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A07729 Summary:BILL NO A07729D
SAME AS Same as S 3164-B
SPONSOR Gottfried (MS)
COSPNSR Schimminger, Bacalles, Barron, Boyland, Brennan, Cahill, Castro,
DelMonte, Dinowitz, Finch, Gabryszak, Galef, Gunther, Jaffee,
Kellner, Koon, Lancman, Lopez V, Magnarelli, Peoples-Stokes, Spano,
Stirpe, Towns, Schroeder, Brodsky, Hoyt, Perry, Conte, Christensen,
Powell
MLTSPNSR Abbate, Alessi, Aubry, Benedetto, Bing, Burling, Calhoun, Clark,
Cook, Crouch, Cymbrowitz, Destito, Duprey, Englebright, Fields,
Gantt, Gianaris, Giglio, Glick, Gordon, Hikind, Hooper, Hyer-Spencer,
Jacobs, John, Latimer, Lavine, Lifton, Lupardo, Magee, Maisel,
Markey, Mayersohn, McDonough, McEneny, Meng, Millman, Molinaro,
Morelle, Nolan, O'Donnell, Ortiz, Paulin, Pheffer, Pretlow, Reilly,
Rivera N, Rivera P, Robinson, Rosenthal, Scarborough, Schimel,
Skartados, Sweeney, Thiele, Titone, Weinstein, Weisenberg, Wright,
Zebrowski
Rpld S2961 subs 7, 10, 13 & 16, S2964 subs 3 & 4, S2965 sub 4 (c), sub 5, S2966
sub 2, S2967 sub 2 (c), S2977, S2978 sub 1, amd Pub Health L, generally; amd
S81.22, rpld S81.29 sub (e), Ment Hyg L; amd S1750-b, SCPA
Creates the family health care decision act; establishes procedures for family
members, surrogates and others close to an incapacitated patient making health
care decisions on behalf of patients unable to decide about treatment for
themselves in accordance with special procedures, standards and safeguards.
A07729 Actions:BILL NO A07729D
04/22/2009 referred to health
05/12/2009 reported referred to codes
06/16/2009 amend (t) and recommit to codes
06/16/2009 print number 7729a
06/19/2009 amend and recommit to codes
06/19/2009 print number 7729b
06/19/2009 amend and recommit to codes
06/19/2009 print number 7729c
01/06/2010 referred to health
01/12/2010 reported referred to codes
01/13/2010 amend and recommit to codes
01/13/2010 print number 7729d
01/20/2010 reported referred to rules
01/20/2010 reported
01/20/2010 rules report cal.4
01/20/2010 ordered to third reading rules cal.4
01/20/2010 passed assembly
01/20/2010 delivered to senate
01/20/2010 REFERRED TO HEALTH
A07729 Votes:BILL: A07729D DATE: 01/20/2010 MOTION: YEA/NAY: 137/005
Abbate Y Calhoun Y Espaill Y Hyer-Sp Y Mayerso Y Pretlow Y Stirpe Y
Alessi Y Camara Y Farrell Y Jacobs Y McDonou Y Quinn Y Sweeney Y
Alfano Y Canestr Y Fields Y Jaffee Y McEneny Y Rabbitt Y Tedisco Y
Amedore Y Carrozz ER Finch Y Jeffrie Y McKevit Y Raia Y Thiele Y
Arroyo Y Castro Y Fitzpat NO John Y Meng Y Ramos Y Titone Y
Aubry Y Christe Y Gabrysz Y Jordan Y Mill JM Y Reilich Y Titus Y
Bacalle Y Clark Y Galef Y Kavanag Y Mill M Y Reilly Y Tobacco NO
Ball Y Colton Y Gantt Y Kellner Y Millman Y Rive J Y Towns Y
Barclay Y Conte Y Gianari Y Kolb NO Molinar Y Rive N Y Townsen Y
Barra Y Cook Y Gibson Y Koon Y Morelle Y Rive PM Y Weinste Y
Barron Y Corwin Y Giglio Y Lancman Y Nolan Y Robinso Y Weisenb Y
Benedet Y Crespo Y Glick Y Latimer Y Oaks Y Rosenth Y Wright Y
Benjami Y Crouch Y Gordon Y Lavine Y O'Donne Y Russell Y Zebrows Y
Bing Y Cusick NO Gottfri Y Lentol Y O'Mara Y Saladin Y Mr Spkr Y
Boyland Y Cymbrow Y Gunther Y Lifton Y Ortiz Y Sayward Y
Boyle Y DelMont Y Hawley Y Lope PD Y Parment Y Scarbor Y
Brennan Y DenDekk Y Hayes NO Lope VJ Y Paulin Y Schimel Y
Brodsky ER Destito ER Heastie Y Lupardo Y Peoples Y Schimmi Y
Brook-K Y Dinowit Y Hevesi Y Magee Y Peralta Y Schroed Y
Burling Y Duprey Y Hikind ER Magnare Y Perry Y Scozzaf Y
Butler Y Englebr Y Hooper Y Maisel Y Pheffer Y Skartad Y
Cahill Y Errigo Y Hoyt Y Markey Y Powell Y Spano Y
A07729 Memo:BILL NUMBER:A7729D REVISED 1/26/10
TITLE OF BILL: An act to amend the public health law, the mental
hygiene law and the surrogate's court procedure act, in relation to
establishing procedures for making medical treatment decisions on behalf
of persons who lack the capacity to decide about treatment for them-
selves; directing the New York state task force on life and law to form
a special advisory committee to consider the procedures and practices
for withholding or withdrawal of life sustaining treatment for patients
with mental illness or mental retardation and developmental disabili-
ties; and to repeal certain provisions of the public health law and the
mental hygiene law relating thereto
PURPOSE:; To establish procedures for making health care decisions on
behalf of patients unable to decide about treatment for themselves.
