Article 29-CC of Chapter 45, Public Health Law

Effective June 1, 2010

Written by Stephanie M. Keating, Esq., Schwartz & Fang, P.C.

The New York State Family Health Care Decisions Act is a newly enacted legislation is the result of a history of conflicts with hospitals and families of adult patients who do not have a written health care proxy in place. The families have expressed their wishes to act on behalf of their loved one without such a document, and up until now, the hospital could not follow their requests.


Who Does The Law Apply To?

This law shall apply to health care provided in a hospital to a patient who lacks decision-making capacity for health care decisions. Prior to seeking or relying upon a surrogate for a patient pursuant to this statute, the attending physician will make reasonable efforts to determine whether the patient has a health care agent appointed. [i]In the event the attending physician cannot ascertain whether a patient has a health care agent, the attending physician will rely upon a surrogate for the patient.[ii] Under this statute, the surrogate is defined as the person selected to make health care decisions on behalf of a patient pursuant to §2994-d of this statute.[iii] The surrogate can notify the attending physician of their decision orally or in writing.[iv]


Prior to seeking or relying upon a health care decision by a surrogate, if the attending physician has reason to believe that the patient has a history of receiving services for mental retardation or a developmental disability; it reasonably appears to the attending physician that the patient has mental retardation or a developmental disability; or the attending physician has reason to believe that the patient has been transferred from a mental hygiene facility operated or licensed by the office of mental health, then such physician must follow additional steps to determine whether a guardian has been appointed and whether this law or a section of the surrogate’s court procedure act applies to this patient.[v]


Decision-Making Capacity

For purposes of this Article, every adult is presumed to have decision-making capacity, unless a court order says otherwise, or a guardian is authorized under Article 81 of the mental hygiene law[vi]. An initial determination of capacity is made by the attending physician. Such a determination concludes whether a patient lacks decision-making capacity to a reasonable degree of medical certainty.[vii] This determination includes an assessment of the cause and extent of the patient’s incapacity and the likelihood that the patient will regain decision-making capacity.[viii] An initial determination that a patient lacks decision-making capacity shall be subject to a concurring determination, made independently, by a party with certain qualifications, when required in certain circumstances.[ix] Once a determination is made that a surrogate will make health care decisions because the adult patient lacks decision-making capacity, notice of such determination will be given to the patient, where there is an indication that he or she has the ability to comprehend the information; to at least one person on the surrogate list highest in the order of priority; and if transferred from a mental hygiene facility, to the director of same.[x] Unless a court of competent jurisdiction has determined that the adult patient lacks decision-making capacity, has been adjudged incompetent for all purposes, or a special exception exists, if the patient objects to the determination of incapacity, or to the choice of a surrogate or to a health care decision made by the surrogate, the patient’s objection or decision shall prevail.[xi]


It is important to note that this determination of whether an adult patient lacks decision-making capacity shall not be construed as a finding that the patient lacks capacity for any other purpose.[xii] An attending physician will confirm the adult patient’s continued lack of decision-making capacity before complying with health care decisions made pursuant to this statute, although they are not required to inform the patient or the health care surrogate of the confirmation.[xiii] If it is later determined that the decision-making is regained by the patient, then the authority of the surrogate ends immediately.[xiv]


One person from the following list from the class highest in priority will be named as surrogate:1) a guardian authorized under article 81 of the NYS mental hygiene law; 2) the spouse, if not legally separated from the patient, or a domestic partner; 3) a son or daughter eighteen years or older; 4) a parent; 5) a brother or sister eighteen years or older; or 6) a close friend.[xv] A close friend is defined under the statute as “any person, eighteen years or older, who is a close friend of the patient, or a 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 physician.”[xvi] If the attending physician is on the above list and becomes the surrogate, then he or she may no longer act as the attending physician.[xvii] Subject to certain limitations, the surrogate would have the same authority to make health care decisions just as the patient would.[xviii] The surrogate also has the right to receive updated medical information about the patient.[xix]


Decisions to withhold life-sustaining treatment are addressed in this statute, and the rules differ depending where the patient is being treated. Certain additional conditions must be satisfied before the attending physician will authorize such treatment:


“ 1) 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 2) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible 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 standards.”[xx]


Health care, for purposes of this statute, does not include oral nutrition and hydration.[xxi]


If a patient resides in a residential health care facility, there are extra rules. A surrogate there may refuse life-sustaining treatment only if an ethics review committee including at least one physician not responsible for the patient’s care, or a court of competent jurisdiction reviews this matter and decides the standards above are met. [xxii] This rule would not apply to a decision to withhold cardiopulmonary resuscitation.[xxiii]


