THIS ARTICLE IS A DISCUSSION OF NEW YORK'S FAMILY HEALTH CARE
DECISIONS ACT. .
HEALTH CARE DECISION MAKING FOR INCAPACITATED
WHO HAVE NOT SIGNED A HEALTH CARE PROXY
MOST PEOPLE SHOULD SIGN A HEALTH CARE PROXY FORM
If you are like most people, it is a better idea to sign a health
care proxy form rather than to rely on the laws of the State of New York to
determine who would make health care decisions for you if you became mentally
incapacitated. There are at least four reasons for this:
- The priority established by law may be inconsistent with your
wishes. For example, you might want a sibling to make health care decisions for
you, but under the law, parents have priority over siblings.
- There may be multiple individuals (i.e., children) who have the
same priority to make health care decisions for you if you do not have a health
care proxy. The law does not have an easily usable mechanism to establish who
would make health care decisions for you if people with the same priority
- If you are relying on the statutory list, it means that you
have probably not communicated your preferences to those closest to you. This
means that whoever ends up making health care decisions for you will be forced
to guess about what you would want under the circumstances. You could end up
having the right person making decisions and still have a bad result.
- The authority of someone acting without a health care proxy is
more limited than the authority of someone with a health care proxy.
For information about health care proxy
forms click here.
WHO CAN MAKE HEALTH CARE DECISIONS FOR YOU
YOU HAVE NOT SIGNED A HEALTH CARE PROXY FORM?
Under New Yorks Family Health Care Decisions Act, if you
have not signed a health care proxy form and you become mentally incapacitated,
health care decisions while you are in a hospital or residential care facility
can be made for you by an individual called a "surrogate." (The rules with
regard to who can serve as a surrogate and what the surrogate is authorized to
do apply to all adults except the mentally retarded and the developmentally
disabled, for whom there are somewhat different rules.)
Surrogates are authorized to serve in accordance with the
following priority list. If a person with higher priority declines to act, then
the next person on the list, in order of priority, has the right to act.
- A guardian specifically authorized by the court to make such
- Your spouse, if not legally separated from you, or your
- Your son or daughter 18 years of age or older.
- Your parent.
- Your brother or sister 18 years of age or older.
- Your close friend.
WHAT DECISIONS CAN A SURROGATE MAKE FOR ADULT
Subject to certain restrictions, a surrogate can make any and all
health care decisions on your behalf that you could make. This includes the
authority to decide what treatment you will receive and the authority to
terminate life support.
If a surrogate chooses to make a health care decision for you,
then he or she is required to make this decision:
- In accordance with your wishes, including your religious and
moral beliefs, or
- If your wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with your best interest. An
assessment of your best interest must include: consideration of the dignity and
uniqueness of every person; the possibility and extent of preserving your life;
the preservation, improvement or restoration of your health or functioning; the
relief of your suffering; and any medical condition and such other concerns and
values as a reasonable person in your circumstances would wish to consider.
WHEN CAN A SURROGATE TERMINATE LIFE SUPPORT
FOR AN ADULT PATIENT?
A surrogate is authorized to withhold or withdraw life-sustaining
treatment from you under the following circumstances:
- Treatment would be an extraordinary burden to you 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) you have an illness or injury which can be
expected to cause death within six months, whether or not treatment is
provided; or (B), you are permanently unconscious; or, in the alternative
- The provision of treatment would involve such pain, suffering
or other burden that it would reasonably be deemed inhumane or extraordinarily
burdensome under the circumstances and that you have an irreversible or
incurable condition, as determined by an attending physician, with the
independent concurrence of another physician, to a reasonable degree of medical
certainty, and in accord with accepted medical standards.
In a residential care facility the decision of a surrogate to
terminate life support is subject to review by the facility's ethics committee.
In a general hospital if the attending physician objects to the surrogate's
decision to terminate life support, that decision is also subject to review by
the facility's ethics committee.
HOW ARE HEALTH CARE DECISIONS FOR A MENTALLY
INCAPACITATED ADULT MADE IF THERE IS NO HEALTH-CARE PROXY AND NO SURROGATE
WILLING TO ACT?
If you have not signed a health care proxy and there is no
surrogate willing to act, the staff at the hospital or residential facility
where you reside or are being treated can make health care decisions for you.
This authority includes the authority to make significant medical decisions and
under certain limited circumstances, the authority to terminate life support.
WHAT STANDARDS DO HOSPITALS AND RESIDENTIAL CARE
FACILITIES USE TO MAKE HEALTH CARE DECISIONS OR TO TERMINATE LIFE SUPPORT FOR
The standards that the staff of a hospital or residential care
facility use to make health care decisions for patients, other than decisions
to terminate life support, are the same as those used by surrogates (see
above). The staff of a hospital or residential care facility can terminate life
support if the patients attending physician, with the independent
concurrence of a second physician designated by the hospital, determines to a
reasonable degree of medical certainty that
- Life-sustaining treatment offers you no medical benefit because
you will die imminently, even if a treatment is provided; and
- The provision of life-sustaining treatment would violate
accepted medical standards.
The hospital or residential care facility can also apply to the
court for an order to terminate life support. The standard that a court can use
in such a case is the same standard as used by a surrogate (see above).
WHAT LIABILITY DO HOSPITALS, RESIDENTIAL CARE
FACILITIES AND SURROGATES HAVE FOR MAKING IMPROPER HEALTH CARE DECISIONS ON
BEHALF OF A MENTALLY INCAPACITATED ADULT?
Surrogates, health-care providers and their employees cannot be
subjected to criminal or civil liability for actions taken in good faith under
the Family Health Care Decisions Act.
SPECIAL RULES CONCERNING THE MENTALLY RETARDED
AND THE DEVELOPMENATLLY DISABLED
There are special health care decisions making procedures that
apply to adult mentally incapacitated people who suffer from mental retardation
and/or developmental disabilities. The details of those procedures are beyond
the scope of this article. However, if it is not possible for a health care
decision to be made by using those special procedures, then, the decision can
be made in the same way as it would be made for any other adult under the
Family Health Care Decisions Act.
THIS ARTICLE IS ONLY A SUMMARY
Many of the rules concerning health care decision making by
surrogates, hospitals and residential care facilities are quite detailed. This
discussion is only meant to be a summary of those rules.