Bill S7156A-2013

Authorizes the issuance of an order not to resuscitate in cases of medical futility

Relates to restoring medical futility as a basis for DNR.

Details

Actions

  • Jun 16, 2014: PRINT NUMBER 7156A
  • Jun 16, 2014: AMEND AND RECOMMIT TO HEALTH
  • May 1, 2014: REFERRED TO HEALTH

Memo

BILL NUMBER:S7156A

TITLE OF BILL: An act to amend the public health law and the surrogate's court procedure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resuscitate order for a patient without a surrogate

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 6, restores the medical futility standard from former PHL Art. 29-B as a basis for surrogate consent to a Do Not Resuscitate (DNR) order and for a DNR order for a patient without a surrogate.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 sets forth the legislative intent.

Section 2 amends PHL § 2994-d.5(a) to restore one of the bases in the former DNR Law (PHL Art. 29B) for when a surrogate may consent to DNR order: i.e, when there is a determination by the attending physician and a concurring physician that resuscitation would be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs (hereinafter referred to as "medical futility" ).

Section 3 amends PHL § 2994-d.5(b) to restore medical futility as a basis for a DNR order for a patient who does not have a surrogate.

Section 4 amends SCPA § 1750-b.4(b): to restore medical futility as a basis for surrogate consent to a DNR order for a developmentally disabled person.

Section 5 amends SCPA § 1750-b.4(b) to restore medical futility as a basis for a DNR order for a developmentally disabled patient who does not have a surrogate, without need for approval by a surrogate decision making committee convened pursuant to the MHL Article 80.

Section 6 is the effective date.

JUSTIFICATION: Under the former DNR law (PHL Art 29-B), a surrogate could consent to a DNR order if the patient met any one of four clinical criteria, one of which was a finding by two physicians that 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." The former DNR law also allowed a DNR order to be entered for a patient who did not have a surrogate on that basis. That law applied to all patients, including developmentally disabled patients.

The FHCDA, in contrast, establishes standards for the withdrawal or withholding of a broad range of life-sustaining treatment Accordingly it does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made the FHCDA apply to DNR orders for most patient in hospitals and nursing homes.

Similarly SCPA § 1750-b does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made SCPA § 1750-b apply to DNR orders for developmentally disabled patients.

Experience has shown that the broader FHCDA and SCPA § 1750-b standards, especially the standards for patients who do not have surrogates, can be difficult to apply to decisions about resuscitation. This bill would restore the former DNR law's medical futility standard as an alternative basis for writing a DNR order under the FHCDA and under SCPA § 1750-b.

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

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall become a law


Text

STATE OF NEW YORK ________________________________________________________________________ 7156--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 and the surrogate's court proce- dure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resuscitate order for a patient without a surrogate THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings. Under New York's former do not resus- citate (hereinafter "DNR") law, article 29-B of the public health law, a surrogate could consent to a DNR order if the patient met any one of four clinical criteria, one of which was a finding by two physicians that resuscitation was "medically futile," which was defined to mean that 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." The former DNR law also allowed a DNR order to be entered for a patient who did not have a surrogate on that basis. That law applied to all patients, including developmentally disabled patients. In 2010, the former DNR law was superseded by the Family Health Care Decisions Act (hereinafter "FHCDA") which established standards for the withdrawal or withholding of a broad range of life-sustaining treat- ments. Accordingly, the FHCDA did not have a standard specifically relating to medically futile resuscitation. Similarly, Surrogate's Court Procedure Act (hereinafter "SPCA") S1750-b does not have a standard specifically relating to medically futile resuscitation for develop- mentally disabled patients. The legislature finds that the broader FHCDA and SPCA S1750-b stand- ards are difficult to apply to situations in which resuscitation would be medically futile. Accordingly, this bill restores the former DNR law's medical futility standard as an alternative basis for writing a DNR order under the FHCDA and under SCPA S1750-b.
S 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of section 2994-d of the public health law, as added by chapter 8 of the laws of 2010, are amended and a new subparagraph (iii) is added to read as follows: (i) Treatment would be an extraordinary burden to the patient and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; [or] (ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraor- dinarily burdensome under the circumstances and the patient has an irre- versible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical stand- ards[.]; OR (III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE, AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, THAT IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD BEFORE DEATH OCCURS. S 3. Paragraph (b) of subdivision 5 of section 2994-g of the public health law, as added by chapter 8 of the laws of 2010, is amended to read as follows: (b) If the attending physician, with independent concurrence of a second physician designated by the hospital, determines to a reasonable degree of medical certainty that: (i) (A) life-sustaining treatment offers the patient no medical bene- fit because the patient will die imminently, even if the treatment is provided; and [(ii)] (B) the provision of life-sustaining treatment would violate accepted medical standards, then such treatment may be withdrawn or withheld from an adult patient who has been determined to lack deci- sion-making capacity pursuant to section twenty-nine hundred ninety- four-c of this article, without judicial approval. This paragraph shall not apply to any treatment necessary to alleviate pain or discomfort; OR (II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, 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, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI- TY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI- CLE, WITHOUT JUDICIAL APPROVAL. S 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of section 1750-b of the surrogate's court procedure act, as added by chap- ter 500 of the laws of 2002, are amended to read as follows: (i) the mentally retarded person has a medical condition as follows: A. a terminal condition, [as defined in subdivision twenty-three of section twenty-nine hundred sixty-one of the public health law] WHICH SHALL MEAN AN ILLNESS OR INJURY FROM WHICH THERE IS NO RECOVERY, AND WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or B. permanent unconsciousness; or
C. a medical condition other than such person's mental retardation which requires life-sustaining treatment, is irreversible and which will continue indefinitely; [and] OR D. IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE, THAT IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST SUCH RESUSCITATION WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD BEFORE DEATH OCCURS; AND (ii) EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS- CITATE BASED ON CLAUSE D OF SUBPARAGRAPH (I) OF THIS PARAGRAPH, the life-sustaining treatment would impose an extraordinary burden on such person, in light of: A. such person's medical condition, other than such person's mental retardation; and B. the expected outcome of the life-sustaining treatment, notwith- standing such person's mental retardation; and S 5. Subdivision 4 of section 1750-b of the surrogate's court proce- dure act is amended by adding new paragraph (f) to read as follows: (F) IN THE CASE OF A PERSON FOR WHOM "GUARDIAN" MEANS A SURROGATE DECISION-MAKING COMMITTEE PURSUANT TO THIS SECTION, AN ORDER NOT TO RESUSCITATE MAY BE ENTERED, WITHOUT REVIEW OR APPROVAL BY SUCH COMMIT- TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR- RENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAIN- TY, THAT IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST RESUSCITATION WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD BEFORE DEATH OCCURS. S 6. This act shall take effect on the ninetieth day after it shall have become a law.

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