New York law grants competent adults the right to decide about treatment, including the right to refuse treatment necessary to save or extend life. Adults have the right to appoint a person they trust (a health care agent) to decide about treatment if they lose the ability to decide for themselves. Adults can also leave advance instructions about treatment, such as a living will.
When patients cannot decide for themselves, and have not left advance instructions, health care professionals routinely turn to family members to consent to needed treatment. In most states, family members can also refuse life-sustaining treatment for incapacitated patients. Under New York’s do-not-resuscitate (DNR) law, family members and others close to the patient can decide about cardiopulmonary resuscitation. However, they have no authority to refuse other life-sustaining treatments unless the patient has signed a health care proxy.
On March 16, 2010, Governor David Paterson signed into law the long awaited Family Health Care Decisions Act (“FHCDA”). The law will now give family members and those close to a patient the right to make important medical decisions without a health care proxy. The act was first introduced 17 years ago.
The legislation establishes a protocol for health care practitioners to determine whether a patient in a hospital or nursing home has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the legislation requires the selection of a surrogate from a list of individuals ranked in order of priority, including family members, domestic partners and close friends. Various safeguards are required 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.
Without a statute such as the FHCDA, the common law of New York State provides that life-sustaining treatment cannot be withdrawn or withheld from an individual who has lost the capacity to make such decisions, unless clear and convincing evidence can be produced to show that the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, but many people do not prepare such directives while they are competent to do so. It is estimated that, although most people think it is a good idea, only 20% of New Yorkers have a health care proxy.
New York had been one of the few states that prohibited family members from making health care decisions for incapacitated loved ones.
Each year, about 75,000 people die in New York without a health care proxy and lack the capacity to make their own health care decisions. It is preferable to discuss your wishes with loved ones and those you trust, and to sign a health care proxy appointing an agent to make decisions on your behalf. Without this law, some incapacitated patients were denied appropriate palliative treatment which could have improved quality of life and reduced suffering, while others were subjected to burdensome, highly invasive treatment that potentially violated their wishes and prolonged their suffering.
Please keep in mind, the new law is not a replacement for need for each person to have open and honest conversations with loved ones about one’s wishes for future medical care. Further, advanced directives are as important as ever as medical advances change the landscape of available medical treatments. Work with your doctor, your attorney and your trusted family members to insure that not only you have the proper advanced directives but that the patient’s treating physicians have a copy in the patient’s medical record.