Family Health Care Decisions Act Goes Into Effect June 1, 2010
The Family Health Care Decisions Act is a statute adopted in New York signed into law by Governor David Paterson on March 16, 2010. The effective date of the legislation is June 1, 2010. The Family Health Care Decisions Act establishes the right of family members and others close to an incapacitated patient to make health care decisions on that patient’s behalf when he or she is no longer able to do so.
- The law adds new Articles 29-CC and 29-CCC to the Public Health Law and amends other
existing sections of the laws of the State. It allows the relatives of incapacitated patients
to make medical decisions for their family members in the absence of a living will or health
care proxy.
- Prior to the enactment of this Act, no one, not even a spouse or a child, could speak on
behalf of an incapacitated person if he or she had not signed a health care proxy or left clear
and convincing evidence regarding his or her health care wishes before becoming incapacitated.
This led to situations where patients were denied the palliative care they would have wanted, or were subjected to invasive treatments they would have refused.
- With the passing of this law, any incapacitated patient who has neglected to sign a Health
Care Proxy will nevertheless benefit from having a surrogate make health care decisions on his
or her behalf. Now, once a finding of incapacity has been determined by the patient’s
physician, a surrogate must be informed. According to a priority list of individuals (in order
of priority: court-ordered guardian; spouse or domestic partner; adult child; parent; adult
sibling; and close friend), a surrogate will be chosen to make any and all health care decisions for the incapacitated patient, including withdrawing or withholding life-sustaining treatment,
in accordance with procedures and safeguards established in the new law.
- The legislation establishes a protocol for health care practitioners to determine whether a
patient in a general hospital or nursing home has decision-making capacity. When it is
determined that a patient does not have decision-making capacity, the legislation requires the
selection of a surrogate from a list of individuals ranked in order of priority, including
family members, domestic partners and close friends.
- Various safeguards are required under the FHCDA to prevent inappropriate decisions,
including procedures for a patient, family member or physician to assert objections to the
selection of a particular person as a surrogate or to a decision made by a surrogate.
- Without a statute such as the FHCDA, the common law of New York State provides that
life-sustaining treatment cannot be withdrawn or withheld from an individual who has lost the
capacity to make such decisions, unless clear and convincing evidence can be produced to show
that the individual would have declined treatment if competent.
- An advance directive, such as a living will or a health care proxy, can serve as clear and
convincing evidence of a patient's wishes, but many people do not prepare such directives while
they are competent to do so.
- The FHCDA does not apply to individuals without decision-making capacity who have
developmental disabilities or who reside in mental health facilities, if health care decisions
for these individuals can be made under other laws or regulations. For example, decisions about life-sustaining treatment are authorized under the previously enacted Health Care Decisions Act
for persons with developmental disabilities.
- The FHCDA requires establishment of a special advisory committee to guide the Task Force in
careful consideration of whether decision-making for these individuals should be incorporated
into the FHCDA.
- Even with the passage of the FHCDA, I think New Yorkers should still be encouraged to
prepare a health care proxy, which allows an agent to make health care decisions on behalf of an individual if he or she later loses capacity.
- The proxy form can be tailored to give the agent as much or as little authority as the
individual desires, and the agent must make decisions in accordance with the principal's wishes
or, if such wishes are not known, in accordance with the principal's best interests. The proxy
is able, but not required, to permit decision-making authority regarding life-sustaining
treatment. If the principal's wishes regarding the administration of artificial nutrition and
hydration are not known, the agent may not make decisions regarding such measures.
- Before this law went into effect, the only legal rights that a husband or wife had in New
York regarding a spouse who cannot make medical decisions is to choose whether he or she should
be resuscitated after a cardiac arrest. The goal of this FHCDA is to guarantee that family
members have increased control over their relatives' health.
- Among the safeguards provided in the bill are rules that require the capacity of the patient must be assessed and reassessed by two physicians, that spouses rely upon the stated wishes of
the incapacitated patient and that life-sustaining care be curtailed only when a patient is
either terminally ill, won't regain consciousness, or has an irreversible medical condition that will result in great suffering.
- The health care proxy form authorized by the Public Health Law and instructions on
completing the form are available on the
Department of Health’s website
.
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