SUMMARY OF PROVISIONS: Section one establishes a legislative intent for
the Public Health Law Article 29-CC and 29-CCC, Family Health Care Deci-
sions Act and Non-Hospital Orders Not To Resuscitate. 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.
Section two amends the Public Health Law by adding new Articles 29-CC
and 29-CCC, entitled "Family Health Care Decisions Act" and "Non Hospi-
tal Orders Not To Resuscitate". Article 29-CCC makes 'conforming and
technical changes with respect to New York's existing law on do-not-re-
suscitate orders.
The new family health care decision-making article would establish
procedures authorizing family members, or other persons close to
patients who lack decision-making capacity, to decide about treatment,
in consultation with health care professionals and in accord with speci-
fied safeguards. The article includes special procedures and standards
for decisions about life-sustaining treatments.
Section 2994-a defines several terms used in Article 29-CC as follows:
*"Hospital" means a general hospital (excluding OMH-licensed mental
health units) and a residential health care facility as defined in Arti-
cle 28 of the Public Health Law.
*"Patient" is defined as a person admitted to a hospital.
*A "surrogate" is a person selected to make a health care decision for a
patient pursuant to the article. Certain definitions pertain to health
care decisions for minor patients.
*A "parent" of a minor child is defined as a parent who has custody of,
or who has maintained substantial and continuous contact with, the minor
patient.
*A "guardian of a minor" or "guardian" means a legal guardian of the
person of a minor, or a "health care guardian," defined as a court
appointed guardian authorized to decide about life-sustaining treatment
pursuant to the article.
*"Emancipated minor patient" is a minor patient who is 16 years of age
or older and living independently from his or her parents or guardian,
or a minor who is the parent of a child.
*"Ethics review committee" means the interdisciplinary committee estab-
lished in a hospital in accord with the requirements of the article.
*"Health care"' is any treatment, service or procedure to diagnose or
treat an individual's physical or mental condition. Providing artificial
nutrition and hydration orally, without reliance on medical treatment,
is not health care under this article and is not subject to this arti-
cle.
Section 2994-b provides that the act applies to health care decisions
for care provided in a hospital. It also provides that the 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 Surro-
gate's Court Procedure Act, or if surrogate decisions could be made for
the patient pursuant to section 1750-b of the Surrogate's Court Proce-
dure Act or pursuant to OMIT or OMRDD regulations, then decisions for
the patient are governed by those laws or regulations and not by the
provisions of this act.
Section 2994-c governs the determination of patient incapacity for
purposes of 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 hospi-
tal, this concurrence is required for a surrogate decision to forgo
life-sustaining treatment. Hospitals must adopt written policies identi-
fying the training and credentials of professionals qualified to provide
the concurring opinion. For patients with a mental illness or develop-
mental disability, a professional with training or expertise in diagnos-
ing or treating the mental illness or developmental disability must
provide the concurring opinion. Health care professionals must inform
the patient of the determination of incapacity, if there is any indi-
cation that the patient can understand the information. The person high-
est on the surrogate list must also be informed. If the, patient objects
to the determination of incapacity, the appointment of a surrogate, or
to 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.
