CHAPTER 353

AN ACT to amend the mental hygiene law, in relation to state aid for capital costs

Became a law July 18, 1985, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subdivision (c) of section 41. 18 of the mental hygiene law, as amended by chapter five hundred sixty-three of the laws of nineteen hundred eighty-two, is amended to read as follows:

(c) Local governments and voluntary agencies shall be granted state aid for capital costs pursuant to an approved local services plan at [the] a rate [of thirty-three and one-third] not to exceed fifty percent of the amount eligible for state aid; provided, however, that state aid for capital costs for [mental retardation and developmental disabilities pursuant to an approved local services plan shall be at fifty percent] that portion of a general hospital which provides inpatient psychiatric services to the mentally ill pursuant to an approved local services plan shall be reimbursed at the rate of thirty-three and one-third percent.

§ 2. This act shall take effect immediately and shall be deemed to have been in full force and effect on and after the first day of April, nineteen hundred eighty-five; provided, that this act shall only applý to capital projects for the mentally ill for which money was first appropriated for state fiscal years beginning on or after the first day of April, nineteen hundred eighty-five.

CHAPTER 354

AN ACT to amend the mental hygiene law, in relation to surrogate decision-making for medical care and treatment and providing for the repeal of such provisions upon the expiration thereof

Became a law July 18, 1985, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The mental hygiene law is amended by adding a new article eighty to read as follows:

ARTICLE 80

SURROGATE DECISION-MAKING FOR MEDICAL CARE AND TREATMENT

Section 80.01 Legislative findings and purpose.

80.03 Definitions.

80.05 Surrogate decision-making committees and panels; organization.

80.07 Procedures of the committees and panels.

80.09 Right of appeal; temporary restraining order.

80.11 Effect of determination that a person is in need of surrogate decision-making.

80.13 Committee reports.

80.01 Legislative findings and purpose.

The legislature hereby finds and declares that timely access to health care for people who are mentally disabled is an important objective for New York state; that the autonomy of persons with decision-making capacity to make health care decisions for themselves must be respected; and that, in cases involving persons with impaired decision-making capacity, EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

efforts should be made to ensure that health care decisions are based on the best interests of the patient and reflect to the extent possible, the patient's own personal beliefs and values. The legislature further finds that the exclusive utilization of judicial authorization to obtain consent for medical care for the mentally disabled has in some cases resulted in undue delay in the provision of necessary care, needlessly jeopardizing the health of the mentally disabled. The legislature further finds and declares that the public interest will be served by the implementation, on a demonstration basis in two limited geographic areas of the state, of a non-judicial surrogate decision-making process, which would determine patient capacity to consent to or refuse medical treatment and assess whether the proposed treatment promotes the patient's best interests, consistent with the patient's values and preferences. The process will strengthen the surrogate decision-making role of parents and other family members, while assuring that those individuals without available family members have access to medical care. The legislature further finds that the feasibility of authorizing consent to or refusal of treatment in this fashion should be subject to an independent evaluation to determine whether this alternative promotes the objectives stated herein.

80.03 Definitions.

When used in this article:

(a) "Major medical treatment" means a medical, surgical or diagnostic intervention or procedures where a general anesthetic is used or which involves any significant invasion of bodily integrity requiring an incision or producing substantial pain, discomfort, debilitation or having a significant recovery period. Such term does not include: any routine diagnosis or treatment such as the administration of medications or nutrition or the extraction of bodily fluids for analysis; electroconvulsive therapy; dental care performed with a local anesthetic; any procedures which are provided under emergency circumstances, pursuant to section twenty-five hundred four of the public health law; the withdrawal or discontinuance of medical treatment which is sustaining life functions; or sterilization or the termination of a pregnancy.

(b) "A patient in need of surrogate decision-making" means a patient as defined in subdivision twenty-three of section 1.03 of this chapter who is a resident of a mental hygiene facility, for whom major medical treatment is proposed, and who is determined by the surrogate decisionmaking committee to lack the ability to consent to or refuse such treatment, but shall not include minors with parents or persons with legal guardians, committees or conservators who are legally authorized, available and willing to make such health care decisions.

(c) "Lack of ability to consent to or refuse major medical treatment" means the patient cannot adequately understand and appreciate the nature and consequences of a proposed major medical treatment, including the benefits and risks of and alternatives to such treatment, and cannot thereby reach an informed decision to consent to or to refuse such treatment in a knowing and voluntary manner that promotes the patient's well-being.

(d) "Best interests" means promoting personal well-being by the assessment of the risks, benefits and alternatives to the patient of a proposed major medical treatment, taking into account factors including the relief of suffering, the preservation or restoration of functioning, improvement in the quality of the patient's life with and without the proposed major medical treatment and consistency with the personal beliefs and values known to be held by the patient.

(e) "Surrogate decision-making committee" means a committee of at least twelve persons established pursuant to section 80.05 of this

article.

(f) "Panel" means a subcommittee of four members of the surrogate decision-making committee.

tally diconmission" means the commission on quality of care for the men

disabled.

(h) "Providers of health services" means, for the purposes of this article, those defined in subdivisions five and six of section 1.03 of this chapter; hospitals, as defined pursuant to article twenty-eight of the public health law; physicians and dentists.

