NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9648
SPONSOR: Gottfried TITLE OF BILL: An act to amend the public health law and the surro-
gate's court procedure act, in relation to restoring medical futility as
a basis for both surrogate consent to a do not resuscitate order and for
a do not resuscitate order for a patient without a surrogate
PURPOSE OR GENERAL IDEA OF BILL:
This is one of a series of seven bills, informally referred to as the
"Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8,
Laws or 2010) and other.laws that govern health care decisions, includ-
ing life-sustaining treatment decisions, for patients who lack deci-
sion-making capacity.
This bill restores the medical futility standard from former PHL Art.
29-B as a basis for surrogate consent to a Do Not Resuscitate (DNR)
order and for a DNR order for a patient without a surrogate.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 sets forth the legislative intent.
Section 2 amends PHL § 2994-d(5)(a) to restore one of the bases in the
former DNR Law (PHL Art. 29-B) for when a surrogate may consent to DNR
order. The former DNR Law provided that a DNR order may be entered when
there is a determination by the attending physician and a concurring
physician that resuscitation would be unsuccessful in restoring cardiac
and respiratory function or that the patient will experience repeated
arrest in a short time period before death occurs (hereinafter referred
to as "medical futility").
Section 3 amends PHL § 2994-d.5(b) to restore medical futility as a
basis for a DNR order for a patient who does not have a surrogate.
Section 4 amends SCPA § 1750-b .4(b): to restore medical futility as a
basis for surrogate consent to a DNR order for a developmentally disa-
bled person.
Section 5 amends SCPA § 1750-b .4(b) to restore medical futility as a
basis for a DNR order for a developmentally disabled patient who does
not have a surrogate, without need for approval by a surrogate decision
making committee convened pursuant to the MHT, Article 80.
Section 6 is the effective date: ninetieth day after it shall become a
law
JUSTIFICATION:
For over twenty years under the former DNR law (PHL Art 29-B), a surro-
gate could consent to a DNR order if the patient met any one of four
clinical criteria, one of which was a finding by two physicians that
resuscitation "will be unsuccessful in restoring cardiac and respiratory
function or that the patient will experience repeated arrest in a short
time period before death occurs." The former DNR law also allowed a DNR
order to be entered for a patient who did not have a surrogate on that
basis. That law applied to all patients, including developmentally disa-
bled patients.
The FHCDA, in contrast, establishes standards for the withdrawal or
withholding of a broad range of life-sustaining treatment. Accordingly
it does not have a standard specifically relating to medically futile
resuscitation. Chapter 8 of the laws of 2010 made the FHCDA apply to DNR
orders for most patient in hospitals and nursing homes.
Similarly SCPA § 1750-b does not have a standard specifically relating
to medically futile resuscitation. Chapter 8 of the laws of 2010 made
SCPA § 1750-b apply to DNR orders for developmentally disabled patients.
This loss of the long-established "medical futility" grounds for a DNR
was inadvertent.
Experience has shown that the broader FHCDA and SCPA § 1750-b standards,
especially the standards for patients who do not have surrogates, can be
difficult to apply to decisions about resuscitation. This bill would
restore the former DNR law's medical futility standard as an alternative
basis for writing a DNR order under the FHCDA and under SCPA § 1750-b.
PRIOR LEGISLATIVE HISTORY:
2013: A.7371 reported referred to codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall become a
law.
STATE OF NEW YORK
________________________________________________________________________
9648
IN ASSEMBLY
May 14, 2014
___________
Introduced by M. of A. GOTTFRIED -- read once and referred to the
Committee on Health
AN ACT to amend the public health law and the surrogate's court proce-
dure act, in relation to restoring medical futility as a basis for
both surrogate consent to a do not resuscitate order and for a do not
resuscitate order for a patient without a surrogate
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. Under New York's former do not resus-
2 citate (hereinafter "DNR") law, article 29-B of the public health law, a
3 surrogate could consent to a DNR order if the patient met any one of
4 four clinical criteria, one of which was a finding by two physicians
5 that resuscitation was "medically futile," which was defined to mean
6 that resuscitation "will be unsuccessful in restoring cardiac and
7 respiratory function or that the patient will experience repeated arrest
8 in a short time period before death occurs." The former DNR law also
9 allowed a DNR order to be entered for a patient who did not have a
10 surrogate on that basis. That law applied to all patients, including
11 developmentally disabled patients.
12 In 2010, the former DNR law was superseded by the Family Health Care
13 Decisions Act (hereinafter "FHCDA") which established standards for the
14 withdrawal or withholding of a broad range of life-sustaining treat-
15 ments. Accordingly, the FHCDA did not have a standard specifically
16 relating to medically futile resuscitation. Similarly, Surrogate's Court
17 Procedure Act (hereinafter "SPCA") §1750-b does not have a standard
18 specifically relating to medically futile resuscitation for develop-
19 mentally disabled patients.
