Robert N. Swidler, Esq., General Counsel, Northeast Health,
Troy NY (FAQ Page Editor)
Editorial Board members were jointly appointed by the Chair of the
NYS Bar Association Health Law Section and Editor of the NYS Bar
Association Health Law Journal. Every entry has been reviewed and
approved by at least three Editorial Board Members (in addition to the
author of the entry).
Readers can propose FAQs or answers or both, or critique answers,
through the FHCDA Listserve. See www.nysba.org/fhcda.
FAQ answers reflect the personal viewpoints of the Editorial Board
members who approved those items. They are not the official position of
NYSBA, or any governmental entity, or the organizations that the
Editorial Board members are affiliated with. FAQ answers are
offered for the independent and critical consideration by the reader,
and should not be regarded as legal advice.
The first set of Q&A's were posted the first week of June
2010. Q&A's that were later added or revised are
I. Definitions (§ 2994-a)
II. Applicability; priority of certain other
surrogate decision-making laws and regulations.
III. Determination of incapacity
IV. Health care decisions for adult patients by
surrogates (§ 2994-d)
A. Identifying the surrogate
B. Authority of surrogate
C. Prior decision of adult patient
D. Decision-making standard
V. Health care decisions for minor
VI. Health care decisions for adult patients
without surrogates. (§2994-g)
VII. DNR Orders (PHL §
VIII. Implementation and review of decisions.
IX. Interinstitutional transfers (§
X. Ethics review committees (§
XI. Rights to be publicized
XII. Nonhospital DNR Orders (Chapter 8,
XIII. Orders Not to Resuscitate for Residents
of Mental Hygiene Facilities (Chapter 8, §22)
XIV. Health Care Proxy Law (Chapter 8,
XV. MHL Article 81 Guardianship Law (Chapter 8,
XVI. SCPA §1750-b Guardianship (The Health
Care Decisions Act for Mentally Retarded
Persons) (Chapter 8, §§23-24)
XVII. Model hospital and nursing home FHCDA policies
and forms; MOLST
Definitions (PHL § 2994-a)
1. Q – Adult - The FHCDA defines "Adult" to mean
"any person who is eighteen years of age or older or has married," but
the Health Care Proxy Law and other laws also regard a person as an
adult if the person is the parent of a child. Why is the FHCDA
definition of adult different?
A – The Task Force that developed the FHCDA proposal
reasoned that just because a minor -- perhaps even a 13 or 14 year old
-- is the mother or father of a child, does not mean that the minor has
the capacity or maturity to decide on their own about whether to forgo
life-sustaining treatment. Accordingly, the FHCDA does not treat a minor
parent as an "adult", but rather as an "emancipated minor." As such, the
minor can consent to treatment on par with an adult, but a decision to
forgo life-sustaining treatment would require approval of an Ethics
Review Committee. (REVISED September 8, 2010).
2. Q - Attending physician – Can a resident be an "attending
physician" for purposes of the FHCDA?
A. Neither the Department of Health nor the State Education
Department have addressed this. But it seems likely that a resident
practicing under a limited permit (Ed. Law §6526) can act as an
attending physician for FHCDA purposes. It seems less likely that a
resident or intern practicing under a licensing exemption (Ed. Law
§6528) can act as an attending physician for FHCDA purposes. (ADDED
September 8, 2010)
3. Q – Close friend - How does the FHCDA
definition differ from the definition in the former DNR Law?
A – The FHCDA simply requires the close friend to sign a
statement; the former DNR Law required the close friend to sign an
affidavit (i.e. a statement sworn before a notary). Also the FHCDA
makes it clear that the term could include a relative who is not close
enough to be on the surrogate list.
4. Q – Domestic partner - Where did the
definition of "domestic partner" come from?
A – It is substantially similar to the definition that is
in PHL 4201, which gives the domestic partner of a deceased person the
right to make decisions regarding disposition of the deceased person's
5. Q – Health care - The definition says that
"Providing nutrition or hydration orally, without reliance on medical
treatment, is not health care under this article and is not subject to
this article." What does "Providing nutrition or hydration orally,
without reliance on medical treatment" refer to, and what is the purpose
of the phrase?
