June 3, 2011 | Posted By Danielle Holley, JD, MS

In 2010, the New York State legislature passed, after 17 years, the Family Health Care Decisions Act (FHCDA), codified in NY Public Health Law Art. 29-CC (2010).  This law provides a much-needed mechanism to make decisions for incapacitated individuals who have not appointed an agent under the health care proxy.  The law creates provisions to appoint a surrogate or allow physicians to make decisions for incapacitated individuals who have no one.  This is extremely important as most people have not appointed an agent to make decisions for them if they lose capacity.  The law also acknowledges emancipated minors and provides provisions for an emancipated minor to withdraw or withhold life-sustaining treatment.  The FHCDA also made an important step in allowing for decisions, including decisions regarding withdrawal or withholding of life-sustaining treatment, to be made based on the patient’s known wishes but if those are unknown, in the best interest of the patient, therefore not relying anymore on the higher standard of clear and convincing evidence.  

The FHCDA also recognizes an important mechanism, that of the Ethics Committee.  The law requires that each hospital and nursing home have an ethics committee, whether it is institutional or community-based, to assist in making decisions under certain circumstances.  The ethics review committee can be used to mediate disputes.  The law also gives binding authority for the Ethics Review Committee’s decision in two circumstances, including (1) when an attending physician objects to the surrogate’s decision to withdraw or withhold artificial hydration or nutrition, and (2) when an emancipated minor seeks to withhold or withdraw life-sustaining treatment.  Conferring binding authority thus allows the committee to be the arbitrator instead of resorting to a court proceeding, 

The law makes some important changes; however, it is very long and has a lot of provisions and checks.  To assist practitioners in the hospital in applying the law, we developed a set of algorithms.  The algorithms are a set of eight charts that lay out the provisions of the law.  These algorithms are intended to guide practitioners but do not cover all possible scenarios that may arise.  So far, it has been a great resource and guide for practitioners in facilitating the decision-making process for those who lack capacity.  

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The Alden March Bioethics Institute offers graduate online masters in bioethics programs. For more information on the AMBI master of bioethics online program, please visit the AMBI site.

1 comments | Topics: Doctor-Patient Relationships , End of Life Care , Health Care Policy , Patient Autonomy



David wrote on 06/04/11 5:33 PM

Removing the hurdle of "clear and convincing evidence" will allow for timely decision-making and avoid needless pain and suffering. At the same time, precious resources will be conserved. This legislation is bold and insightful, two adjectives not typically applied to New York State legislators.

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.