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Family Health Care Decision Act

New York's Family Health Care Decisions Act allows family members or close friends to make healthcare decisions for patients who are unable to do so themselves, if there is not a health care proxy. The law is complicated, and somewhat different rules apply in nursing homes compared to hospitals.

Here are some resources to help understand the law:

I. FAQ for Clinicians at University Hospital (includes policy unique to University Hospital)

II. FAQ from the New York State Bar Association External link
This detailed resource is frequently updated and emphasizes the finer legal points.



FAQ for clinicians at University Hospital

What is the Family Health Care Decisions Act (FHCDA)?
The FHCDA is a New York State law that makes it easier for loved ones to make health care decisions for people unable to make decisions themselves. In the absence of a health care proxy, a surrogate (chosen from a prioritized list) may make health care decisions for a decisionally incapacitated patient. If a patient has no surrogate, the law provides a mechanism with safeguards for physicians to act without consent.

Which patients are covered?
Any patient unable to decide for himself or herself, unless the person is developmentally disabled; a separate law covers this group. The FHCDA includes people of all ages, including pregnant women and children, both in hospitals and nursing homes. (Nursing home provisions differ slightly and are not covered in this document.)

Who decides whether a patient has decisional capacity?
In general, the patient’s attending physician. If decisions to forgo life-sustaining treatment are being made, a 2nd licensed physician (who may be a resident) needs to determine the patient’s lack of capacity.

What decisions may the surrogate make?
Any health care decision the patient could make for him or herself, if the patient had decisional capacity. This includes decisions about cardiopulmonary resuscitation/DNR, artificial nutrition, and hydration.

What standards should be used in making decisions for patients unable to do so?
The best standard is to decide in line with what the patient would decide, were he or she able. Families might know this based on prior conversations or the patient’s specific wishes, values, and beliefs. If the patient’s wishes aren’t known, the surrogate should decide based on the patient’s best interests.

Are there restrictions on end-of-life decision making?
Yes. Decisions to forgo life-sustaining treatment may only be made only if the patient has one of the following conditions:

  1. is terminally ill (expected to die within 6 months, regardless of treatment provided);
  2. is permanently unconscious; OR
  3. has a serious irreversible or incurable condition, and life-sustaining treatment poses an unacceptable burden.

How does the law impact minors?
A parent or guardian may make medical decisions for a minor. Attempts must be made to inform a 2nd parent (if any) of decisions made under this law. A child with the capacity to decide about life-sustaining treatment must agree with a parent’s decision to forgo treatment before this can be done. Finally, an emancipated minor is allowed to forgo life-sustaining treatment, but an ethics consult MUST be obtained first.

Who can be the surrogate decision maker?
The FHCDA applies only in the absence of a health care proxy, in which case this priority list applies:

  1. court appointed guardian (if one already exists)
  2. spouse or domestic partner
  3. adult child
  4. parent
  5. sibling
  6. close adult friend or relative familiar with the patient’s views about health care

What if two people within the highest category of available surrogate disagree? (e.g., two sons)
It would be best if an agreement can be reached based on the patient’s wishes (or, if not known, best interests). If they can’t agree, the clinician should choose the person best able to speak to the patient’s wishes and best interests. An ethics consult may be of use if this is not readily apparent.

What if someone lower on the list (e.g., a daughter) would be a better surrogate than someone higher (e.g., the wife)?
Unless the wife is decisionally incapacitated, unavailable, doesn’t want to be the surrogate, or designates someone else on the list, she takes precedence.

What if the patient has no health care proxy or anyone willing to serve as a surrogate?
Social work should confirm that the patient truly has no family member or friend able to serve. If there is no one, the attending physician, with the concurrence of a 2nd physician, may make some decisions to provide or forgo some kinds of treatment, but only under strictly limited circumstances. An ethics consult MUST be called before deciding to forgo treatment for patients with no surrogate or health care proxy.

What if there is disagreement about what is best to do?
The question is not what anyone else wants done for the patient, but what the patient would want. Everyone involved—family, nurses, physicians, and other clinicians—should try to reach a shared understanding of the patient’s underlying condition and what treatment can (and cannot) accomplish.  Resources for handling conflicts or questions include:

  1. Ethics consultants are available 7 days a week by calling the University Hospital operator; they can help resolve disagreements and clarify questions with the hospital attorney’s input.
  2. University Hospital policies provide more detailed guidance, including Informed Consent (C07), End of Life (CM E17) and Ethics Review Teams (E18) and are available online.

3.25.14
Prepared by:
K. Faber-Langendoen, MD (Director, Ethics Consult Service)

University Hospital Policies Restricted Access

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