A – The phrase "providing nutrition or hydration orally,
without reliance on medical treatment" simply refers to feeding a
patient, i.e., giving the patient food or drink to swallow. So the
FHCDA applies to surrogate decisions regarding the provision of
nutrition and hydration by tubes placed in the patient's nose, stomach,
intestines or arms; but it does not apply to decisions regarding giving
a patient food or drink to swallow.
6. Q – Health or social service practitioner
– This definition includes certain licensed health care
professionals (i.e., a registered professional nurse, nurse
practitioner, physician, physician assistant, psychologist or licensed
clinical social worker) but only if the professional is "acting within
his or her scope of practice." A later section says that such
professionals can provide the required concurring determination
regarding a patient's decisional capacity. Is that determination within
the scope of practice of such professionals?
A – The State Education Department Office of Professions,
in an informal response to this question from the Department of Health,
indicated any registered professional nurse, nurse practitioner,
psychologist or licensed clinical social worker can concur (or not
concur) with an attending physician's capacity determination within
their scope of practice. DOH has not yet issued a statement
regarding the scope of practice for physician assistant. Note that
hospitals and nursing homes must adopt written policies identifying the
training and credentials of health or social services practitioners
qualified to provide concurring determinations in their
facilities. Also, just because something is within the scope of
practice, the practitioner is not necessarily competent to do
7. Q – Life-sustaining Treatment – Why does
the FHCDA definition of life-sustaining treatment include the statement
that "For the purpose of this article, cardiopulmonary resuscitation is
presumed to be life-sustaining treatment without the necessity of a
determination by an attending physician."?
A – The FHCDA allows a surrogate to make decisions about
the withholding or withdrawal of life-sustaining treatment. The
statement about resuscitation makes it clear that such authority
includes the authority to make decisions about the withholding or
withdrawal of resuscitation – that is, to consent to a
Applicability; priority of certain other surrogate
decision-making laws and regulations. (PHL §
1. Q – Why does the FHCDA apply only in hospitals
and nursing homes?
A – The Legislature wanted to introduce this law in
institutional settings where there would be greater oversight and
safeguards. However, it recognized that there is a need to authorize
surrogate decision-making in other settings as well (e.g., PHL Article
40 hospice, ambulatory surgery centers, clinics, doctor and dentist
offices, home care, etc.). It therefore directed the Task Force on Life
and the Law to study extending the FHCDA to other settings and to make
recommendations. See NY Laws of 2010, Ch. 8 Section 28.1.
2. Q – Would the FHCDA apply in an off-campus clinic
operated by a hospital?
A - Yes. An "extension clinic" is considered part of the general
hospital. (ADDED September 8, 2010)
3. Q - What is a court-appointed guardian under
Surrogate's Court Procedure Act (SCPA) Article 17-A and why does the
FHCDA not apply to persons who have such guardian?
A – SCPA Article 17-A creates a process for the court
appointment of a guardian for an adult with mental retardation or with
developmental disabilities that cause similar intellectual
impairments. Such guardian has the authority to make health care
decisions, including decisions about life-sustaining treatment, under
rules and principles set forth in that article. There was
considerable debate about whether the FHCDA should replace SCPA 17-A
decision-making rules and principles, and directing the guardian to
follow the FHCDA rules. The Legislature decided to let SCPA Article 17-A
rules and principles continue to apply for now, but it directed the Task
Force on Life and the Law to form a subcommittee to study the matter
4. Q - What is SCPA §1750-b, and why does the
FHCDA not apply to persons described in that section for decisions to
withdrawal life-sustaining treatment?
A – SCPA §1750-b is a section in SCPA Article 17-A
that allows a family member, close friend, or surrogate decision-making
panel, without being appointed as guardian by the court, to make a
decision about life-sustaining treatment for a person with mental
retardation or a similar developmental disability who meets certain
While there was debate whether SCPA §1750-b or the FHCDA should
apply to such decisions, the Legislature decided to let SCPA Article
§1750-b continue to apply. However, it directed the Task Force on
Life and the Law to form a subcommittee to recommend whether the FHCDA
rather than SCPA §1750-b should apply to such persons.
