family decisions
coalition
Putting family health care decisions into the hands of families
100 State Street, Suite 400
Albany, New York 12207
Ph: (518) 449-3359 / Fax: (518) 449-5788
Family Health Care Decisions Act A.7729
(Gottfried) / S.3164 (Duane)
Questions and Answers
What would the legislation do?
The legislation would enable family members and others close to the
patient (a 'surrogate') to decide about treatment for incapacitated
patients who have not signed a health care proxy or left specific oral or
written treatment instructions. It would also cover treatment decisions
for patients who have no available family or friends to decide for them.
Why is the legislation necessary?
Under current New York law, no one, not even a concerned family member,
has the right to make decisions about medical treatment for patients who
lack capacity, unless the patient has signed a proxy or left 'clear and
convincing evidence' of his or her treatment wishes. Most people never
sign a proxy or leave this kind of evidence. As a result, some
incapacitated patients are denied appropriate treatment, while others are
subjected to burdensome treatments that violate their wishes, values, or
religious beliefs.
Is this a right to die bill?
No. The legislation affirms existing laws against assisted suicide and
euthanasia.
Under the legislation, who would make
medical decisions for me if I lose the capacity to decide myself?
A surrogate decision maker, chosen from a list of family members and
others close to you could decide about your treatment, in consultation
with physicians and other professionals responsible for your care.
What if I have signed a health care proxy or living will?
The legislation applies only to patients who have not signed a
health care proxy or left clear evidence of their treatment wishes.
What type of treatment decisions would the legislation cover?
The legislation would cover all treatment decisions for adult patients,
including decisions about life-sustaining measures. For minor patients,
the legislation would cover only decisions about life-sustaining
treatment. Other treatment decisions by parents and guardians for minor
children are authorized by existing New York law.
On what basis would my family members or others decide about
treatment?
Decisions must be consistent with your wishes (including your religious
and moral beliefs), or, if your wishes are not reasonably known, decisions
must be in your best interests.
Where would the legislation
apply?
he legislation would apply in general hospitals and in
residential care facilities, such as nursing homes. It would
not cover mental hygiene facilities, the psychiatric units of
general hospitals, or outpatient settings such as clinics or
doctors' offices.
Would the legislation allow my surrogate to choose to have all available
treatments provided to me?
Yes, if your surrogate determines that doing so would accord with
your wishes or best interests.
Would the legislation make it easier for insurers or providers to deny
me treatment to save money?
No. The legislation puts decision-making authority in the hands of your
surrogate, not health care providers or insurers. In fact, by giving your
loved ones an explicit role in the decision-making process, including
access to your medical records, the legislation would make it easier for
them to challenge inappropriate denials of care.
Do other states have similar laws?
The District of Columbia and 35 other states have statutes that
grant family members and others close to the patient the right to make
medical decisions for patients without capacity. Case law in most other
states grants family members and others similar authority.
Would the legislation promote assisted suicide or euthanasia?
No, it would not permit assisted suicide or euthanasia, and
affirms existing laws against these practices.
Who supports the legislation?
Over 40 civic,
medical, legal and religious organizations
support the
legislation and the list is growing.
Are there special safeguards for decisions to stop
life-sustaining treatment?
Family members or other surrogates could refuse life-sustaining
treatment only if the treatment imposes an 'excessive burden' on you
and you are terminally ill or permanently unconscious, or if you have
an irreversible or incurable condition and the treatment would 'involve
such pain, suffering or other burden that it would reasonably be deemed
inhumane or excessively burdensome under the circumstances.
When would surrogate authority begin? Can I decide as long as
I am able?
Family members or others could decide about your treatment only if your
attending physician and a second health care professional determine that
you lack capacity to decide for yourself. You would retain the right to
decide about treatment as long as you have the ability to do so.
What if I object to a treatment decision made by a surrogate
for me or to a doctor's judgment that I am too ill to decide
for myself?
If you object to a determination of incapacity or to a surrogate's
decision about treatment, your objection will prevail unless the facility
or surrogate obtains a court order.
What if there is a conflict between health care professionals,
family members, or others close to me?
Each hospital or nursing home would be required to establish a
committee to mediate disputes between health care professionals, family
members and others close to the patient. The committees would be
required to consider each case fully, grant access to the process to
patients and surrogates, and protect patient confidentiality.
How would decisions be made about treatment for patients who
do not have available family or friends?
As for other patients, decisions must be consistent with the patient's
wishes, or, if the patient's wishes are not know, in the patient's best
interest. The legislation would facilitate access to treatment for
patients who have no surrogate by establishing a process for consent to
needed treatment. Decisions to withhold or withdraw life-sustaining
treatment would have to meet the safeguards established for other patients
and, in addition, would have to be approved by a court.
Does the
legislation encourage the refusal of
treatment?
No. The legislation does not encourage or discourage any treatment
decision. It empowers your surrogate to make whatever decision best
accords with your wishes or, if your wishes are not reasonably know, your
best interest.
Last Updated 3/9/04
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