Governor Paterson Signs Family Health Care Decisions Act into Law

Legislation will allow New Yorkers to make health care decisions for family members who lack the capacity to decide.

Albany, NY
 – March 16, 2010 /Press Release/  –– 

On March 16, Governor David A. Paterson signed the Family Health Care Decisions Act (FHCDA) into law. The FHCDA allows family members to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose this ability and have not prepared advance directives.

"I could not be more pleased to sign this bill into law today as it will help ensure patients receive medical care more quickly and will help avoid unnecessary suffering," Governor Paterson said. "After nearly two decades of negotiations, New Yorkers now have the right to make health care decisions on behalf of family members who cannot direct their own care."

I applaud the legislative leaders, particularly Assemblyman Richard Gottfried, Senator Thomas Duane and Senator Kemp Hannon, who worked with my office to make today a reality. I also thank the advocacy groups who supported and fought for this legislation," the governor added.

Assemblyman Gottfried, Chair of the Assembly Health Committee, said, "It has taken 17 years of tortuous struggle to get to this day. Now, families will be able to make medical decisions for loved ones who don’t have the ability to do so. Patients will no longer be denied appropriate treatment, subjected to burdensome treatments, or have their wishes, values, or religious beliefs violated. Thanks to Governor Paterson, Senate Health Chair Thomas Duane, and Senator Kemp Hannon for their work in helping make this possible."

Senator Thomas K. Duane, Chair of the Senate Health Committee, said: "The FHCDA will give New Yorkers peace of mind by allowing all parents, all guardians, all partners and all families the ability to make important medical decisions. This law establishes a standard of care for incapacitated persons which has been long overdue. FHCDA is yet another progressive piece of legislation that Governor Paterson has signed into law, and he deserves our thanks for his leadership."

Protocols established
The legislation establishes a protocol for health care practitioners to determine whether a patient in a general hospital or nursing home has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the legislation requires the selection of a surrogate from a list of individuals ranked in order of priority, including family members, domestic partners, and close friends. Various safeguards are required under the FHCDA to prevent inappropriate decisions, including procedures for a patient, family member, or physician to assert objections to the selection of a particular person as a surrogate or to a decision made by a surrogate.

Without a statute such as the FHCDA, the common law of New York State provides that life-sustaining treatment cannot be withdrawn or withheld from an individual who has lost the capacity to make such decisions unless clear and convincing evidence can be produced to show that the individual would have declined treatment if competent. An advance directive, such as a living will or a health care proxy, can serve as clear and convincing evidence of a patient’s wishes, but many people do not prepare such directives.

The FHCDA does not apply to individuals without decision-making capacity who have developmental disabilities or who reside in mental health facilities, if health care decisions for these individuals can be made under other laws or regulations. For example, decisions about life-sustaining treatment are authorized under the previously enacted Health Care Decisions Act for persons with developmental disabilities. The FHCDA requires establishment of a special advisory committee to guide the Task Force in careful consideration of whether decision-making for these individuals should be incorporated into the FHCDA.

Health care proxies still encouraged
Even with passage of the FHCDA, New Yorkers are still encouraged to prepare a health care proxy, which allows an agent to make health care decisions on behalf of an individual if he or she loses capacity. The proxy form can be tailored to give the agent as much or as little authority as the individual desires, and the agent must make decisions in accordance with the principal’s wishes or, if such wishes are not known, in accordance with the principal’s best interests.

The proxy is able, but not required, to permit decision-making authority regarding life-sustaining treatment. If the principal’s wishes regarding the administration of artificial nutrition and hydration are not known, the agent may not make decisions regarding such measures.

The health care proxy form authorized by the Public Health Law and instructions on completing the form are available on the Department of Health’s website at: http://www.health.state.ny.us/professionals/patients/health_care_proxy/intro.htm. To enroll in the New York State Donor Registry, please go to http://www.donatelifeny.org/enroll/enroll.html.