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This entry was published on 2020-06-19
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SECTION 2963
Determination of capacity to make a decision regarding cardiopulmonary resuscitation
Public Health (PBH) CHAPTER 45, ARTICLE 29-B
§ 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 practitioner 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 practitioner to a reasonable degree of medical
certainty. The determination shall be made in writing and shall contain
such attending practitioner'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 practitioner 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 practitioner 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.