NEW YORK - ADVANCE DIRECTIVES FOR HEALTH CARE (LIVING WILLS)

January 1, 2008

New York state laws and regulations that affect your medical practice

1. What is an advance directive for health care?

An advance directive is a witnessed written document that allows the patient to direct who will make health care decisions for the patient and to state his or her wishes for medical treatment if the patient becomes unable to make those decisions in the future. The patient's advance directive may be used to accept or refuse any procedure or treatment, including life- sustaining treatment. In New York, regulation 10 N.Y.C.R.R. 400.21 addresses the fundamental right of competent adults to control decisions regarding their health care and to plan ahead by allowing them to execute advance directives that specify their wishes

2. What are the public policy considerations regarding advance directives?

B. Modern advances in science and medicine have made possible prolonging the lives of seriously ill individuals without always offering the prospect of improvement or cure. While for some individuals, the possibility of extended life is desirable, for other individuals, the artificial prolongation of life is seen as extending suffering and prolonging the dying process. New York recognizes the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging treatments withheld or withdrawn.

C. The right of individuals to forego life-sustaining measures is not absolute and is subject to certain interests of society. These interests include the preservation of life, the protection of individuals from purposeful self-destruction, motivated by a specific intent to die; the protection of innocent third parties (i.e. minor children) who may be harmed by the patient's decision to forego therapy; safeguarding the ethical integrity of the health care professions; and ensuring the soundness of health care decision making.

(10 N.Y.C.R.R. 400.21)

3. What types of advance directives can the patient use?

There are three kinds of advance directives that a patient can use to say what he wants and who he wants his physician to listen to:

A. Proxy Directive

Also called a "durable power of attorney for health care", this lets the patient name a "health care representative," such as a family member or friend, to make health care decisions on the patient's behalf. The chosen proxy serves as the patient's substitute, standing in for him in discussions with his physician and others responsible for his care.

B. Instruction Directive

Also called a "living will," this lets the patient provide written directions that spell out what kinds of medical treatments the patient would accept or refuse and the circumstances in which he wants his wishes implemented.

C. Combined Directive

This combines features of both the health care representative (proxy) and instruction directive. The patient prepares a single written document that designates a proxy and provides a statement of the patient's medical treatment preferences.

(See 10 N.Y.C.R.R. 400.21 and 700.5; See http:// http://www.oag.state.ny.us/health/EOLGUIDE012605.pdf)

4. How is an advance directive prepared and can it be modified or revoked?

A. An advance directive for health care can be executed at any time by a person eighteen years or older.

B. The advance directive must be signed and dated by the patient in the presence of two adult witnesses, a notary public, attorney at law or any other person authorized to administer oaths, who shall attest that the patient is of sound mind. A designated health care representative (proxy) may not act as a witness. It can be supplemented by a video or audio tape recording.

C. If the patient wants to reaffirm or modify his advance directive, this can be done by following the steps in (B) above. An advance directive may be cancelled in the following manner:

1. Notification, orally or in writing, to the proxy, physician, nurse or other health care professional or witness, or by any other act that shows that the patient wants to revoke the document; or

2. Execution of a subsequent and inconsistent advance directive.

3. Destroying the advanced directive.

D. Designation of a spouse as a health care representative (proxy) shall be revoked upon divorce or legal separation.

(See http:// http://www.oag.state.ny.us/health/EOLGUIDE012605.pdf)

5. What are the obligations of a physician to inquire as to the existence of an advance directive?

All licensed medical facilities are required to develop, implement and maintain written policies and procedures regarding advance directives. Prior to the time of admission, a facility is required to furnish competent adult patients, or the family member speaking on behalf of an incompetent or minor patient the following material:

A. A description of state law prepared by the Department entitled "Planning in Advance for Your Medical Treatment";

B. a pamphlet prepared by the Department entitled "Appointing Your Health Care Agent - New York State's Proxy Law";

C. a summary of the facilities policy regarding the implementation these rights.

These materials do not need to be provided more than once to a recurrent outpatient.

The facility is also required to ensure that each adult's medical record contains documentation indicating whether such patient has executed a health care proxy or whether the adult has provided written or oral advanced instructions about treatment regarding such patient's care to facility staff or the staff of another facility. The facility is also required to assess whether the patient has any other advance directives aside from an order not to resuscitate, a health-care proxy or a designated health care agent.

