The family member or close friend’s decision making authority would include the authority to direct the withdrawal or withholding of life-sustaining treatment.

Before this legislation was enacted in 2010, if there was no health care agent appointed, there was usually no legal basis for a family member or friend to make health or end-of-life decisions on behalf of the patient. Instead, decisions to withdraw or withhold treatment could be made only where there was “clear and convincing evidence” of the patient’s wish to refuse such treatment. Moreover, when a patient lacked capacity, family members did not have clear authority even to consent to beneficial, desired treatment.

Applicability

The FHCDA applies to decisions in general hospitals, residential health care facilities and hospices. It does not apply to decisions for patients:

• Who have a health care agent or who have left prior treatment instructions
• Who have a court-appointed guardian for whom decisions about life-sustaining treatment may be made pursuant to OMH or OPWDD surrogate decision making regulations.

Determining Incapacity

In general, the process to determine capacity requires an initial assessment by the attending physician, and may require a concurring determination by a “health or social services practitioner,” a broader category of professionals. Special credentials for professionals are required when determining that the patient lacks capacity as a result of mental retardation or mental illness.

If the patient objects to the determination of incapacity, or to the choice of a surrogate, or to a surrogate’s decisions, the patient’s decisions prevail unless a court finds that the patient lacks capacity, or another legal basis exists for overriding the patient’s decision.

Decisions for Patients Who Lack Capacity

Who may act as a surrogate?

The law sets forth, in order of priority, the persons who may act as a surrogate decision maker for the incapable patient, as follows:

• MHL Article 81 court-appointed guardian (if there is one)
• Spouse or domestic partner
• Adult child
• Parent
• Brother or sister
• Close friend (who could be another relative)

What rights does a surrogate have?

The surrogate has the right to receive medical information and medical records necessary to make informed decisions about the patient’s health care, including diagnosis, prognosis and risks and benefits of alternative treatment options.

What authority does a surrogate have?

The surrogate has the authority to make all health care decisions for the patient that the adult patient could make for himself or herself, subject to certain standards and limitations.

When doesn’t a health care provider require surrogate consent?

Health care providers do not need a surrogate’s consent for a health care decision if the patient previously made the decision, either orally or in writing.

How does a surrogate decide?

The surrogate must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs, or, if the patient’s wishes are not reasonably known and cannot with reasonable diligence be ascertained, based on the best interests of the patient.

When does a surrogate decide to withhold or withdraw treatment?

Decisions can be made to withhold or withdraw life-sustaining treatment if treatment would be an extraordinary burden to the patient and the patient is terminally ill or permanently unconscious, or if the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or an extraordinary burden under the circumstances. Some such decisions require an ethics committee review.

Do the same standards apply to a parent or guardian of a minor?

The parent or guardian of a minor patient can make decisions about life-sustaining treatment, in accord with the same standards that apply to surrogate decisions for adults. In addition, if a minor has the capacity to decide about life-sustaining treatment, the minor’s consent is required to withhold or to stop treatment.

What if there are no available surrogates?

The law establishes a procedure for making health care decisions, other than life-sustaining treatment decisions, for adult patients who have lost decision-making capacity and have no available family member or friend to act as a surrogate.