2010 New York Code
PBH - Public Health
Article 29-CC - (2994-A - 2994-U) 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  physician.   An   attending
  physician  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.
    (c) (i) If the attending physician 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 physician makes an initial determination that a
  patient lacks decision-making capacity because of mental retardation  or
  a   developmental  disability,  either  such  physician  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  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
  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 physician 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 physician'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 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 physician 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.