2023 New York Laws › PBH - Public Health › Article 29-CC - Family Health Care Decisions Act › 2994-G - Health Care Decisions for Adult Patients Without Surrogates.

§ 2994-g. Health care decisions for adult patients without surrogates.
1.  Identifying  adult  patients without surrogates. Within a reasonable
time after admission as an inpatient  to  the  hospital  of  each  adult
patient,  the hospital shall make reasonable efforts to determine if the
patient has appointed a health care agent or has a guardian,  or  if  at
least one individual is available to serve as the patient's surrogate in
the  event  the  patient  lacks  or loses decision-making capacity. With
respect to a patient who lacks capacity, if no such health  care  agent,
guardian  or  potential  surrogate  is  identified,  the  hospital shall
identify, to the extent reasonably possible, the  patient's  wishes  and
preferences,  including the patient's religious and moral beliefs, about
pending health care decisions, and shall  record  its  findings  in  the
patient's medical record.
2.  Decision-making  standards  and  procedures.  (a)  The  procedures
specified in this and the following subdivisions of this  section  apply
to  health  care  decisions  for  adult  patients  who would qualify for
surrogate decision-making under this article but for whom  no  surrogate
is reasonably available, willing or competent to act.
(b)  Any  health  care decision made pursuant to this section shall be
made in accordance with the standards set forth in subdivision  four  of
section  twenty-nine hundred ninety-four-d of this article and shall not
be based on the financial interests of the hospital or any other  health
care  provider. The specific procedures to be followed depend on whether
the  decision  involves  routine  medical   treatment,   major   medical
treatment,   or   the   withholding  or  withdrawal  of  life-sustaining
treatment, and the location where the treatment is provided.
3. Routine medical treatment. (a) For purposes  of  this  subdivision,
"routine  medical  treatment" means any treatment, service, or procedure
to diagnose or treat an individual's physical or mental condition,  such
as the administration of medication, the extraction of bodily fluids for
analysis,  or  dental  care performed with a local anesthetic, for which
health care providers ordinarily do not seek specific consent  from  the
patient or authorized representative. It shall not include the long-term
provision  of treatment such as ventilator support or a nasogastric tube
but shall include such treatment when provided as part of post-operative
care or in response to an  acute  illness  and  recovery  is  reasonably
expected within one month or less.
(b)  An  attending  practitioner  shall  be authorized to decide about
routine medical treatment for an adult patient who has  been  determined
to lack decision-making capacity pursuant to section twenty-nine hundred
ninety-four-c of this article. Nothing in this subdivision shall require
health  care  providers  to  obtain specific consent for treatment where
specific consent is not otherwise required by law.
4. Major medical treatment. (a)  For  purposes  of  this  subdivision,
"major  medical  treatment" means any treatment, service or procedure to
diagnose or treat an individual's  physical  or  mental  condition:  (i)
where general anesthetic is used; or (ii) which involves any significant
risk;  or  (iii)  which  involves  any  significant  invasion  of bodily
integrity requiring an incision, producing substantial pain, discomfort,
debilitation or having a significant  recovery  period;  or  (iv)  which
involves  the  use  of  physical restraints, as specified in regulations
promulgated by the commissioner, except in an emergency;  or  (v)  which
involves  the  use  of psychoactive medications, except when provided as
part of post-operative care or in  response  to  an  acute  illness  and
treatment  is  reasonably  expected  to be administered over a period of
forty-eight hours or less, or when provided in an emergency.
(b) A decision to provide major medical treatment, made in  accordance
with  the  following  requirements,  shall  be  authorized  for an adult

patient  who  has  been  determined  to  lack  decision-making  capacity
pursuant to section twenty-nine hundred ninety-four-c of this article.
(i)   An   attending  practitioner  shall  make  a  recommendation  in
consultation with hospital staff directly responsible for the  patient's
care.
(ii)  In  a  general  hospital,  at  least  one other physician, nurse
practitioner or physician assistant  designated  by  the  hospital  must
independently  determine  that he or she concurs that the recommendation
is appropriate.
