1. The Laws of New York
  2. Consolidated Laws
  3. Public Health
  4. Article 29-B: Orders Not To Resuscitate for Residents of Mental Hygiene Facilities


Section 2965 Surrogate decision-making

Public Health (PBH)

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.