Relates to life-sustaining treatment standards

BILL NUMBER:S4794

Title of bill

An act to amend the public health law, in relation to the artificial nutrition and hydration decision standard

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 4, makes the agents decision regarding artificial nutrition and hydration consistent with the Family Health Care Decision Act (FHCDA).

Summary of specific provisions

Section 1 amends section 2980 of the public health law amending the definition of "health care" to clarify that providing nutrition or hydration orally, without reliance on medical treatment, is not health care under the title.

Section 2 amends the model health care proxy form in PHL § 2981.5(d) to delete a clause relating to agent decisions regarding artificial nutrition and hydration because of the change made by Section 2.

Section 3 deletes a clause in section 2982 of the public health law relating to agent decisions regarding artificial nutrition and hydration to make the decision-making standard consistent with the standard in the FHCDA, allowing a surrogate to make such decisions based on the surrogate's wishes, including the principal's religious and moral beliefs, or if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests.

Section 4 is the effective date.

Justification

This bill makes the decision-making standard for an agent under the Health Care Proxy Law similar to the standard for a surrogate under the Family Health Care Decisions Act (FHCDA).

Specifically, the FHCDA provides that a surrogate must make decisions about life-sustaining treatment, including artificial nutrition and hydration, based on the patient's wishes or, if the patient's wishes are not reasonably known, based on the patient's best interests. In contrast, the 1987 Health Care Proxy Law allows the patient's designated agent to make decisions about artificial nutrition and hydration only if the decision is based on the patient's reasonably known wishes, and not if the decision is based on the patient's best interests. There is little basis for this disparity in standards. Moreover, the special rule for decisions about artificial nutrition and hydration in the Health Care Proxy Law has been a source of enduring confusion and misinterpretation.

This amendment would make the FHCDA standard, with its careful definition of "best interests," and which no applies to decisions by surrogates, applicable to decisions by health care agents.

Prior legislative history

S. 7154 of 2014; 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 ninety days after the date on which this act shall have become a law. The amendments to article 29-C of the public health law shall apply to decisions made pursuant to health care proxies created prior to this act becoming law as well as those created thereafter.