5. Q - The FHDCA says that it does not apply when
consent to treatment is governed by "the mental hygiene law or
regulations of the office of mental health or the office of mental
retardation and developmental disabilities OMRDD or OMH regulations"
What are those laws and regulations, and when would they ever apply to a
hospital or nursing home patient?
A -- First, OMRDD recently changed its name to the Office for Persons
with Developmental Disabilities. OPWDD regulations (14 NYCRR
§633.11) govern surrogate consent to treatment for residents of
OPWDD- operated and licensed facilities. Such regulations would continue
to be applicable to a person who was removed to a general hospital or
nursing home for treatment, but not discharged from such OPWDD-operated
or licensed facility.
OMH regulations (14 NYCRR §27.9 and §527.8) govern
surrogate consent to treatment and objection to treatment for patients
of OMH-operated and licensed psychiatric hospitals and hospital units.
Such regulations would continue to be applicable to person who was
removed to a general hospital or nursing home for treatment, but not
discharged from such OMH operated or licensed psychiatric hospital or
In contrast, with respect to a person who was admitted to a hospital
or nursing home from an OMH-licensed community residence, consent or
objection to treatment would be based on the same principles that would
apply to any other hospital patient. So if the patient lacked
decisionmaking capacity and did not have a health care agent, the FHCDA
would govern decisions for the patient. (REVISED September 8, 2010)
6. Q - What role does a Mental Hygiene Law Article 80
Surrogate Decision Making Committee (SDMC) have now that the FHCDA
authorizes surrogate decision-making for hospital and nursing home
A - MHL Article 80 and 14 NYCRR Part 710 authorizes a local
SDMC to make treatment decisions for persons with mental disabilities
who reside or once resided in an OMRDD, OMH or OASAS facility, or who
receive or once received certain OMRDD services, and do not have a
family member to make such decisions.
SPCA §1750-b makes the SDMC the decision-maker of last
resort for persons with mental retardation and certain other
developmental disabilities for purposes of life-sustaining treatment
decisions. As a result, the SDMC is the surrogate of last resort
for decisions to withdraw or withhold life-sustaining treatment for
hospital or nursing home patients with mental retardation and certain
other development disabilities.
OMRDD surrogate decision-making regulations make the SDMC the
surrogate of last resort for residents of OMRDD facilities. As a
result, the SDMC is also the surrogate of last resort for decisions to
consent to treatment for those hospital or nursing home patients for
whom OMRDD surrogate decision-making regulations apply.
In addition, SDMC is available, but optional, to provide consent to
treatment for decisions in a hospital or nursing home for an eligible
person when OMRDD regulations and SCPA §1750-b do not apply.
Finally, the SDMC continues to have the same role that it currently
has for treatments provided outside of a hospital or nursing home, for
Under 14 NYCRR Part 710, a SDMC for a person with mental illness can
refuse major medical treatment. In some cases, this would be
withholding life-sustaining treatment.
7. Q - It is very difficult to identify which surrogate
decision-making law applies to hospital or nursing home patients who
have developmental disabilities or mental illness. Is there a
chart that summarizes this, perhaps with examples?
A - Yes. See the document "Surrogate Decision-Making for
Patients With Mental Disabilities: A Chart of Applicable Laws and
Regulations", which is linked to the FHCDA Information Center
Determination of incapacity (§2994-c)
1. Q - Why does this section require the attending
physician to "confirm the adult patient's continued lack of
decision-making capacity before complying with health care decisions
made pursuant to this article, other than those decisions made at or
about the time of the initial determination," what does "confirm" mean,
and what does "at or about the time of the initial determination"
A - A patient's ability to make decisions may fluctuate from
day to day, and a patient may be capable of making some decisions and
not others. Accordingly the FHCDA requires the physician to
"confirm" the continued lack of capacity, if a surrogate continues to
make decisions on the patient's behalf.
The FHCDA does not impose any standards with respect to confirming
incapacity or specify how the determination should be made.
Presumably, the determination will require reasonable steps under the
circumstances: for a patient who has been in a coma, or who has advanced
dementia, it may be as simple as a notation, "incapacity confirmed." For
a patient whose capacity has been more fluid, the physician should rely
upon his or her judgment about the steps needed to confirm incapacity,
and document the basis for the confirmation in the medical record.
