* § 2965. Surrogate decision-making. 1. (a) The consent of a surrogate or health care agent acting on behalf of an adult patient who lacks capacity or on behalf of an adult patient for whom consent by a surrogate or health care agent is authorized by subdivision three of section twenty-nine hundred sixty-four of this article must be obtained prior to issuing an order not to resuscitate the patient, except as provided in paragraph (b) of this subdivision or section twenty-nine hundred sixty-six of this article.

Terms Used In N.Y. Public Health Law 2965

  • Adult: means any person who is eighteen years of age or older, or is the parent of a child, or has married. See N.Y. Public Health Law 2961
  • Attending practitioner: means the physician, nurse practitioner, or physician assistant, licensed or certified pursuant to title eight of the education law, selected by or assigned to a patient in a hospital who has primary responsibility for the treatment and care of the patient. See N.Y. Public Health Law 2961
  • Capacity: means the ability to understand and appreciate the nature and consequences of an order not to resuscitate, including the benefits and disadvantages of such an order, and to reach an informed decision regarding the order. See N.Y. Public Health Law 2961
  • Cardiopulmonary resuscitation: means measures to restore cardiac function or to support ventilation in the event of a cardiac or respiratory arrest. See N.Y. Public Health Law 2961
  • Close friend: means any person, eighteen years of age or older, who is a close friend of the patient, or relative of the patient (other than a spouse, adult child, parent, brother or sister) who has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious or moral beliefs and who presents a signed statement to that effect to the attending practitioner. See N.Y. Public Health Law 2961
  • Domestic partner: means a person who, with respect to another person:

    (a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or

    (b) is formally recognized as a beneficiary or covered person under the other person's employment benefits or health insurance; or

    (c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons. See N.Y. Public Health Law 2961
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Health care agent: means a health care agent of the patient designated pursuant to article twenty-nine-C of this chapter. See N.Y. Public Health Law 2961
  • Hospital: means a hospital as defined in subdivision ten of § 1. See N.Y. Public Health Law 2961
  • Medically futile: means that cardiopulmonary resuscitation will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs. See N.Y. Public Health Law 2961
  • Nurse practitioner: means a nurse practitioner certified pursuant to § 6910 of the education law who is practicing in accordance with subdivision three of § 6902 of the education law. See N.Y. Public Health Law 2961
  • Order not to resuscitate: means an order not to attempt cardiopulmonary resuscitation in the event a patient suffers cardiac or respiratory arrest. See N.Y. Public Health Law 2961
  • Parent: means a parent who has custody of the minor. See N.Y. Public Health Law 2961
  • Patient: means a person admitted to a hospital. See N.Y. Public Health Law 2961
  • Reasonably available: means that a person to be contacted can be contacted with diligent efforts by an attending practitioner or another person acting on behalf of the attending practitioner or the hospital. See N.Y. Public Health Law 2961
  • Surrogate: means the person selected to make a decision regarding resuscitation on behalf of another person pursuant to section twenty-nine hundred sixty-five of this article. See N.Y. Public Health Law 2961
  • Surrogate list: means the list set forth in subdivision two of section twenty-nine hundred sixty-five of this article. See N.Y. Public Health Law 2961
  • Terminal condition: means an illness or injury from which there is no recovery, and which reasonably can be expected to cause death within one year. See N.Y. Public Health Law 2961

(b) The consent of a surrogate or health care agent shall not be required where the adult had, prior to losing capacity, consented to an order not to resuscitate pursuant to subdivision two of section twenty-nine hundred sixty-four of this article.

(c) A decision regarding cardiopulmonary resuscitation by a health care agent on a principal's behalf is governed by article twenty-nine-C of this chapter and shall have priority over decisions by any other person, except the patient or as otherwise provided in the health care proxy.

2. (a) One person from the following list, to be chosen in order of priority listed, when persons in the prior subparagraphs are not reasonably available, willing to make a decision regarding issuance of an order not to resuscitate, and competent to make a decision regarding issuance of an order not to resuscitate, shall have the authority to act as surrogate on behalf of the patient. However, such person may designate any other person on the list to be surrogate, provided no one in a higher class than the person designated objects:

(i) a guardian authorized to decide about health care pursuant to Article eighty-one of the mental hygiene law or a guardian of a person appointed under article seventeen-A of the surrogate's court procedure act, provided that this paragraph shall not be construed to require the appointment of a guardian for the purpose of making the resuscitation decision;

(ii) the spouse, if not legally separated from the patient, or the domestic partner;

(iii) a son or daughter eighteen years of age or older;

(iv) a parent;

(v) a brother or sister eighteen years of age or older; and

(vi) a close friend.

(b) After the surrogate has been identified, the name of such person shall be included in the patient's medical chart.

3. (a) The surrogate shall make a decision regarding cardiopulmonary resuscitation on the basis of the adult patient's wishes including a consideration of the patient's religious and moral beliefs, or, if the patient's wishes are unknown and cannot be ascertained, on the basis of the patient's best interests.

(b) Notwithstanding any law to the contrary, the surrogate shall have the same right as the patient to receive medical information and medical records.

(c) A surrogate may consent to an order not to resuscitate on behalf of an adult patient only if there has been a determination by an attending practitioner with the concurrence of another physician, nurse practitioner or physician assistant selected by a person authorized by the hospital to make such selection, given after personal examination of the patient that, to a reasonable degree of medical certainty:

(i) the patient has a terminal condition; or

(ii) the patient is permanently unconscious; or

(iii) resuscitation would be medically futile; or

(iv) resuscitation would impose an extraordinary burden on the patient in light of the patient's medical condition and the expected outcome of resuscitation for the patient.

Each determination shall be included in the patient's medical chart.

4. (a) A surrogate shall express a decision consenting to an order not to resuscitate either (i) in writing, dated, and signed in the presence of one witness eighteen years of age or older who shall sign the decision, or (ii) orally, to two persons eighteen years of age or older, one of whom is a physician, nurse practitioner or physician assistant affiliated with the hospital in which the patient is being treated. Any such decision shall be recorded in the patient's medical chart.

(b) The attending practitioner who is provided with the decision of a surrogate shall include the decision in the patient's medical chart and, if the surrogate has consented to the issuance of an order not to resuscitate, shall either:

(i) promptly issue an order not to resuscitate the patient and inform the hospital staff responsible for the patient's care of the order; or

(ii) promptly make the attending practitioner's objection to the issuance of such an order known to the surrogate and either make all reasonable efforts to arrange for the transfer of the patient to another physician, nurse practitioner or physician assistant, if necessary, or promptly refer the matter to the dispute mediation system.

(c) If the attending practitioner has actual notice of opposition to a surrogate's consent to an order not to resuscitate by any person on the surrogate list, the physician, nurse practitioner or physician assistant shall submit the matter to the dispute mediation system and such order shall not be issued or shall be revoked in accordance with the provisions of subdivision three of section twenty-nine hundred seventy-two of this article.

* NB Repealed March 21, 2024

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