Section 2994-d concerns adult patients who lack capacity to make partic-
ular health care decisions. It 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 domes-
tic 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.
This section grants the surrogate authority to make all health care
decisions for the patient that the adult patient could make for himself
or herself, subject to the standards and limitations of the article. The
section establishes the duty of health care providers to give the surro-
gate medical information and clinical records necessary to make informed
decisions for the patient. Surrogates have a right and duty to seek this
information.
Section 2994-d 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 section 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 uncon-
sciousness, 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 Review
Committee, including at least one physician not directly, responsible
for the patient's care, or a court, reviews the decision and determine
that the decision meets the standards set forth in the article for such
decisions. In a general hospital, if the attending physician objects to
a surrogate's decision to forgo artificial nutrition and hydration for a
patient who is not terminally ill or permanently unconscious, the deci-
sion may not be implemented until the Ethics Review Committee, including
at least one physician who is not directly responsible for the patient's
care, or a court, reviews the decision and determines that it meets the.
standards 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.
Section 2994-e authorizes the parent or guardian of a minor patient to
decide about life-sustaining treatment, in accord with the same stand-
ards that apply to surrogate decisions for adults. In addition, if a
minor has the decisional capacity to decide about life-sustaining treat-
ment, the minor's consent is required to withhold or to stop treatment.
If the minor is emancipated and has decision-making capacity, the minor
can decide to withhold or withdraw life-sustaining treatment on his or
her own behalf, if: (i) the attending physician and the ethics review
committee determine that the decision accords with the standards for
surrogate decisions for adults, and (ii) the ethics review committee
approves the decision. If the hospital can with reasonable efforts
ascertain the identity of an emancipated minor's non custodial parent or
guardian, the hospital must notify the parent prior to discontinuing
treatment. If a parent or guardian objects to the decision, the article
establishes his or her right to refer the matter to the ethics review
committee.
Section 2994-f requires the attending physician to inform a surrogate
promptly if the physician objects to a decision to withdraw or withhold
life-sustaining treatment. The objecting physician must then either make
all reasonable efforts to transfer the patient to another physician, if
necessary, or promptly refer the matter to the ethics review committee.
The section also obligates physicians to refer objections by or disa-
greement among family members and others close to the patient to the
ethics review committee.
Section 2994-g establishes a procedure for making health care decisions
for adult patients who have lost decision-making capacity and have no
available family member or friend to act as a surrogate. It applies the
same standards that govern decisions for adults by family or others
close to them, including the special safeguards for decisions about
life-sustaining treatment. The section authorizes the attending physi-
cian to decide about routine medical treatment for patients without
surrogates. Routine treatment is defined to include only procedures for
which physicians ordinarily do not seek specific consent from the
patient or others. For decisions about major medical treatment, the
attending physician must consult with hospital staff directly involved
with the patient's care and at least one other physician selected by the
hospital must concur in the appropriateness of the decision. A recommen-
dation by an attending physician to withhold or withdraw life-sustaining
treatment from a patient who does not have a surrogate may not be imple-
mented unless it meets one of two requirements: One requirement is
review and approval by a court. The court must determine whether the
decision satisfies the specified standards for decision by surrogates to
withhold or withdraw life-sustaining treatment. Alternatively, if the
attending physician determines that: (i) life-sustaining treatment
offers the patient no medical benefit because the patient will die immi-
nently; and (ii) the provision of life-sustaining treatment would
violate acceptable medical standards, and one other physician concurs in
this determination, life sustaining treatment may be withdrawn or with-
held without review by a court.
Section 2994-i sets 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 cardiop-
ulmonary resuscitation, not other treatments.
Section 2994-j 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.
Section 2994-k states that hospitals must adopt written policies requir-
ing implementation and regular review of decisions to withhold or with
draw life-sustaining treatment, in accord with accepted medical stand-
ards. It also provides that whenever an attending physician determines
that a decision to withhold or withdraw life-sustaining treatment is no
longer appropriate or authorized because the patient's condition has
improved, the physician must include this determination in the patient's
chart, cancel any orders or plans of care to withhold or withdraw treat-
ment, and notify the person who made the decision and facility staff
directly responsible for the patient's care.
Section 2994-l governs inter-institutional transfers of patients with
orders or plans of care to withhold or withdraw life-sustaining treat-
ment. It establishes that orders remain effective at the receiving
hospital until an attending physician first examines the patient. The
physician must then either continue or cancel the prior orders.