(iii) In a residential health care facility, and for a hospice patient
not in a general hospital, the  medical  director  of  the  facility  or
hospice,  or  a  physician,  nurse  practitioner  or physician assistant
designated by the medical director, must independently determine that he
or she concurs that the recommendation is appropriate; provided that  if
the   medical  director  is  the  patient's  attending  practitioner,  a
different  physician,  nurse   practitioner   or   physician   assistant
designated  by the residential health care facility or hospice must make
this  independent  determination.  Any   health   or   social   services
practitioner  employed  by  or  otherwise  formally  affiliated with the
facility or hospice may provide a second  opinion  for  decisions  about
physical restraints made pursuant to this subdivision.
5.  Decisions to withhold or withdraw life-sustaining treatment. (a) A
court of competent jurisdiction may  make  a  decision  to  withhold  or
withdraw  life-sustaining  treatment  for  an adult patient who has been
determined  to  lack  decision-making  capacity  pursuant   to   section
twenty-nine  hundred  ninety-four-c  of  this article if the court finds
that the decision accords with standards for decisions  for  adults  set
forth  in  subdivisions  four  and  five  of section twenty-nine hundred
ninety-four-d of this article.
(b) If the attending practitioner, with independent concurrence  of  a
second  physician,  nurse practitioner or physician assistant designated
by the hospital, determines to a reasonable degree of medical  certainty
that:
(i)  life-sustaining  treatment  offers the patient no medical benefit
because the patient will  die  imminently,  even  if  the  treatment  is
provided; and
(ii) the provision of life-sustaining treatment would violate accepted
medical standards, then such treatment may be withdrawn or withheld from
an  adult  patient  who  has  been  determined  to  lack decision-making
capacity pursuant to section twenty-nine hundred ninety-four-c  of  this
article,  without  judicial  approval. This paragraph shall not apply to
any treatment necessary to alleviate pain or discomfort.
5-a. Decisions regarding hospice care. An attending practitioner shall
be authorized to make  decisions  regarding  hospice  care  and  execute
appropriate  documents  for such decisions (including a hospice election
form) for an adult patient under this section who is hospice eligible in
accordance with the following requirements.
(a) The attending practitioner shall make decisions under this section
in consultation with staff directly responsible for the patient's  care,
and  shall  base  his  or  her  decisions on the standards for surrogate
decisions set forth in subdivisions four and five of section twenty-nine
hundred ninety-four-d of this article;
(b) There is a concurring opinion as follows:
(i) in a  general  hospital,  at  least  one  other  physician,  nurse
practitioner  or  physician  assistant  designated  by the hospital must
independently determine that he or she concurs that  the  recommendation
is consistent with such standards for surrogate decisions;
(ii)  in  a  residential health care facility, the medical director of
the facility, or a physician, nurse practitioner or physician  assistant
designated by the medical director, must independently determine that he
or she concurs that the recommendation is consistent with such standards
for  surrogate  decisions;  provided that if the medical director is the
patient's  attending  practitioner,   a   different   physician,   nurse
practitioner or physician assistant designated by the residential health
care facility must make this independent determination; or
(iii)  in settings other than a general hospital or residential health
care facility, the medical director  of  the  hospice,  or  a  physician
designated by the medical director, must independently determine that he
or  she  concurs  that  the  recommendation is medically appropriate and
consistent with such standards for surrogate decisions; provided that if
the medical director is the patient's attending physician,  a  different
physician   designated   by  the  hospice  must  make  this  independent
determination; and
(c) The ethics review committee of the general  hospital,  residential
health  care  facility or hospice, as applicable, including at least one
physician, nurse practitioner or physician  assistant  who  is  not  the
patient's  attending practitioner, or a court of competent jurisdiction,
must review the decision and determine that it is consistent  with  such
standards  for  surrogate decisions. This requirement shall not apply to
decisions about routine  medical  treatment.  Such  decisions  shall  be
governed by subdivision three of this section.
6.  Physician, nurse practitioner or physician assistant objection. If
a physician, nurse practitioner or physician assistant consulted  for  a
concurring opinion objects to an attending practitioner's recommendation
or  determination  made  pursuant  to  this  section, or a member of the
hospital staff directly responsible for the patient's care objects to an
attending practitioner's recommendation about major medical treatment or
treatment without medical benefit, the matter shall be referred  to  the
ethics review committee if it cannot be otherwise resolved.