The Family Health Care Decisions Act

1. The Family Health Care Decisions Act Elizabeth A. Talia, Esq. Vice President of Legal & Regulatory Affairs General Counsel Chief Compliance Officer & Privacy Officer

2. Family Health Care Decisions ActEffective June 1, 2010 • The FHCDA establishes the authority of a patient’s family member or close friend to make medical treatment decisions when: • the patient has NO capacity, • there is NO prior decision by the patient, and • there is NO health care proxy. • The FHCDA applies in hospital, nursing home and hospice settings.

3. Medical Decision-Making Capacity • Under the FHCDA, capacity is presumed. • Capacity is the ability to: • take in information, • understand its meaning, and • make an informed decision using the information. • Capacity allows us to function independently. • Capacity is task-specific. • Capacity to choose health care agent vs. ability to make medical decisions, based on the complexity of decisions: • simple health care decisions • request for palliation (relief of pain and suffering) • complicated decisions regarding DNR and life-sustaining treatment.

4. Determination of Incapacity • The attending physician shall make the initial determination of incapacity. • A concurring determination may be required by another provider or certain credentialed social workers. • Patient must be informed of determination of incapacity and can object.

5. Surrogate Hierarchy • Potential surrogates are identified in the following order: • Court appointed guardian under MHL Article 81 • Spouse or domestic partner (as defined in the FHCDA) • Adult son or daughter • Parent • Adult brother or sister • Close friend *Special rules apply for MR/DD patients and those with a mental illness. **Court can select surrogate no matter where the person falls on the list.

6. Appointment of Surrogate • Once it is determined that the patient lacks capacity, the surrogate is notified. • Surrogate has right to medical information in order to make decisions. • Duty ends if patient regains capacity.

7. Powers of a Surrogate • Surrogate has same powers as the patient to make medical decisions, subject to certain limitations. • Decisions must be made in accordance with the patient’s wishes, religious and moral beliefs. • If patient’s wishes are not reasonably known, then “patient’s best interests.”

8. Powers of a Surrogate • Surrogate can decide to withhold or withdraw life-sustaining treatment (with the agreement of attending and another MD): • if the treatment would be an extraordinary burden to the patient and the patient is terminal or permanently unconscious, or • If the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering and/or burden that it would be deemed inhumane or excessively burdensome under the circumstances.

9. Patients without Surrogates • If there is no HCP or surrogate, hospital shall identify, to the extent possible, patient’s wishes, religious beliefs and any current health care decisions and document them. • If no surrogate, attending physician is authorized to act as surrogate for routine medical treatment. • Decisions on major medical treatment or hospice care require additional input from providers, including a 2nd physician. • Decisions to withdraw or withhold LST can be made by a court or 2 physicians. With 2 physicians, they need to concur the LST offers no medical benefit because the patient will die imminently and the provision of LST would violate accepted medical standards.

10. The Ethics Review Committee • Under the FHCDA, the Committee shall consider and respond to any health care matter presented to it by a person connected with a patient’s case. • The Committee’s response may include: • Providing advice on the ethical aspects of the proposed health care; • Making a recommendation about proposed health care; or • Providing assistance in resolving disputes on proposed health care.

11. Referrals to the Ethics Review Committee • An attending physician must also refer to an Ethics Committee for review the following unresolved objections: • a concurring practitioner does not concur on whether a patient lacks capacity; • any potential surrogate objects to the selection of surrogate or the surrogate’s decision; • certain issues with minors; and • decisions on hospice care where there is no surrogate. • An attending physician may refer a decision by a surrogate to the Committee if he/she does not agree with the surrogate’s decision to withdraw or withhold LST.

12. Decisions by the Ethics Review Committee • Advice by the Committee shall be advisory and non-binding except: • In a nursing home, a surrogate may only withdraw or withhold LST (not including CPR) only if the Committee of the nursing home (including one physician not responsible for the care) or a court reviews the decision and determines it meets standards set forth in the FHCDA . • In a hospital, if the surrogate wishes to withdraw artificial nutrition or hydration, and the attending physician objects, the decision shall not be implemented until the Committee (including one physician not responsible for the care) or a court reviews the decision and determines it meets standards set forth in the FHCDA.

13. Committee Procedure • In regard to consults to address decisions to withdraw/withhold LST, the Committee must: • Notify the patient/surrogate list of the pending consideration, • Permit persons connected with the case to present their views and to have the option of including an advisor, and • Give the parties a copy of the Committee’s written response.

14. CommitteeProceedings • The Committee may review medical records. • The proceedings are confidential. • DOH/OPWDD may access the Committee record. • Patients and surrogates are not under a confidentiality obligation.

15. Effect on other Rights • The FHCDA states it does not permit or promote suicide, assisted suicide or euthanasia. • Any person connected with a case or any member of the Committee may commence a special proceeding with respect to any matter arising under the FHCDA.

16. QUESTIONS?