Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal

BILL NUMBER:S5014A

Title of bill

An act to amend the public health law, in relation to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal to a particular medical setting when such principal is unconscious or unresponsive

Purpose

To remove the prerequisite of an attending physician to determine the principal's decisional incapacity when the principal is outside a hospital, mental hygiene facility or residential health care facility and authorize the agent to make decisions for transport to a particular hospital, mental hygiene facility or residential health care facility when the principal is unconscious or unresponsive and there is no major medical trauma.

Summary of provisions

Section 1 amends section 2981 of the public health law's to allow a health care agent's authority to commence if the principle is not found within a hospital, mental hygiene facility or residential health care facility and is in an unconscious or unresponsive state.

Section 2 amends section 2982 of the public health law to allow health care agents to make decisions on behalf of principals, limited to placement in a hospital, mental hygiene facility, residential health care facility or the choice of provider, when the principal is unconscious or unresponsive and is not found within a hospital, mental hygiene facility or residential healthcare facility, without consultation with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or licensed clinical social worker.

Section 3 amends section 2983 of the public health law to allow that no determination by the physician be required, where the principal is found outside of a hospital, mental hygiene facility or residential health care facility and is unconscious or unresponsive as there shall be a presumption of incapacity for limited purposes of empowering the health care agent to make health care decisions in regard to the principal's placement in a hospital, mental hygiene facility, residential health care facility or choosing a health care provider.

Section 4 Establishes the effective date.

Justification

Many senior citizens and legal practitioners believe that a properly prepared and executed health care proxy can be used immediately when the need arises. In particular, many legal practitioners counsel, and seniors believe that the health care agent's authority to act is comprehensive in all settings, including outside of a hospital or other medical health facility. However, recently, a federal court decision in Stein vs. County of Nassau, et al. (Eastern District, (06-cv-5522-JS-WDW) 7/23/09) outlined, inter alia, the limitations on the authority of a health care agent authority to make decisions, including the decision

to transport the principal to a particular hospital or other medical institutional setting, when that decision is made outside of a hospital setting. The federal court held that if the principal is non-responsive and not in major medical trauma, the health care proxy is valid outside of a hospital and institution but that PHL section 2982 imposes restrictions on the agent's health care decision making authority. Specifically, that there is a procedural requirement that the Agent first consult with one of the listed professionals in the statute before a health care decision, including transport to a particular medical facility, may be made.

Legislative history

None.

Fiscal implications

None.

Effective date

Immediately.