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Family Health Care Decisions Act

The New York State Senate passed the Family Health Care Decisions Act in February, 2010
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Family Health Care Decisions Act
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Family Health Care Decisions Act

NYS Senate Passes Family Health Care Decisions Act

As only 20% of individuals sign a health care proxy, the overwhelming majority of patients are left without the opportunity for decisions to be made on their behalf if they become incapacitated.  Thus, the Senate passed the FHCDA to create a legal mechanism for the appointment of a health care surrogate to make health care decisions for individuals who become incapacitated.
 
Senator Thomas K. Duane, the bill’s lead sponsor, asserted that “This vitally important legislation protects those who are incapacitated and powerless.  The FHCDA eliminates the uncertainty that care-givers face when a patient is no longer able to make decisions for him or herself, assuring that the best interests of that individual are respected. For years, families have been shut out from making health care decisions for their loved ones who are incapacitated. We are empowering families and protecting patients during their time of need”.
 
Appointing a Surrogate

  • To appoint a surrogate, the FHCDA requires a determination by an attending physician that the individual lacks decision-making capacity.
  • In a nursing home, this determination must be confirmed by an independent determination by a health or social services practitioner that the individual lacks decision-making capacity.
  • In a hospital, the independent determination is required only if the surrogate’s decision concerns withdrawal or withholding of life-sustaining treatment.
  • If there is disagreement about whether the individual lacks decision-making capacity, the matter is referred to the hospital or nursing home ethics committee for resolution.

Potential Surrogates (in order of priority)

  • Court-appointed guardian
  • Individual designated orally by the subsequently incapacitated individual
  • Spouse or domestic partner
  •  Adult son or daughter
  • Parent
  •  Adult brother or sister
  •  Close relative or friend

Medical Decisions by a Surrogate

  • The surrogate has all the powers an individual has to make their own medical decisions, including the decision to withhold or withdraw life-sustaining treatment.
  • The FHCDA directs the surrogate to make decisions in accordance with the patient’s wishes, including the patient’s religious and moral beliefs.
  • If the patient’s wishes are not reasonably known and cannot be ascertained, the FHCDA directs the surrogate to make decisions in accordance with the patient’s best interests.

Decisions to Withhold or Withdraw Life-Sustaining Treatment

  • Decisions to withhold or withdraw life-sustaining treatment are governed by additional standards under the FHCDA.
  •  A surrogate may withhold or withdraw life-sustaining treatment for an individual if that individual will die within six months with or without treatment, as determined by two independent physicians, and treatment would be an extraordinary burden to the patient.
  •  A surrogate may also withhold or withdraw life-sustaining treatment if the patient has an irreversible condition, as determined by two independent physicians, and treatment would involves such pain, suffering, or other burden that it would be inhumane or extraordinarily burdensome to provide treatment under the circumstances.
  • Decisions to withhold or withdraw life-sustaining treatment for minors are made by the minor’s parents.

Medical Decisions for Individuals Without a Surrogate

  • The FHCDA authorizes the attending physician to act as surrogate for routine medical treatment.
  • For major medical treatment, a physician may act only upon the concurrence of another physician that such major medical treatment is necessary.
  • A physician may withhold or withdraw life-sustaining treatment for individuals without a surrogate only upon the independent concurrence of another physician that life-sustaining treatment offers no medical benefit to the patient because the patient will die imminently and the provision of life-sustaining treatment would violate accepted medical standards.

Individuals with Mental Retardation/Developmental Disability

  • Under the FHCDA, individuals with mental retardation or developmental disabilities are within the class of individuals for whom health care surrogates may be appointed.

The FHCDA will give New Yorkers peace of mind by allowing all parents, all guardians, all partners and all families the ability to make important medical decisions.   This law establishes a standard of care for incapacitated persons which has been long overdue.” said Senator Duane.