Section 2994-m requires each hospital and nursing home to establish at
least one ethics review committee or participate in a committee that
serves more than one facility. The committee can be an existing ethics
committee, a subcommittee of an existing ethics committee, or a new
committee created to fulfill the requirements of this article. Hospi-
tals must adopt a written policy governing committee functions, composi-
tion and procedure, in accord with specified requirements set forth in
the section. Committees must be multidisciplinary and must include at
least two individuals who have demonstrated an interest in or commitment
to patients' rights or to the medical, public health, or social needs of
those who are At least one member must not be affiliated with the hospi-
tal. In nursing homes, the Committees must include a member of the resi-
dents' council a person who is not affiliated with the facility who is a
family member of a current or former resident at the same or a different
facility, and a person who has demonstrated an interest in or commitment
to patients rights or to the care and treatment of the elderly or nurs-
ing home residents through professional or community activities, other
than activities performed as a health care provider.
Section 2994-m also specifies that recommendations and advice by the
committee are advisory and non-binding, except for committee approval or
disapproval of decisions to withdraw or withhold life-sustaining treat-
ment in specified types of cases. A committee must permit patients,
certain health care professionals, family members and other close to
patients to present their concerns and views to the committee, and must
inform these persons of the committee's response to the case.
Section 2994-m additionally requires the committee to issue a written
statement of its reasons for approving or disapproving decisions to
withhold or with draw life-sustaining treatment in certain types of
cases. The committee must also routinely review surrogate and committee
decisions in certain sensitive cases. Ethics review committee members
are granted access to medical records and information necessary to
perform their function, and are obligated to protect patient confiden-
tiality. The section also protects the confidentiality of committee
records and proceedings, but grants the Department of Health access to
committee records and proceedings in any cases when the committee has
the authority to approve a decision to forgo life-sustaining treatment.
The Department may use,such records in any enforcement proceeding
against a health care facility or an individual health care profes-
sional.
Section 2994-n sets forth the right of private hospitals and individual
health care providers to refuse, on grounds of moral or religious
conscience, to honor health care decisions made pursuant to Article
29-CC. For a hospital to assert a conscience objection the decision must
be contrary to a formally adopted policy of the facility expressly based
on sincerely held religious beliefs or sincerely held moral convictions.
Such ethical or religious convictions must be central to the facility's
operating principles and cannot be based on administrative concerns.
The policy statement must be specific in order to provide adequate
notice to patients and surrogates of the fa- cility's actual policies
and practices. In order to exercise an objection the facility must have
informed the patient, family, or surrogate of its policy prior -to or
upon admission, if reasonably possible. The section requires the hospi-
tal to cooperate in transferring the patient to another facility willing
to honor the decision. If the transfer does not occur, the facility must
seek judicial relief or honor the decision.
Section 2994-n also recognizes that individual health care professionals
may refuse to honor treatment decisions that violate their sincerely
held religious or moral convictions. Individual health care providers
who assert conscience objections must promptly inform the health care
facility and the person who made, the decision. The facility must then
promptly transfer responsibility for the patient to another health care
professional willing to honor the decision.
Section 2994-o provides protection from civil and criminal liability for
acts performed by individuals reasonably and in good faith pursuant to
the article as a consultant to or a member of an ethics review commit-
tee, or as a participant in an ethics review committee meeting. Health
care providers who honor a health care decision reasonably and in good
faith made pursuant to the article, or take other actions in good faith
pursuant to the article, are protected from civil and criminal liability
and charges of professional misconduct. Surrogates and parents and guar-
dians of minor patients are also protected from civil and criminal
liability for making a health care decision in good faith under the
article,
Section 2994-p states that liability for the cost of health care
provided to an adult patient under Article 29 D is the same as if the
patient had consented to treatment.
Section 2994-q establishes that Article 29-c,c does not create, impair,
or supersede any rights an individual may have to make health care deci-
sions for him or herself. The section clarifies that a decision by a
surrogate cannot supersede or override prior decisions, wishes, or
instructions by a competent adult patient, expressed orally or in writ-
ing, unless the patients decision, wishes or instructions do not apply
to the particular medical circumstances under consideration. The section
also clarifies that the article does not affect existing law concerning
implied consent to health care in an emergency or concerning steriliza-
tion, nor is it intended to permit or promote suicide, assisted suicide
or euthanasia.
