1. Presumption of capacity. For purposes of this article, every adult shall be presumed to have decision-making capacity unless determined otherwise pursuant to this section or pursuant to court order, or unless a guardian is authorized to decide about health care for the adult pursuant to article eighty-one of the mental hygiene law.

Terms Used In N.Y. Public Health Law 2994-C

  • Adult: means any person who is eighteen years of age or older or has married. See N.Y. Public Health Law 2994-A
  • Attending practitioner: means a physician, nurse practitioner or physician assistant, selected by or assigned to a patient pursuant to hospital policy, who has primary responsibility for the treatment and care of the patient. See N.Y. Public Health Law 2994-A
  • Decision-making capacity: means the ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed health care, and to reach an informed decision. See N.Y. Public Health Law 2994-A
  • Decisions regarding hospice care: means the decision to enroll or disenroll in hospice, and consent to the hospice plan of care and modifications to that plan. See N.Y. Public Health Law 2994-A
  • Ethics review committee: means the interdisciplinary committee established in accordance with the requirements of section twenty-nine hundred ninety-four-m of this article. See N.Y. Public Health Law 2994-A
  • General hospital: means a general hospital as defined in subdivision ten of section twenty-eight hundred one of this chapter excluding a ward, wing, unit or other part of a general hospital operated for the purpose of providing services for persons with mental illness pursuant to an operating certificate issued by the commissioner of mental health. See N.Y. Public Health Law 2994-A
  • Health care: means any treatment, service, or procedure to diagnose or treat an individual's physical or mental condition. See N.Y. Public Health Law 2994-A
  • Health care decision: means any decision to consent or refuse to consent to health care. See N.Y. Public Health Law 2994-A
  • Hospice: means a hospice as defined in article forty of this chapter, without regard to where the hospice care is provided. See N.Y. Public Health Law 2994-A
  • Hospital: means a general hospital, a residential health care facility, or hospice. See N.Y. Public Health Law 2994-A
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Life-sustaining treatment: means any medical treatment or procedure without which the patient will die within a relatively short time, as determined by an attending physician to a reasonable degree of medical certainty. See N.Y. Public Health Law 2994-A
  • Mental hygiene facility: means a facility operated or licensed by the office of mental health or the office for people with developmental disabilities as defined in subdivision six of section 1. See N.Y. Public Health Law 2994-A
  • Mental illness: means a mental illness as defined in subdivision twenty of section 1. See N.Y. Public Health Law 2994-A
  • Patient: means a person admitted to a hospital. See N.Y. Public Health Law 2994-A
  • Residential health care facility: means a residential health care facility as defined in subdivision three of section twenty-eight hundred one of this chapter. See N.Y. Public Health Law 2994-A
  • Surrogate: means the person selected to make a health care decision on behalf of a patient pursuant to section twenty-nine hundred ninety-four-d of this article. See N.Y. Public Health Law 2994-A
  • Surrogate list: means the list set forth in subdivision one of section twenty-nine hundred ninety-four-d of this article. See N.Y. Public Health Law 2994-A

2. Initial determination by attending practitioner. An attending practitioner shall make an initial determination that an adult patient lacks decision-making capacity to a reasonable degree of medical certainty. Such determination shall include an assessment of the cause and extent of the patient’s incapacity and the likelihood that the patient will regain decision-making capacity.

3. Concurring determinations. (a) An initial determination that a patient lacks decision-making capacity shall be subject to a concurring determination, independently made, where required by this subdivision. A concurring determination shall include an assessment of the cause and extent of the patient’s incapacity and the likelihood that the patient will regain decision-making capacity, and shall be included in the patient’s medical record. Hospitals shall adopt written policies identifying the training and credentials of health or social services practitioners qualified to provide concurring determinations of incapacity.

(b) (i) In a residential health care facility, a health or social services practitioner employed by or otherwise formally affiliated with the facility must independently determine whether an adult patient lacks decision-making capacity.

(ii) In a general hospital a health or social services practitioner employed by or otherwise formally affiliated with the facility must independently determine whether an adult patient lacks decision-making capacity if the surrogate‘s decision concerns the withdrawal or withholding of life-sustaining treatment.

(iii) With respect to decisions regarding hospice care for a patient in a general hospital or residential health care facility, the health or social services practitioner must be employed by or otherwise formally affiliated with the general hospital or residential health care facility.

(c) (i) If the attending practitioner makes an initial determination that a patient lacks decision-making capacity because of mental illness, either such physician must have the following qualifications, or another physician with the following qualifications must independently determine whether the patient lacks decision-making capacity: a physician licensed to practice medicine in New York state, who is a diplomate or eligible to be certified by the American Board of Psychiatry and Neurology or who is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board. A record of such consultation shall be included in the patient’s medical record.

(ii) If the attending practitioner makes an initial determination that a patient lacks decision-making capacity because of a developmental disability, either such physician, nurse practitioner or physician assistant must have the following qualifications, or another professional with the following qualifications must independently determine whether the patient lacks decision-making capacity: a physician or clinical psychologist who either is employed by a developmental disabilities services office named in section 13.17 of the mental hygiene law, or who has been employed for a minimum of two years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or has been approved by the commissioner of developmental disabilities in accordance with

regulations promulgated by such commissioner. Such regulations shall require that a physician or clinical psychologist possess specialized training or three years experience in treating developmental disabilities. A record of such consultation shall be included in the patient’s medical record.

(d) If an attending practitioner has determined that the patient lacks decision-making capacity and if the health or social services practitioner consulted for a concurring determination disagrees with the attending practitioner’s determination, the matter shall be referred to the ethics review committee if it cannot otherwise be resolved.

4. Informing the patient and surrogate. Notice of a determination that a surrogate will make health care decisions because the adult patient has been determined to lack decision-making capacity shall promptly be given:

(a) to the patient, where there is any indication of the patient’s ability to comprehend the information;

(b) to at least one person on the surrogate list highest in order of priority listed when persons in prior classes are not reasonably available pursuant to subdivision one of section twenty-nine hundred ninety-four-d of this article;

(c) if the patient was transferred from a mental hygiene facility, to the director of the mental hygiene facility and to the mental hygiene legal service under article forty-seven of the mental hygiene law.

5. Limited purpose of determination. A determination made pursuant to this section that an adult patient lacks decision-making capacity shall not be construed as a finding that the patient lacks capacity for any other purpose.

6. Priority of patient’s decision. Notwithstanding a determination pursuant to this section that an adult patient lacks decision-making capacity, if the patient objects to the determination of incapacity, or to the choice of a surrogate or to a health care decision made by a surrogate or made pursuant to section twenty-nine hundred ninety-four-g of this article, the patient’s objection or decision shall prevail unless: (a) a court of competent jurisdiction has determined that the patient lacks decision-making capacity or the patient is or has been adjudged incompetent for all purposes and, in the case of a patient’s objection to treatment, makes any other finding required by law to authorize the treatment, or (b) another legal basis exists for overriding the patient’s decision.

7. Confirmation of continued lack of decision-making capacity. An attending practitioner shall confirm the adult patient’s continued lack of decision-making capacity before complying with health care decisions made pursuant to this article, other than those decisions made at or about the time of the initial determination. A concurring determination of the patient’s continued lack of decision-making capacity shall be required if the subsequent health care decision concerns the withholding or withdrawal of life-sustaining treatment. Health care providers shall not be required to inform the patient or surrogate of the confirmation.