Family Health Care Decisions Act – Part I

September 8, 2005

Family Health Care Decisions Act

Under current New York law, if one becomes incapacitated, and is no longer able to make health care decisions, there is no person (spouse, child, or otherwise) who can legally make those decisions. In order to have someone make medical decisions for another in New York, a person must have a health care proxy. A health care proxy allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures in the event patients are unable to decide about treatment for themselves. If there is no health care proxy, only a court-appointed guardian can make health care decisions for an incapacitated individual. Court proceedings are usually burdensome, lengthy, and expensive. Few families have the emotional or financial resources to pursue judicial relief in these unfortunate situations. And we are all too familiar with cases spiraling out of control such as the case of Terry Schiavo. The end result in many cases is that some incapacitated individuals are denied specific treatment, while others may receive treatment that violates their wishes along with their religious and moral beliefs. Proposed legislation would help to avoid future situations like the Schiavos’ by filling the void in the law regarding the authority to make health care decisions for a family member without a health care proxy.
Our current law is at odds with at least 26 other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treatment. Along with Missouri, New York is the only state that explicitly denies family members this authority. The proposal would amend the Public Health Law and bring New York up to date with the majority of other states. The new proposed Family Health Care Decisions Act (article 29-D of the Public Health Law), would finally grant family members and close friends the authority to make health care decisions in the event a loved one becomes incapacitated.
The proposed legislation has three main sections in which it outlines the proper procedures to use in event someone close to you becomes incapacitated. First, it creates a process for determining incapacity. Second, it establishes a priority list of people who may act as surrogate. Third, the proposed legislation sets specific standards for surrogates’ decisions.
Under the proposed bill, there would be a presumption that every adult has the capacity to decide about treatment unless otherwise determined pursuant to the procedures set forth in the bill, or pursuant to a court order. An attending physician must determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health care professional must concur. In a general hospital, the concurrence is only necessary for a decision to forgo life-sustaining treatment. Hospitals must draft and adopt written policies identifying professionals qualified to provide the concurring opinion.
The bill proposes that patients remain empowered and make a final decision regarding their capacity, surrogates, and health care options. If a patient is declared incapacitated, health care professionals must inform the patient of the determination of the incapacity. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate’s decision, the patient’s objection prevails, unless a court determines otherwise.
The bill creates a list of possible surrogates and their order in making decisions. A surrogate is defined as a person selected to make a health care decision for a patient. The order of authority is as follows:

1. court-appointed guardian
2. spouse
3. adult son or daughter
4. a parent
5. an adult brother or sister
6. a close adult friend or relative familiar with the patient’s personal, religious, and moral views regarding health care.

It is important to note that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person’s priority on the list if the court determines that such appointment would best accord with the patient’s wishes.
The surrogate will be able to make all the health care decisions for the patient that the adult patient could make for himself or herself. A decision by a surrogate cannot supercede or override prior decisions or wishes, whether orally or written, by a competent patient. Surrogates must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs. If a patient’s wishes are not known, the surrogate must try to make a decision that would be in the patient’s best wishes. Also, Surrogates have a right and duty to obtain any information regarding a patient’s condition. In addition, health care providers have a duty to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Presumably, this language should allow a Surrogate to obtain medical information and/or documentation notwithstanding HIPAA confidentiality rules.
Health care providers are not at the mercy of the surrogates, however. The bill grants surrogates the authority to consent to and to refuse treatment, but does not obligate health care providers to offer or provide treatment that they would have no duty to offer or provide to a competent patient because the treatment is medically futile or inappropriate. Health care providers are able to support their conclusion by referring to its ethics committee guidelines. However, if any hospital or attending physician refuses to honor a health care decision made by a Surrogate, the hospital will not be entitled to compensation for treatment or services provided without the Surrogate’s consent.