NY Pub Health L § 2965 (2021)
2021 New York Laws PBH - Public Health Article 29-B - Orders Not to Resuscitate for Residents of Mental Hygiene Facilities 2965 - Surrogate Decision-Making.

§  2965.  Surrogate decision-making. 1. (a) The consent of a surrogate or health care agent acting on behalf of  an  adult  patient  who  lacks capacity  or  on  behalf  of  an  adult  patient  for  whom consent by a surrogate or health care agent is authorized  by  subdivision  three  of section  twenty-nine hundred sixty-four of this article must be obtained prior to issuing an order not to  resuscitate  the  patient,  except  as provided  in  paragraph  (b)  of this subdivision or section twenty-nine hundred sixty-six of this article.  (b) The consent of a surrogate or  health  care  agent  shall  not  be required  where the adult had, prior to losing capacity, consented to an order  not  to  resuscitate  pursuant  to  subdivision  two  of  section twenty-nine hundred sixty-four of this article.  (c)  A  decision  regarding  cardiopulmonary resuscitation by a health care agent on a principal's behalf is governed by article  twenty-nine-C of  this  chapter  and  shall  have priority over decisions by any other person, except the patient or as otherwise provided in the  health  care proxy.   2.  (a)  One  person from the following list, to be chosen in order of priority listed,  when  persons  in  the  prior  subparagraphs  are  not reasonably  available,  willing to make a decision regarding issuance of an order not to resuscitate, and competent to make a decision  regarding issuance of an order not to resuscitate, shall have the authority to act as  surrogate  on  behalf  of  the  patient.  However,  such  person may designate any other person on the list to be surrogate, provided no  one in a higher class than the person designated objects:  (i)  a  guardian  authorized  to  decide about health care pursuant to article eighty-one of the mental hygiene law or a guardian of  a  person appointed  under  article seventeen-A of the surrogate's court procedure act, provided that this paragraph shall not be construed to require  the appointment  of  a  guardian for the purpose of making the resuscitation decision;  (ii) the spouse, if not legally separated from  the  patient,  or  the domestic partner;  (iii) a son or daughter eighteen years of age or older;  (iv) a parent;  (v) a brother or sister eighteen years of age or older; and  (vi) a close friend.  (b)  After  the surrogate has been identified, the name of such person shall be included in the patient's medical chart.   3. (a) The surrogate shall make a decision  regarding  cardiopulmonary resuscitation  on  the  basis  of the adult patient's wishes including a consideration of the patient's religious and moral beliefs, or,  if  the patient's  wishes are unknown and cannot be ascertained, on the basis of the patient's best interests.  (b) Notwithstanding any law to the contrary, the surrogate shall  have the same right as the patient to receive medical information and medical records.  (c)  A  surrogate may consent to an order not to resuscitate on behalf of an adult patient only  if  there  has  been  a  determination  by  an attending  practitioner with the concurrence of another physician, nurse practitioner or physician assistant selected by a person  authorized  by the hospital to make such selection, given after personal examination of the patient that, to a reasonable degree of medical certainty:  (i) the patient has a terminal condition; or  (ii) the patient is permanently unconscious; or  (iii) resuscitation would be medically futile; or  (iv) resuscitation would impose an extraordinary burden on the patient in  light of the patient's medical condition and the expected outcome of resuscitation for the patient.   Each determination shall be included in the patient's medical chart.   4. (a) A surrogate shall express a decision consenting to an order not to  resuscitate either (i) in writing, dated, and signed in the presence of one witness eighteen years  of  age  or  older  who  shall  sign  the decision, or (ii) orally, to two persons eighteen years of age or older, one  of  whom  is a physician, nurse practitioner or physician assistant affiliated with the hospital in which the patient is being treated.  Any such decision shall be recorded in the patient's medical chart.  (b)  The attending practitioner who is provided with the decision of a surrogate shall include the decision in the patient's medical chart and, if the surrogate has consented to  the  issuance  of  an  order  not  to resuscitate, shall either:  (i)  promptly issue an order not to resuscitate the patient and inform the hospital staff responsible for the patient's care of the order; or  (ii) promptly make  the  attending  practitioner's  objection  to  the issuance  of  such  an  order known to the surrogate and either make all reasonable efforts to arrange for the transfer of the patient to another physician, nurse practitioner or physician assistant, if  necessary,  or promptly refer the matter to the dispute mediation system.  (c) If the attending practitioner has actual notice of opposition to a surrogate's  consent to an order not to resuscitate by any person on the surrogate list, the physician, nurse practitioner or physician assistant shall submit the matter to the dispute mediation system and  such  order shall  not  be  issued  or  shall  be  revoked  in  accordance  with the provisions  of  subdivision  three  of   section   twenty-nine   hundred seventy-two of this article.