NY Pub Health L § 2983 (2021)
2021 New York Laws PBH - Public Health Article 29-C - Health Care Agents and Proxies 2983 - Determination of Lack of Capacity to Make Health Care Decisions for the Purpose of Empowering Agent.

§  2983.  Determination  of  lack  of  capacity  to  make  health care decisions for the purpose of empowering  agent.    1.  Determination  by attending  practitioner.  (a)  A  determination  that  a principal lacks capacity to make health care decisions 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 principal's incapacity   as   well   as   its  extent  and  probable  duration.  The determination shall be included in the patient's medical record.  For  a decision   to   withdraw  or  withhold  life-sustaining  treatment,  the attending practitioner who makes  the  determination  that  a  principal lacks  capacity  to make health care decisions must consult with another physician, physician assistant, or nurse practitioner  to  confirm  such determination.  Such  consultation  shall  also  be  included within the patient's medical record.  (b) If an attending practitioner of a patient in a general hospital or mental hygiene facility determines that a patient lacks capacity because of  mental  illness,  the   attending   practitioner   who   makes   the determination  must  be,  or must consult, for the purpose of confirming the determination, with a  qualified  psychiatrist.  A  record  of  such consultation shall be included in the patient's medical record.  (c)  If  the  attending  practitioner  determines that a patient lacks capacity  because  of  a   developmental   disability,   the   attending practitioner  who  makes the determination must be, or must consult, for the purpose of confirming the determination,  with  a  physician,  nurse practitioner,  physician  assistant, or clinical psychologist who either is 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 has  been  approved by the commissioner of developmental disabilities in accordance with  regulations  promulgated  by  such  commissioner.  Such regulations   shall   require  that  a  physician,  nurse  practitioner, physician  assistant,  or  clinical  psychologist  possess   specialized training   or   three   years   experience   in  treating  developmental disabilities. A record of such consultation shall  be  included  in  the patient's medical record.  (d)  A  physician,  physician assistant, or nurse practitioner who has been appointed as a patient's agent shall not make the determination  of the patient's capacity to make health care decisions.   2.  Request  for  a  determination.  If  requested  by  the  agent, an attending  practitioner  shall  make  a  determination   regarding   the principal's  capacity  to make health care decisions for the purposes of this article.   3. Notice of determination. Notice of a determination that a principal lacks capacity to make health care decisions shall  promptly  be  given: (a)  to  the  principal,  orally  and  in  writing,  where  there is any indication of the principal's ability to comprehend such notice; (b)  to the  agent;  (c)  if the principal is in or is transferred from a mental hygiene facility, to the facility director; and (d) to  the  conservator for, or committee of, the principal.   4.  Limited purpose of determination. A determination made pursuant to this section that  a  principal  lacks  capacity  to  make  health  care decisions  shall  not  be  construed as a finding that the patient lacks capacity for any other purpose.   5. Priority of principal's decision. Notwithstanding  a  determination pursuant  to  this  section  that  the  principal lacks capacity to make health care decisions, where a principal objects to the determination of  incapacity  or  to  a  health  care  decision  made  by  an  agent,  the principal's  objection or decision shall prevail unless the principal is determined by a court of competent jurisdiction to lack capacity to make health care decisions.   6.  Confirmation  of  lack of capacity. (a) The attending practitioner shall confirm the principal's continued incapacity before complying with an agent's health care decisions, other than those decisions made at  or about the time of the initial determination made pursuant to subdivision one  of  this  section.  The confirmation shall be stated in writing and shall be included in the principal's medical record.  (b) The notice requirements set forth in  subdivision  three  of  this section   shall   not   apply  to  the  confirmation  required  by  this subdivision.   7. Effect  of  recovery  of  capacity.  In  the  event  the  attending practitioner  determines  that  the principal has regained capacity, the authority of  the  agent  shall  cease,  but  shall  recommence  if  the principal  subsequently  loses  capacity  as determined pursuant to this section.