Family Health Care Decisions Act: A Surrogate Decision-making Framework - Cona Elder Law

Family Health Care Decisions Act: A Surrogate Decision-making Framework

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Nassau County Bar Association
New York State recently passed a new public health law regarding health care decisions for individuals who lack capacity to make their own decisions and who have not appointed a health care agent to act on their behalf. The Family Health Care Decisions Act (“FHCDA”), codified under Article 29-CC of the Public Health Law and effective as of June 1, 2010, establishes a decision-making process in which a surrogate1 is selected and authorized to make health care decisions for such a patient. This article highlights critical aspects of the new law.2
Priority of Decision
A Health Care Agent appointed under a Health Care Proxy has decision-making priority under existing law before looking to the new Family Health Care Decisions Act (“FHCDA”). Health care providers are required to make reasonable efforts to determine if there is an appointed health care agent and to contact that agent before looking to the FHCDA and relying on a decision made by a surrogate.
Determination of Incapacity
A determination that an adult patient lacks decision-making capacity must be made by an attending physician. The physician must determine, to a reasonable degree of certainty, that: 1) the patient lacks decision-making capacity; 2) the cause and extent of the incapacity; and 3) the likelihood that the patient will regain decision-making capacity. If the patient is in a Residential Health Care Facility (“RHCF”), in addition to the attending physician’s determination, a health or social services practitioner must also independently determine whether the patient lacks decision-making capacity. If the patient is in a hospital, in addition to the attending physician’s determination, a health or social services practitioner must independently determine whether the patient lacks decision-making capacity only if the surrogate’s decision concerns the withdrawal or withholding of life-sustaining treatment. In either case, if there is a disagreement between the attending physician and the independent determination of incapacity, the matter must be referred to the Ethics Review Committee if it cannot be resolved.
Under the FHCDA, notice that a surrogate will make a health care decision must be promptly given to the patient and at least one person on the surrogate priority list, (which is described below) in the highest order of priority.
A determination of incapacity under the FHCDA is for health care decision/surrogate appointment purposes only under this law. Such determination is not to be construed as a finding that the patient lacks capacity for any other purpose.
A patient’s own expressed wishes will continue to have priority. A patient can object: 1) to the determination that s/he lacks decision-making capacity; 2) to the choice of surrogate; or 3) to the health care decision made by the surrogate. The patient’s objection will prevail unless a court has determined that the patient lacks decision-making capacity or the patient has been adjudicated incompetent.
The determination of a lack of decision-making capacity is intended to govern only that one health care decision. A continued lack of decision-making capacity must be confirmed by an attending physician for any subsequent medical issues and/or decisions. Further, an independent determination of a continued lack of decision-making capacity must be made if subsequent decisions concern the withholding or withdrawal of life-sustaining treatment.
Priority of Surrogate Decision Makers 
The FHCDA sets forth a priority order of decision-makers as follows:
1. A Legal Guardian appointed under Article 81 of the Mental Hygiene Law.
2. A person 18 years or older designated orally by the patient if made in the presence of two adult witnesses (which may be employees of or affiliated with the facility at which the patient is receiving treatment but who cannot be designated as the surrogate) and those witnesses affirm that the patient reasonably ap­peared to have decision-making capacity to make such a designation. The orally designated person can be further down on the priority list provided a higher-priority person does not object.
3. A person 18 years or older designated by a person of higher priority on the list provided no other person in a higher priority position objects.
4. A spouse3 or domestic partner
5. A son or daughter over the age of 18
6. A parent
7. A brother or sister over the age of 18
8. A close relative or close friend
Restrictions on Who May Be a Surrogate 
An operator, administrator or employee of a hospital/RHCF or a physician who has privileges at the hospital or a health care provider under contract with the hospital may not serve as the surrogate for a patient at such hospital unless such individual is related to the patient by blood, marriage, adoption or is a close friend whose friendship preceded the patient’s admission to the facility. If a physician serves as the surrogate, he/she may no longer act as that patient’s attending physician.
Scope of Authority
The surrogate will have authority to make any and all health care decisions that the patient could make. However, health care providers are not obligated to seek the consent of the surrogate if the patient has already made a decision about the proposed health care, either orally or in writing, including decisions regarding withdrawing or withholding life-sustaining treatment.
If an attending physician relies on a patient’s prior decision, the physician must record that prior decision in the patient’s medical record. If a surrogate has already been designated to make decisions, the attending physician will make reasonable efforts to notify the surrogate prior to implementing the decision.
