2012 New York Consolidated Laws
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 developmental
  disabilities services office  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
  for people with developmental disabilities, or who has been approved  by
  the  commissioner  of  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.