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This entry was published on 2020-06-19
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SECTION 2994-D
Health care decisions for adult patients by surrogates
Public Health (PBH) CHAPTER 45, ARTICLE 29-CC
§ 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, nurse practitioner or physician
assistant 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, nurse practitioner or physician assistant serves as
surrogate, the physician, nurse practitioner or physician assistant
shall not act as the patient's attending practitioner after his or her
authority as surrogate begins.

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 practitioner relies on the patient's
prior decision, the physician, nurse practitioner or physician assistant
shall record the prior decision in the patient's medical record. If a
surrogate has already been designated for the patient, the attending
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
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 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 alternatives to proposed health care.

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 practitioner determines, with the independent concurrence
of another physician, nurse practitioner or physician assistant, 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
practitioner with the independent concurrence of another physician,
nurse practitioner or physician assistant 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, nurse practitioner or physician
assistant 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 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, nurse
practitioner or physician assistant 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 practitioner or in writing.