2017 New York Laws
PBH - Public Health
Article 29-CC - 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.
* NB Effective until May 28, 2018
* 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  or  nurse
  practitioner  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
  or  nurse  practitioner  serves  as  surrogate,  the  physician or nurse
  practitioner shall not act  as  the  patient's  attending  physician  or
  attending  nurse  practitioner  after  his or her authority as surrogate
  begins.
* NB Effective May 28, 2018
* 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.
* NB Effective until May 28, 2018
* 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 or attending nurse practitioner
  relies  on  the  patient's  prior  decision,  the  physician  or   nurse
  practitioner  shall  record  the prior decision in the patient's medical
  record. If a surrogate has already been designated for the patient,  the
  attending   physician   or   attending  nurse  practitioner  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 or attending
  nurse practitioner 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  or  nurse practitioner 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.
* NB Effective May 28, 2018
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 (including decisions to accept a hospice  plan  of  care  that
  provides for the withdrawal or withholding of 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.
* NB Effective until May 28, 2018
* 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 (including decisions to accept a hospice  plan  of  care  that
  provides for the withdrawal or withholding of 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 or attending nurse practitioner determines, with
  the independent concurrence of another physician or nurse  practitioner,
  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  or  attending  nurse  practitioner   with   the   independent
  concurrence  of  another physician or nurse practitioner 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  or  nurse  practitioner 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  or  attending
  nurse practitioner 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  or  nurse  practitioner  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 attending nurse practitioner or in writing.
* NB Effective May 28, 2018