Family Health Care Decisions Act – Part 2

September 14, 2005

Surrogates can make decisions to withhold or withdraw life-sustaining treatment if treatment would be an excessive burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and that treatment would involve such pain and suffering that it would reasonably be deemed inhume or “excessively burdensome” under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted medical practice. It is important to note that at any time, a patient, surrogate, or parent of a minor child may revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff.
Hospitals and nursing homes must also adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment, in accord with accepted medical standards. In addition to adopting written policies, hospitals and nursing homes must also establish ethics review committees. Committees must be interdisciplinary and include at least two individuals who have demonstrated an interest in or commitment to patients’ rights. In a nursing home, committees must include a member of the resident’s council or someone who is not affiliated with the facility but who has or had a family member as a resident.

Because more people, including surrogates, professionals, and committee members, are now involved in the decision making process, liability issues naturally arise. An important provision of proposed Article 29-D is that it protects surrogates, health care professionals, and committee members from both civil and criminal liability. As long as a member acts in good faith, he or she is protected from civil and criminal liability as well as charges of professional misconduct.
Even though our current law does not explicitly recognize the authority of family members to consent to treatment of an incapacitated patient, health care providers usually turn to family members for consent. So in that regard, the proposed bill codifies an already accepted practice. However, the New York Court of Appeals has ruled that family members or others close to patients cannot decide about life-sustaining treatment in the absence of a healthcare proxy. The Family Health Care Decisions Act will finally allow for a family member to decide to forego or continue life-sustaining treatment for a patient. This proposed change in the law will add New York to the majority of states that already permit family members to make life-sustaining treatment decisions. More importantly, this proposal would minimize disputes over decision making authority and would keep decisions at a informal personal level with minimal court involvement. Families will finally have access to incapacitated patients’ medical records allowing them to decide what treatment is in their loved one’s best interests.
It is critical to understand that although Family Health Care Decisions Act is an important and necessary step for New York, it does not replace the need for a health care proxy. The purpose of this legislation is to provide an acceptable substitute process in the event there is no health care proxy. Everyone over 18 years of age, regardless of health condition should have a health care proxy as it will always remain the preferred method of planning for incapacity.