Relates to life-sustaining treatment standards.
TITLE OF BILL: An act to amend the public health law, in relation to the artificial nutrition and hydration decision standard
PURPOSE OF GENERAL IDEA OF BILL:
This is one of a series of seven bills, informally referred to as the "Surrogate Decision-Making Improvement Acts." The bills make technical/minor, clarifying and coordinating amendments and other improvements to the NYS laws that govern health care decisions, including life-sustaining treatment decisions, for patients who lack decision-making capacity. The SDMIAs address these topics:
*SDMIA 1 Technical / Minor Amendments
*SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients in Mental Hygiene Facilities
*SDMIA 3 Determining Patient Incapacity
*SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition and Hydration
*SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision
*SDMIA 6 Restore Medical Futility as a Basis for a DNR Order
*SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally Disabled Persons
This bill, SDMIA 4, makes the agents decision regarding artificial nutrition and hydration consistent with the Family Health Care Decision Act (FHCDA).
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends the model health care proxy form in PHL § 2981.5(d) to delete a clause relating to agent decisions regarding artificial nutrition and hydration because of the change made by Section 2.
Section 2 deletes a clause relating to agent decisions regarding artificial nutrition and hydration to make the decision-making standard consistent with the standard in the FHCDA, allowing a surrogate to make such decisions based on the surrogate's wishes, including the principal's religious and moral beliefs, or if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests.
Section 3 is the effective date.
This bill makes the decision-making standard for an agent under the Health Care Proxy Law similar to the standard for a surrogate under the Family Health Care Decisions Act (FHCDA).
Specifically, the FHCDA provides that a surrogate must make decisions about life-sustaining treatment, including artificial nutrition and hydration, based on the patient's wishes or, if the patient's wishes are not reasonably known, based on the patient's best interests. In contrast, the 1987 Health Care Proxy Law allows the patient's designated agent to make decisions about artificial nutrition and hydration only if the decision is based on the patient's reasonably known wishes, and not if the decision is based on the patient's best interests. There is little basis for this disparity in standards. Moreover, the special rule for decisions about artificial nutrition and hydration in the Health Care Proxy Law has been a source of enduring confusion and misinterpretation.
This amendment would make the FHCDA standard, with its careful definition of "best interests," and which no applies to decisions by surrogates, applicable to decisions by health care agents.
PRIOR LEGISLATIVE HISTORY:
S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A. Gottfried)(2013) included all of these provisions, as well as other provisions.
This act shall take effect ninety days after the date on which this act shall have become a law. The amendments to article 29-C of the public health law shall apply to decisions made pursuant to health care proxies created prior to this act becoming law as well as those created thereafter.
STATE OF NEW YORK ________________________________________________________________________ 7154 IN SENATE May 1, 2014 ___________Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to the artificial nutrition and hydration decision standard THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (d) of subdivision 5 of section 2981 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows: (d) A health care proxy may, but need not, be in the following form: Health Care Proxy I (name of principal) hereby appoint (name, home address and telephone number of agent) as my health care agent to make any and all health care decisions for me, except to the extent I state otherwise. This health care proxy shall take effect in the event I become unable to make my own health care decisions. NOTE: Although not necessary, and neither encouraged nor discouraged, you may wish to state instructions or wishes, and limit your agent's authority.
[Unless your agent knows your wishes about artificial nutri- tion and hydration, your agent will not have authority to decide about artificial nutrition and hydration.]If you choose to state instructions, wishes, or limits, please do so below: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ I direct my agent to make health care decisions in accordance with my wishes and instructions as stated above or as otherwise known to him or her. I also direct my agent to abide by any limitations on his or her authority as stated above or as otherwise known to him or her. In the event the person I appoint above is unable, unwilling or unavailable to act as my health care agent, I hereby appoint (name, home address and telephone number of alternate agent) as my health care agent.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13622-01-4 S. 7154 2
I understand that, unless I revoke it, this proxy will remain in effect indefinitely or until the date or occurrence of the condition I have stated below: (Please complete the following if you do NOT want this health care proxy to be in effect indefinitely): This proxy shall expire: (Specify date or condition) Signature: Address: Date: I declare that the person who signed or asked another to sign this document is personally known to me and appears to be of sound mind and acting willingly and free from duress. He or she signed (or asked anoth- er to sign for him or her) this document in my presence and that person signed in my presence. I am not the person appointed as agent by this document. Witness: Address: Witness: Address: S 2. Subdivision 2 of section 2982 of the public health law, as amended by chapter 230 of the laws of 2004, is amended to read as follows: 2. Decision-making standard. After consultation with a licensed physi- cian, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker, the agent shall make health care decisions: (a) in accordance with the principal's wishes, including the principal's religious and moral beliefs; or (b) if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best inter- ests
[; provided, however, that if the principal's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent shall not have the authority to make decisions regarding these meas- ures]. S 3. This act shall take effect on the ninetieth day after it shall have become a law, provided that the amendments to sections 2981 and 2982 of the public health law made by sections one and two of this act shall apply to decisions made pursuant to health care proxies created prior to the effective date of this act as well as those created there- after.