2019 New York Laws
PBH - Public Health
Article 29-CC - Family Health Care Decisions Act
2994-C - Determination of Incapacity.

§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For
purposes  of  this  article,  every  adult  shall  be  presumed  to have
decision-making capacity unless determined otherwise  pursuant  to  this
section  or  pursuant to 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.
  2. Initial determination by attending  physician  or  attending  nurse
practitioner.  An  attending  physician  or attending nurse practitioner
shall  make  an  initial  determination  that  an  adult  patient  lacks
decision-making  capacity  to  a reasonable degree of medical certainty.
Such determination shall include an assessment of the cause  and  extent
of  the  patient's  incapacity  and the likelihood that the patient will
regain decision-making capacity.
  3. Concurring determinations. (a)  An  initial  determination  that  a
patient  lacks decision-making capacity shall be subject to a concurring
determination, independently made, where required by this subdivision. A
concurring determination shall include an assessment of  the  cause  and
extent  of  the patient's incapacity and the likelihood that the patient
will regain decision-making capacity,  and  shall  be  included  in  the
patient's   medical  record.  Hospitals  shall  adopt  written  policies
identifying the training and credentials of health  or  social  services
practitioners   qualified   to   provide  concurring  determinations  of
incapacity.
  (b) (i) In a residential health care  facility,  a  health  or  social
services  practitioner employed by or otherwise formally affiliated with
the facility must independently determine whether an adult patient lacks
decision-making capacity.
  (ii) In a general hospital a health or  social  services  practitioner
employed  by  or  otherwise  formally  affiliated with the facility must
independently determine whether an adult patient  lacks  decision-making
capacity   if  the  surrogate's  decision  concerns  the  withdrawal  or
withholding of life-sustaining treatment.
  (iii) With respect to decisions regarding hospice care for  a  patient
in a general hospital or residential health care facility, the health or
social  services  practitioner must be employed by or otherwise formally
affiliated  with  the  general  hospital  or  residential  health   care
facility.
  (c)  (i)  If  the  attending physician or attending nurse practitioner
makes an initial determination  that  a  patient  lacks  decision-making
capacity  because of mental illness, either such physician must have the
following  qualifications,  or  another  physician  with  the  following
qualifications  must  independently  determine whether the patient lacks
decision-making capacity: 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.  A  record of such consultation shall be
included in the patient's medical record.
  (ii) If the attending physician or attending nurse practitioner  makes
an  initial  determination that a patient lacks decision-making capacity
because of a developmental disability, either such  physician  or  nurse
practitioner   must   have  the  following  qualifications,  or  another
professional  with  the  following  qualifications  must   independently
determine   whether   the  patient  lacks  decision-making  capacity:  a
physician  or  clinical  psychologist  who  either  is  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 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 clinical psychologist possess specialized
training  or  three   years   experience   in   treating   developmental
disabilities.  A  record  of  such consultation shall be included in the
patient's medical record.
  (d) If an attending physician  or  attending  nurse  practitioner  has
determined  that  the  patient lacks decision-making capacity and if the
health or  social  services  practitioner  consulted  for  a  concurring
determination  disagrees with the attending physician's or the attending
nurse practitioner's determination, the matter shall be referred to  the
ethics review committee if it cannot otherwise be resolved.
  4. Informing the patient and surrogate. Notice of a determination that
a  surrogate  will  make health care decisions because the adult patient
has been determined to lack decision-making capacity shall  promptly  be
given:
  (a)  to  the  patient,  where there is any indication of the patient's
ability to comprehend the information;
  (b) to at least one person on the surrogate list highest in  order  of
priority  listed  when  persons  in  prior  classes  are  not reasonably
available pursuant to subdivision one  of  section  twenty-nine  hundred
ninety-four-d of this article;
  (c)  if the patient was transferred from a mental hygiene facility, to
the director of the mental hygiene facility and to  the  mental  hygiene
legal service under article forty-seven of the mental hygiene law.
  5.  Limited purpose of determination. A determination made pursuant to
this section that an adult patient lacks decision-making capacity  shall
not  be  construed  as a finding that the patient lacks capacity for any
other purpose.
  6. Priority of patient's  decision.  Notwithstanding  a  determination
pursuant  to  this  section  that an adult patient lacks decision-making
capacity, if the patient objects to the determination of incapacity,  or
to  the  choice  of  a  surrogate or to a health care decision made by a
surrogate or made pursuant to section twenty-nine hundred  ninety-four-g
of  this  article,  the  patient's  objection  or decision shall prevail
unless: (a) a court of competent jurisdiction has  determined  that  the
patient  lacks  decision-making  capacity  or the patient is or has been
adjudged incompetent for all purposes and, in the case  of  a  patient's
objection  to  treatment,  makes  any  other  finding required by law to
authorize  the  treatment,  or  (b)  another  legal  basis  exists   for
overriding the patient's decision.
  7.  Confirmation  of  continued  lack  of decision-making capacity. An
attending physician or attending nurse practitioner  shall  confirm  the
adult  patient's  continued  lack  of  decision-making  capacity  before
complying with health care decisions  made  pursuant  to  this  article,
other  than  those  decisions  made  at or about the time of the initial
determination. A concurring determination  of  the  patient's  continued
lack  of  decision-making  capacity  shall be required if the subsequent
health  care  decision  concerns  the  withholding  or   withdrawal   of
life-sustaining  treatment.  Health care providers shall not be required
to inform the patient or surrogate of the confirmation.