If the attending physician in a general hospital does not agree with the surrogate’s decision, then that decision will not be followed until the ethics review committee which contains at least one physician not directly in charge of the patient’s care, reviews the case and determines the standards above are met.[xxiv] Each hospital will establish its own ethics review committee. The proceedings and records of an ethics review discussed above shall be confidential.[xxv] If the matter escalates beyond the ethics committee, the courts may intervene with a special proceeding and other options.[xxvi]


Up to now, this article has pertained to the adult patient. When the patient is a minor, the parent will have the authority to act as surrogate, subject to the same limitations on withholding life-sustaining treatment above.[xxvii] There are additional provisions which may affect minors under certain circumstances. Further, when the attending physician has reason to believe the minor patient has a parent or guardian, including a non-custodial parent who has not been informed of a decision to withhold life-sustaining decisions, then the physician should make reasonable efforts to determine if that parent/guardian has maintained “substantial and continuous contact” with the minor, and if yes, then make diligent efforts to notify that parent/guardian before following those instructions.[xxviii]


When an adult patient does not have a surrogate, and it is determined that the adult patient lacks decision-making capacity, to the extent possible, the hospital will look to the patient’s medical record to ascertain the wishes of the patient.[xxix] The attending physician is able to make decisions for the adult patient without a surrogate for routine medical treatment by themselves, and for major medical treatment in a hospital when also receives concurring recommendation from another physician designated by the hospital.[xxx] Decisions concerning withdrawal of life-sustaining decisions would be made by the attending physician and with concurrence of an independent physician designated by the hospital in a reasonable degree of certainty that no medical benefit would be gained by the patient because they face imminent death, or not providing such treatment would violate medical standards.[xxxi]


Once a patient, surrogate, or parent or guardian of a minor consent to withholding life-sustaining treatment, they may inform the attending physician of their wish to revoke his or her consent.[xxxii]


A Private hospital shall not be required to follow this statute if:

(a) The decision is contrary to a formally adopted policy of the hospital that is expressly based on sincerely held religious beliefs or sincerely held moral convictions central to the facility’s operating principals;


(b) The hospital has informed the patient, family, or surrogate of such policy prior to or upon admission, if reasonably possible; and


(c) The patient is transferred promptly to another hospital that is reasonably accessible under the circumstances and willing to honor the decision and pending transfer, the hospital complies with …this (statute). If the patient’s family or surrogate is unwilling to arrange such a transfer, the hospital may intervene to facilitate such a transfer.[xxxiii]


Individual health care providers are not required to follow this statute. This is geared toward a general hospital setting.[xxxiv]


This new legislation is designed to help those families with patient who may not have put into writing their wishes concerning health care. It is intended to supplement the medical ethics and add a number of procedural safeguards. It may take time to smooth out any wrinkles in this statute when put into practice. However, its intentions are good and it should help relieve a majority of the conflicts that arise now.


[i] Chapter 45 of the New York Consolidated Laws – Public Health Law, Article 29-CC Family Heath Care Decision Act, § 2994-b(2).
[ii] P.H.L. § 2994-b(2).

[iii] P.H.L. § 2994-a(29).

[iv][iv] P.H.L. § 2994-d(5(e).

[v] P.H.L. § 2994-b(3).

[vi] P.H.L. § 2994-c(1).

[vii] P.H.L. § 2994-c(2).

[viii] P.H.L. § 2994-c(2).

[ix] P.H.L. § 2994-c(3).

[x] P.H.L. § 2994-c(4).

[xi] P.H.L. § 2994-c(6).

[xii] P.H.L. § 2994-c(5).

[xiii] P.H.L. § 2994-c(7).

[xiv] P.H.L. §2994-d(3)(b).

[xv] P.H.L. § 2994-d(1).

[xvi] P.H.L. § 2994-a(4).

[xvii] P.H.L. § 2994-d(2).

[xviii] P.H.L. § 2994-d(3).

[xix] P.H.L. § 2994-d(3)(c).

[xx] P.H.L. § 2994-d(5)(a).

[xxi] P.H.L. § 2994-d(5)(d).

[xxii] P.H.L. § 2994-d(5)(b).

[xxiii] P.H.L. § 2994-d(5)(b).

[xxiv] P.H.L. § 2994-d(5)(c).

[xxv] P.H.L. § 2994-m(6).

[xxvi] P.H.L. § 2994-r.

[xxvii] P.H.L. § 2994-e(1).

[xxviii] P.H.L. § 2994-e(3).

[xxix] P.H.L. § 2994-g(1).

[xxx] P.H.L. § 2994-g(4).

[xxxi] P.H.L. § 2994-g(5).

[xxxii] P.H.L. § 2994-j(1).

[xxxiii] P.H.L. § 2994-n(1).

[xxxiv] P.H.L. § 2994-n(2).