Health care law enables families to make decisions

PHOTOGRAPHER: Sara Foss

Under a new state law, relatives can make health care decisions for incapacitated patients. The new rule is part of the Family Health Care Decisions Act, which went into effect on June 1.

Previously, no one — not even a spouse or child — was allowed to speak on behalf of an incapacitated patient unless he or she had signed a health care proxy or left clear instructions before becoming incapacitated.

The New York Health Care Proxy Law allows people to appoint someone they trust, such as a family member or friend, to make health care decisions.

“New York was one of two states that didn’t have a law like this,” said Michael Burgess, director of the New York State Office for the Aging. He said that signing a health care proxy is still recommended, but that most residents have yet to do so.

Prior to the Family Health Care Decisions Act, incapacitated patients who lacked a health care proxy were denied the palliative care they would have wanted, or subjected to invasive treatments they would have refused, Burgess said.

Palliative care focuses on relieving suffering, rather than finding a cure.

Now a surrogate will be chosen to make any and all health care decisions for an incapacitated patient, including whether life-sustaining treatment should be withdrawn, once a doctor has determined that a patient is incapacitated.

The law sets up a roster of people who could be the surrogate. They are, in order of priority: court-ordered guardian, spouse or domestic partner, adult child, parent, adult sibling and close friend.

“Now there won’t be any [confusion] even if you don’t sign a health care proxy,” Burgess said.

The new law also establishes a protocol for health care practitioners to determine whether a patient in a hospital or nursing home is able to make decisions, and contains safeguards to prevent inappropriate decisions.

These safeguards include rules that require the capacity of the patient to be assessed by two physicians, that spouses rely upon the stated wishes of the incapacitated patient, and that life-sustaining care only be curtailed when a patient is terminally ill, won’t regain consciousness or has an irreversible medical condition that will result in great suffering.

The law protects both patients and hospitals by empowering relatives to make decisions for loved ones and protecting hospitals from liability, Burgess said.

Having a clear process will prevent “nightmare scenarios” such as the 2005 legal battle over whether Florida resident Terri Schiavo, who for 15 years had been in what doctors had described as a persistent vegetative state, should be removed from a feeding tube. In that case, Schiavo’s husband disagreed with her parents; he wanted the feeding tube removed, but the parents, arguing that their daughter was conscious, did not.

The Family Health Care Decisions Act does not apply to people who lack decision-making ability because of developmental disabilities, or who live in mental health facilities. The Health Care Decisions Act authorizes decisions about life-sustaining treatment for people with developmental disabilities.