2006 New York Code - Health Care Decisions For Mentally Retarded Persons

 
  § 1750-b. Health care decisions for mentally retarded persons
    1.  Scope  of  authority.  Unless specifically prohibited by the court
  after consideration of the determination, if any, regarding  a  mentally
  retarded  person's  capacity  to  make  health  care decisions, which is
  required by  section  seventeen  hundred  fifty  of  this  article,  the
  guardian  of such person appointed pursuant to section seventeen hundred
  fifty of this article shall have the  authority  to  make  any  and  all
  health  care  decisions,  as  defined  by  subdivision  six  of  section
  twenty-nine hundred eighty of the public health law, on  behalf  of  the
  mentally  retarded person that such person could make if such person had
  capacity. Such decisions may include decisions to withhold  or  withdraw
  life-sustaining  treatment,  as  defined  in  subdivision (e) of section
  81.29 of the mental hygiene law. The provisions of this article are  not
  intended  to  permit or promote suicide, assisted suicide or euthanasia;
  accordingly, nothing in this section shall  be  construed  to  permit  a
  guardian  to  consent  to  any  act  or  omission  to which the mentally
  retarded persons could not consent if such person had capacity.
    2. Decision-making standard. (a) The guardian shall base all  advocacy
  and  health  care  decision-making  solely  and  exclusively on the best
  interests of the mentally retarded person and, when reasonably known  or
  ascertainable  with  reasonable  diligence,  on  the  mentally  retarded
  person's wishes, including moral and religious beliefs.
    (b) An assessment of the mentally  retarded  person's  best  interests
  shall include consideration of:
    (i) the dignity and uniqueness of every person;
    (ii)  the  preservation,  improvement  or  restoration of the mentally
  retarded person's health;
    (iii) the relief of the mentally retarded person's suffering by  means
  of palliative care and pain management;
    (iv)   the   unique  nature  of  artificially  provided  nutrition  or
  hydration, and the effect it may have on the mentally  retarded  person;
  and
    (v) the entire medical condition of the person.
    (c) No health care decision shall be influenced in any way by:
    (i)  a  presumption  that  persons  with  mental  retardation  are not
  entitled to the  full  and  equal  rights,  equal  protection,  respect,
  medical  care and dignity afforded to persons without mental retardation
  or developmental disabilities; or
    (ii) financial considerations of the guardian, as such  considerations
  affect the guardian, a health care provider or any other party.
    3. Right to receive information. Subject to the provisions of sections
  33.13  and  33.16 of the mental hygiene law, the guardian shall have the
  right to receive  all  medical  information  and  medical  and  clinical
  records  necessary  to  make  informed  decisions regarding the mentally
  retarded person's health care.
    4. Life-sustaining treatment. The guardian shall have the  affirmative
  obligation  to advocate for the full and efficacious provision of health
  care, including life-sustaining treatment as defined in subdivision  (e)
  of section 81.29 of the mental hygiene law. In the event that a guardian
  makes  a decision to withdraw or withhold life-sustaining treatment from
  a mentally retarded person:
    (a) The attending physician, as defined in subdivision two of  section
  twenty-nine  hundred  eighty of the public health law, must confirm to a
  reasonable degree of medical certainty that the mentally retarded person
  lacks capacity to make health care decisions. The determination  thereof
  shall  be included in the mentally retarded person's medical record, and
  shall contain such attending physician's opinion regarding the cause and
  nature of the mentally retarded  person's  incapacity  as  well  as  its


