In a previous post about healthcare and end of life decision making, we discussed the importance of the election of a healthcare proxy or agent. However, not everyone is able to make these advanced plans prior to an unexpected incapacitation. In June 2010, New York enacted the Family Health Care Decisions Act in order to address the issue of healthcare decision making for those individuals who do not have a predetermined healthcare agent or have not left instructions with a living will or Do Not Resuscitate Order.
The Family Health Care Decisions Act allows for the appointment of the patient’s family member or close friend to act as a ‘surrogate’ and step in to make medical decisions for the patient if they have become incapacitated and do not have prior designations made. Similar to a health care proxy’s ability to make decisions, this only applies when the patient is incapacitated. The Act lays out the order of priority that surrogates would be named, starting with a court appointed guardian if one exists, then the spouse or domestic partner of the incapacitated person, followed by adult children, a parent if still alive, a sibling, and then a close friend. Once elected, the surrogate is able to make all decisions regarding healthcare for the person, subject to some limitations. If the patient objects to the election, their objection prevails, absent a court finding that there is reason to override the patient’s decision. Additionally, if the patient made determinations prior to incapacitation while hospitalized, and in the presence of two witnesses, the surrogate’s consent is not needed for any life sustaining treatment, the patient’s wishes will prevail.
Not all patients have someone close in their lives that can be confidently identified as being able to provide for their best interests. In the event that a possible surrogate cannot be identified, this Act puts in place procedures for hospitals and medical staff to follow in order to make the best decision for the patient. Medical professionals must first exhaust all options for seeking a surrogate, and if that fails to produce a suitable individual, they must identify the patient’s wishes, and consult with other physicians in the event of major medical treatment prior to implementation. When the decision about life sustaining treatment is being made, it must be approved by the court according to explicit standards or must be made by the primary physician taking care of the patient as well as with the agreement of a second physician that maintaining the treatment serves no benefit to the patient due to their imminent death.
What happens when the patient is a minor? If the incapacitated patient is a minor, their parent or guardian is presumed to be the surrogate. The attending physician can decide whether the minor has the capacity to make decisions regarding this life sustaining treatment and if they do, the physician must obtain that consent before stopping treatment. If the minor is legally emancipated, the physician must honor their wishes, but will require approval by the ethics review committee.