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:S2908

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 partic- ular medical setting when such principal is unconscious or unresponsive

Purpose

To remove the prerequisite of an attending physician to deter- mine 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 place- ment 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 practition- ers 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 hospi- tal or other medical institutional setting, when that decision is made outside of a hospital setting. The federal court held that if the prin- cipal is nonresponsive 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 partic- ular medical facility, may be made.

Legislative history

S.5014A/A.8389 - Vetoed

Fiscal implications

None.

Effective date

Immediately.