2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 80 - Surrogate Decision-Making for Medical Care and Treatment › 80.07 - Procedures of the Committees and Panels.

§ 80.07 Procedures of the committees and panels.
(a)  The  committee  shall  receive  declarations  filed  on behalf of
patients, as follows:
1. A declaration may be filed by a declarant on behalf of any patient,
residing within the geographic area served  by  the  committee,  who  is
believed  to  be  in  need  of  major  medical treatment and to lack the
capacity to consent to or refuse major medical  treatment.  Jurisdiction
by  the  surrogate decision-making committee may continue throughout all
subsequent proceedings related to the major medical  treatment  proposed
in  the  initial  declaration  notwithstanding  the  patient's  transfer
outside of the geographic region or discharge from the facility.
2. A declaration shall be signed by the declarant and shall state  the
following:
(i) the patient does not have a parent, spouse, adult child, committee
of  the  person,  conservator  or  legal  guardian,  or  other available
surrogate authorized by regulation in accordance with section  33.03  of
this  chapter;  or  that  the  patient's  parent,  spouse,  adult child,
committee of the person, conservator, legal guardian, or other available
surrogate authorized by regulation in accordance with section  33.03  of
this chapter is willing to allow the panel to act upon the declaration;
(ii)  the reasons for believing that the patient lacks the capacity to
consent to or  refuse  major  medical  treatment  and  the  factual  and
professional  basis  for  this  belief, which may include an independent
evaluation by a person qualified to assess  the  patient's  capacity  to
make such medical decisions;
(iii) a description of the proposed major medical treatment and of the
patient's  medical  condition  which requires such treatment; the risks,
alternatives and benefits to the patient of such treatment; a  statement
of  declarant's  opinion  of  whether  the best interests of the patient
would be promoted by such treatment and the basis for the  opinion;  the
patient's  view  of  the  proposed  treatment,  if known; and such other
information  as  may  be  necessary  to  establish  the  need  for  such
treatment.
(b)  Upon  receipt of the declaration, the committee shall send a copy
of the declaration forthwith to the patient and to the patient's parent,
spouse,  adult  child,  or  other  available  surrogate  authorized   by
regulation  in  accordance with section 33.03 of this chapter, committee
of the person, conservator, legal guardian or correspondent,  if  known,
the  director  of  the patient's residential mental hygiene facility, if
any, or such director's designee and the mental  hygiene  legal  service
which  serves  the  same region as the committee. The chairperson of the
committee or his or her designee shall assign the declaration to one  of
its  panels,  whose members will also receive a copy of the declaration.
The declaration shall be accompanied by a notice of the time, place  and
date  of  the  panel  hearing  on  the declaration. The hearing shall be
scheduled no earlier than five days  after  such  declaration  is  sent,
except  where  medical circumstances require a more immediate hearing or
where  the  consent  of  the  patient's  parent,  spouse,  adult  child,
committee  of  the person, conservator, legal guardian or correspondent,
if known, the director  of  the  patient's  mental  hygiene  residential
facility,  if  any,  or  such director's designee and the mental hygiene
legal service has been obtained for conducting a more immediate hearing.
The notice shall inform recipients of  the  procedures  of  the  panels,
including  the  opportunity  for  the  recipient to be present and to be
heard.
(c) The declaration shall, prior to the date of the panel hearing,  be
reviewed  by  the  panel  chairman  or his designee to ascertain whether
additional  information  may  be  necessary  to  assist  the  panel   in

