§ 2994-G — Health care decisions for adult patients without surrogates

§ 2994-g. Health care decisions for adult patients without surrogates.\n1. Identifying adult patients without surrogates. Within a reasonable\ntime after admission as an inpatient to the hospital of each adult\npatient, the hospital shall make reasonable efforts to determine if the\npatient has appointed a health care agent or has a guardian, or if at\nleast one individual is available to serve as the patient's surrogate in\nthe event the patient lacks or loses decision-making capacity. With\nrespect to a patient who lacks capacity, if no such health care agent,\nguardian or potential surrogate is identified, the hospital shall\nidentify, to the extent reasonably possible, the patient's wishes and\npreferences, including the patient's religious and moral beliefs, about\npending health care decisions, and shall record its findings in the\npatient's medical record.\n 2. Decision-making standards and procedures. (a) The procedures\nspecified in this and the following subdivisions of this section apply\nto health care decisions for adult patients who would qualify for\nsurrogate decision-making under this article but for whom no surrogate\nis reasonably available, willing or competent to act.\n (b) Any health care decision made pursuant to this section shall be\nmade in accordance with the standards set forth in subdivision four of\nsection twenty-nine hundred ninety-four-d of this article and shall not\nbe based on the financial interests of the hospital or any other health\ncare provider. The specific procedures to be followed depend on whether\nthe decision involves routine medical treatment, major medical\ntreatment, or the withholding or withdrawal of life-sustaining\ntreatment, and the location where the treatment is provided.\n 3. Routine medical treatment. (a) For purposes of this subdivision,\n"routine medical treatment" means any treatment, service, or procedure\nto diagnose or treat an individual's physical or mental condition, such\nas the administration of medication, the extraction of bodily fluids for\nanalysis, or dental care performed with a local anesthetic, for which\nhealth care providers ordinarily do not seek specific consent from the\npatient or authorized representative. It shall not include the long-term\nprovision of treatment such as ventilator support or a nasogastric tube\nbut shall include such treatment when provided as part of post-operative\ncare or in response to an acute illness and recovery is reasonably\nexpected within one month or less.\n (b) An attending practitioner shall be authorized to decide about\nroutine medical treatment for an adult patient who has been determined\nto lack decision-making capacity pursuant to section twenty-nine hundred\nninety-four-c of this article. Nothing in this subdivision shall require\nhealth care providers to obtain specific consent for treatment where\nspecific consent is not otherwise required by law.\n 4. Major medical treatment. (a) For purposes of this subdivision,\n"major medical treatment" means any treatment, service or procedure to\ndiagnose or treat an individual's physical or mental condition: (i)\nwhere general anesthetic is used; or (ii) which involves any significant\nrisk; or (iii) which involves any significant invasion of bodily\nintegrity requiring an incision, producing substantial pain, discomfort,\ndebilitation or having a significant recovery period; or (iv) which\ninvolves the use of physical restraints, as specified in regulations\npromulgated by the commissioner, except in an emergency; or (v) which\ninvolves the use of psychoactive medications, except when provided as\npart of post-operative care or in response to an acute illness and\ntreatment is reasonably expected to be administered over a period of\nforty-eight hours or less, or when provided in an emergency.\n (b) A decision to provide major medical treatment, made in accordance\nwith the following requirements, shall be authorized for an adult\npatient who has been determined to lack decision-making capacity\npursuant to section twenty-nine hundred ninety-four-c of this article.\n (i) An attending practitioner shall make a recommendation in\nconsultation with hospital staff directly responsible for the patient's\ncare.\n (ii) In a general hospital, at least one other physician, nurse\npractitioner or physician assistant designated by the hospital must\nindependently determine that he or she concurs that the recommendation\nis appropriate.