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Surrogate Decision Making in New York |
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SURROGATE DECISION MAKING NY has a law that establishes procedures when a person lacks the capacity to make their own treatment decisions and somone else has to do it for them. Following is part of the law § 80.01 Legislative findings and purpose. The legislature hereby finds and declares that timely access to health care for people who are mentally disabled is an important objective for New York state; that the autonomy of persons with decision-making capacity to make health care decisions for themselves must be respected; and that, in cases involving persons with impaired decision-making capacity, efforts should be made to ensure that health care decisions are based on the best interests of the patient and reflect, to the extent possible, the patients own personal beliefs and values. The legislature further finds that the exclusive utilization of judicial authorization to obtain consent for medical care for the mentally disabled has in some cases resulted in undue delay in the provision of necessary care, needlessly jeopardizing the health of the mentally disabled. The legislature further finds and declares that the public interest will be served by the establishment of a statewide quasi-judicial surrogate decision-making process, which would determine patient capacity to consent to or refuse medical treatment and assess whether the proposed treatment promotes the patients best interests, consistent with the patients values and preferences. The process will strengthen the surrogate decision-making role of parents and other family members, while assuring that those individuals without available familymembers have access to medical care. § 80.03 Definitions. When used in this article: (a) Major medical treatment means a medical, surgical or diagnostic intervention or procedures where a general anesthetic is used or which involves any significant risk or any significant invasion of bodily integrity requiring an incision or producing substantial pain, discomfort, debilitation or having a significant recovery period. Such term does not include: any routine diagnosis or treatment such as the administration of medications other than chemotherapy for non-psychiatric conditions or nutrition or the extraction of bodily fluids for analysis; electroconvulsive therapy; dental care performed with a local anesthetic; any procedures which are provided under emergency circumstances, pursuant to section twenty-five hundred four of the public health law; the withdrawal or discontinuance of medical treatment which is sustaining life functions; or sterilization or the termination of a pregnancy. (b) A patient in need of surrogate decision-making means a patient as defined in subdivision twenty-three of section 1.03 of this chapter who is at the time of the commissions receipt of the declaration: a resident of a mental hygiene facility including a resident of housing programs funded by an office of the department or whose federal funding application was approved by an office of the department or for whom such facility maintains legal admission status therefor; or, receiving home and community-based services for persons with mental disabilities provided pursuant to section 1915 of the federal social security act; or receiving individualized support services; and, for whom major medical treatment is proposed, and who is determined by the surrogate decision-making committee to lack the ability to consent to or refuse such treatment, but shall not include minors with parents or persons with legal guardians, committees or conservators who are legally authorized, available and willing to make such health care decisions. (c) Lack of ability to consent to or refuse major medical treatment means the patient cannot adequately understand and appreciate the nature and consequences of a proposed major medical treatment, including the benefits and risks of and alternatives to such treatment, and cannot thereby reach an informed decision to consent to or to refuse such treatment in a knowing and voluntary manner that promotes the patients well-being. (d) Best interests means promoting personal well-being by the assessment of the risks, benefits and alternatives to the patient of a proposed major medical treatment, taking into account factors including the relief of suffering, the preservation or restoration of functioning, improvement in the quality of the patients life with and without the proposed major medical treatment and consistency with the personal beliefs and values known to be held by the patient. (e) Surrogate decision-making committee means a committee of at least twelve persons established pursuant to section 80.05 of this article. (f) Panel means a subcommittee of four members of the surrogate decision-making committee. (g) Commission means the commission on quality of care for the mentally disabled. (h) Providers of health services means, for the purposes of this article, those defined in subdivisions five and six of section 1.03 of this chapter; hospitals, as defined pursuant to article twenty-eight of the public health law; physicians and dentists. (i) Declarant means a person who submits a declaration pursuant to the provisions of this article and may include any provider of health services, the director of the patients residential facility or a relative or correspondent of the patient. (j) Declaration means a written statement submitted in accordance with section 80.07 of this article. (k) Correspondent means a person who has demonstrated a genuine interest in promoting the best interests of the patient by having a personal relationship with the patient, by participating in the patients care and treatment, by regularly visiting the patient, or by