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 dated.
I. Definitions (§ 2994-a)
II. Applicability; priority of certain other surrogate decision-making laws and regulations.
III. Determination of incapacity (§2994-c)
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 patients
VI. Health care decisions for adult patients without surrogates. (§2994-g)
VII. DNR Orders (PHL § 2994-1)
VIII. Implementation and review of decisions. (§ 2994-k)
IX. Interinstitutional transfers (§ 2994-l)
X. Ethics review committees (§ 2994-m)
XI. Rights to be publicized (§2994-u)
XII. Nonhospital DNR Orders (Chapter 8, §21)
XIII. Orders Not to Resuscitate for Residents of Mental Hygiene Facilities (Chapter 8, §22)
XIV. Health Care Proxy Law (Chapter 8, §§23-24)
XV. MHL Article 81 Guardianship Law (Chapter 8, §§23-24)
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
I. 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 remains.
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 it.
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 do-not-resuscitate order.
II. Applicability; priority of certain other surrogate
decision-making laws and regulations. (PHL § 2994-b)
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 further.
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 clinical criteria.
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 unit.
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 patients?
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 eligible persons.
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 website.
III. 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" mean?
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 reliable.
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 determinations.
3. Q - Can the physicians make a determination of capacity, without personally examining the patient, e.g., over the phone?
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.
IV. Health care decisions for adult patients by surrogates (§ 2994-d)
A. Identifying the surrogate
1. Q - Is the "surrogate" a court appointed position?
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 care agent.
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 effective?
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 basis?
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 daughter?
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.
B. Authority of surrogate
1. Q - Can the surrogate consent on behalf of a patient to an HIV test under PHL § 2781 be obtained under FHCDA?
A - Yes.
2. Q - Can a surrogate consent to experimental treatment?
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 uncertain.
4. Q - Is the surrogate the "personal representative" of the patient under 45 CFR § 164.502(g)(1) ("HIPAA")?
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 § 18?
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 home?
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 after discharge.
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 program?
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 incapable patient?
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).
C. Prior 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 treatment.
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 writing.
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., terminal illness.
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 law?
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 Committee.
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 the other.
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 physician?
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 applicable:
(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; or