New Jersey Administrative Code › Title 10 - HUMAN SERVICES › Chapter 48B - DECISION-MAKING FOR THE TERMINALLY ILL › Subchapter 4 - DECISION-MAKING CAPACITY › Section 10:48B-4.1 - Determination of terminally ill individual's capacity regarding either Do Not Resuscitate (DNR) orders or the withholding or withdrawing of life-sustaining medical treatment (LSMT)

Current through Register Vol. 56, No. 14, July 15, 2024
(a) It is the
				treating practitioner's role to recommend a course of treatment for a
				terminally ill individual or an individual in a permanently unconscious state,
				including a Do Not Resuscitate (DNR) Order and/or the initiation, withholding,
				or withdrawing of life sustaining medical treatment (LSMT). In some instances,
				the treating practitioner may recommend a DNR order when the act of
				cardiopulmonary resuscitation is contraindicated due to the medical condition
				and/or age of the individual and could cause more physical harm than
				benefit.
(b) To the extent
				possible, Division staff shall provide to the treating practitioner any
				information or records pertinent to the issue of whether a terminally ill
				individual may or may not have the capacity to make medical treatment
				decisions, including documents such as a previous adjudication of incapacity or
				a determination that the individual has capacity to make medical treatment
				decisions.
(c) If the treating
				practitioner recommends a DNR Order or the initiation, withdrawal, or
				withholding of LSMT, the treating practitioner must determine whether the
				individual has the capacity to make these medical treatment decisions. In some
				instances, the individual may not have the capacity to make major medical
				decisions, but may have the capacity to express some preferences about
				treatment options in the face of a terminal illness. The treating practitioner
				should make an effort to determine the preferences of the individual, and these
				should be considered in the development of the final treatment plan. If an
				individual who lacks decision-making capacity clearly expresses or manifests
				the contemporaneous wish that medically appropriate measures utilized to
				sustain life be provided, that wish shall take precedence over any contrary
				recommendation or determination.
(d) The treating practitioner may consider
				information supplied by the Division staff, BGS, or other interested persons to
				determine whether the terminally ill individual has the capacity to make
				medical decisions.
(e) The treating
				practitioner shall determine whether the patient lacks capacity to make a
				particular health care decision. The determinations shall be stated in writing,
				shall include the treating practitioner's opinion concerning the nature, cause,
				extent, and probable duration of the patient's incapacity, and shall be made a
				part of the patient's medical records.
(f) The treating practitioner's determination
				of a lack of decision-making capacity shall be confirmed by one or more
				physicians. The opinion of the confirming physician shall be stated in writing
				and made a part of the patient's record in the same manner as that of the
				treating practitioner. Confirmation of a lack of decision-making capacity is
				not required when the patient's lack of decision-making capacity is clearly
				apparent, and the treating practitioner and the legal guardian or health care
				representative agree that confirmation is unnecessary.
(g) If the treating practitioner or the
				confirming physician determines that a patient lacks decision-making capacity
				because of a mental or psychological impairment or a developmental disability,
				and neither the treating practitioner or the confirming physician has
				specialized training or experience in diagnosing mental or psychological
				conditions or developmental disabilities of the same or similar nature, a
				determination of a lack of decision-making capacity shall be confirmed by one
				or more physicians with appropriate specialized training or experience. The
				opinion of the confirming physician shall be stated in writing and made a part
				of the patient's record in the same manner as that of the treating
				practitioner.
(h) The treating
				practitioner will notify the individual, the guardian, or the immediate family
				when the individual is determined to lack capacity to make a particular
				healthcare decision, the right to appeal this decision, and how to
				appeal.