regularly communicating with the patient. § 80.05 Surrogate decision-making committees and panels; organization. (a) Surrogate decision-making committees of at least twelve persons shall be established by the commission in geographic areas of the state, as may be designated by the commission. A committee designated after April first, nineteen hundred eighty-eight shall not accept applications for review pursuant to this article until April first, nineteen hundred eighty-nine and within appropriations made therefor. (b) The members shall be appointed by the commission. The commission shall designate one member of each of the committees to serve as chair-person, who shall serve at the pleasure of the commission. Members appointed as of July thirty-first, nineteen hundred ninety shall serve for terms expiring on July thirty-first, nineteen hundred ninety-one. Upon expiration of such terms, such members may be appointed for terms of two years commencing on August first, nineteen hundred ninety-one. Any additional members and members appointed due to vacancies shall be appointed for terms of two years commencing on the date of completion of training by the commission. Members may be reappointed for additional two year terms of office but the provisions of section five of the public officers law shall not apply to such members. The commission may assign a committee member to serve on an additional committee or commit-tees as deemed necessary or appropriate by the commission. (c) Members of the committee and panel shall include members from each of the following groups: (i) physicians, nurses, psychologists, or other health care profes-sionals licensed by the state of New York; (ii) former patients or parents, spouses, adult children, siblings or advocates of mentally disabled persons; (iii) attorneys admitted to the practice of law in New York state; and (iv) other persons with recognized expertise or demon-strated interest in care and treatment of mentally disabled persons. (d) A member who has failed to attend three consecutive meetings of the committee or panel to which the member has been appointed shall be considered to have vacated his or her office unless the commission determines that the absences should be excused. The members shall be reimbursed for their actual and necessary expenses and shall be consid-ered public officers for the purpose of sections seventeen, nineteen and seventy-four of the public officers law. * (e) The committees shall have available to them such staff and assistance as may be deemed necessary by the commission. In providing for such staff and assistance, the commission may enter into agreements with community dispute resolution centers authorized under article twen-ty-one-A of the judiciary law, and the staff of such centers in carrying out such functions shall be considered public officers for the purpose of sections seventeen, nineteen and seventy-four of the public officers law. Provided, however, the commission may not delegate pursuant to such agreements responsibility for the appointment of members to serve on surrogate decision-making committees, the training of any such members, the review of declarations, maintenance of the record of the hearing and original file, and general oversight of panel activities. Any informa-tion, books, records, or data which are confidential as provided for by law, received by such a center pursuant to an agreement with the commis-sion, shall be kept confidential by the center, and any limitations on the further release thereof, imposed by law upon the party furnishing the information, books, records or data, shall apply to the center. [ To top of page ] [ To Index ] * NB Effective until 00/06/30 * (e) The committees shall have available to them such staff and assistance as may be deemed necessary by the commission. * NB Effective 00/06/30 (f) Each surrogate decision-making committee shall undertake its responsibilities through panels composed of four of its members. The chairman of each committee or his or her designee shall designate the chairman of the panel who shall serve at the pleasure of the committee chairman or his or her designee. (g) A panel shall be convened as often as deemed necessary by the chairman of the committee or his or her designee to assure timely review of pending declarations; provided, however, that neither article six nor article seven of the public officers law shall apply to the conduct of such committee or panel. The proceedings of the panel may be conducted with only three persons. Provided, however, if a panel chairperson receives reasonable notice that a panel member will not be able to attend a panel hearing, such chairperson or his or her designee shall undertake efforts to identify another appropriate member of the commit-tee to serve on such panel. (h) No member who is a provider of health services or an officer or employee of any provider of health services to a patient whose case is under consideration by a panel may serve with respect to such patient. § 80.07 Procedures of the committees and panels. (a) The committee shall receive declarations filed on behalf of patients, as follows: 1. A declaration may be filed by a declarant on behalf of any patient, residing within the geographic area served by the committee, who is believed to be in need of major medical treatment and to lack the capacity to consent to or refuse major medical treatment. Jurisdiction by the surrogate decision-making committee may continue throughout all subsequent proceedings related to the major medical treatment proposed in the initial declaration notwithstanding the patients transfer outside of the geographic region or discharge from the facility. 