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.