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 hills make technical/minor, clarifying and coordinating amendments and other improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8, Laws of 2010) and other laws that govern health care decisions, including life-sustaining treatment decisions, for patients who lack decision-making capacity.
This bill makes the standards for a health care agent's 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, and to add more general language prompting the principal to express his or her wishes about life-sustaining treatment, including nutrition and hydration provided by means of medical treatment.
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: ninety days after it becomes a law.
JUSTIFICATION: 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 1990 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: 2013: A.7371 reported referred to codes
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: 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--A 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 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. Subdivision 4 of section 2980 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows: 4. "Health care" means any treatment, service or procedure to diagnose or treat an individual's physical or mental condition. PROVIDING NUTRI- TION OR HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS NOT HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE. S 2. The fourth undesignated paragraph of paragraph (d) of subdivision 5 of section 2981 of the public health law, as added by chapter 752 of the laws of 1990, is amend to read as follows: 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.]FOR EXAMPLE, YOU MAY STATE YOUR WISHES REGARDING WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING TREATMENT (INCLUDING HYDRATION AND NUTRITION PROVIDED BY MEANS OF MEDICAL TREAT- MENT) TO GUIDE YOUR AGENT'S DECISIONS. If you choose to state instructions, wishes, or limits, please do so below: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ S 3. 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 socialEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13622-07-4 S. 7154--A 2
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 4. 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 two and three 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.