2010 New York Code
PBH - Public Health
Article 29-CC - (2994-A - 2994-U) FAMILY HEALTH CARE DECISIONS ACT
2994-D - Health care decisions for adult patients by surrogates.

§  2994-d.  Health care decisions for adult patients by surrogates. 1.
  Identifying the surrogate. One person from the following list  from  the
  class  highest  in  priority  when  persons  in  prior  classes  are not
  reasonably available, willing,  and  competent  to  act,  shall  be  the
  surrogate  for  an  adult  patient  who  lacks decision-making capacity.
  However, such person may designate any other person on the  list  to  be
  surrogate, provided no one in a class higher in priority than the person
  designated objects:
    (a)  A  guardian  authorized  to  decide about health care pursuant to
  article eighty-one of the mental hygiene law;
    (b) The spouse, if not legally separated  from  the  patient,  or  the
  domestic partner;
    (c) A son or daughter eighteen years of age or older;
    (d) A parent;
    (e) A brother or sister eighteen years of age or older;
    (f) A close friend.
    2. Restrictions on who may be a surrogate. An operator, administrator,
  or  employee  of  a hospital or a mental hygiene facility from which the
  patient was transferred, or  a  physician  who  has  privileges  at  the
  hospital  or a health care provider under contract with the hospital may
  not serve as the surrogate for any  adult  who  is  a  patient  of  such
  hospital,  unless  such  individual  is related to the patient by blood,
  marriage, domestic partnership, or adoption, or is a close friend of the
  patient  whose  friendship  with  the  patient  preceded  the  patient's
  admission  to  the  facility.  If  a  physician serves as surrogate, the
  physician shall not act as the patient's attending physician  after  his
  or her authority as surrogate begins.
    3.  Authority  and  duties  of  surrogate.  (a)  Scope  of surrogate's
  authority.
    (i) Subject to the standards and  limitations  of  this  article,  the
  surrogate  shall  have  the  authority  to  make any and all health care
  decisions on the adult patient's behalf that the patient could make.
    (ii) Nothing in this article shall obligate health care  providers  to
  seek  the  consent of a surrogate if an adult patient has already made a
  decision about the proposed health care, expressed orally or in  writing
  or,  with  respect to a decision to withdraw or withhold life-sustaining
  treatment expressed either orally during hospitalization in the presence
  of two witnesses eighteen years of age or older, at least one of whom is
  a health or social services practitioner affiliated with  the  hospital,
  or  in  writing. If an attending physician relies on the patient's prior
  decision, the physician shall record the prior decision in the patient's
  medical record. If a surrogate  has  already  been  designated  for  the
  patient, the attending physician shall make reasonable efforts to notify
  the  surrogate  prior to implementing the decision; provided that in the
  case of a decision to withdraw or  withhold  life-sustaining  treatment,
  the  attending  physician  shall  make  diligent  efforts  to notify the
  surrogate and, if unable to notify the  surrogate,  shall  document  the
  efforts that were made to do so.
    (b)  Commencement  of surrogate's authority. The surrogate's authority
  shall  commence  upon  a  determination,  made   pursuant   to   section
  twenty-nine  hundred  ninety-four-c  of  this  article,  that  the adult
  patient lacks decision-making capacity  and  upon  identification  of  a
  surrogate  pursuant  to subdivision one of this section. In the event an
  attending  physician  determines   that   the   patient   has   regained
  decision-making capacity, the authority of the surrogate shall cease.
    (c)  Right  and  duty  to  be informed. Notwithstanding any law to the
  contrary,  the  surrogate  shall  have  the  right  to  receive  medical
  information  and  medical  records  necessary to make informed decisions

about the patient's health care. Health care providers shall provide and
  the surrogate shall seek  information  necessary  to  make  an  informed
  decision,   including   information   about   the  patient's  diagnosis,
  prognosis,  the nature and consequences of proposed health care, and the
  benefits and risks of and alternative to proposed health care.
    4. Decision-making standards. (a) The surrogate shall make health care
  decisions:
    (i) in accordance with the patient's wishes, including  the  patient's
  religious and moral beliefs; or
    (ii)  if the patient's wishes are not reasonably known and cannot with
  reasonable diligence be ascertained, in accordance  with  the  patient's
  best  interests.  An  assessment  of  the patient's best interests shall
  include: consideration of the dignity and uniqueness  of  every  person;
  the  possibility  and  extent  of  preserving  the  patient's  life; the
  preservation, improvement or restoration  of  the  patient's  health  or
  functioning;  the  relief  of  the  patient's suffering; and any medical
  condition and such other concerns and values as a reasonable  person  in
  the patient's circumstances would wish to consider.
    (b)  In  all cases, the surrogate's assessment of the patient's wishes
  and best interests shall  be  patient-centered;  health  care  decisions
  shall  be made on an individualized basis for each patient, and shall be
  consistent with the values  of  the  patient,  including  the  patient's
  religious and moral beliefs, to the extent reasonably possible.
    5.  Decisions  to  withhold  or withdraw life-sustaining treatment. In
  addition to the standards set forth in subdivision four of this section,
  decisions  by  surrogates  to  withhold  or   withdraw   life-sustaining
  treatment  shall  be  authorized  only  if  the following conditions are
  satisfied, as applicable:
    (a)(i) Treatment would be an extraordinary burden to the  patient  and
  an  attending  physician determines, with the independent concurrence of
  another physician, that, to a reasonable degree of medical certainty and
  in accord with accepted  medical  standards,  (A)  the  patient  has  an
  illness  or  injury  which  can  be  expected  to cause death within six
  months, whether or not treatment is provided;  or  (B)  the  patient  is
  permanently unconscious; or
    (ii)  The provision of treatment would involve such pain, suffering or
  other  burden  that  it  would  reasonably   be   deemed   inhumane   or
  extraordinarily  burdensome  under the circumstances and the patient has
  an irreversible or incurable condition, as determined  by  an  attending
  physician  with  the  independent  concurrence of another physician to a
  reasonable degree of medical  certainty  and  in  accord  with  accepted
  medical standards.
    (b)  In a residential health care facility, a surrogate shall have the
  authority to refuse life-sustaining treatment under subparagraph (ii) of
  paragraph (a) of this subdivision only if the ethics  review  committee,
  including at least one physician who is not directly responsible for the
  patient's  care,  or  a  court  of  competent  jurisdiction, reviews the
  decision and determines that it meets the standards set  forth  in  this
  article.  This  requirement  shall  not  apply to a decision to withhold
  cardiopulmonary resuscitation.
    (c) In a general hospital, if the attending  physician  objects  to  a
  surrogate's  decision,  under subparagraph (ii) of paragraph (a) of this
  subdivision, to withdraw or withhold nutrition and hydration provided by
  means of medical treatment, the decision shall not be implemented  until
  the ethics review committee, including at least one physician who is not
  directly  responsible  for  the  patient's care, or a court of competent
  jurisdiction, reviews the decision and  determines  that  it  meets  the

standards  set  forth  in  this subdivision and subdivision four of this
  section.
    (d)  Providing  nutrition  and  hydration  orally, without reliance on
  medical treatment, is not health care under  this  article  and  is  not
  subject to this article.
    (e) Expression of decisions. The surrogate shall express a decision to
  withdraw  or  withhold  life-sustaining  treatment  either  orally to an
  attending physician or in writing.