New York Enacts Family Health Care Decisions Act
February 25th, 2010 by Saundra M. GumeroveAfter 17 years the New York Legislature has finally passed the Family Health Care Decisions Act (FHCDA). Governor Patterson is expected to sign the measure. The legislation reforms end of life decision making for New York State’s general population by allowing 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 and have not prepared advance directives regarding their wishes.
In response to the failure of the legislature to pass the FHCDA, in 2002 NYSARC initiated passage and enactment of the Health Care Decisions Act (HCDA). The HCDA covers only persons with intellectual developmental disabilities. Persons with intellectual developmental disabilities will continue to be covered by the HCDA pending the results of a study determining whether or not to merge the two laws.
The FHCDA was first introduced in the Legislature in 1993 and was based on recommendations made by the New York State Task Force on Life and the Law. The law establishes a protocol for health care practitioners to determine whether a hospital patient or a nursing home patient has decision-making capacity and, for patients without such capacity, 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 included under the FHCDA to prevent inappropriate decisions, including procedures for a patient, family member or physician to object 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Without a statute such as the FHCDA, New York State common law provides that life-sustaining treatment cannot be withdrawn or withheld from an individual who has lost the capacity to make such decisions, unless clear and convincing evidence can be produced to show that the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.
The passage of the FHCDA does not replace the need for a health care proxy, which allows an individual to name an agent to make health care decisions on his or her behalf if he or she later loses capacity. The individual can provide detailed instructions to the agent as to his/her desires in the health care proxy.
The health care proxy form authorized by the Public Health Law and instructions on completing the form are available on the Department of Health’s website at: http://www.health.state.ny.us/professionals/patients/health_care_proxy/intro.htm.