NY Pub Health L § 2963 (2021)
2021 New York Laws PBH - Public Health Article 29-B - Orders Not to Resuscitate for Residents of Mental Hygiene Facilities 2963 - Determination of Capacity to Make a Decision Regarding Cardiopulmonary Resuscitation.

§  2963.  Determination  of  capacity  to  make  a  decision regarding cardiopulmonary resuscitation. 1. Every adult shall be presumed to  have the  capacity to make a decision regarding cardiopulmonary resuscitation unless determined otherwise pursuant to this section or  pursuant  to  a court  order  or  unless a guardian is authorized to decide about health care for the adult pursuant to article eighty-one of the mental  hygiene law  or  article seventeen-A of the surrogate's court procedure act. The attending practitioner shall not rely on the presumption stated in  this subdivision if clinical indicia of incapacity are present.   2.  A determination that an adult patient lacks capacity shall be made by  the  attending  practitioner  to  a  reasonable  degree  of  medical certainty.  The determination shall be made in writing and shall contain such  attending practitioner's opinion regarding the cause and nature of the patient's incapacity as well as its extent  and  probable  duration. The determination shall be included in the patient's medical chart.   3.  (a)  At least one other physician, selected by a person authorized by the hospital to make such selection, must concur in the determination that an adult lacks capacity. The concurring determination shall be made in writing after personal examination of the patient and  shall  contain the  physician's opinion regarding the cause and nature of the patient's incapacity as well as its extent and probable duration. Each  concurring determination shall be included in the patient's medical chart.  (b)  If  the  attending  practitioner  determines that a patient lacks capacity  because  of  mental  illness,  the  concurring   determination required  by  paragraph  (a)  of this subdivision shall be provided by a physician licensed to practice medicine in New  York  state,  who  is  a diplomate  or  eligible  to  be  certified  by  the  American  Board  of Psychiatry and Neurology or who is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.  (c) If the attending practitioner  determines  that  a  patient  lacks capacity   because   of   a  developmental  disability,  the  concurring determination required by paragraph (a) of  this  subdivision  shall  be provided  by  a  physician  or  psychologist employed by a developmental disabilities services office  named  in  section  13.17  of  the  mental hygiene  law,  or  who  has  been employed for a minimum of two years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or who has been approved  by the  commissioner  of  developmental  disabilities  in  accordance  with regulations promulgated by such  commissioner.  Such  regulations  shall require that a physician or psychologist possess specialized training or three years experience in treating developmental disabilities.   4.  Notice  of  a  determination that the patient lacks capacity shall promptly be given (a) to the patient, where there is any  indication  of the patient's ability to comprehend such notice, together with a copy of a  statement  prepared  in  accordance  with section twenty-nine hundred seventy-eight of this article, and (b) to the person  on  the  surrogate list  highest  in  order  of  priority  listed,  when  persons  in prior subparagraphs are not reasonably available. Nothing in this  subdivision shall  preclude  or  require  notice  to  more  than  one  person on the surrogate list.   5. A determination that a patient lacks capacity to  make  a  decision regarding an order not to resuscitate pursuant to this section shall not be  construed as a finding that the patient lacks capacity for any other purpose.