  extent  and  probable  duration.  The  attending physician who makes the
  confirmation  shall  consult  with  another  physician,  or  a  licensed
  psychologist,  to further confirm the mentally retarded person's lack of
  capacity.  The  attending  physician  who makes the confirmation, or the
  physician or licensed psychologist with  whom  the  attending  physician
  consults,  must (i) be employed by a developmental disabilities services
  office named in section 13.17 of the mental hygiene law,  or  (ii)  have
  been employed for a minimum of two years to render care and service in a
  facility  or  program  operated, licensed or authorized by the office of
  mental retardation and developmental disabilities, or  (iii)  have  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
  licensed  psychologist  possess  specialized  training  or  three  years
  experience in treating mental retardation. A record of such consultation
  shall be included in the mentally retarded person's medical record.
    (b)  The attending physician, as defined in subdivision two of section
  twenty-nine  hundred  eighty  of  the  public  health  law,   with   the
  concurrence  of  another  physician  with  whom such attending physician
  shall  consult,  must  determine  to  a  reasonable  degree  of  medical
  certainty and note on the mentally retarded person's chart that:
    (i) the mentally retarded person has a medical condition as follows:
    A.  a  terminal  condition,  as defined in subdivision twenty-three of
  section twenty-nine hundred sixty-one of the public health law; or
    B. permanent unconsciousness; or
    C. a medical condition other than  such  person's  mental  retardation
  which requires life-sustaining treatment, is irreversible and which will
  continue indefinitely; and
    (ii)  the  life-sustaining  treatment  would  impose  an extraordinary
  burden on such person, in light of:
    A. such person's medical condition, other than  such  person's  mental
  retardation; and
    B.   the   expected   outcome   of   the   life-sustaining  treatment,
  notwithstanding such person's mental retardation; and
    (iii) in the case of a decision to withdraw or  withhold  artificially
  provided nutrition or hydration:
    A. there is no reasonable hope of maintaining life; or
    B.   the   artificially  provided  nutrition  or  hydration  poses  an
  extraordinary burden.
    (c) The guardian shall express a  decision  to  withhold  or  withdraw
  life-sustaining treatment either:
    (i)  in  writing,  dated  and  signed  in  the presence of one witness
  eighteen years of  age  or  older  who  shall  sign  the  decision,  and
  presented  to  the attending physician, as defined in subdivision two of
  section twenty-nine hundred eighty of the public health law; or
    (ii) orally, to two persons eighteen years of age or older,  at  least
  one  of  whom  is the mentally retarded person's attending physician, as
  defined in subdivision two of section twenty-nine hundred eighty of  the
  public health law.
    (d)  The attending physician, as defined in subdivision two of section
  twenty-nine hundred eighty of the public health  law,  who  is  provided
  with  the  decision  of  a  guardian  shall  include the decision in the
  mentally retarded person's medical chart, and shall either:
    (i) promptly issue an order to withhold  or  withdraw  life-sustaining
  treatment  from  the  mentally  retarded  person,  and  inform the staff
  responsible for such person's care, if any, of the order; or
    (ii) promptly object to such decision, in accordance with  subdivision
  five of this section.


    (e)  At  least  forty-eight  hours  prior  to  the implementation of a
  decision to withdraw  life-sustaining  treatment,  or  at  the  earliest
  possible  time  prior  to  the  implementation of a decision to withhold
  life-sustaining treatment, the attending physician shall notify:
    (i)  the  mentally  retarded person, except if the attending physician
  determines, in writing and in consultation with another physician  or  a
  licensed   psychologist,   that,  to  a  reasonable  degree  of  medical
  certainty, the person would suffer immediate and severe injury from such
  notification. The attending physician who makes the confirmation, or the
  physician or licensed psychologist with  whom  the  attending  physician
  consults, shall:
    A.  be  employed by a developmental disabilities services office named
  in section 13.17 of the mental hygiene law, or
    B. have been employed for a minimum of two years to  render  care  and
  service  in a facility operated, licensed or authorized by the office of
  mental retardation and developmental disabilities, or
    C. have 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
  licensed  psychologist  possess  specialized  training  or  three  years
  experience in treating mental retardation. A record of such consultation
  shall be included in the mentally retarded person's medical record;
    (ii)  if  the  person  is  in  or  was  transferred from a residential
  facility operated, licensed  or  authorized  by  the  office  of  mental
  retardation  and developmental disabilities, the chief executive officer
  of the agency or organization operating such  facility  and  the  mental
  hygiene legal service; and
    (iii)  if  the  person  is  not in and was not transferred from such a
  facility  or  program,  the  commissioner  of  mental  retardation   and
  developmental disabilities, or his or her designee.
    5.  Objection  to  health care decision. (a) Suspension. A health care
  decision made pursuant to subdivision four  of  this  section  shall  be
  suspended,  pending  judicial  review, except if the suspension would in
  reasonable medical judgment be likely to result  in  the  death  of  the
  mentally  retarded person, in the event of an objection to that decision
  at any time by:
    (i) the mentally retarded person on whose  behalf  such  decision  was
  made; or
    (ii)  a  parent  or  adult  sibling  who  either  resides  with or has
  maintained substantial and continuous contact with the mentally retarded
  person; or
    (iii) the attending  physician,  as  defined  in  subdivision  two  of
  section twenty-nine hundred eighty of the public health law; or
    (iv)  any  other  health  care  practitioner providing services to the
  mentally retarded person,  who  is  licensed  pursuant  to  article  one
  hundred  thirty-one,  one  hundred thirty-one-B, one hundred thirty-two,
  one  hundred  thirty-three,  one   hundred   thirty-six,   one   hundred
  thirty-nine, one hundred forty-one, one hundred forty-three, one hundred
  forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
  fifty-six,  one  hundred  fifty-nine  or  one  hundred sixty-four of the
  education law; or
    (v) the chief executive officer identified  in  subparagraph  (ii)  of
  paragraph (e) of subdivision four of this section; or
    (vi)  if  the  person  is  in  or  was  transferred from a residential
  facility or program operated, approved or  licensed  by  the  office  of
  mental  retardation  and  developmental disabilities, the mental hygiene
  legal service; or