2. A declaration shall be signed by the declarant and shall state the following: (i) the patient does not have a parent, spouse, adult child, committee of the person, conservator or legal guardian; or that the patients parent, spouse, adult child, committee of the person, conservator or legal guardian is willing to allow the panel to act upon the declaration; (ii) the reasons for believing that the patient lacks the capacity to consent to or refuse major medical treatment and the factual and professional basis for this belief, which may include an independent evaluation by a person qualified to assess the patients capacity to make such medical decisions; (iii) a description of the proposed major medical treatment and of the patients medical condition which requires such treatment; the risks, alternatives and benefits to the patient of such treatment; a statement of declarants opinion of whether the best interests of the patient would be promoted by such treatment and the basis for the opinion; the patients view of the proposed treatment, if known; and such other information as may be necessary to establish the need for such treatment. [ To top of page ] [ To Index ] (b) Upon receipt of the declaration, the committee shall send a copy of the declaration forthwith to the patient and to the patients parent, spouse, adult child, committee of the person, conservator, legal guardian or correspondent, if known, the director of the patients residential mental hygiene facility, if any, or such directors designee and the mental hygiene legal service which serves the same region as the committee. The chairperson of the committee or his or her designee shall assign the declaration to one of its panels, whose members will also receive a copy of the declaration. The declaration shall be accompanied by a notice of the time, place and date of the panel hearing on the declaration. The hearing shall be scheduled no earlier than five days after such declaration is sent, except where medical circumstances require a more immediate hearing or where the consent of the patients parent, spouse, adult child, committee of the person, conservator, legal guardian or correspondent, if known, the director of the patients mental hygiene residential facility, if any, or such directors designee and the mental hygiene legal service has been obtained for conducting a more immediate hearing. The notice shall inform recipients of the procedures of the panels, including the opportunity for the recipient to be present and to be heard. (c) The declaration shall, prior to the date of the panel hearing, be reviewed by the panel chairman or his designee to ascertain whether additional information may be necessary to assist the panel in determining the patients need for surrogate decision-making and in determining whether the patients best interests will be served by consenting to or refusing major medical treatment on the patients behalf. The panel chairman or his designee may: 1. Request and shall, notwithstanding any other law to the contrary, be entitled to receive from any physician, mental hygiene facility or health care facility or person licensed to render health care, any information which is relevant to the patients need for surrogate decision-making or for the proposed major medical treatment. Information, books, records or data which are confidential as provided for by law shall be kept confidential by the panel and any limitations on the further release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the panel. 2. Order an independent assessment of the patient, or of information concerning the patient, to be undertaken, including obtaining an independent opinion, where such independent assessment or opinion is determined by the panel chairman to be necessary. 3. Consult with any other person who might assist in such a determination of the best interests of the patient, including ascertainment of the personal beliefs and values of the patient. (d) The panel shall conduct a hearing, at which the patient, any other person requested by the patient to appear on his or her behalf, and the mental hygiene legal service have the right to be present and to be heard. Where practicable, the panel members shall personally interview and observe the patient prior to making their decision. The panel shall be empowered to administer oaths to and to take testimony from any person who might assist the panel in making its decision. Such hearing shall be recorded and any information, record, assessment or consultation submitted to or considered by the panel shall be maintained as part of the record of the deliberations of the panel. Formal rules of evidence shall not apply to the proceedings of the panel. (e) The panel shall make a determination, based on clear and convincing evidence, as to whether the patient is in need of surrogate decision-making; provided, however, that minor patients shall be deemed to lack such capacity, to the extent that minors generally are deemed to lack such capacity. Unless three panel members concur in the determination that the patient is in need of surrogate decision-making, the patient shall be deemed not to need surrogate decision-making. In such event, a record of such determination shall be made and the patients consent to such treatment, if given, shall constitute legally valid consent. (f) For any patient determined to be in need of surrogate decision-making, the panel shall make a further determination as to whether the proposed major medical treatment is or is not in the best interests of the patient based on a fair preponderance of the evidence; provided, however, that evidence of a previously articulated preference by the patient concerning the proposed treatment shall be given full consideration by the panel. The panel shall provide a record of its determination which consents to or refuses major medical treatment on the patients behalf, which shall reflect the opinion of at least three of the panel members. If the panel determination