determining  the  patient's  need  for  surrogate decision-making and in
determining whether the patient's  best  interests  will  be  served  by
consenting  to  or  refusing  major  medical  treatment on the patient's
behalf. The panel chairman or his designee may:
1.  Request  and shall, notwithstanding any other law to the contrary,
be entitled to receive from any physician, mental  hygiene  facility  or
health  care  facility  or  person  licensed  to render health care, any
information which is  relevant  to  the  patient's  need  for  surrogate
decision-making   or   for   the   proposed   major  medical  treatment.
Information, books, records or data which are confidential  as  provided
for  by  law shall be kept confidential by the panel and any limitations
on the further release thereof imposed by law upon the party  furnishing
the information, books, records or data shall apply to the panel.
2.  Order  an independent assessment of the patient, or of information
concerning  the  patient,  to  be  undertaken,  including  obtaining  an
independent  opinion,  where  such  independent assessment or opinion is
determined by the panel chairman to be necessary.
3.  Consult  with  any  other  person  who  might  assist  in  such  a
determination   of   the   best  interests  of  the  patient,  including
ascertainment of the personal beliefs and values of the patient.
(d) The panel shall conduct a hearing, at which the patient, any other
person requested by the patient to appear on his or her behalf, and  the
mental  hygiene  legal  service  have  the right to be present and to be
heard. Where practicable, the panel members shall  personally  interview
and  observe the patient prior to making their decision. The panel shall
be empowered to administer oaths to  and  to  take  testimony  from  any
person  who  might assist the panel in making its decision. Such hearing
shall  be  recorded  and  any   information,   record,   assessment   or
consultation submitted to or considered by the panel shall be maintained
as part of the record of the deliberations of the panel. Formal rules of
evidence shall not apply to the proceedings of the panel.
(e)  The  panel  shall  make  a  determination,  based  on  clear  and
convincing evidence, as to whether the patient is in need  of  surrogate
decision-making;  provided, however, that minor patients shall be deemed
to lack such capacity, to the extent that minors generally are deemed to
lack  such  capacity.  Unless  three  panel  members   concur   in   the
determination  that the patient is in need of surrogate decision-making,
the patient shall be deemed not to need  surrogate  decision-making.  In
such  event,  a  record  of  such  determination  shall  be made and the
patient's consent to such treatment, if given, shall constitute  legally
valid consent.
(f)   For   any   patient  determined  to  be  in  need  of  surrogate
decision-making, the panel shall make  a  further  determination  as  to
whether  the  proposed  major medical treatment is or is not in the best
interests of the patient based on a fair preponderance of the  evidence;
provided,  however, that evidence of a previously articulated preference
by the patient concerning the proposed treatment  shall  be  given  full
consideration  by  the  panel.  The  panel shall provide a record of its
determination which consents to or refuses major  medical  treatment  on
the  patient's behalf, which shall reflect the opinion of at least three
of the panel members.  If  the  panel  determination  consents  to  such
treatment,  such  consent shall constitute legally valid consent to such
treatment in the same manner and to the same extent as  if  the  patient
were  able  to  consent  to  or  refuse such treatment on his or her own
behalf.
(g) If at anytime during the  pendency  of  a  proceeding,  a  parent,
spouse  or  adult  child,  or  other  available  surrogate authorized by
regulation in accordance with section 33.03 of this chapter  objects  to

the  panel  acting  upon  the  declaration or a committee of the person,
conservator or legal guardian who is legally authorized to consent to or
refuse such treatment on the patient's  behalf,  objects  to  the  panel
acting  upon  the  declaration,  the  proceedings regarding such patient
shall cease. A record of such person's objection shall  be  included  as
part of the record as provided for by this section.
(h)  A  copy  of any determination made pursuant to this section shall
contain a statement describing the right to appeal set forth herein  and
shall  promptly  be  sent  or  provided  to  the  patient; other persons
requested by the patient to appear on  his  or  her  behalf;  declarant;
parent, spouse, adult child, legal guardian, committee of the person, or
other  available  surrogate  authorized by regulation in accordance with
section 33.03 of this chapter or, in the absence of such persons,  known
correspondents  of  the  patient;  the  director of the patient's mental
hygiene residential facility, if  any;  and  the  mental  hygiene  legal
service.  Where  practicable, the panel shall reach its determination or
determinations at the time of the hearing  and  provide  notice  to  the
above persons forthwith. The terms of such determinations and the giving
of  such  notice  shall be made a part of the record. The decision shall
state when the consent shall become effective after  such  determination
has  been  provided  or mailed to the parties specified in this section.
The panel may delay the effective date of its decision for  up  to  five
days  in  order  to  enable  an objecting party to exercise the right of
appeal, pursuant to section 80.09 of this article.