FAMILY HEALTH CARE DECISIONS ACT FHCDA Webinar Tuesday, February 22, 2011

1. 1 FAMILY HEALTH CARE DECISIONS ACT (�FHCDA�)WebinarTuesday, February 22, 2011

2. 2 HISTORY OF HEALTH CARE DECISION-MAKING IN NEW YORK NYS Court of Appeals had held that life-sustaining treatment may not be withheld or withdrawn from incapacitated patients without �clear and convincing evidence� of the patient�s wishes.  This created untenable situations where families were unable to meet the clear and convincing evidence standard and treatment would need to be continued.  Health Care Proxy law had partially addressed this situation but is dependent upon an individual making an appointment of a health care agent to make health care decisions when the individual became incapacitated.

3. 3 HISTORY [CONTINUED]

4. 4 FHCDA

5. 5 FHCDA [CONTINUED]

6. 6 KEY PROVISIONS OF FHCDA Legal Presumption that a patient can make his own decisions regarding the provision or withholding of life-sustaining treatment.  Individuals can still appoint health care agents to make decisions in the event the individual loses capacity. Establishes a �surrogate list�.

7. 7 KEY PROVISIONS OF FHCDA [CONTINUED] Surrogate List Guardian authorized to decide about health care pursuant to  Article 81 of the Mental Hygiene Law. Spouse (if not legally separated) or domestic partner Adult child Parent Adult sibling Close friend (Eighteen (18) years of age or older who has maintained regular contact with patient to be familiar with patient�s activities, health and religious or moral beliefs and provides signed statement to attending physician.) (If no available Surrogate, physicians in the hospital may make decisions without going to Court.)

8. 8 KEY PROVISIONS OF FHCDA [CONTINUED] Decision-Making Surrogate�s authority commences upon determination of incapacity. (Determination to be confirmed at subsequent decision- making intervals.) Patient must be informed that Surrogate will make health care decisions due to lack of capacity. If patient objects to determination of incapacity or the choice of Surrogate or to a health care decision by a Surrogate, patient�s objection shall prevail unless a Court has determined patient lacks capacity or there is another basis. Surrogates can make any type of health care decision including the withholding or withdrawal of life-sustaining treatment. Based on patient�s wishes or the patient�s best interests if wishes are not known.

9. 9 KEY PROVISIONS OF FHCDA [CONTINUED] Decision-Making [CONTINUED] Health Care Agent or court appointed guardian trump Surrogate. Patient�s prior written or oral decisions about health care obviate need to seek consent of Surrogate (if prior decisions relates to withdrawal or withholding of treatment which were expressed during hospitalization, however, it must be properly witnessed by two (2) individuals (one (1) must be a health care practitioner affiliated with the hospital), or in writing).

10. 10 KEY PROVISIONS OF FHCDA [CONTINUED]

11. 11 KEY PROVISIONS OF FHCDA [CONTINUED]

12. 12 KEY PROVISIONS OF FHCDA [CONTINUED]

13. 13 KEY PROVISIONS OF FHCDA [CONTINUED]

14. 14 KEY PROVISIONS OF FHCDA [CONTINUED]

15. 15 Health Care Decisions for Adult Patients Without Surrogates Within a reasonable time of admission, Hospital is expected to determine if patient has appointed an agent or has a guardian or if there is at least one available Surrogate in the event patient loses capacity. With regard to patients with none of the above, hospital is expected to identify to the extent possible, patient�s wishes and preferences including religious and moral belief about pending health care. Decision making for routine medical treatment � treatment, service or procedure to diagnose or treat such as medication, extraction of bodily fluids, dental care under local anesthesia can be made by attending physician. KEY PROVISIONS OF FHCDA [CONTINUED]

16. 16 Health Care Decisions for Adult Patients Without Surrogates [CONTINUED] Decision-making for major medical treatment � treatment involving use of general anesthesia, care involving significant risk, significant invasion of body, incision, use of physical restraints or psychoactive medications, attending physician can make recommendation in consultation with hospital staff directly involved in patient�s care. Must have concurrence of another physician designated by the hospital that treatment is appropriate. Decisions to withhold or withdraw life-sustaining treatment � by Court order or attending physician with concurrence of second physician designated by the hospital determines that treatment offers no medical benefit because patient will die imminently, provision of treatment would violate accepted medical standards. Does not apply to treatment necessary to alleviate pain or discomfort. KEY PROVISIONS OF FHCDA [CONTINUED]

17. 17 OTHER PROVISIONS Additional requirements for patients with a history of receiving care for mental retardation or developmental disability may need to look to Surrogate�s Court or OMRDD regulations for consent procedures. Conscience Objection.  Immunity � no ERC or health care provider shall be subjected to criminal or civil liability for making health care decisions reasonably and in good faith pursuant to FHCDA. Not intended to permit or promote suicide, assisted suicide or euthanasia.

18. 18 RESOURCES