Section 2994-r authorizes certain persons with a close relationship to a
patient to commence a special proceeding with respect to disputes aris-
ing under the article. The section specifically provides that courts can
appoint any person from the surrogate list to act as surrogate, regard-
less of that person's" priority on the list, if the court determines
that such appointment would best accord with the patient's wishes or, if
the patient's wishes are unknown, the patient's best interests. The
section also empowers a court to authorize the withholding or withdrawal
of life sustaining treatment based on a determination that forgoing
treatment accords with the patient's wishes, or, if such wishes cannot
be ascertained, with the patient's best interests. In addition, the
section establishes a procedure for appointing a health care guardian
for a minor patient, specifying who has standing to seek an appointment.
The section provides that the court may only appoint a health care guar-
dian if a minor's parent or legal guardian of the person is not avail-
able, willing and competent to decide about treatment for the minor.
Section 2994-s establishes that any hospital or attending physician that
refuses to honor a health care decision made by a surrogate in accord
with the standards set forth in Article 29-CC shall not be entitled to
compensation for treatment, services, or procedures provided without the
surrogate's consent, except under specified circumstances. The section
does not impose a penalty, but equitably resolves the matter of medical
fees in cases where a surrogate exercises authority granted by the arti-
cle, and the hospital insists on providing care notwithstanding surro-
gate refusal.
Section 2994-t requires the Commissioner of Health to promulgate regu-
lations necessary to implement the article. It also requires the Commis-
sioner of Health, in consultation with the Commissioners of the Office
of Mental Health and t Mental Retardation and Developmental Disabili-
ties, to promulgate regulations identifying the credentials of health
care professionals qualified to provide a concurring opinion of incapac-
ity based on mental illness or developmental disability.
Under Section 2994-u, the Commissioner of Health must prepare a state-
ment summarizing the rights, duties, and requirements of the article,
and require the dissemination of the statement.
The bill also creates Article 29-CCC of the Public Health Law on "Non-
Hospital Orders Not to Resuscitate" which largely reproduces the
provisions currently set forth in Section 2977 of the Public Health Law.
However, Article 29-CCC clarifies that home care services agency person-
nel and hospice personnel, as well as emergency medical services person-
nel and hospital emergency room staff, can honor non-hospital DNR
orders. Section 2994-cc establishes that consent by a surrogate shall be
governed by the policies set forth in Article 29-CC, except that
the,authority of the ethics review committee shall not apply to non-hos-
pital orders issued outside of a hospital. In addition, the qualifica-
tions for health care professionals authorized to provide a second opin-
ion about the patient's decision-making capacity shall be defused by
regulations promulgated by the Department of Health, not by hospital
policies. This assures that non-hospital orders can be issued outside of
a hospital, in a physician's office or in other settings. Section 2994-
cc also provides that surrogate consent to a non-hospital DNR order
issued for a patient in a mental hygiene facility will be governed by
Article 29-B.
Section 3 amends section 2805-q of the public health law to protect the
visitation rights of surrogates in health care facilities.
Section 4 renames Article 29-B as "Orders Not To Resuscitate For Resi-
dents of Mental Hygiene Facilities".
Sections 5 and 6 repeal sections of Article 29-B of the public health
law that have been incorporated into Article 29-CCC by this bill.
Section 7 amends section 2961 of the public health law to add a defi-
nition of "domestic partner."
Section 8 clarifies that the attending physician in Article 29-B may not
rely on the presumption that adults are capable of deciding about
cardiopulmonary resuscitation if clinical indicia of incapacity are
present.
Section 9 repeals subdivision 3 of section 2964 of the public health law
to eliminate the "therapeutic exception" from the DNR law.
Sections 10 through 21 reconcile Article 29-CC with the existing law on
do-not resuscitate established by Article 29-B of the Public Health Law.
Section 22 of the bill amends the Health Care Proxy law (S2984, new
subdivision 5) to provide that, when a health care agent directs the
provision of life-sustaining treatment, the denial of which would likely
result in the patient's death, a hospital or individual health care
provider that does not wish to provide the treatment must comply with
the agent's directions, pending transfer of the patient to a willing
provider, or judicial review.
Section 23 of the bill adds the definition of "life-sustaining treat-
ment" to the Health Care Proxy law (S2980, new subdivision 9:,a).
Section 24 of the bill amends section 81.22 of the Surrogate's Court
Procedure Act to provide for guardians under Mental Hygiene Law Article
81 to act as surrogates under the Family Health Care Decisions Act,
Public Health Law Article 29-CC.
Section 25 of the bill repeals section 81.29 of the Surrogate's Court
Procedure Act, which had limited the authority of guardians under Mental
Hygiene Law Article 81 to make decisions to withdraw life-sustaining
treatment.
