2019 New York Laws
PBH - Public Health
Article 29-B - Orders Not to Resuscitate for Residents of Mental Hygiene Facilities
2965 - Surrogate Decision-Making.

§  2965.  Surrogate decision-making. 1. (a) The consent of a surrogate
or health care agent acting on behalf of  an  adult  patient  who  lacks
capacity  or  on  behalf  of  an  adult  patient  for  whom consent by a
surrogate or health care agent is authorized  by  subdivision  three  of
section  twenty-nine hundred sixty-four of this article must be obtained
prior to issuing an order not to  resuscitate  the  patient,  except  as
provided  in  paragraph  (b)  of this subdivision or section twenty-nine
hundred sixty-six of this article.
  (b) The consent of a surrogate or  health  care  agent  shall  not  be
required  where the adult had, prior to losing capacity, consented to an
order  not  to  resuscitate  pursuant  to  subdivision  two  of  section
twenty-nine hundred sixty-four of this article.
  (c)  A  decision  regarding  cardiopulmonary resuscitation by a health
care agent on a principal's behalf is governed by article  twenty-nine-C
of  this  chapter  and  shall  have priority over decisions by any other
person, except the patient or as otherwise provided in the  health  care
proxy.
  2.
  (a) One person from the following list, to be chosen in order of
priority listed,  when  persons  in  the  prior  subparagraphs  are  not
reasonably  available,  willing to make a decision regarding issuance of
an order not to resuscitate, and competent to make a decision  regarding
issuance of an order not to resuscitate, shall have the authority to act
as  surrogate  on  behalf  of  the  patient.  However,  such  person may
designate any other person on the list to be surrogate, provided no  one
in a higher class than the person designated objects:
  (i)  a  guardian  authorized  to  decide about health care pursuant to
article eighty-one of the mental hygiene law or a guardian of  a  person
appointed  under  article seventeen-A of the surrogate's court procedure
act, provided that this paragraph shall not be construed to require  the
appointment  of  a  guardian for the purpose of making the resuscitation
decision;
  (ii) the spouse, if not legally separated from  the  patient,  or  the
domestic partner;
  (iii) a son or daughter eighteen years of age or older;
  (iv) a parent;
  (v) a brother or sister eighteen years of age or older; and
  (vi) a close friend.
  (b)  After  the surrogate has been identified, the name of such person
shall be included in the patient's medical chart.
  3. (a) The surrogate shall make a decision  regarding  cardiopulmonary
resuscitation  on  the  basis  of the adult patient's wishes including a
consideration of the patient's religious and moral beliefs, or,  if  the
patient's  wishes are unknown and cannot be ascertained, on the basis of
the patient's best interests.
  (b) Notwithstanding any law to the contrary, the surrogate shall  have
the same right as the patient to receive medical information and medical
records.
  (c)  A  surrogate may consent to an order not to resuscitate on behalf
of an adult patient only  if  there  has  been  a  determination  by  an
attending physician or attending nurse practitioner with the concurrence
of  another  physician  or  nurse  practitioner  selected  by  a  person
authorized by the hospital to make such selection, given after  personal
examination  of  the  patient  that,  to  a reasonable degree of medical
certainty:
  (i) the patient has a terminal condition; or
  (ii) the patient is permanently unconscious; or
  (iii) resuscitation would be medically futile; or
  (iv) resuscitation would impose an extraordinary burden on the patient
in light of the patient's medical condition and the expected outcome  of
resuscitation for the patient.
  Each determination shall be included in the patient's medical chart.
  4. (a) A surrogate shall express a decision consenting to an order not
to  resuscitate either (i) in writing, dated, and signed in the presence
of one witness eighteen years  of  age  or  older  who  shall  sign  the
decision, or (ii) orally, to two persons eighteen years of age or older,
one  of  whom  is  a physician or nurse practitioner affiliated with the
hospital in which the patient is being treated. Any such decision  shall
be recorded in the patient's medical chart.
  (b)  The  attending  physician  or attending nurse practitioner who is
provided with the decision of a surrogate shall include the decision  in
the  patient's  medical chart and, if the surrogate has consented to the
issuance of an order not to resuscitate, shall either:
  (i) promptly issue an order not to resuscitate the patient and  inform
the hospital staff responsible for the patient's care of the order; or
  (ii)  promptly  make  the  attending  physician's  or  attending nurse
practitioner's objection to the issuance of such an order known  to  the
surrogate  and  either  make  all  reasonable efforts to arrange for the
transfer of the patient to another physician or nurse  practitioner,  if
necessary, or promptly refer the matter to the dispute mediation system.
  (c)  If  the  attending  physician or attending nurse practitioner has
actual notice of opposition to a surrogate's consent to an order not  to
resuscitate  by any person on the surrogate list, the physician or nurse
practitioner shall submit the matter to the dispute mediation system and
such order shall not be issued or shall be revoked  in  accordance  with
the  provisions  of  subdivision  three  of  section twenty-nine hundred
seventy-two of this article.