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

BILL NUMBER:S4795

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 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 5, 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 standards set forth in PHL § 2994-d.

Section 2 is the effective date.

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 surrogate directs the provision of life-sustaining treatment, but the hospital 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 surrogate 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 override 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 article."

Prior legislative history

S. 7155 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 immediately.