consents to such treatment, such consent shall constitute legally valid consent to such treatment in the same manner and to the same extent as if the patient were able to consent to or refuse such treatment on his or her own behalf. (g) If at anytime during the pendency of a proceeding, a parent, spouse or adult child objects to the panel acting upon the declaration or a committee of the person, conservator or legal guardian who is legally authorized to consent to or refuse such treatment on the patients behalf, objects to the panel acting upon the declaration, the proceedings regarding such patient shall cease. A record of such persons objection shall be included as part of the record as provided for by this section. (h) A copy of any determination made pursuant to this section shall contain a statement describing the right to appeal set forth herein and shall promptly be sent or provided to the patient; other persons requested by the patient to appear on his or her behalf; declarant; parent, spouse, adult child, legal guardian, committee of the person or, in the absence of such persons, known correspondents of the patient; the director of the patients mental hygiene residential facility, if any; and the mental hygiene legal service. Where practicable, the panel shall reach its determination or determinations at the time of the hearing and provide notice to the above persons forthwith. The terms of such determinations and the giving of such notice shall be made a part of the record. The decision shall state when the consent shall become effective after such determination has been provided or mailed to the parties specified in this section. The panel may delay the effective date of its decision for up to five days in order to enable an objecting party to § 80.07 Procedures of the committees and panels. [ To top of page ] [ To Index ] (a) The committee shall receive declarations filed on behalf of patients, as follows: 1. A declaration may be filed by a declarant on behalf of any patient, residing within the geographic area served by the committee, who is believed to be in need of major medical treatment and to lack the capacity to consent to or refuse major medical treatment. Jurisdiction by the surrogate decision-making committee may continue throughout all subsequent proceedings related to the major medical treatment proposed in the initial declaration notwithstanding the patients transfer outside of the geographic region or discharge from the facility. 2. A declaration shall be signed by the declarant and shall state the following: (i) the patient does not have a parent, spouse, adult child, committee of the person, conservator or legal guardian; or that the patients parent, spouse, adult child, committee of the person, conservator or legal guardian is willing to allow the panel to act upon the declaration; (ii) the reasons for believing that the patient lacks the capacity to consent to or refuse major medical treatment and the factual and professional basis for this belief, which may include an independent evaluation by a person qualified to assess the patients capacity to make such medical decisions; (iii) a description of the proposed major medical treatment and of the patients medical condition which requires such treatment; the risks, alternatives and benefits to the patient of such treatment; a statement of declarants opinion of whether the best interests of the patient would be promoted by such treatment and the basis for the opinion; the patients view of the proposed treatment, if known; and such other information as may be necessary to establish the need for such treatment. (b) Upon receipt of the declaration, the committee shall send a copy of the declaration forthwith to the patient and to the patients parent, spouse, adult child, committee of the person, conservator, legal guardian or correspondent, if known, the director of the patients residential mental hygiene facility, if any, or such directors designee and the mental hygiene legal service which serves the same region as the committee. The chairperson of the committee or his or her designee shall assign the declaration to one of its panels, whose members will also receive a copy of the declaration. The declaration shall be accompanied by a notice of the time, place and date of the panel hearing on the declaration. The hearing shall be scheduled no earlier than five days after such declaration is sent, except where medical circumstances require a more immediate hearing or where the consent of the patients parent, spouse, adult child, committee of the person, conservator, legal guardian or correspondent, if known, the director of the patients mental hygiene residential facility, if any, or such directors designee and the mental hygiene legal service has been obtained for conducting a more immediate hearing. The notice shall inform recipients of the procedures of the panels, including the opportunity for the recipient to be present and to be heard. (c) The declaration shall, prior to the date of the panel hearing, be reviewed by the panel chairman or his designee to ascertain whether additional information may be necessary to assist the panel in determining the patients need for surrogate decision-making and in determining whether the patients best interests will be served by consenting to or refusing major medical treatment on the patients behalf. The panel chairman or his designee may: 1. Request and shall, notwithstanding any other law to the contrary, be entitled to receive from any physician, mental hygiene facility or health care facility or person licensed to render health care, any information which is relevant to the patients need for surrogate decision-making or for the proposed major medical treatment. Information, books, records or data which are confidential as provided for by law shall be kept confidential by the panel and any limitations on the further release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the panel. 