Commencement of the Surrogate’s Authority 
The authority of a surrogate commences upon the determination that the patient lacks decision-making capacity. If a patient regains decision-making capacity (as determined by a physician), the authority of the surrogate will cease.
Right to Be Informed
The surrogate has the right to receive medical information and medical records necessary to make informed decisions about the patient’s health care. Health care providers are to provide to the surrogate information necessary to make an informed decision, including information regarding the patient’s diagnosis, prognosis, the nature and consequences of the proposed health care, the benefits and risks of and alternatives to the proposed health care.
Life Sustaining Treatment
Decisions to withhold or withdraw life-sustaining treatment can only be made by the surrogate if it is determined that treatment would be an extraordinary burden to the patient and an attending physician determines, with the concurrence of another physician, that, to a reasonable degree of certainty, the patient has an illness or injury which can be expected to cause death within 6 months (whether or not the treatment is provided) OR the patient is permanently unconscious OR the provision of treatment would involve such pain or suffering that it would be reasonably deemed inhumane or extraordinarily burdensome AND the patient has an irreversible or incurable condition, as determined by the attending physician with the concurrence of another physician to a reasonable degree of medical certainty.
In a Residential Health Care Facility, a surrogate will have authority to refuse life-sustaining treatment only if the Ethics Review Committee reviews and approves the decision. This does not include the decision to withhold CPR. Further, providing nutrition and hydration orally, without reliance on medical treatment, is not “health care” under this law. It should be noted that specific rules govern life-sustaining treatment decisions for minor patients and patients with mental retardation.
Obligations of Attending Physician Regarding Life Sustaining Treatment 
In the event a decision is made to withdraw or withhold life-sustaining treatment, an attending physician must:
1. Record the decision in the patient’s medical record
2. Review the medical basis for the decision and either:
a) implement the decision OR
b) promptly make an objection known to the decision-maker and either arrange for the transfer of the patient to another physician or refer the matter to the Ethics Review Committee.If an attending physician has actual notice of the following objections or disagreements, he/she must promptly refer the matter to the Ethics Review Committee if the objection or disagreement cannot be resolved:
1. An independent practitioner disagrees with the attending physician that the patient lacks decision-making capacity.
2. Any person on the surrogate list objects to the designation of the surrogate.
3. Any person on the surrogate list objects to a surrogate’s decision.
4. A parent or guardian of a minor objects to the decision of another parent or guardian of the minor.
5. A minor patient refuses life-sustaining treatment and the parent or guardian wishes the treatment to be provided or the minor patient objects to the attending physician’s determination regarding his/her decision-making capacity or recommendation regarding life-sustaining treatment.If a surrogate directs the provision of life-sustaining treatment and a hospital or health care provider does not wish to provide such treatment, the hospital or health care provider must nonetheless comply with the surrogate’s decision pending transfer to another hospital or health care provider or judicial review.
Decisions for Patients Without Surrogates A hospital/RHCF has a duty, within a reasonable time after admission, to determine if the patient has a Health Care Agent or if at least one individual is available to serve as a surrogate in the event the patient loses decision-making capacity. If no such potential surrogate is identified, the hospital/RHCF must identify, to the extent reasonably possible, the patient’s wishes and preferences, including religious and moral beliefs, regarding the pending health care decisions, and record such findings in the patient’s medical record.
Routine Medical Treatment An attending physician is authorized to make decisions regarding routine medical treatment in the absence of a surrogate. “Routine Medical Treatment” is defined to include treatment, services or procedures to diagnose or treat a physical or mental condition, such as administration of medication, extraction of bodily fluids for analysis and dental care performed with a local anesthetic. Routine medical treatment does NOT include ventilator support or nasogastric tubes unless such treatment is provided as part of post-operative care or in response to an acute illness and recovery is reasonably expected within one month or less.
Major Medical Treatment An attending physician is authorized to make a recommendation regarding major medical treatment in the absence of a surrogate upon consultation with hospital/RHCF staff. “Major medical treatment” is defined to include treatment, services or procedures to diagnose or treat a physical or mental condition in which a general anesthetic is used, OR which involves significant risk, OR which involves significant invasion of bodily integrity requiring an incision, producing substantial pain, discomfort, debilitation or having a significant recovery period, OR which involves the use of physical restraints (except in an emergency), OR which involves the use of psychoactive medications, except as provided as part of post-operative care or in response to an acute illness and treatment is reasonably expected to be administered for 48-hours or less or when provided in an emergency.