Section 26 of the bill amends section 1750-b of the Surrogate's Court
Procedure Act ("Health Care Decisions for Mentally Retarded Persons") to
insert a definition of "life-sustaining treatment" and to authorize the
Willowbrook Consumer Advisory Board to act as guardian for certain
members of the Willowbrook class action.
Section 27 of the bill directs the New York State Task Force on Life and
the Law to form a special advisory committee to assist it in considering
whether the Family Health Care Decisions Act should be amended to incor-
porate procedures, standards and practices for the withholding or with-
drawal of life-sustaining treatment from patients with mental illness,
or with mental retardation or development disabilities. It also directs
the Task Force to consider whether the Family Health Care Decisions Act
should be amended to apply in settings other than general hospitals and
residential health care facilities.
Section 28 provides for an effective date of the act.
EXISTING LAW: Adults (who have capacity to make decisions) have a firm-
ly established right to accept or reject medical treatment based on the
common law principle that "every individual of sound mind and adult
years has a right to determine what should be done with his own body."
SCHLOENDORFF V. SOC'Y OF N.Y. HOSP., 211 N.Y. 125, 129-30, 105 N.E. 92
(1914) (Cardozo, J.).
A capable adult may not be treated without his or her consent, except in
limited circumstances, such as in an emergency. The right to decide
about treatment includes the right to refuse life- sustaining measures.
IN RE EICHNER (IN RE STORAR)-, 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981).
This right is protected by the New York State and United States Consti-
tutions. RIVERS V. KATZ, 67 N.Y.2d 485,504 N.Y.S.2d 74 (1986); CRUZAN V.
DIRECTOR, MISSOURI DEPT. OF HEALTH, 110 S. Ct. 2841 (1990).
Two kinds of written instruments, generally referred to as "advance
directives," enable persons to exercise this right after losing the
ability to participate directly in decision-making: (i) written
instructions about treatment, usually called a "living will," and (ii)
the written appointment of a person to make health care decisions on the
person's behalf. Patients can also leave advance oral instructions about
treatment. The New York Court of Appeals has held that living wills and
other written or oral evidence of treatment wishes provide a legal basis
for withdrawing or withholding life-sustaining measures if the
instructions constitute clear and convincing evidence of the patient's
wishes. In re Eichner (in re Storar); In re Westchester County Medical
Center (O'Connor), 72 N.Y.2d 517,534 N.Y.S.2d 886 (1988).
New York court decisions have repeatedly demonstrated the difficulty of
satisfying the clear and convincing evidence standard. See, e.g.,
O'Connor, New York's health care proxy law, Article 29-C of the Public
Health Law, allows adults to delegate authority to another adult to
decide about all health care treatment, including life-sustaining meas-
ures. The agent must make decisions in accord with the patient's wishes,
or, if they are not reason ably known, in accord with the patient's best
interests. Health care providers must-honor the agent's decisions to the
same extent as if they had been made by the patient, and are protected
from liability for doing so. Although New York law does not explicitly
recognize the authority of family members to consent to treatment for
adult patients unable to decide for themselves, health care providers
routinely turn to family members for consent. However, under legal
doctrines enunciated by the New York Court of Appeals, family members or
others close to patients cannot decide about life-sustaining treatment.
In re Eichner (In re Storar).
The health care proxy law provides an important exception to this gener-
al rule, but only for individuals who have signed a proxy form. Article
29-B of the Public Health Law, governing do-not-resuscitate (DNR)
orders, establishes another exception. This authorizes persons with a
close relationship to the patient to decide about cardiopulmonary resus-
citation. It permits a surrogate to consent to a DNR order under stand-
ards similar to those proposed for Article 29-CC. For example, the order
must comport with the patient's wishes, or if they are not known, with
the patient's best interests. Several other New York statutes and regu-
lations authorize surrogate decisions for special patient populations.
For example, Article 81 of the Mental Hygiene Law empowers courts to
appoint a guardian to make financial and/or personal decisions for an
incompetent adult. Under Article 17 -A of the Surrogate's Court Proce-
dure Act, the court can appoint a guardian to make decisions for indi-
viduals who are mentally retarded or developmentally disabled, including
decisions about life-sustaining treatment. Article 80 of the Mental
Hygiene Law authorizes special interdisciplinary committees to decide
about major or medical treatment for residents of mental hygiene facili-
ties who are unable to decide for themselves and have no family members
available to consent. A distinct body of law governs health care deci-
sions about minors, In general, parents have the right and responsibil-
ity to make treatment decisions for their minor children. See, e.g.,
Public Health Law 2504(2). This right derives from parents' Constitu-
tionally protected right to rear and raise their children free from
state interference. Accordingly, parental treatment decisions are
accorded great deference. See, e.g., SANTO SKY V. KRAMER, 455 U.S. 645
(1982); IN RE HOFBAUER, 47 N.Y.2d 648, 419 N.Y.S.2d 936 (1979).
