2023 New York Laws › PBH - Public Health › Article 29-CC - Family Health Care Decisions Act › 2994-D - Health Care Decisions for Adult Patients by Surrogates.

§  2994-d.  Health care decisions for adult patients by surrogates. 1.
Identifying the surrogate. One person from the following list  from  the
class  highest  in  priority  when  persons  in  prior  classes  are not
reasonably available, willing,  and  competent  to  act,  shall  be  the
surrogate  for  an  adult  patient  who  lacks decision-making capacity.
However, such person may designate any other person on the  list  to  be
surrogate, provided no one in a class higher in priority than the person
designated objects:
(a)  A  guardian  authorized  to  decide about health care pursuant to
article eighty-one of the mental hygiene law;
(b) The spouse, if not legally separated  from  the  patient,  or  the
domestic partner;
(c) A son or daughter eighteen years of age or older;
(d) A parent;
(e) A brother or sister eighteen years of age or older;
(f) A close friend.
2. Restrictions on who may be a surrogate. An operator, administrator,
or  employee  of  a hospital or a mental hygiene facility from which the
patient was transferred, or a physician, nurse practitioner or physician
assistant who has privileges at the hospital or a health  care  provider
under  contract with the hospital may not serve as the surrogate for any
adult who is a patient of  such  hospital,  unless  such  individual  is
related  to  the  patient  by  blood, marriage, domestic partnership, or
adoption, or is a close friend of the patient whose friendship with  the
patient   preceded  the  patient's  admission  to  the  facility.  If  a
physician,  nurse  practitioner  or  physician   assistant   serves   as
surrogate,  the  physician,  nurse  practitioner  or physician assistant
shall not act as the patient's attending practitioner after his  or  her
authority as surrogate begins.
3.  Authority  and  duties  of  surrogate.  (a)  Scope  of surrogate's
authority.
(i) Subject to the standards and  limitations  of  this  article,  the
surrogate  shall  have  the  authority  to  make any and all health care
decisions on the adult patient's behalf that the patient could make.
(ii) Nothing in this article shall obligate health care  providers  to
seek  the  consent of a surrogate if an adult patient has already made a
decision about the proposed health care, expressed orally or in  writing
or,  with  respect to a decision to withdraw or withhold life-sustaining
treatment expressed either orally during hospitalization in the presence
of two witnesses eighteen years of age or older, at least one of whom is
a health or social services practitioner affiliated with  the  hospital,
or  in  writing.  If  an  attending practitioner relies on the patient's
prior decision, the physician, nurse practitioner or physician assistant
shall record the prior decision in the patient's medical  record.  If  a
surrogate  has  already  been  designated for the patient, the attending
practitioner shall make reasonable efforts to notify the surrogate prior
to implementing the decision; provided that in the case of a decision to
withdraw  or   withhold   life-sustaining   treatment,   the   attending
practitioner shall make diligent efforts to notify the surrogate and, if
unable  to  notify  the  surrogate, shall document the efforts that were
made to do so.
(b) Commencement of surrogate's authority. The  surrogate's  authority
shall   commence   upon   a  determination,  made  pursuant  to  section
twenty-nine hundred  ninety-four-c  of  this  article,  that  the  adult
patient  lacks  decision-making  capacity  and  upon identification of a
surrogate pursuant to subdivision one of this section. In the  event  an
attending   practitioner   determines  that  the  patient  has  regained
decision-making capacity, the authority of the surrogate shall cease.
(c) Right and duty to be informed.  Notwithstanding  any  law  to  the
contrary,  the  surrogate  shall  have  the  right  to  receive  medical
information and medical records necessary  to  make  informed  decisions
about the patient's health care. Health care providers shall provide and
the  surrogate  shall  seek  information  necessary  to make an informed
decision,  including  information   about   the   patient's   diagnosis,
prognosis,  the nature and consequences of proposed health care, and the
benefits and risks of and alternatives to proposed health care.
4. Decision-making standards. (a) The surrogate shall make health care
decisions:
(i) in accordance with the patient's wishes, including  the  patient's
religious and moral beliefs; or
(ii)  if the patient's wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance  with  the  patient's
best  interests.  An  assessment  of  the patient's best interests shall
include: consideration of the dignity and uniqueness  of  every  person;
the  possibility  and  extent  of  preserving  the  patient's  life; the
preservation, improvement or restoration  of  the  patient's  health  or
functioning;  the  relief  of  the  patient's suffering; and any medical
condition and such other concerns and values as a reasonable  person  in
the patient's circumstances would wish to consider.
(b)  In  all cases, the surrogate's assessment of the patient's wishes
and best interests shall  be  patient-centered;  health  care  decisions
shall  be made on an individualized basis for each patient, and shall be
consistent with the values  of  the  patient,  including  the  patient's
religious and moral beliefs, to the extent reasonably possible.
5.  Decisions  to  withhold  or withdraw life-sustaining treatment. In
addition to the standards set forth in subdivision four of this section,
decisions  by  surrogates  to  withhold  or   withdraw   life-sustaining
treatment  (including  decisions  to  accept a hospice plan of care that
provides for the withdrawal or withholding of life-sustaining treatment)
shall be authorized only if the following conditions are  satisfied,  as
applicable:
(a)(i)  Treatment  would be an extraordinary burden to the patient and
an attending practitioner determines, with the  independent  concurrence
of  another  physician, nurse practitioner or physician assistant, that,
to a reasonable degree of medical certainty and in accord with  accepted
medical standards, (A) the patient has an illness or injury which can be
expected  to  cause death within six months, whether or not treatment is
provided; or (B) the patient is permanently unconscious; or
(ii) The provision of treatment would involve such pain, suffering  or
other   burden   that   it   would  reasonably  be  deemed  inhumane  or
extraordinarily burdensome under the circumstances and the  patient  has
an  irreversible  or  incurable condition, as determined by an attending
practitioner with the  independent  concurrence  of  another  physician,
nurse  practitioner  or  physician  assistant  to a reasonable degree of
medical certainty and in accord with accepted medical standards.
(b) In a residential health care facility, a surrogate shall have  the
authority to refuse life-sustaining treatment under subparagraph (ii) of
paragraph  (a)  of this subdivision only if the ethics review committee,
including at  least  one  physician,  nurse  practitioner  or  physician
assistant  who  is not directly responsible for the patient's care, or a
court of competent jurisdiction, reviews  the  decision  and  determines
that  it meets the standards set forth in this article. This requirement
shall not apply to a decision to withhold cardiopulmonary resuscitation.
(c) In a general hospital, if the attending practitioner objects to  a
surrogate's  decision,  under subparagraph (ii) of paragraph (a) of this
subdivision, to withdraw or withhold nutrition and hydration provided by

means of medical treatment, the decision shall not be implemented  until
the  ethics  review  committee,  including at least one physician, nurse
practitioner or physician assistant who is not directly responsible  for
the  patient's  care,  or a court of competent jurisdiction, reviews the
decision and determines that it meets the standards set  forth  in  this
subdivision and subdivision four of this section.
(d)  Providing  nutrition  and  hydration  orally, without reliance on
medical treatment, is not health care under  this  article  and  is  not
subject to this article.
(e) Expression of decisions. The surrogate shall express a decision to
withdraw  or  withhold  life-sustaining  treatment  either  orally to an
attending practitioner or in writing.