"At or about the time" is a necessarily imprecise term,
and allows the attending physician to exercise judgment about
whether the last determination of incapacity was recent enough to be
2. Q - While the FHCDA allows a concurring
determination of incapacity to be made by a health or social services
practitioner, the Health Care Proxy Law seems to still requires that a
physician provide the concurring determination. Is that correct,
and is there a reason for it?
A - That is correct, and while there might be some rationale
for the difference (e.g., the FHCDA has other safeguards that the proxy
law does not) it seems that this is an instance where the proxy law
should be amended to "catch up" with the FHCDA standard for concurring
3. Q - Can the physicians make a determination of
capacity, without personally examining the patient, e.g., over the
A - Unlike the prior DNR Law, the FHCDA no longer contains a
"personal examination" requirement. As a result the
physician only needs to comply with the applicable professional standard
of care. In most instances, that would require a personal
examination, but in limited circumstances it might not, such as when the
patient lacks capacity as a result of being unconscious.
care decisions for adult patients by surrogates (§
A. Identifying the surrogate
1. Q - Is the "surrogate" a court appointed
A - No. It is a person in the highest category on the
surrogate list who is available, willing and competent to make decisions
for the incapable patient, and is identified when there is no health
2. Q - The highest priority is "A guardian authorized to
decide about health care" pursuant to MHL Article 81. Does
that include a guardian appointed prior to the date the FHCDA became
A - The FHCDA is not explicit about this, but the answer in all
likelihood is yes.
3. Q - When the highest category is an adult son or
daughter, and there is more than one such person, are they all
surrogates? If not, then who chooses the surrogate, and on what
A - The FHCDA states that "one person" from the list is the
surrogate. While the FHCDA does not specify who identifies the surrogate
when more than one person is in the highest category, it necessarily
will be the responsibility of the hospital or nursing home to identify
the surrogate. In most cases, this should be resolved without
difficulty – usually the adult sons and daughters can agree upon
the surrogate. In other cases it will be apparent to the hospital
staff that one of the patient's adult children is best able to speak of
the patient's previous wishes and, if the patient's wishes are not
known, the patient's best interests. If there is a dispute,
efforts should be made to resolve it informally if possible (e.g.,
through team meetings, ethics consultation or mediation or the hospital
ethics process) or else the matter should be referred to the Ethics
Review Committee. (REVISED September 8, 2010)
4. Q - What if someone lower down on the surrogate list
objects to the decision of the surrogate, how would the hospital
respond? For example, would the hospital
withdraw treatment from a patient despite objections
by the adult child because a domestic partner is higher in priority than
the adult child?
A - The hospital should first try to resolve the dispute
informally. If it cannot be resolved informally, the hospital
should refer the matter to the Ethics Review Committee. If the
higher priority person insists upon the provision of life-sustaining
treatment, the hospital cannot discontinue such treatment without a
court order. In such proceeding, the court will consider whether
the surrogate is meeting his or her obligation to make health care
decisions in accordance with 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, in accordance with the patient's best interests.
If the surrogate directs the withdrawal or withholding of treatment
but a lower priority person insists upon the provision of treatment, the
hospital generally should seek judicial review before withdrawing or
withholding treatment, although it does not have a legal obligation to
do so. If the hospital decides to withdraw the treatment in such
circumstance, the hospital should notify the objecting person so that
such person could seek judicial review if they were inclined to do
so. In such proceeding, the court will consider the
same issue described above: whether the surrogate met his or her
obligation to make a decision based on the patient's wishes if known, or
else best interests. (REVISED September 8, 2010)
5. Q – Would the following persons be considered
a brother or sister for purposes of the FHCDA surrogate list: A
half-brother or half-sister? A step-brother or step-sister?
A brother or sister by adoption? Would a full brother or sister
have priority over a half-brother or half-sister?