(See 10 N.Y.C.R.R. 400.21 and 700.5)

6. When does an advance directive take effect?

The authority of an agent to make medical decisions on behalf of a principal, pursuant to a health-care proxy takes effect when it is determined that the patient lacks capacity to make a particular health care decision. Treatment decisions pursuant to an advance directive shall not be made until there has been a reasonable opportunity to establish and/or confirm a reliable diagnosis and prognosis for the patient.

(Public Health Law § 2981 (c))

An order not to resuscitate shall be effective upon issuance.

(Public Health Law § 2962)

7. Who determines whether a patient lacks capacity to make a health care decision?

A. The attending physician shall determine to a reasonable degree of medical certainty whether the patient lacks capacity to make a particular health care decision. The determination must be in writing and must include the attending physician's opinion concerning the nature, cause, extent and probable duration of the patient's incapacity. Such termination must be included in the patient's medical record.

B. For a decision to withdrawal or withhold life-sustaining treatment, the attending physician, who makes a determination that a patient lacks capacity to make health care decisions, is required to consult with another physician to confirm such determination. This consultation is required to be documented in the patient's medical record.

C. A physician designated by the patient's advance directive as a health care representative (proxy) shall not make or confirm the determination of a lack of decision making capacity.

(Public Health Law § 2983)

8. How are the patient's health care wishes implemented?

A. The attending physician shall discuss the nature and consequences of the patient's medical condition and the risks and benefits of proposed health care with the patient's health care representative.

B. After determination that the patient lacks decision making capacity, the attending physician and the patient's health care representative will discuss the treatment options with the patient and shall take the patient's expressed wishes into account.

C. If the patient who lacks decision making capacity clearly expresses the wish that appropriate measures be utilized to sustain life, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.

(Public Health Law § 2982)

9. When is it appropriate to withhold or withdraw life-sustaining treatment from a patient?

A. Where a patient expresses his or her wishes to have treatment withheld or withdrawn and such wishes can be demonstrated by "clear and convincing" evidence.

(See http:// http://www.oag.state.ny.us/health/EOLGUIDE012605.pdf)

B. Where an adult with capacity consents to an order not to resuscitate. During a hospitalization, such consent may be stated in the presence of at least two witnesses eighteen years of age or older where one of the witnesses is a physician affiliated with the hospital in which the patient is being treated. In such case, such consent shall be recorded in the patient's medical chart. Prior to a hospitalization, such consent must be in writing, dated and signed in the presence of at least two witnesses eighteen years of age or older who shall also sign such writing.

(Public Health Law § 2983)

C. Where an adult with capacity appoints a health care agent, such health care agent may authorize the withholding or withdrawing of life-saving medical treatment in the absence of evidence of the principle's expressed wishes to the contrary.

(Public Health Law § 2981 and 2982)

D. Unless specifically prohibited by a court, a guardian of a mentally retarded person has the capacity to make a determination withholding or withdrawing life-sustaining treatment. Such a decision is appropriate, even if objected to, when treatment is likely to result in the death of such patient. A physician and a consulting physician must confirm to a reasonable degree of medical certainty that the mentally retarded person lacks capacity to make health care decisions, has an irreversible life-threatening medical condition, and that life-sustaining treatment would pose an extraordinary burden on such patient. These determinations should be documented in the patient's chart.

(Surrogates Court Procedure Act § 1715-b)

10. Who can issue a do not resuscitate order?

A. A "do not resuscitate order" is a physician's written order not to attempt cardiopulmonary resuscitation in the event the patient suffers a cardiac or respiratory arrest.

B. Consistent with the terms of an advance directive, the attending physician may issue a do not resuscitate order.

C. A do not resuscitate order shall be entered in writing in the patient's medical records prior to implementation of the order.

(Public Health Law § 2964)

11. What is New York's position on euthanasia?

Given the societal interest in the preservation of life and preserving the sanctity of all human life as an enduring social value, New York expressly rejects on both legal and moral grounds the practice of active euthanasia. No individual shall have the right to, nor shall any physician be authorized to, engage in the practice of euthanasia.

Assisted suicide is a crime in the state of New York.

(Penal Law § 120.30; Public Health Law § 2989)

12. What are the legal rights of physicians who carry out the terms of an advance directive?

A. A physician shall not be subject to criminal or civil liability, or to discipline by the state licensing board for professional misconduct, for any actions performed in good faith to carry out the terms of an advance directive.

(Public Health Law § 2986)

B. No person may coerce the execution of an advance directive as a condition for providing health care services or coverage under a health insurance policy.

(Public Health Law § 2988)

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.