New York’s Family Health Care Decisions Act (FHCDA)(Chapter 8 of the Laws of 2010, adding Public Health Law Ch. 29-CC and 29-CCC) allows a patient’s family member or close friend to make health care decisions for a patient who is in a hospital or nursing home, if the patient lacks decisional capacity and did not leave prior instructions or sign a health care proxy. This “surrogate” decisionmaker would also be empowered to direct the withdrawal or withholding of life-sustaining treatment (including consenting to a DNR order), when standards listed in the statute are satisfied. The key provisions of the FHCDA became effective on June 1, 2010.
The law ONLY applies to patients in hospitals and nursing homes who have lost the capacity to make medical treatment decisions and who have not appointed an agent under a health care proxy. PHL § 2994-b(1). There are other laws that govern people whose treatment is governed by the state Office of Mental Health (OMH) or NYS Office for People with Developmental Disabilities (formerly OMRDD). PHL § 2994-b(3). Private hospitals (as opposed to general hospitals) and individual health care providers are not required to honor decisions made by surrogates pursuant to FHCDA, and may make "conscience objections" based upon sincerely held religious beliefs or moral convictions. PHL § 2994-n.
For a surrogate to be allowed by make medical treatment decisions on the patient's behalf, the facility must first make a determination of patient incapacity, following the procedures outlined below. All adults are presumed to have decision-making capacity unless determined otherwise, or unless there has been a legal guardian or court order. PHL § 2994-c(1). The law contains special rules for patients who are minors. PHL § 2994-e.
The initial determination of incapacity must be made by an attending physician to a reasonable degree of medical certainty. The determination must include an assessment of the cause and extent of the patient's incapacity and the likelihood that they will regain capacity. PHL § 2994-c(2). An attending physician must confirm the patient's continued lack of capacity for future treatment decisions after the initial determination. PHL § 2994-c(7).
A concurring determination of incapacity, including the same considerations as required for the initial determination, is required in the following situations (PHL § 2994-c(3)):
If the concurring determination disagrees with the initial determination, then the matter must be referred to the ethics review committee at the facility. PHL § 2994-c(3)(d).
The attending physician making the initial determination of incapacity must have additional credentials in some situations (PHL § 2994-c(3)(c)):
Once a determination of incapacity has been made, the facility must give notice as follows (PHL § 2994-c(4)):
If the patient objects to a determination of incapacity, or to the selection of surrogate, or to the specific health care decision made by a surrogate, then the patient's objection shall prevail, unless (PHL § 2994-c(6)):
Once a patient has been determined to lack capacity to make health care decisions, under procedures specified in the statute, a "surrogate" is chosen to make all health care decisions, in the following order of priority (PHL § 2994-d(1)):
Legal guardian appointed under Article 81 (the act amends Article 81 to authorize guardian of a person to act as a surrogate under the FHCDA and repeals old Article 81 provision restricting a guardian from making life-sustaining treatment decisions).
Spouse or domestic partner defined to include person who is either (PHL § 2994-a(7)):
formally registered as a domestic partner in any state, city, or foreign jurisdiction, or by either partner's domestic employer, or
a beneficiary of or covered by the other person’s health insurance or employee benefits, or
dependent or mutually interdependent on the other person for support, as evidenced on the totality of circumstances indicating a mutual intent to be domestic partners, including jointly owned or leased property, shared income or expenses, children in common, signs of intent to marry or become domestic partners, or the length of the two parties’ relationship.
Brother or sister
Close friend, age 18 or over, or a relative other than those listed above, who presents a signed statement to the treating physician stating that s/he is in regular contact with the patient so as to be familiar with the patient's activities, health, religious and moral beliefs. PHL § 2994-a(4).
If no one in the above persons can be identified or found, then the law establishes a procedure for the facility to follow in making health care decisions on the patient's behalf. PHL § 2994-g. The procedure depends upon what type of treatment is at issue:
An attending physician shall be authorized to decide about routine medical treatment for an adult patient who has been determined to lack decision-making capacity
Major medical treatment, defined as procedures which involve:
A hospital or nursing home will be authorized under FHCDA to make decisions regarding major medical treatment under the following circumstances:
The new law provides for a surrogate to make all health care decisions in a hospital or nursing home that the adult patient could make for him or herself prior to losing capacity. PHL § 2994-d(3)(a)(i). Providing nutrition and hydration orally, without reliance on medical treatment, is not a health care decision covered by the FHCDA. PHL § 2994-d(5)(d).
The surrogate's authority does not apply if (PHL § 2994-d(3)(a)(ii)):
Once the surrogate's authority is triggered, the surrogate must make health care decisions (PHL § 2994-d(4)):
If the treatment decision involves the withdrawal or with-holding of life-sustaining treatment, the law imposes additional conditions on the surrogate's authority (PHL § 2994-d(5)):
For decisions to withdraw or with-hold life-sustaining treatment, the law further requires a referral to the facility's ethics review committee in two situations:
FHCDA has largely replaced those sections of Public Health Law 29-B that granted a surrogate with a close relationship to an incapacitated patient authority to consent to a “do not resuscitate” (DNR) order regarding the use of cardio-pulmonary resuscitation. The authority to consent to a DNR order for an incapacitated patient now adheres to the surrogacy order of priority and the standards and procedures used throughout the other sections of the FHCDA. The changes are minor, such as permitting a friend to enter a DNR order after writing a statement describing their closeness to the patient rather than signing an affidavit attesting to knowledge of the patient’s wishes. PHL Art. 29-CCC.
Other sections of the new law govern DNR orders in non-hospital settings such a hospice (PHL Article 29-CCC), permitting FHCDA’s surrogacy provisions also to apply in such cases, and in mental hygiene facilities (renamed PHL Article 29-B).
The NYS Dept. of Health has posted this information about the new law:
The FHCDA Information Center is a project of the NYSBA Health Law Section. It is designed as a resource for all persons – including health care professionals, health care attorneys, advocacy groups, policymakers and members of the public – who are seeking information about the FHCDA. Information posted at the above link includes:
Text of the FHCDA (PDF)
The Family Health Care Decisions Act: A Summary of Key Provisions, Robert N. Swidler, NYSBA Health Law Journal (Spring 2010)
New York's Family Health Care Decisions Act -- The Legal and Political Background, Key Provisions, and Emerging Issues Robert N. Swidler, New York State Bar Association Journal (June 2010)(Explains long history of law since first proposed in 1992 -- during the intervening 18 years, NYS had one of the strictest laws in the country, forbidding family members or close friends from making health care decisions absent "clear and convincing" evidence of the patient's wishes or a health care proxy)
Frequently Asked Questions (Including Q&A's added or revised on September 9, 2010)
Surrogate Decision-Making for Incapable Adult Patients with Mental Disabilities: A Chart of the Applicable Laws and Regulations (PDF) (Revised January 12, 2011)
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.