A – A half brother or half sister would be considered a brother
or sister. A step-brother or step-sister would not be considered a
brother or sister. A brother or sister by adoption would be considered a
brother or sister. (REVISED September 8, 2010)
6. Q - Would the following persons be considered a son
or daughter: A step-son or daughter? An adopted son or
A - A step-son or step-daughter would not be considered a son
or daughter, unless the step-son or step-daughter were adopted. An
adopted son or daughter would be considered a son or daughter.
(REVISED September 8, 2010)
7. Q - What is the role of
the designated representative (NYCRR 415.10) in a nursing
home? Is the designated representative and surrogate
one and the same?
A - The designated representative is a person (or persons)
designated in accordance with 10 NYCRR 415.2(f) to exercise certain
rights on behalf of a nursing home resident who lacks capacity. A
person does not have authority to make health care decisions for a
resident by virtue of being a designated representative. A
surrogate is the person identified in accordance with the FHCDA to make
health care decisions for a resident who lacks capacity. The
designated representative and the surrogate will in many cases be the
same individual, but they are not necessarily the same individual.
Authority of surrogate
1. Q - Can the surrogate consent on behalf of a patient
to an HIV test under PHL § 2781 be obtained under
A - Yes.
2. Q - Can a surrogate consent to experimental
A - Yes, although if the treatment is part of a study,
and therefore constitutes human subject research, other considerations
apply (see below).
3. Q - Can the surrogate consent to enrolling the
patient in federally-regulated human subject research?
A - Federal human subject research regulations allow consent
for incapable patients to be enrolled in research protocols to be given
by a "Legally Authorized Representative. " That term is defined in 45
CFR §46.102 to include a person "authorized under applicable law to
consent on behalf of a prospective subject to the subject's
participation in the procedure(s) involved in the research. Thus
the FHCDA would appear to give the surrogate such authority in many
cases, although the scope of that authority is
4. Q - Is the surrogate the "personal representative"
of the patient under 45 CFR § 164.502(g)(1)
A - Yes, just as a health care agent under a health care proxy
is. If the patient lacks capacity, and the surrogate is empowered
to make health care decisions, then the surrogate is the "personal
representative" under HIPAA.
5. Q - Is the surrogate a "qualified person" under PHL
A - No, not necessarily. But the surrogate has a right
and duty to be informed about the patient's medical condition,
prognosis, diagnosis and the alternatives to the proposed treatment as
specified under FHCDA (PHL § 2994-d(3)(c)).
6. Q – Does a surrogate's decision remain
valid even after the patient is discharged from the hospital or nursing
A – The FHCDA states that it applies only to decisions
regarding health care "provided in a hospital ." PHL 2994-b.1.
(The term "hospital" is defined to include nursing homes as
well). But it would be reasonable to read the FHCDA as
governing decisions regarding care that is initially provided in the
hospital, but continues after discharge pursuant to the same
consent. Thus a surrogate could consent on behalf a
hospital patient to a course of chemotherapy that begins during
hospitalization. Or a surrogate could consent on behalf of a
hospital patient to elect hospice, with such hospice services continuing
Also, medical orders issued on the DOH-5003 or DOH-3474 forms do not
have to be re-issued in hospice, but if the hospital or nursing home
uses another form, medical orders to withhold life-sustaining treatment
must be re-issued in hospice. (REVISED September 8, 2010).
7. Q – Can a surrogate consent to the patient's discharge
from a hospital, and admission to a post-acute care facility or
A – The FHCDA authorizes only surrogate decisions regarding
health care "provided in a hospital" or nursing home. That would clearly
include the decisions regarding admission to and discharge from a
hospital or nursing home. But the FHCDA would appear not to govern
decisions to admit a patient into other post-acute facilities or
programs such as home care or assisted living. Even so, such facilities
and programs should be no less willing to accept admission and financial
decisions by family members than they were before the FHCDA was enacted.
(ADDED September 8, 2010).
8. Q - Can a surrogate direct the discharge of a
patient against medical advice?
A - The surrogate can make any decision that the patient, if
capable could have made, which could include leaving against medical
advice. However, the surrogate is obligated to make decisions
based on the patient's wishes if known, or else the patient's best
interests. So a provider could seek to block a surrogate's
decision to remove a patient if the decision was inconsistent with that
standard. Moreover, if the discharge involved the withdrawal or
withholding of life-sustaining treatment, the provider could also oppose
the discharge if the decision did not meet the criteria for the
withdrawal or withholding of treatment.
