2010 New York Code
PBH - Public Health
Article 29-B - (2960 - 2979) ORDERS NOT TO RESUSCITATE FOR RESIDENTS OF MENTAL HYGIENE FACILITIES
2963 - Determination of capacity to make a decision regarding cardiopulmonary resuscitation.

§  2963.  Determination  of  capacity  to  make  a  decision regarding
  cardiopulmonary resuscitation.  1. Every adult shall be presumed to have
  the capacity to make a decision regarding cardiopulmonary  resuscitation
  unless  determined  otherwise  pursuant to this section or pursuant to a
  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 or article seventeen-A of the surrogate's court procedure  act.  The
  attending  physician  shall  not  rely on the presumption stated in this
  subdivision if clinical indicia of incapacity are present.
    2. A determination that an adult patient lacks capacity shall be  made
  by  the attending physician to a reasonable degree of medical certainty.
  The determination shall be  made  in  writing  and  shall  contain  such
  attending  physician's  opinion  regarding  the  cause and nature of the
  patient's incapacity as well as its extent and  probable  duration.  The
  determination shall be included in the patient's medical chart.
    3.  (a)  At least one other physician, selected by a person authorized
  by the hospital to make such selection, must concur in the determination
  that an adult lacks capacity. The concurring determination shall be made
  in writing after personal examination of the patient and  shall  contain
  the  physician's opinion regarding the cause and nature of the patient's
  incapacity as well as its extent and probable duration. Each  concurring
  determination shall be included in the patient's medical chart.
    (b)  If  the  attending  physician  determines  that  a  patient lacks
  capacity  because  of  mental  illness,  the  concurring   determination
  required  by  paragraph  (a)  of this subdivision shall be provided by 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.
    (c) If  the  attending  physician  determines  that  a  patient  lacks
  capacity   because   of   a  developmental  disability,  the  concurring
  determination required by paragraph (a) of  this  subdivision  shall  be
  provided  by  a  physician or psychologist employed by a school 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  of  mental  retardation  and  developmental
  disabilities,  or  who  has  been approved by the commissioner of mental
  retardation  and   developmental   disabilities   in   accordance   with
  regulations  promulgated  by  such  commissioner. Such regulations shall
  require that a physician or psychologist possess specialized training or
  three years experience in treating developmental disabilities.
    4. Notice of a determination that the  patient  lacks  capacity  shall
  promptly  be  given (a) to the patient, where there is any indication of
  the patient's ability to comprehend such notice, together with a copy of
  a statement prepared in  accordance  with  section  twenty-nine  hundred
  seventy-eight  of  this  article, and (b) to the person on the surrogate
  list highest  in  order  of  priority  listed,  when  persons  in  prior
  subparagraphs  are not reasonably available. Nothing in this subdivision
  shall preclude or  require  notice  to  more  than  one  person  on  the
  surrogate list.
    5.  A  determination  that a patient lacks capacity to make a decision
  regarding an order not to resuscitate pursuant to this section shall not
  be construed as a finding that the patient lacks capacity for any  other
  purpose.