LaPiana on the New York Family Health Care Decisions Act

LaPiana on the New York Family Health Care Decisions Act

The Family Health Care Decisions Act (FHCDA) will come into force on June 1, 2010. The legislation adds new Article 29-CC to the New York Public Heath Law (§§ 2994-a though 2994-s). The new statutes provide a legal framework for making health care decisions for persons who lack capacity to make those decisions for themselves and who have not made a proper advance directive. In this Analysis, Professor William LaPiana discusses the new statutes and their applicability. He writes:

     The problem addressed by Article 29-CC has its origin in New York's stringent requirements for advance directives dealing with the withdrawal of life sustaining treatment. In order for such directives to be followed they must constitute clear and convincing evidence of the patient's wishes. Where a patient has not made a proper advance directive, in many instances the only route family members can use to enforce what they are sure are the patient's wishes is through the courts. The FHCDA allows surrogate decision making, setting forth a hierarchy of surrogate decision makers and criteria for making decisions. In addition, the FHCDA honors the conscientious scruples of health care professionals whose beliefs do not allow them participate in the withdrawal of life sustaining treatment.

Statutory Scheme

     The new statutes apply to patients in hospitals who lack decision-making capacity. Decision-making capacity is defined as "the ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed health care, and to reach an informed decision." Before relying on the surrogate decision-making authorized by the statutes, the attending physician of a patient who lacks capacity must make a reasonable effort to determine whether the patient has a health care agent appointed in a health care proxy.

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