NY Pub Health L § 2994-C (2021)
2021 New York Laws PBH - Public Health Article 29-CC - Family Health Care Decisions Act 2994-C - Determination of Incapacity.

§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For purposes  of  this  article,  every  adult  shall  be  presumed  to have decision-making capacity unless determined otherwise  pursuant  to  this section  or  pursuant to 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.   2. Initial  determination  by  attending  practitioner.  An  attending practitioner  shall  make an initial determination that an adult patient lacks  decision-making  capacity  to  a  reasonable  degree  of  medical certainty.  Such  determination shall include an assessment of the cause and extent of the patient's  incapacity  and  the  likelihood  that  the patient will regain decision-making capacity.   3.  Concurring  determinations.  (a)  An  initial determination that a patient lacks decision-making capacity shall be subject to a  concurring determination, independently made, where required by this subdivision. A concurring  determination  shall  include an assessment of the cause and extent of the patient's incapacity and the likelihood that  the  patient will  regain  decision-making  capacity,  and  shall  be included in the patient's  medical  record.  Hospitals  shall  adopt  written   policies identifying  the  training  and credentials of health or social services practitioners  qualified  to  provide   concurring   determinations   of incapacity.  (b)  (i)  In  a  residential  health care facility, a health or social services practitioner employed by or otherwise formally affiliated  with the facility must independently determine whether an adult patient lacks decision-making capacity.  (ii)  In  a  general hospital a health or social services practitioner employed by or otherwise formally  affiliated  with  the  facility  must independently  determine  whether an adult patient lacks decision-making capacity  if  the  surrogate's  decision  concerns  the  withdrawal   or withholding of life-sustaining treatment.  (iii)  With  respect to decisions regarding hospice care for a patient in a general hospital or residential health care facility, the health or social services practitioner must be employed by or  otherwise  formally affiliated   with  the  general  hospital  or  residential  health  care facility.  (c) (i) If the attending practitioner makes an  initial  determination that a patient lacks decision-making capacity because of mental illness, either such physician must have the following qualifications, or another physician with the following qualifications must independently determine whether the patient lacks decision-making capacity: 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. A record of such consultation shall be included in the patient's medical record.  (ii) If the attending practitioner makes an initial determination that a patient lacks decision-making  capacity  because  of  a  developmental disability,  either  such  physician,  nurse  practitioner  or physician assistant  must  have   the   following   qualifications,   or   another professional   with  the  following  qualifications  must  independently determine  whether  the  patient  lacks  decision-making   capacity:   a physician   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 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) If an attending practitioner has determined that the patient lacks decision-making  capacity  and  if  the  health   or   social   services practitioner consulted for a concurring determination disagrees with the attending  practitioner's determination, the matter shall be referred to the ethics review committee if it cannot otherwise be resolved.   4. Informing the patient and surrogate. Notice of a determination that a surrogate will make health care decisions because  the  adult  patient has  been  determined to lack decision-making capacity shall promptly be given:  (a) to the patient, where there is any  indication  of  the  patient's ability to comprehend the information;  (b)  to  at least one person on the surrogate list highest in order of priority listed  when  persons  in  prior  classes  are  not  reasonably available  pursuant  to  subdivision  one of section twenty-nine hundred ninety-four-d of this article;  (c) if the patient was transferred from a mental hygiene facility,  to the  director  of  the mental hygiene facility and to the mental hygiene legal service under article forty-seven of the mental hygiene law.   5. Limited purpose of determination. A determination made pursuant  to this  section that an adult patient lacks decision-making capacity shall not be construed as a finding that the patient lacks  capacity  for  any other purpose.   6.  Priority  of  patient's  decision. Notwithstanding a determination pursuant to this section that an  adult  patient  lacks  decision-making capacity,  if the patient objects to the determination of incapacity, or to the choice of a surrogate or to a health  care  decision  made  by  a surrogate  or made pursuant to section twenty-nine hundred ninety-four-g of this article, the  patient's  objection  or  decision  shall  prevail unless:  (a)  a  court of competent jurisdiction has determined that the patient lacks decision-making capacity or the patient  is  or  has  been adjudged  incompetent  for  all purposes and, in the case of a patient's objection to treatment, makes any  other  finding  required  by  law  to authorize   the  treatment,  or  (b)  another  legal  basis  exists  for overriding the patient's decision.   7. Confirmation of continued  lack  of  decision-making  capacity.  An attending  practitioner shall confirm the adult patient's continued lack of decision-making capacity before complying with health care  decisions made  pursuant  to  this  article, other than those decisions made at or about the time of the initial determination. A concurring  determination of  the  patient's  continued  lack of decision-making capacity shall be required if the subsequent health care decision concerns the withholding or withdrawal of life-sustaining treatment. Health care providers  shall not be required to inform the patient or surrogate of the confirmation.