lacks capacity for any\nother purpose.\n 6. Priority of patient's decision. Notwithstanding a determination\npursuant to this section that an adult patient lacks decision-making\ncapacity, if the patient objects to the determination of incapacity, or\nto the choice of a surrogate or to a health care decision made by a\nsurrogate or made pursuant to section twenty-nine hundred ninety-four-g\nof this article, the patient's objection or decision shall prevail\nunless: (a) a court of competent jurisdiction has determined that the\npatient lacks decision-making capacity or the patient is or has been\nadjudged incompetent for all purposes and, in the case of a patient's\nobjection to treatment, makes any other finding required by law to\nauthorize the treatment, or (b) another legal basis exists for\noverriding the patient's decision.\n 7. Confirmation of continued lack of decision-making capacity. An\nattending practitioner shall confirm the adult patient's continued lack\nof decision-making capacity before complying with health care decisions\nmade pursuant to this article, other than those decisions made at or\nabout the time of the initial determination. A concurring determination\nof the patient's continued lack of decision-making capacity shall be\nrequired if the subsequent health care decision concerns the withholding\nor withdrawal of life-sustaining treatment. Health care providers shall\nnot be required to inform the patient or surrogate of the confirmation.\n