    (vii) if the person is not in and was  not  transferred  from  such  a
  facility   or  program,  the  commissioner  of  mental  retardation  and
  developmental disabilities, or his or her designee.
    (b)  Form  of  objection.  Such  objection  shall  occur  orally or in
  writing.
    (c) Notification. In the event of the  suspension  of  a  health  care
  decision  pursuant  to  this  subdivision,  the  objecting  party  shall
  promptly notify  the  guardian  and  the  other  parties  identified  in
  paragraph  (a)  of  this  subdivision, and the attending physician shall
  record such suspension in the mentally retarded person's medical chart.
    6.  Special  proceeding  authorized.  The  guardian,   the   attending
  physician,  as defined in subdivision two of section twenty-nine hundred
  eighty of the public health law, the chief executive officer  identified
  in  subparagraph  (ii)  of  paragraph  (e)  of  subdivision four of this
  section, the mental hygiene legal service (if the person is  in  or  was
  transferred from a residential facility or program operated, approved or
  licensed   by   the  office  of  mental  retardation  and  developmental
  disabilities)  or   the   commissioner   of   mental   retardation   and
  developmental  disabilities or his or her designee (if the person is not
  in and was not transferred from such a facility or program) may commence
  a special proceeding in a court of competent jurisdiction  with  respect
  to  any  dispute  arising under this section, including objecting to the
  withdrawal or withholding  of  life-sustaining  treatment  because  such
  withdrawal  or  withholding is not in accord with the criteria set forth
  in this section.
    7. Provider's obligations. (a) A health  care  provider  shall  comply
  with the health care decisions made by a guardian in good faith pursuant
  to  this  section, to the same extent as if such decisions had been made
  by the mentally retarded person, if such person had capacity.
    (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
  section shall be construed to require a  private  hospital  to  honor  a
  guardian's health care decision that the hospital would not honor if the
  decision  had  been made by the mentally retarded person, if such person
  had capacity, because the decision is contrary  to  a  formally  adopted
  written  policy  of the hospital expressly based on religious beliefs or
  sincerely held moral convictions central  to  the  hospital's  operating
  principles,  and  the  hospital  would  be permitted by law to refuse to
  honor the decision if made by such person, provided:
    (i) the hospital has informed the guardian of such policy prior to  or
  upon admission, if reasonably possible; and
    (ii)  the  mentally retarded person is transferred promptly to another
  hospital that is reasonably accessible under the  circumstances  and  is
  willing  to  honor the guardian's decision. If the guardian is unable or
  unwilling to arrange such a transfer, the hospital's  refusal  to  honor
  the  decision  of the guardian shall constitute an objection pursuant to
  subdivision five of this section.
    (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
  section shall be construed to require an individual health care provider
  to honor a guardian's health care decision that the individual would not
  honor if the decision had been made by the mentally retarded person,  if
  such  person  had  capacity,  because  the  decision  is contrary to the
  individual's religious beliefs  or  sincerely  held  moral  convictions,
  provided  the  individual  health  care  provider  promptly  informs the
  guardian and the facility, if any, of his or her refusal  to  honor  the
  guardian's decision. In such event, the facility shall promptly transfer
  responsibility  for  the  mentally retarded person to another individual
  health care provider willing  to  honor  the  guardian's  decision.  The


  individual  health  care  provider  shall cooperate in facilitating such
  transfer of the patient.
    (d)  Notwithstanding  the  provisions  of  any other paragraph of this
  subdivision, if a guardian  directs  the  provision  of  life-sustaining
  treatment,  the  denial of which in reasonable medical judgment would be
  likely to result in  the  death  of  the  mentally  retarded  person,  a
  hospital  or  individual  health  care  provider  that  does not wish to
  provide such treatment shall  nonetheless  comply  with  the  guardian's
  decision  pending  either  transfer of the mentally retarded person to a
  willing hospital or individual health care provider, or judicial review.
    (e) Nothing in this section shall affect or diminish the authority  of
  a  surrogate  decision-making  panel to render decisions regarding major
  medical treatment pursuant to article eighty of the mental hygiene law.
    8. Immunity.  (a)  Provider  immunity.  No  health  care  provider  or
  employee  thereof  shall be subjected to criminal or civil liability, or
  be deemed to  have  engaged  in  unprofessional  conduct,  for  honoring
  reasonably  and  in  good faith a health care decision by a guardian, or
  for other actions taken reasonably and in good faith  pursuant  to  this
  section.
    (b)  Guardian  immunity. No guardian shall be subjected to criminal or
  civil liability for making a health care decision reasonably and in good
  faith pursuant to this section.