Relates to disputes between a surrogate and a hospital or individual health care provider

BILL NUMBER:S7155A

Title of bill

An act to amend the public health law, in relation to disputes between a surrogate and a hospital or individual health care provider

Purpose of general idea of bill

This is one of a series of seven bills, informally referred to as the "Surrogate Decision-Making Improve- ment Acts." The bills 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 clarifies that the provisions relating to disputes between a surrogate and a hospital or individual health care provider do not apply when the hospital or individual health care provider is carrying out a patient's prior decision that meet standards set forth in the FHCDA.

Summary of specific provisions

Section 1 amends PHL section 2994-f to clarify that the provisions relating to disputes between a surrogate and a hospital or individual health care provider do not apply when the hospital or individual health care provider is carrying out a patient's prior decision that meet stan- dards set forth in PHL § 2994-d, provided that the surrogate in such instance retains the right to request ethics committee review of the case or judicial review in accordance with other provisions in the FHCDA.

Section 2 is the effective date: immediately.

Justification

This amendment ensures that a surrogate's objection will not prohibit a provider from following the clearly expressed prior wishes of a patient.

The Family Health Care Decisions Act (FHCDA) now states that if a surro- gate directs the provision of life-sustaining treatment, but the hospi- tal or individual health care provider "does not wish to provide such treatment," the hospital or individual provider nevertheless must either comply with the surrogate's decision, transfer the patient or seek court review.

The provision is appropriate as applied to a dispute between the surro- gate and the provider. However, it does not clearly or appropriately apply to disputes between a surrogate and the patient himself, as evidenced by the patient's clear prior decision. Indeed, it would be constitutionally and ethically problematic to apply this clause to over- ride a patient's clear prior decision.

Notably, the FHCDA provides that a provider does not need to seek the consent of a surrogate when a patient has made a decision about proposed health care in accordance with certain requirements. PHL 2994-d.3(a)(ii). Accordingly, this amendment clarifies that the provision relating to a dispute between the surrogate and the provider does not apply "when the hospital or individual health care provider is carrying out a patient's decision made pursuant to paragraph (ii) of subdivision 3 of section twenty-nine hundred ninety-four-d of this arti- cle."

The amendment recognizes that the surrogate retains other means to chal- lenge the patient's prior decision, i.e.: through the ethics review committee process or judicial review.

Prior legislative history

New bill

Fiscal implications

None.

Effective date

This act shall take effect immediately.