Although persons younger than 18 years of age generally may not decide
about their own health care, New York statutes contain important
exceptions to this rule. For example, Section 2504(1) of the Public
Health Law authorizes minors to consent to treatment if they are either
married or a parent. If specified conditions are met, New York statutes
also permit minors to consent to certain treatments. See, for example,
Public Health Law 2305(2) (treatment for venereal disease); Mental
Hygiene Law 9. 13 (a) and 33.21 (mental illness); Public Health Law
2504(3) (parental care); Public Health Law 3123 (blood donation); Mental
Hygiene Law 21.11 and 33.21 (substance abuse); and Public Health Law
2781 (FIN-related testing).
In addition, the S.S law for Birth Control and under Article 29-B of the
Public Health Law, a DNR order cannot be issued for a minor without the
minor's consent if the minor possesses decisional capacity. New York
courts have recognized the emancipated minor doctrine for health care
decisions by minors. Under this doctrine, minors are considered emanci-
pated when an intentional rending of the parent-child relationship has
occurred: parents have intentionally relinquished control over the
minor, and the minor has intention ally withdrawn from legitimate
parental control and guidance. See, e.g., ZUCKERMAN V. ZUCKERMAN, 154
A.D.2d 666,546 N.Y.S.2d 666 (2d Dept. 1989); BACH V.LONG ISLAND JEWISH
HOSP. ,49 Misc. 2d 207, 267 N.Y.S.2d 289 (Sup. Ct., Nassau Co. 1966).
STATEMENT IN SUPPORT: Every year in health care facilities across New
York State thousands of treatment decisions are made for patients unable
to decide for themselves, including children, elderly patients, those
temporarily impaired, those who will not regain capacity, and those
never able to decide about treatment. The question for New York State
policy is not whether surrogate decisions will be made, but who will
make them and by what criteria. Article 29-CC provides responsible poli-
cies for decisions on behalf of patients unable to decide about treat-
ment for themselves.
In practice, most health care providers consult family members prior to
rendering.treatment to an incapacitated person. However, existing law
requires that a previously competent adult patient must have signed a
health care proxy or left clear evidence of his or her wishes in order
to forgo life-sustaining treatment. This standard is at odds with the
laws of most other states, where either statutes or court decisions
expressly permit family members to decide about life- sustaining treat-
ment, subject to public standards. New York and Missouri are the only
two states where the law explicitly denies family members this authori-
ty.
Clear evidence of the patient's wishes is extraordinarily difficult to
provide in an age of rapid medical advances, even for medical experts.
Studies also show that only 10-15% of the adult population has signed a
proxy or other advance directive such as a living will. For children,
neither clear evidence of wishes nor a health care proxy is ever a
possibility. Most people would want and expect family members or others
close to them to decide about treatment when they become too ill to
decide for themselves. Our law denies this basic expectation. It also
leaves family members unable to refuse treatment despite their deep
commitment to respect the patient's values or their desire to discontin-
ue treatment that imposes excessive burdens on the patient without
offering hope for cure, recovery or relief of suffering.
This legislative proposal recognizes that few families have the
emotional or financial resources to pursue judicial relief. It estab-
lishes a process to review sensitive cases and to resolve disputes with-
in health care facilities, relying on the courts only as a last resort.
This approach is consistent with the guidelines on decisions about life-
sustaining treatment prepared for state court judges. Those guidelines
state that "the courts should not be used as a clearinghouse for the
rendering of medical decisions which are best made by the patient and
family and physician of the patient. A trial court must protect itself
from inappropriate involvement in a life-sustaining medical treatment
case and should decline jurisdiction if there is no justifiable contro-
versy."