20 The legislature finds that the broader FHCDA and SPCA §1750-b stand-
21 ards are difficult to apply to situations in which resuscitation would
22 be medically futile. Accordingly, this bill restores the former DNR
23 law's medical futility standard as an alternative basis for writing a
24 DNR order under the FHCDA and under SCPA §1750-b.
25 § 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
26 section 2994-d of the public health law, as added by chapter 8 of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13627-03-4
A. 9648 2
1 laws of 2010, are amended and a new subparagraph (iii) is added to read
2 as follows:
3 (i) Treatment would be an extraordinary burden to the patient and an
4 attending physician determines, with the independent concurrence of
5 another physician, that, to a reasonable degree of medical certainty and
6 in accord with accepted medical standards, (A) the patient has an
7 illness or injury which can be expected to cause death within six
8 months, whether or not treatment is provided; or (B) the patient is
9 permanently unconscious; [or]
10 (ii) The provision of treatment would involve such pain, suffering or
11 other burden that it would reasonably be deemed inhumane or extraor-
12 dinarily burdensome under the circumstances and the patient has an irre-
13 versible or incurable condition, as determined by an attending physician
14 with the independent concurrence of another physician to a reasonable
15 degree of medical certainty and in accord with accepted medical stand-
16 ards[.]; or
17 (iii) With respect to a decision to enter an order not to resuscitate,
18 an attending physician determines, with the independent concurrence of a
19 second physician, to a reasonable degree of medical certainty, that in
20 the event of a cardiac or respiratory arrest, resuscitation would be
21 unsuccessful in restoring cardiac and respiratory function or that the
22 patient will experience repeated arrest in a short time period before
23 death occurs.
24 § 3. Paragraph (b) of subdivision 5 of section 2994-g of the public
25 health law, as added by chapter 8 of the laws of 2010, is amended to
26 read as follows:
27 (b) If the attending physician, with independent concurrence of a
28 second physician designated by the hospital, determines to a reasonable
29 degree of medical certainty that:
30 (i) (A) life-sustaining treatment offers the patient no medical bene-
31 fit because the patient will die imminently, even if the treatment is
32 provided; and
33 [(ii)] (B) the provision of life-sustaining treatment would violate
34 accepted medical standards, then such treatment may be withdrawn or
35 withheld from an adult patient who has been determined to lack deci-
36 sion-making capacity pursuant to section twenty-nine hundred ninety-
37 four-c of this article, without judicial approval. This paragraph shall
38 not apply to any treatment necessary to alleviate pain or discomfort; or
39 (ii) in the event of cardiac or respiratory arrest, resuscitation will
40 be unsuccessful in restoring cardiac and respiratory function or that
41 the patient will experience repeated arrest in a short time period
42 before death occurs, then an order not to resuscitate may be entered for
43 an adult patient who has been determined to lack decision-making capaci-
44 ty pursuant to section twenty-nine hundred ninety-four-c of this arti-
45 cle, without judicial approval.
46 § 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
47 section 1750-b of the surrogate's court procedure act, as added by chap-
48 ter 500 of the laws of 2002, are amended to read as follows:
49 (i) the mentally retarded person has a medical condition as follows:
50 A. a terminal condition, [as defined in subdivision twenty-three of
51 section twenty-nine hundred sixty-one of the public health law] which
52 shall mean an illness or injury from which there is no recovery, and
53 which can reasonably be expected to cause death within one year; or
54 B. permanent unconsciousness; or
A. 9648 3
1 C. a medical condition other than such person's mental retardation
2 which requires life-sustaining treatment, is irreversible and which will
3 continue indefinitely; [and] or
4 D. in the case of a decision to enter an order not to resuscitate,
5 that in the event of cardiac or respiratory arrest such resuscitation
6 would be unsuccessful in restoring cardiac and respiratory function or
7 that the patient will experience repeated arrest in a short time period
8 before death occurs; and
9 (ii) except in the case of a decision to enter an order not to resus-
10 citate based on clause D of subparagraph (i) of this paragraph, the
11 life-sustaining treatment would impose an extraordinary burden on such
12 person, in light of:
13 A. such person's medical condition, other than such person's mental
14 retardation; and
15 B. the expected outcome of the life-sustaining treatment, notwith-
16 standing such person's mental retardation; and
17 § 5. Subdivision 4 of section 1750-b of the surrogate's court proce-
18 dure act is amended by adding new paragraph (f) to read as follows:
19 (f) In the case of a person for whom "guardian" means a surrogate
20 decision-making committee pursuant to this section, an order not to
21 resuscitate may be entered, without review or approval by such commit-
22 tee, if the attending physician determines, with the independent concur-
23 rence of a second physician, to a reasonable degree of medical certain-
24 ty, that in the event of a cardiac or respiratory arrest resuscitation
25 would be unsuccessful in restoring cardiac and respiratory function or
26 that the patient will experience repeated arrest in a short time period
27 before death occurs.
28 § 6. This act shall take effect on the ninetieth day after it shall
29 have become a law.
