2010 New York Code
PBH - Public Health
Article 29-CC - (2994-A - 2994-U) FAMILY HEALTH CARE DECISIONS ACT
2994-G - Health care decisions for adult patients without surrogates.

§ 2994-g. Health care decisions for adult patients without surrogates.
  1.  Identifying  adult  patients without surrogates. Within a reasonable
  time after admission as an inpatient  to  the  hospital  of  each  adult
  patient,  the hospital shall make reasonable efforts to determine if the
  patient has appointed a health care agent or has a guardian,  or  if  at
  least one individual is available to serve as the patient's surrogate in
  the  event  the  patient  lacks  or loses decision-making capacity. With
  respect to a patient who lacks capacity, if no such health  care  agent,
  guardian  or  potential  surrogate  is  identified,  the  hospital shall
  identify, to the extent reasonably possible, the  patient's  wishes  and
  preferences,  including the patient's religious and moral beliefs, about
  pending health care decisions, and shall  record  its  findings  in  the
  patient's medical record.
    2.  Decision-making  standards  and  procedures.  (a)  The  procedures
  specified in this and the following subdivisions of this  section  apply
  to  health  care  decisions  for  adult  patients  who would qualify for
  surrogate decision-making under this article but for whom  no  surrogate
  is reasonably available, willing or competent to act.
    (b)  Any  health  care decision made pursuant to this section shall be
  made in accordance with the standards set forth in subdivision  four  of
  section  twenty-nine hundred ninety-four-d of this article and shall not
  be based on the financial interests of the hospital or any other  health
  care  provider. The specific procedures to be followed depend on whether
  the  decision  involves  routine  medical   treatment,   major   medical
  treatment,   or   the   withholding  or  withdrawal  of  life-sustaining
  treatment, and the location where the treatment is provided.
    3. Routine medical treatment. (a) For purposes  of  this  subdivision,
  "routine  medical  treatment" means any treatment, service, or procedure
  to diagnose or treat an individual's physical or mental condition,  such
  as the administration of medication, the extraction of bodily fluids for
  analysis,  or  dental  care performed with a local anesthetic, for which
  health care providers ordinarily do not seek specific consent  from  the
  patient or authorized representative. It shall not include the long-term
  provision  of treatment such as ventilator support or a nasogastric tube
  but shall include such treatment when provided as part of post-operative
  care or in response to an  acute  illness  and  recovery  is  reasonably
  expected within one month or less.
    (b) An attending physician shall be authorized to decide about routine
  medical  treatment  for an adult patient who has been determined to lack
  decision-making  capacity  pursuant  to  section   twenty-nine   hundred
  ninety-four-c of this article. Nothing in this subdivision shall require
  health  care  providers  to  obtain specific consent for treatment where
  specific consent is not otherwise required by law.
    4. Major medical treatment. (a)  For  purposes  of  this  subdivision,
  "major  medical  treatment" means any treatment, service or procedure to
  diagnose or treat an individual's  physical  or  mental  condition:  (i)
  where general anesthetic is used; or (ii) which involves any significant
  risk;  or  (iii)  which  involves  any  significant  invasion  of bodily
  integrity requiring an incision, producing substantial pain, discomfort,
  debilitation or having a significant  recovery  period;  or  (iv)  which
  involves  the  use  of  physical restraints, as specified in regulations
  promulgated by the commissioner, except in an emergency;  or  (v)  which
  involves  the  use  of psychoactive medications, except when provided as
  part of post-operative care or in  response  to  an  acute  illness  and
  treatment  is  reasonably  expected  to be administered over a period of
  forty-eight hours or less, or when provided in an emergency.
    (b) A decision to provide major medical treatment, made in  accordance
  with  the  following  requirements,  shall  be  authorized  for an adult

patient  who  has  been  determined  to  lack  decision-making  capacity
  pursuant to section twenty-nine hundred ninety-four-c of this article.
    (i) An attending physician shall make a recommendation in consultation
  with hospital staff directly responsible for the patient's care.
    (ii) In a general hospital, at least one other physician designated by
  the  hospital  must  independently determine that he or she concurs that
  the recommendation is appropriate.
    (iii) In a residential health care facility the  medical  director  of
  the  facility,  or  a physician designated by the medical director, must
  independently determine that he or she concurs that  the  recommendation
  is  appropriate;  provided that if the medical director is the patient's
  attending physician, a different physician designated by the residential
  health care facility  must  make  this  independent  determination.  Any
  health or social services practitioner employed by or otherwise formally
  affiliated  with the facility may provide a second opinion for decisions
  about physical restraints made pursuant to this subdivision.
    5. Decisions to withhold or withdraw life-sustaining treatment. (a)  A
  court  of  competent  jurisdiction  may  make  a decision to withhold or
  withdraw life-sustaining treatment for an adult  patient  who  has  been
  determined   to   lack  decision-making  capacity  pursuant  to  section
  twenty-nine hundred ninety-four-c of this article  if  the  court  finds
  that  the  decision  accords with standards for decisions for adults set
  forth in subdivisions four  and  five  of  section  twenty-nine  hundred
  ninety-four-d of this article.
    (b)  If  the  attending  physician,  with independent concurrence of a
  second physician designated by the hospital, determines to a  reasonable
  degree of medical certainty that:
    (i)  life-sustaining  treatment  offers the patient no medical benefit
  because the patient will  die  imminently,  even  if  the  treatment  is
  provided; and
    (ii) the provision of life-sustaining treatment would violate accepted
  medical standards, then such treatment may be withdrawn or withheld from
  an  adult  patient  who  has  been  determined  to  lack decision-making
  capacity pursuant to section twenty-nine hundred ninety-four-c  of  this
  article,  without  judicial  approval. This paragraph shall not apply to
  any treatment necessary to alleviate pain or discomfort.
    6. Physician objection. If a  physician  consulted  for  a  concurring
  opinion   objects   to   an   attending  physician's  recommendation  or
  determination made pursuant to this section, or a member of the hospital
  staff  directly  responsible  for  the  patient's  care  objects  to  an
  attending  physician's  recommendation  about major medical treatment or
  treatment without medical benefit, the matter shall be referred  to  the
  ethics review committee if it cannot be otherwise resolved.


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