With respect to the new subdivision 5 of S2984, relating to an agent who
directs the provision of life-sustaining treatment, it is intended that
a court reviewing the agent's direction may override the direction only
on one of the three grounds specified in S2992 or on the grounds that
compliance with the agent's direction is not required by this new subdi-
vision 5. The words "but not limited to" in S2992 allow an appropriate
court to consider other sorts of disputes that may arise under the arti-
cle; they do not expand the grounds on which the court may override an
agent's direction to provide life-sustaining treatment, For patients
without family members or close friends, existing practices to decide
about treatment are generally informal. They do not adequately protect
these patients' right to receive treatment or their interests when deci-
sions about life-sustaining ,treatment must be made. This is a diverse
patient population, including individuals who are elderly, mentally ill
or homeless. Many physicians and health care facilities now decide about
treatment for these patients, including decisions to provide major
medical treatment or to stop life-sustaining measures. In rare cases, a
health care facility or public official seeks a court order authorizing
treatment, or a committee or guardian of the person has been appointed
and decides about treatment. More often, the expenses and delays associ-
ated with court proceedings are avoided, Sometimes health care profes-
sionals wait until a patient's condition deteriorates and major medical
interventions are authorized under the emergency exception to the
requirement of informed consent. Other times, a patient receives treat-
ment, but health care providers proceed without a clear legal substitute
for patient or family consent. In either case, decisions are routinely
made on an informal basis, without prospective or retrospective review.
The proposed legislation provides a decision-making process for this
patient population that will facilitate their access to needed treatment
and permit the discontinuation of life-sustaining measures in accord
with publicly approved procedures and patient-centered standards. For
patients without family members or close friends, judicial approval is
required for decisions to withhold or withdraw life-sustaining treat-
ment.
Overall, the proposed legislation promotes the wishes and interests of
incapacitated patients by establishing a process for determining inca-
pacity, a priority list of those who may act as surrogate, and specific
standards for surrogate decisions. The bill contains many safeguards to
protect the patient's interests: a family member or someone else with a
close personal relationship to the patient must decide in accord with
standards based on the patient's wishes and best interests; life-sus-
taining treatment can only be discontinued if it is an excessive burden
to the patient and specified medical criteria are satisfied; anyone on
the list of potential surrogates can challenge the decision triggering
further review within the facility; and, decisions that t are especially
sensitive must be reviewed routinely by a multidisciplinary committee.
The New York State Task Force on Life and the Law concluded that deci-
sions about life-sustaining treatment are best made in the context of
the family or other personal relationships; with appropriate safeguards.
This is what most people would want and choose for them- selves. It also
recognizes the importance of family and other close relationships at a
time of illness. These individuals are most likely to know the patient's
own views about treatment, including the patient's religious and moral
beliefs. They are also most likely to be dedicated to the patient's well
being, For patients who have no natural surrogates and are therefore
most vulnerable, the proposed legislation will facilitate access to
needed treatment and fulfill society's obligation to ensure that timely,
responsible decisions are made on their behalf.
The bill also integrates policies set forth in Article 29-CC with Arti-
cle 29-B on orders not to resuscitate. This is necessary because Article
29-CC covers all treatment decisions, including decisions about cardiop-
ulmonary resuscitation in hospitals. Two separate laws, one for resusci-
tation decisions and one for other treatments would be confusing and
hard to implement for patients, for surrogates and for health care
providers.
The policies set forth in Article 29-CC build on the policies and expe-
rience gained with Article 29-B. Article 29-B will continue to apply to
decisions about cardiopulmonary resuscitation in mental hygiene facili-
ties because those facilities are not covered by Article 29-CC. The
policies on non-hospital orders not to resuscitate that will be reenact-
ed by the bill are essential to protect the wishes and well being of
terminally ill patients who are cared for at home and in other community
settings.
LEGISLATIVE HISTORY:
1994: A7166-B - advanced to 3rd reading
1996: A6791 - reported to Rules Committee;
1995: A6791 - advanced to 3rd reading
1998: A7026 - reported to Rules Committee;
1997: A7026 - reported to Codes Committee
1999 and 2000: reported to Rules Committee
2001: A5523 - advanced to 3rd reading;
2002: A5523-A - referred to Health Committee
2003: A6315 - referred to Health Committee;
2004: A6315-A - reported to Codes Committee
2005: A5406 - reported to Codes Committee;
2006: A5406-B - passed Assembly
2007: A6993 - reported to Codes Committee;
2008: A6993-A - reported to Rules Committee
BUDGET IMPLICATIONS: The bill will have no appreciable budgetary
impact.
EFFECTIVE DATE: Immediately; provided that sections 1 - 25 of the act
shall take effect on the first day of the June after enactment, and
provided further that effective immediately it shall be lawful for a
hospital, as defined in the act, to adopt a policy that is consistent
with the requirements of the act, and for a health care provider to
accept and carry out a health care decision in accordance with such
requirements for a patient in a hospital that has adopted such policy.
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