New Health Care Decision Legislation in NY

Governor David A. Paterson announced the passage of the Family Health Care Decisions Act (FHCDA). The FHCDA allows family members to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions for themselves and have not prepared advance directives regarding their wishes.

The FHCDA was first introduced in the Legislature in 1993. It establishes a protocol for health care practitioners to determine whether a patient in a hospital or nursing home has decision-making capacity and, for patients without such capacity, it requires the selection of a surrogate from a list of individuals ranked in order of priority, including family members, domestic partners and close friends. Certain safeguards are provided under the FHCDA to prevent inappropriate decisions, including procedures for a patient, family member or physician to assert objections to the selection of a particular person as a surrogate or to a decision made by a surrogate.

Up until this moment, the common law of New York State has provided that life-sustaining treatment cannot be withdrawn or withheld from an individual who has lost the capacity to make such decisions, unless clear and convincing evidence can be produced to show that the individual would have declined treatment if competent. An advance directive, such as a living will or a health care proxy, can serve as clear and convincing evidence of a patient's wishes.

The FHCDA does not apply to individuals without decision-making capacity who have developmental disabilities or who reside in mental health facilities, if health care decisions for these individuals can be made under other laws or regulations. For example, decisions about life-sustaining treatment are authorized under the previously enacted Health Care Decisions Act for persons with developmental disabilities. The FHCDA requires establishment of a special advisory committee to guide the Task Force in careful consideration of whether decision-making for these individuals should be incorporated into the FHCDA.

Even with the passage of the FHCDA, New Yorkers are still encouraged to prepare a health care proxy, which allows an agent to make health care decisions on behalf of an individual if he or she later loses capacity. An individual would still want the opportunity to decide who the surrogate decision maker will be and to express his or her wishes about what treatments should be administered or withheld.  As you might imagine, among family members, there can be substantial disagreement about what kind of care a loved one should receive and whether the person should be kept alive by artificial means or not.

This statute goes a long way toward addressing a highly troublesome area in health care law.  It's terrific news.  However, don't throw out your health care proxies, and do make them if you have not already done so.  It's always better to plan for your contingencies rather than leave things to chance and place the burden on your family members.

Best regards,

Lori R. Somekh