9. Q - Can a surrogate consent to donation of a
patient's organ's after death?
A - No, not by virtue of being surrogate. Consent to
organ donation is governed by the state's Uniform Anatomical Gift Act,
not the FHCDA. But the UAGA has a decision maker list
similar to that in the FHCDA.
10. Q - Does the FHCDA give the surrogate access to the
patient's medical record?
A - Yes. The FHCDA gives the surrogate "the right to
receive medical information and medical records necessary to make
informed decisions about the patient's health care." Like a health care
agent, the surrogate has this right only after it has been determined
that the patient lacks capacity and the surrogate's authority to make
health care decisions has commenced.
11. Q – Can a surrogate apply for Medicaid on behalf of an
A – Yes. Federal Medicaid regulations allow a written
application from "the applicant, an authorized representative, or, if
the applicant is incompetent or incapacitated, someone acting
responsibly for the applicant." 42 CFR § 435.907(a). This would
seem to include a FHCDA surrogate. (ADDED September 8, 2010).
decision of adult patient
1. Q - What is the purpose of the "prior decision"
clause – the provision that states as follows?
(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.
A - The FHCDA was not intended to impose
surrogate-decision-making upon patients who, prior to losing capacity,
made their own decision about treatment. Accordingly, the FHCDA
provides that there is no need to seek a surrogate decision if the
patient made a prior oral or written decision consenting to a
However, there were concerns about an attending physician withdrawing
or withholding life-sustaining treatment without a surrogate decision
based only upon information that the patient had at one time verbally
stated a wish to forgo such treatment. Accordingly, the FHCDA provides
that there is no need to seek a surrogate decision regarding the
withdrawal or withholding of life-sustaining treatment only if the
patient's prior decision to forgo life-sustaining treatment was made
either (i) orally, during hospitalization, and witnessed by two persons,
including one health or social services care practitioner, or (ii) in
In cases that do not meet this requirement – i.e., where the
patient's oral statements were made prior to hospitalization or nursing
home admission or without witnesses -- a surrogate would make the
decision. But the surrogate would still be bound to make a decision in
accord with what the patient would have chosen.
Note that when a patient arrives at the hospital with a non-hospital
DNR order, or a DNR order from another facility, special rules apply.
See Q&A#3 below. (REVISED September 8, 2010).
2. Q - What sort of writings and oral statements would
suffice, and what sort would not?
A. A patient's prior written or oral consent to the
provision of treatment should be adequate to rely upon without seeking a
surrogate decision if it reasonably evidences that consent.
However, a prior oral or written decision to withdraw or withhold
life-sustaining treatment should be sufficiently specific to have
met the "clear and convincing evidence" standard before it may be relied
upon without seeking a surrogate decision, inasmuch as the clause was
not ntended to change pre-FHCDA reliability standards for prior
decisions by the patient himself or herself. This
means that the decision must clearly apply to both the life-sustaining
treatment under consideration and the medical circumstances, e.g.,
3. Q - If a patient is admitted to a hospital with a non-hospital
DNR order (including a MOLST form), or with a DNR order that was entered
at another facility, can that be honored even if the patient had
consented to it prior to the current hospitalization?
A - Yes. The provisions governing non-hospital DNR orders and
inter-institutional transfers obligate the hospital to honor such
orders. Hospital emergency services personnel may disregard a
nonhospital order not to resuscitate if they believe in good faith that
consent to the order has been revoked, or that the order has been
cancelled; or if family members or others on the scene (other than such
personnel) object to the order and physical confrontation appears
likely; and hospital emergency services physicians may direct that the
nonhospital order not to resuscitate be disregarded if other significant
and exceptional medical circumstances warrant disregarding the order. If
the patient is admitted, the medical orders to withhold life-sustaining
treatment remain effective until an attending physician examines the
patient, whereupon the attending physician must continue the orders,
unless the physician determines that the order is no longer appropriate
or authorized. (ADDED September 8, 2010).