\n (iii) In a residential health care facility, and for a hospice patient\nnot in a general hospital, the medical director of the facility or\nhospice, or a physician, nurse practitioner or physician assistant\ndesignated by the medical director, must independently determine that he\nor she concurs that the recommendation is appropriate; provided that if\nthe medical director is the patient's attending practitioner, a\ndifferent physician, nurse practitioner or physician assistant\ndesignated by the residential health care facility or hospice must make\nthis independent determination. Any health or social services\npractitioner employed by or otherwise formally affiliated with the\nfacility or hospice may provide a second opinion for decisions about\nphysical restraints made pursuant to this subdivision.\n 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A\ncourt of competent jurisdiction may make a decision to withhold or\nwithdraw life-sustaining treatment for an adult patient who has been\ndetermined to lack decision-making capacity pursuant to section\ntwenty-nine hundred ninety-four-c of this article if the court finds\nthat the decision accords with standards for decisions for adults set\nforth in subdivisions four and five of section twenty-nine hundred\nninety-four-d of this article.\n (b) If the attending practitioner, with independent concurrence of a\nsecond physician, nurse practitioner or physician assistant designated\nby the hospital, determines to a reasonable degree of medical certainty\nthat:\n (i) life-sustaining treatment offers the patient no medical benefit\nbecause the patient will die imminently, even if the treatment is\nprovided; and\n (ii) the provision of life-sustaining treatment would violate accepted\nmedical standards, then such treatment may be withdrawn or withheld from\nan adult patient who has been determined to lack decision-making\ncapacity pursuant to section twenty-nine hundred ninety-four-c of this\narticle, without judicial approval. This paragraph shall not apply to\nany treatment necessary to alleviate pain or discomfort.\n 5-a. Decisions regarding hospice care. An attending practitioner shall\nbe authorized to make decisions regarding hospice care and execute\nappropriate documents for such decisions (including a hospice election\nform) for an adult patient under this section who is hospice eligible in\naccordance with the following requirements.\n (a) The attending practitioner shall make decisions under this section\nin consultation with staff directly responsible for the patient's care,\nand shall base his or her decisions on the standards for surrogate\ndecisions set forth in subdivisions four and five of section twenty-nine\nhundred ninety-four-d of this article;\n (b) There is a concurring opinion as follows:\n (i) in a general hospital, at least one other physician, nurse\npractitioner or physician assistant designated by the hospital must\nindependently determine that he or she concurs that the recommendation\nis consistent with such standards for surrogate decisions;\n (ii) in a residential health care facility, the medical director of\nthe facility, or a physician, nurse practitioner or physician assistant\ndesignated by the medical director, must independently determine that he\nor she concurs that the recommendation is consistent with such standards\nfor surrogate decisions; provided that if the medical director is the\npatient's attending practitioner, a different physician, nurse\npractitioner or physician assistant designated by the residential health\ncare facility must make this independent determination; or\n (iii) in settings other than a general hospital or residential health\ncare facility, the medical director of the hospice, or a physician\ndesignated by the medical director, must independently determine that he\nor she concurs that the recommendation is medically appropriate and\nconsistent with such standards for surrogate decisions; provided that if\nthe medical director is the patient's attending physician, a different\nphysician designated by the hospice must make this independent\ndetermination; and\n (c) The ethics review committee of the general hospital, residential\nhealth care facility or hospice, as applicable, including at least one\nphysician, nurse practitioner or physician assistant who is not the\npatient's attending practitioner, or a court of competent jurisdiction,\nmust review the decision and determine that it is consistent with such\nstandards for surrogate decisions. This requirement shall not apply to\ndecisions about routine medical treatment. Such decisions shall be\ngoverned by subdivision three of this section.\n 6. Physician, nurse practitioner or physician assistant objection. If\na physician, nurse practitioner or physician assistant consulted for a\nconcurring opinion objects to an attending practitioner's recommendation\nor determination made pursuant to this section, or a member of the\nhospital staff directly responsible for the patient's care objects to an\nattending practitioner's recommendation about major medical treatment or\ntreatment without medical benefit, the matter shall be referred to the\nethics review committee if it cannot be otherwise resolved.\n