§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For
purposes of this article, every adult shall be presumed to have
decision-making capacity unless determined otherwise pursuant to this
section or pursuant to court order, or unless a guardian is authorized
to decide about health care for the adult pursuant to article eighty-one
of the mental hygiene law.

2. Initial determination by attending practitioner. An attending
practitioner shall make an initial determination that an adult patient
lacks decision-making capacity to a reasonable degree of medical
certainty. Such determination shall include an assessment of the cause
and extent of the patient's incapacity and the likelihood that the
patient will regain decision-making capacity.

3. Concurring determinations. (a) An initial determination that a
patient lacks decision-making capacity shall be subject to a concurring
determination, independently made, where required by this subdivision. A
concurring determination shall include an assessment of the cause and
extent of the patient's incapacity and the likelihood that the patient
will regain decision-making capacity, and shall be included in the
patient's medical record. Hospitals shall adopt written policies
identifying the training and credentials of health or social services
practitioners qualified to provide concurring determinations of
incapacity.

(b) (i) In a residential health care facility, a health or social
services practitioner employed by or otherwise formally affiliated with
the facility must independently determine whether an adult patient lacks
decision-making capacity.

(ii) In a general hospital a health or social services practitioner
employed by or otherwise formally affiliated with the facility must
independently determine whether an adult patient lacks decision-making
capacity if the surrogate's decision concerns the withdrawal or
withholding of life-sustaining treatment.

(iii) With respect to decisions regarding hospice care for a patient
in a general hospital or residential health care facility, the health or
social services practitioner must be employed by or otherwise formally
affiliated with the general hospital or residential health care
facility.

(c) (i) If the attending practitioner makes an initial determination
that a patient lacks decision-making capacity because of mental illness,
either such physician must have the following qualifications, or another
physician with the following qualifications must independently determine
whether the patient lacks decision-making capacity: a physician licensed
to practice medicine in New York state, who is a diplomate or eligible
to be certified by the American Board of Psychiatry and Neurology or who
is certified by the American Osteopathic Board of Neurology and
Psychiatry or is eligible to be certified by that board. A record of
such consultation shall be included in the patient's medical record.

(ii) If the attending practitioner makes an initial determination that
a patient lacks decision-making capacity because of a developmental
disability, either such physician, nurse practitioner or physician
assistant must have the following qualifications, or another
professional with the following qualifications must independently
determine whether the patient lacks decision-making capacity: a
physician or clinical psychologist who either is employed by a
developmental disabilities services office named in section 13.17 of the
mental hygiene law, or who has been employed for a minimum of two years
to render care and service in a facility operated or licensed by the
office for people with developmental disabilities, or has been approved
by the commissioner of developmental disabilities in accordance with
regulations promulgated by such commissioner. Such regulations shall
require that a physician or clinical psychologist possess specialized
training or three years experience in treating developmental
disabilities. A record of such consultation shall be included in the
patient's medical record.

(d) If an attending practitioner has determined that the patient lacks
decision-making capacity and if the health or social services
practitioner consulted for a concurring determination disagrees with the
attending practitioner's determination, the matter shall be referred to
the ethics review committee if it cannot otherwise be resolved.

4. Informing the patient and surrogate. Notice of a determination that
a surrogate will make health care decisions because the adult patient
has been determined to lack decision-making capacity shall promptly be
given:

(a) to the patient, where there is any indication of the patient's
ability to comprehend the information;

(b) to at least one person on the surrogate list highest in order of
priority listed when persons in prior classes are not reasonably
available pursuant to subdivision one of section twenty-nine hundred
ninety-four-d of this article;

(c) if the patient is in a hospital as defined in subdivision ten of
section 1.03 of the mental hygiene law or was transferred from a mental
hygiene facility, to the director of the mental hygiene facility and to
the mental hygiene legal service under article forty-seven of the mental
hygiene law.

5. Limited purpose of determination. A determination made pursuant to
this section that an adult patient lacks decision-making capacity shall
not be construed as a finding that the patient lacks capacity for any
other purpose.

6. Priority of patient's decision. Notwithstanding a determination
pursuant to this section that an adult patient lacks decision-making
capacity, if the patient objects to the determination of incapacity, or
to the choice of a surrogate or to a health care decision made by a
surrogate or made pursuant to section twenty-nine hundred ninety-four-g
of this article, the patient's objection or decision shall prevail
unless: (a) a court of competent jurisdiction has determined that the
patient lacks decision-making capacity or the patient is or has been
adjudged incompetent for all purposes and, in the case of a patient's
objection to treatment, makes any other finding required by law to
authorize the treatment, or (b) another legal basis exists for
overriding the patient's decision.

7. Confirmation of continued lack of decision-making capacity. An
attending practitioner shall confirm the adult patient's continued lack
of decision-making capacity before complying with health care decisions
made pursuant to this article, other than those decisions made at or
about the time of the initial determination. A concurring determination
of the patient's continued lack of decision-making capacity shall be
required if the subsequent health care decision concerns the withholding
or withdrawal of life-sustaining treatment. Health care providers shall
not be required to inform the patient or surrogate of the confirmation.