2. Order an independent assessment of the patient, or of information concerning the patient, to be undertaken, including obtaining an independent opinion, where such independent assessment or opinion is determined by the panel chairman to be necessary. 3. Consult with any other person who might assist in such a determination of the best interests of the patient, including ascertainment of the personal beliefs and values of the patient. (d) The panel shall conduct a hearing, at which the patient, any other person requested by the patient to appear on his or her behalf, and the mental hygiene legal service have the right to be present and to be heard. Where practicable, the panel members shall personally interview and observe the patient prior to making their decision. The panel shall be empowered to administer oaths to and to take testimony from any person who might assist the panel in making its decision. Such hearing shall be recorded and any information, record, assessment or consultation submitted to or considered by the panel shall be maintained as part of the record of the deliberations of the panel. Formal rules of evidence shall not apply to the proceedings of the panel. (e) The panel shall make a determination, based on clear and convincing evidence, as to whether the patient is in need of surrogate decision-making; provided, however, that minor patients shall be deemed to lack such capacity, to the extent that minors generally are deemed to lack such capacity. Unless three panel members concur in the determination that the patient is in need of surrogate decision-making, the patient shall be deemed not to need surrogate decision-making. In such event, a record of such determination shall be made and the patients consent to such treatment, if given, shall constitute legally valid consent. (f) For any patient determined to be in need of surrogate decision-making, the panel shall make a further determination as to whether the proposed major medical treatment is or is not in the best interests of the patient based on a fair preponderance of the evidence; provided, however, that evidence of a previously articulated preference by the patient concerning the proposed treatment shall be given full consideration by the panel. The panel shall provide a record of its determination which consents to or refuses major medical treatment on the patients behalf, which shall reflect the opinion of at least three of the panel members. If the panel determination consents to such treatment, such consent shall constitute legally valid consent to such treatment in the same manner and to the same extent as if the patient were able to consent to or refuse such treatment on his or her own behalf. (g) If at anytime during the pendency of a proceeding, a parent, spouse or adult child objects to the panel acting upon the declaration or a committee of the person, conservator or legal guardian who is legally authorized to consent to or refuse such treatment on the patients behalf, objects to the panel acting upon the declaration, the proceedings regarding such patient shall cease. A record of such persons objection shall be included as part of the record as provided for by this section. (h) A copy of any determination made pursuant to this section shall contain a statement describing the right to appeal set forth herein and shall promptly be sent or provided to the patient; other persons requested by the patient to appear on his or her behalf; declarant; parent, spouse, adult child, legal guardian, committee of the person or, in the absence of such persons, known correspondents of the patient; the director of the patients mental hygiene residential facility, if any; and the mental hygiene legal service. Where practicable, the panel shall reach its determination or determinations at the time of the hearing and provide notice to the above persons forthwith. The terms of such determinations and the giving of such notice shall be made a part of the record. The decision shall state when the consent shall become effective after such determination has been provided or mailed to the parties specified in this section. The panel may delay the effective date of its decision for up to five days in order to enable an objecting party to exercise the right of appeal, pursuant to section 80.09 of this article. § 80.11 Effect of determination that a person is in need of surrogate decision-making. The determination by a panel that a patient is in need of surrogate decision-making under this article shall not be construed or deemed to be a determination that such person is impaired or incompetent pursuant to article seventy-seven or seventy-eight of this chapter, nor shall it be valid for any other purpose or any other future medical treatment, unless the determination explicitly applies to related or continuing treatment necessitated by the original treatment. Nothing in this article shall be construed to limit the availability of other lawful means to obtain substitute consent for medical treatment, without utilizing the procedures set forth in this article. No person shall be deemed to have failed to exhaust administrative remedies by commencing a legal action to obtain consent to or refusal of medical treatment in the absence of or prior to a review of the case by a surrogate decision-making committee or panel. § 80.13 Committee reports. The chairman of each committee shall provide a quarterly report on the activities of the committee and its panels to the commission on quality of care for the mentally disabled. Such report shall provide all information in the manner and form requested by the commission.(Posted 2/1999) [ To top of page ] |
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