2023 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 is in a hospital as defined in subdivision  ten  of
section  1.03 of the mental hygiene law or 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.