§ 2994-D — Health care decisions for adult patients by surrogates

§ 2994-d. Health care decisions for adult patients by surrogates. 1.\nIdentifying the surrogate. One person from the following list from the\nclass highest in priority when persons in prior classes are not\nreasonably available, willing, and competent to act, shall be the\nsurrogate for an adult patient who lacks decision-making capacity.\nHowever, such person may designate any other person on the list to be\nsurrogate, provided no one in a class higher in priority than the person\ndesignated objects:\n (a) A guardian authorized to decide about health care pursuant to\narticle eighty-one of the mental hygiene law;\n (b) The spouse, if not legally separated from the patient, or the\ndomestic partner;\n (c) A son or daughter eighteen years of age or older;\n (d) A parent;\n (e) A brother or sister eighteen years of age or older;\n (f) A close friend.\n 2. Restrictions on who may be a surrogate. An operator, administrator,\nor employee of a hospital or a mental hygiene facility from which the\npatient was transferred, or a physician, nurse practitioner or physician\nassistant who has privileges at the hospital or a health care provider\nunder contract with the hospital may not serve as the surrogate for any\nadult who is a patient of such hospital, unless such individual is\nrelated to the patient by blood, marriage, domestic partnership, or\nadoption, or is a close friend of the patient whose friendship with the\npatient preceded the patient's admission to the facility. If a\nphysician, nurse practitioner or physician assistant serves as\nsurrogate, the physician, nurse practitioner or physician assistant\nshall not act as the patient's attending practitioner after his or her\nauthority as surrogate begins.\n 3. Authority and duties of surrogate. (a) Scope of surrogate's\nauthority.\n (i) Subject to the standards and limitations of this article, the\nsurrogate shall have the authority to make any and all health care\ndecisions on the adult patient's behalf that the patient could make.\n (ii) Nothing in this article shall obligate health care providers to\nseek the consent of a surrogate if an adult patient has already made a\ndecision about the proposed health care, expressed orally or in writing\nor, with respect to a decision to withdraw or withhold life-sustaining\ntreatment expressed either orally during hospitalization in the presence\nof two witnesses eighteen years of age or older, at least one of whom is\na health or social services practitioner affiliated with the hospital,\nor in writing. If an attending practitioner relies on the patient's\nprior decision, the physician, nurse practitioner or physician assistant\nshall record the prior decision in the patient's medical record. If a\nsurrogate has already been designated for the patient, the attending\npractitioner shall make reasonable efforts to notify the surrogate prior\nto implementing the decision; provided that in the case of a decision to\nwithdraw or withhold life-sustaining treatment, the attending\npractitioner shall make diligent efforts to notify the surrogate and, if\nunable to notify the surrogate, shall document the efforts that were\nmade to do so.\n (b) Commencement of surrogate's authority. The surrogate's authority\nshall commence upon a determination, made pursuant to section\ntwenty-nine hundred ninety-four-c of this article, that the adult\npatient lacks decision-making capacity and upon identification of a\nsurrogate pursuant to subdivision one of this section. In the event an\nattending practitioner determines that the patient has regained\ndecision-making capacity, the authority of the surrogate shall cease.\n (c) Right and duty to be informed. Notwithstanding any law to the\ncontrary, the surrogate shall have the right to receive medical\ninformation and medical records necessary to make informed decisions\nabout the patient's health care. Health care providers shall provide and\nthe surrogate shall seek information necessary to make an informed\ndecision, including information about the patient's diagnosis,\nprognosis, the nature and consequences of proposed health care, and the\nbenefits and risks of and alternatives to proposed health care.\n 4. Decision-making standards. (a) The surrogate shall make health care\ndecisions:\n (i) in accordance with the patient's wishes, including the patient's\nreligious and moral beliefs; or\n (ii) if the patient's wishes are not reasonably known and cannot with\nreasonable diligence be ascertained, in accordance with the patient's\nbest interests. An assessment of the patient's best interests shall\ninclude: consideration of the dignity and uniqueness of every person;\nthe possibility and extent of preserving the patient's life; the\npreservation, improvement or restoration of the patient's health or\nfunctioning; the relief of the patient's suffering; and any medical\ncondition and such other concerns and values as a reasonable person in\nthe patient's circumstances would wish to consider.\n (b) In all cases, the surrogate's assessment of the patient's wishes\nand best interests shall be patient-centered; health care decisions\nshall be made on an individualized basis for each patient, and shall be\nconsistent with the values of the patient, including the patient's\nreligious and moral beliefs, to the extent reasonably possible.\n 5. Decisions to withhold or withdraw life-sustaining treatment. In\naddition to the standards set forth in subdivision four of this section,\ndecisions by surrogates to withhold or withdraw life-sustaining\ntreatment (including decisions to accept a hospice plan of care that\nprovides for the withdrawal or withholding of life-sustaining treatment)\nshall be authorized only if the following conditions are satisfied, as\napplicable:\n (a)(i) Treatment would be an extraordinary burden to the patient and\nan attending practitioner determines, with the independent concurrence\nof another physician, nurse practitioner or physician assistant, that,\nto a reasonable degree of medical certainty and in accord with accepted\nmedical standards, (A) the patient has an illness or injury which can be\nexpected to cause death within six months, whether or not treatment is\nprovided; or (B) the patient is permanently unconscious; or\n (ii) The provision of treatment would involve such pain, suffering or\nother burden that it would reasonably be deemed inhumane or\nextraordinarily burdensome under the circumstances and the patient has\nan irreversible or incurable condition, as determined by an attending\npractitioner with the independent concurrence of another physician,\nnurse practitioner or physician assistant to a reasonable degree of\nmedical certainty and in accord with accepted medical standards.\n (b) In a residential health care facility, a surrogate shall have the\nauthority to refuse life-sustaining treatment under subparagraph (ii) of\nparagraph (a) of this subdivision only if the ethics review committee,\nincluding at least one physician, nurse practitioner or physician\nassistant who is not directly responsible for the patient's care, or a\ncourt of competent jurisdiction, reviews the decision and determines\nthat it meets the standards set forth in this article. This requirement\nshall not apply to a decision to withhold cardiopulmonary resuscitation.\n (c) In a general hospital, if the attending practitioner objects to a\nsurrogate's decision, under subparagraph (ii) of paragraph (a) of this\nsubdivision, to withdraw or withhold nutrition and hydration provided by\nmeans of medical treatment, the decision shall not be implemented until\nthe ethics review committee, including at least one physician, nurse\npractitioner or physician assistant who is not directly responsible for\nthe patient's care, or a court of competent jurisdiction, reviews the\ndecision and determines that it meets the standards set forth in this\nsubdivision and subdivision four of this section.\n (d) Providing nutrition and hydration orally, without reliance on\nmedical treatment, is not health care under this article and is not\nsubject to this article.\n (e) Expression of decisions. The surrogate shall express a decision to\nwithdraw or withhold life-sustaining treatment either orally to an\nattending practitioner or in writing.\n