4. Q - The FHCDA makes little mention of advance
directives. What is the role of a patient's advance directives in this
A - As discussed above, a living will, less formal
documents and/or oral statements by a patient could provide the basis
for the withdrawal or withholding of life-sustaining treatment under the
Prior Decision clause, provided it addressesd the treatment decision at
issue. In addition, while such advance directives might not
qualify as a prior decision, they could still provide sufficient
evidence of a patient's wishes for a surrogate (or on the case of a
patient without a surrogate for the hospital or nursing home) to act
based on the patient's known wishes. A health care proxy would still
empower a health care agent to make decisions for the patient under the
Health Care Proxy Law, and enable the patient to choose the person who
will decide about treatment.
5. Q – If a now-incapable patient who has lost capacity left
an advance directive, or had made a prior oral statement, that clearly
established the patient's desire to not have a certain treatment, can a
surrogate still require that the treatment be continued?
A – The short, general answer is that the hospital and
attending physician are obligated to honor this patient's clear wishes,
although they may opt to seek judicial review before implementing the
decision. But this is a sensitive question, and different facts may
require different guidance.
The FHCDA provides that when a surrogate directs the provision of
life-sustaining treatment, a hospital or physician that "does not wish
to provide treatment," must nonetheless comply with the surrogate's
decision pending either transfer of the patient to a willing hospital or
individual health care provider, or judicial review. PHL §
2994-f.3. But such clause would not seem to be applicable to this case,
for at least three reasons: First, the plain language of the clause
relates to cases where it is the hospital or physician that does not
wish to provide treatment; it should not be read to apply to cases where
it is the patient who does not want the treatment. Second, when there is
a clear prior decision by the patient, there is no need to designate a
"surrogate," and thus there is no surrogate to invoke 2994-f.3. Third,
applying the clause to this case might violate a patient's
constitutional right to reject unwanted treatment.
In sum, the hospital and provider are obligated to honor this
patient's clear wishes. But they retain the option to seek judicial
review before implementing the decision. (ADDED SEPTEMBER 8, 2010).
6. Q - Does the prior decision clause apply to decisions
by patients who have capacity?
A - No. Nothing in the FHCDA governs decisions by
patients with capacity.
D. Decision-making standard (Revised
September 21, 2010)
1. Q - Does a surrogate need clear and convincing
evidence of a patient's wishes to make a decision to direct the
withdrawal of life-sustaining treatment?
A - No. Indeed, a key purpose of the FHCDA was to
eliminate the clear and convincing standard for clinically appropriate
end-of-life decisions. Under the FHCDA, the surrogate must make
the decision based on the patient's wishes "if reasonably known" or else
based on the patient's best interests. There is no
requirement that the surrogate specifies on what basis he /she is making
the decision for the patient. However, if hospital has reason to believe
that the surrogate is not acting in good faith or is making decisions
which are clearly contrary to the patient's known wishes or best
interests, then the hospital should not necessarily follow the
surrogate's decision. It may instead opt to convene its informal
mediation, consultation or ethics process, or convene the Ethics Review
2. Q - Do the FHCDA clinical criteria for the withdrawal
of life-sustaining treatment apply to the entry of DNR orders? Do
they replace the clinical criteria that were in the DNR Law?
A - Yes and yes. For any decision made after June 1, 2010, a
surrogate decision to enter a DNR order must be based on the new
clinical criteria. In practice, there are unlikely to be many
cases where a DNR order could be entered under one law, but not under
3. Q - Do DNR orders that predate the FHCDA and were
based on the former criteria need to be re-issued?
A - They do not have to be re-issued.
4. Q - The FHCDA provides that a surrogate may consent
to the withdrawal of life-sustaining treatment if one of two standards
is met. The first standard requires a determination that
"treatment would be an extraordinary burden to the patient." Who
makes that determination? The surrogate or the attending
A - The statute is not specific on this point, but
it appears to be the surrogate, although the surrogate certainly should
make such determination in consultation with the physician. The relevant
clause states as follows:
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 shall be
authorized only if the following conditions are satisfied, as
(a)(i) Treatment would be an extraordinary burden to the patient and
an attending physician determines, with the independent concurrence of
another physician, 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;