In a hospital setting, in addition to the attending physician, one other independent physician recommendation is required for major medical treatment decisions. In a residential health care facility, in addition to the attending physician, an independent determination by the medical director (or a physician designated by the medical director) that the recommendation is appropriate is required for major medical treatment decisions. If the medical director is the patient’s attending physician, a different physician designated by the RHCF must make the independent determination. A health or social services practitioner may provide a second opinion regarding the use of restraints. Withholding or Withdrawal of Life Sustaining Treatment in the Absence of a Surrogate In the case in which the patient does not have an agent or a surrogate under the new law and a decision must be made as to the withholding or withdrawal of life sustaining treatment, a guardianship proceeding may still be required as a court of competent jurisdiction continues to be empowered to make such determinations. The FHCDA provides that such decision can also be made by an attending physician, along with the independent concurrence of a second physician designated by the hospital/RHCF, upon a determination to a reasonable degree of certainty that life-sustaining treatment offers no medical benefit because the patient will die imminently, whether or not the treatment is provided and the provision of life-sustaining treatment would violate accepted medical standards. However, this will not apply to treatment necessary to alleviate pain or discomfort.
If a physician consulted for a concurring opinion or a member of the hospital/RHCF staff objects to the attending physician’s determination or recommendation regarding major medical treatment, the matter must be referred to the Ethics Review Committee if it cannot be resolved.
DNRs 
A “Do Not Resuscitate” (“DNR”) order must be written in the patient’s medical record. Under the FHCDA, consent to a DNR will not constitute consent to withhold or withdraw treatment other than CPR.
Revocation of Consent 
A patient, surrogate, or parent/guardian of a minor may at any time revoke consent to withhold or withdraw life-sustaining treatment by informing an attending physician or a member of the medical or nursing staff. An attending physician informed of a revocation must: 1) record the revocation in the patient’s medical record; 2) cancel any orders to withdraw or withhold treatment; and 3) notify the hospital staff directly responsible for the patient’s care of the revocation. Any member of the medical or nursing staff informed of a revocation must immediately notify the attending physician.
Implementation and Review of Decisions
Hospitals/RHCFs are directed to adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment. Hospitals/RHCFs must also develop policies regarding documentation of clinical determinations and decisions made by surrogates.
Interinstitutional Transfers
If a patient with an order to withhold or withdraw life-sustaining treatment is transferred from a mental hygiene facility or from one hospital/RHCF to another, the order will remain effective until an attending physician examines the patient and either issues orders to continue the prior plan OR cancel the order if the attending physician determines that the order is no longer appropriate or authorized. The physician must make reasonable efforts to notify the person who made the decision to withdraw or withhold treatment prior to cancelling the order.
Ethics Review Committee
Every hospital must establish at least one Ethics Review Committee or participate in an Ethics Review Committee that serves more than one hospital/RHCF and must adopt a written policy governing the committee’s functions, composition and procedures. The Ethics Review Committee may provide advice on the ethical aspects of proposed health care, make recommendations as to proposed care and resolve disputes regarding proposed care. Ethics Review Committee members and consultants will have access to medical information and medical records necessary to perform their functions.
Limitation on Private Hospitals and RHCFs 
A private hospital/RHCF cannot be required to honor a health care decision if the decision is contrary to the formally adopted religious beliefs or moral convictions central to the facility’s operating principles provided the facility has informed the patient, family or surrogate of such policy prior to or upon admission, if reasonably possible, and the patient is transferred promptly to another facility. Similarly, an individual health care provider cannot be required to honor a health care decision if the decision is contrary to the individual’s religious beliefs or moral convictions provided the individual health care provider promptly informs the person who made the decision and the facility of his/her refusal to honor the decision. The facility must then transfer responsibility for the patient to another individual health care provider willing to honor the decision.
While the FHCDA is intended to fill the gap regarding patients who lack decision-making capacity but have not appointed an agent to make health care decisions on their behalf, the new law is quite complex and burdensome. Individuals, families and health care facilities will each be far better served if the populace has properly executed Health Care Proxies and Living Wills in place.
Jennifer B. Cona, Esq. is the managing partner of the Melville Elder Law firm Genser Dubow Genser & Cona, LLP and heads the firm’s Health Care Facility Representation practice group.
1. “Surrogate” is the term used under the FHCDA to refer to the person selected to make health care decisions on behalf of a patient.
2. This article is not intended to be exhaustive and does not cover all aspects of the new law.
3. Provided the couple is not legally separated.

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.

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