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This entry was published on 2020-06-19
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SECTION 2994-G
Health care decisions for adult patients without surrogates
Public Health (PBH) CHAPTER 45, ARTICLE 29-CC
§ 2994-g. Health care decisions for adult patients without surrogates.
1. Identifying adult patients without surrogates. Within a reasonable
time after admission as an inpatient to the hospital of each adult
patient, the hospital shall make reasonable efforts to determine if the
patient has appointed a health care agent or has a guardian, or if at
least one individual is available to serve as the patient's surrogate in
the event the patient lacks or loses decision-making capacity. With
respect to a patient who lacks capacity, if no such health care agent,
guardian or potential surrogate is identified, the hospital shall
identify, to the extent reasonably possible, the patient's wishes and
preferences, including the patient's religious and moral beliefs, about
pending health care decisions, and shall record its findings in the
patient's medical record.

2. Decision-making standards and procedures. (a) The procedures
specified in this and the following subdivisions of this section apply
to health care decisions for adult patients who would qualify for
surrogate decision-making under this article but for whom no surrogate
is reasonably available, willing or competent to act.

(b) Any health care decision made pursuant to this section shall be
made in accordance with the standards set forth in subdivision four of
section twenty-nine hundred ninety-four-d of this article and shall not
be based on the financial interests of the hospital or any other health
care provider. The specific procedures to be followed depend on whether
the decision involves routine medical treatment, major medical
treatment, or the withholding or withdrawal of life-sustaining
treatment, and the location where the treatment is provided.

3. Routine medical treatment. (a) For purposes of this subdivision,
"routine medical treatment" means any treatment, service, or procedure
to diagnose or treat an individual's physical or mental condition, such
as the administration of medication, the extraction of bodily fluids for
analysis, or dental care performed with a local anesthetic, for which
health care providers ordinarily do not seek specific consent from the
patient or authorized representative. It shall not include the long-term
provision of treatment such as ventilator support or a nasogastric tube
but shall include such treatment when provided as part of post-operative
care or in response to an acute illness and recovery is reasonably
expected within one month or less.

(b) An attending practitioner shall be authorized to decide about
routine medical treatment for an adult patient who has been determined
to lack decision-making capacity pursuant to section twenty-nine hundred
ninety-four-c of this article. Nothing in this subdivision shall require
health care providers to obtain specific consent for treatment where
specific consent is not otherwise required by law.

4. Major medical treatment. (a) For purposes of this subdivision,
"major medical treatment" means any treatment, service or procedure to
diagnose or treat an individual's physical or mental condition: (i)
where general anesthetic is used; or (ii) which involves any significant
risk; or (iii) which involves any significant invasion of bodily
integrity requiring an incision, producing substantial pain, discomfort,
debilitation or having a significant recovery period; or (iv) which
involves the use of physical restraints, as specified in regulations
promulgated by the commissioner, except in an emergency; or (v) which
involves the use of psychoactive medications, except when provided as
part of post-operative care or in response to an acute illness and
treatment is reasonably expected to be administered over a period of
forty-eight hours or less, or when provided in an emergency.

(b) A decision to provide major medical treatment, made in accordance
with the following requirements, shall be authorized for an adult
patient who has been determined to lack decision-making capacity
pursuant to section twenty-nine hundred ninety-four-c of this article.

(i) An attending practitioner shall make a recommendation in
consultation with hospital staff directly responsible for the patient's
care.

(ii) In a general hospital, at least one other physician, nurse
practitioner or physician assistant designated by the hospital must
independently determine that he or she concurs that the recommendation
is appropriate.

(iii) In a residential health care facility, and for a hospice patient
not in a general hospital, the medical director of the facility or
hospice, or a physician, nurse practitioner or physician assistant
designated by the medical director, must independently determine that he
or she concurs that the recommendation is appropriate; provided that if
the medical director is the patient's attending practitioner, a
different physician, nurse practitioner or physician assistant
designated by the residential health care facility or hospice must make
this independent determination. Any health or social services
practitioner employed by or otherwise formally affiliated with the
facility or hospice may provide a second opinion for decisions about
physical restraints made pursuant to this subdivision.

5. Decisions to withhold or withdraw life-sustaining treatment. (a) A
court of competent jurisdiction may make a decision to withhold or
withdraw life-sustaining treatment for an adult patient who has been
determined to lack decision-making capacity pursuant to section
twenty-nine hundred ninety-four-c of this article if the court finds
that the decision accords with standards for decisions for adults set
forth in subdivisions four and five of section twenty-nine hundred
ninety-four-d of this article.

(b) If the attending practitioner, with independent concurrence of a
second physician, nurse practitioner or physician assistant designated
by the hospital, determines to a reasonable degree of medical certainty
that:

(i) life-sustaining treatment offers the patient no medical benefit
because the patient will die imminently, even if the treatment is
provided; and

(ii) the provision of life-sustaining treatment would violate accepted
medical standards, then such treatment may be withdrawn or withheld from
an adult patient who has been determined to lack decision-making
capacity pursuant to section twenty-nine hundred ninety-four-c of this
article, without judicial approval. This paragraph shall not apply to
any treatment necessary to alleviate pain or discomfort.

5-a. Decisions regarding hospice care. An attending practitioner shall
be authorized to make decisions regarding hospice care and execute
appropriate documents for such decisions (including a hospice election
form) for an adult patient under this section who is hospice eligible in
accordance with the following requirements.

(a) The attending practitioner shall make decisions under this section
in consultation with staff directly responsible for the patient's care,
and shall base his or her decisions on the standards for surrogate
decisions set forth in subdivisions four and five of section twenty-nine
hundred ninety-four-d of this article;

(b) There is a concurring opinion as follows:

(i) in a general hospital, at least one other physician, nurse
practitioner or physician assistant designated by the hospital must
independently determine that he or she concurs that the recommendation
is consistent with such standards for surrogate decisions;

(ii) in a residential health care facility, the medical director of
the facility, or a physician, nurse practitioner or physician assistant
designated by the medical director, must independently determine that he
or she concurs that the recommendation is consistent with such standards
for surrogate decisions; provided that if the medical director is the
patient's attending practitioner, a different physician, nurse
practitioner or physician assistant designated by the residential health
care facility must make this independent determination; or

(iii) in settings other than a general hospital or residential health
care facility, the medical director of the hospice, or a physician
designated by the medical director, must independently determine that he
or she concurs that the recommendation is medically appropriate and
consistent with such standards for surrogate decisions; provided that if
the medical director is the patient's attending physician, a different
physician designated by the hospice must make this independent
determination; and

(c) The ethics review committee of the general hospital, residential
health care facility or hospice, as applicable, including at least one
physician, nurse practitioner or physician assistant who is not the
patient's attending practitioner, or a court of competent jurisdiction,
must review the decision and determine that it is consistent with such
standards for surrogate decisions. This requirement shall not apply to
decisions about routine medical treatment. Such decisions shall be
governed by subdivision three of this section.

6. Physician, nurse practitioner or physician assistant objection. If
a physician, nurse practitioner or physician assistant consulted for a
concurring opinion objects to an attending practitioner's recommendation
or determination made pursuant to this section, or a member of the
hospital staff directly responsible for the patient's care objects to an
attending practitioner's recommendation about major medical treatment or
treatment without medical benefit, the matter shall be referred to the
ethics review committee if it cannot be otherwise resolved.