(i) "Declarant" means a person who submits a declaration pursuant to the provisions of this article and may include any provider of health services, the director of the patient's residential facility or a relative or correspondent of the patient.

(j) "Declaration" means a written statement submitted in accordance with section 80.07 of this article.

(k) "Correspondent" means a person, other than a relative of the patient, who has demonstrated a genuine interest in promoting the best interests of the patient by having a personal relationship with the patient, by participating in the patient's care and treatment, by regularly visiting the patient, or by regularly communicating with the patient.

$80.05 Surrogate decision-making committees and panels; organization. (a) Surrogate decision-making committees of at least twelve persons shall be established by the commission in two geographic areas of the state, as may be designated by the commission.

(b) The members shall be appointed by the commission for an initial term of office of the same duration as the demonstration project. The commission shall designate one member of each of the committees to serve as chairman, who shall serve at the pleasure of the commission.

(c) Members of the committee and panel shall include members from each of the following groups:

(i) physicians, nurses, psychologists, social workers or other health care professionals licensed by the state of New York; (ii) former patients or parents, spouses, adult children or siblings of mentally disabled persons; (iii) attorneys admitted to the practice of law in New York state; and (iv) other persons, including advocates for the mentally disabled, with recognized expertise or demonstrated interest in care and treatment of mentally disabled persons.

(d) A member who has failed to attend three consecutive meetings of the committee or panel to which the member has been appointed shall be considered to have vacated his office unless the commission determines that the absences should be excused. Notice of such absences shall be provided to the commission by the chairmen of the committees and vacancies shall be filled, in accordance with this article, for the unexpired term. The members shall be reimbursed for their actual and necessary expenses and shall be considered public officers for the purpose of tions seventeen, nineteen, seventy-three and seventy-four of the public officers law. (e) The committees shall have available to them such staff and assistance as may be deemed necessary by the commission.

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undertake its members. The

(f) Each surrogate decision-making committee shall responsibilities through panels composed of four of its chairman of each committee shall designate the chairman of the panel who shall serve at the pleasure of the committee chairman.

(8) A panel shall be convened as often as deemed necessary by the chairman of the committee to assure timely review of pending declarations. Notice of the schedule of the panels must be given in a manner designed to inform providers of service within the committee's geographic area; provided, however, that neither article six nor article seven of the public officers law shall apply to the conduct of such committee or panel.

(h) No member who is a provider of health services or an officer or employee of any provider of health services to a patient whose case is under consideration by a panel may serve with respect to such patient. § 80.07 Procedures of the committees and panels.

(a) The committee shall receive declarations filed on behalf of patients, as follows:

1. A declaration may be filed by a declarant on behalf of any patient, residing within the geographic area served by the committee, who is believed to be in need of major medical treatment and to lack the capacity to consent to or refuse major medical treatment.

2. A declaration shall be signed by the declarant and shall state the following:

(i) the patient does not have a parent, spouse, adult child, committee of the person, conservator or legal guardian; or that the patient's parent, spouse, adult child, committee of the person, conservator or legal guardian is willing to allow the panel to act upon the declaration;

(ii) the reasons for believing that the patient lacks the capacity to consent to or refuse major medical treatment and the factual and professional basis for this belief, which may include an independent evalua

EXPLANATION-Matter in italics is new; matter in brackets [] is old law

tion by a person qualified to assess the patient's capacity to make such medical decisions;

(iii) a description of the proposed major medical treatment and of the patient's medical condition which requires such treatment; the risks, alternatives and benefits to the patient of such treatment; a statement of declarant's opinion of whether the best interests of the patient would be promoted by such treatment and the basis for the opinion; the patient's view of the proposed treatment, if known; and such other information as may be necessary to establish the need for such treatment. (b) Upon receipt of the declaration, the committee shall send a copy of the declaration forthwith to the patient and to the patient's parent, spouse, adult child, committee of the person, conservator, legal guardfan or correspondent, if known, the director of the patient's residential facility and the mental health information service which serves the same region as the committee. The chairman of the committee or his designee shall assign the declaration to one of its panels, whose members will also receive a copy of the declaration. The declaration shall be accompanied by a notice of the time, place and date of the panel hearing on the declaration. The hearing shall be scheduled no earlier than five days after such declaration is sent, except where medical circumstances require a more immediate hearing. The notice shall inform recipients of the procedures of the panels, including the opportunity for the recipient to be present and to be heard.

(c) The declaration shall, prior to the date of the panel hearing, be reviewed by the panel chairman or his designee to ascertain whether additional information may be necessary to assist the panel in determining the patient's need for surrogate decision-making and in determining whether the patient's best interests will be served by consenting to or refusing major medical treatment on the patient's behalf. The panel chairman or his designee may:

1. Request and shall, notwithstanding any other law to the contrary, be entitled to receive from any physician, mental hygiene facility or health care facility or person licensed to render health care, any information which is relevant to the patient's need for surrogate decision-making or for the proposed major medical treatment. Information, books, records or data which are confidential as provided for by law shall be kept confidential by the panel and any limitations on the further release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the panel.

2. Order an independent assessment of the patient, or of information concerning the patient, to be undertaken, including obtaining an independent opinion, where such independent assessment or opinion is determined by the panel chairman to be necessary.

3. Consult with any other person who might assist in such a determination of the best interests of the patient, including ascertainment of the personal beliefs and values of the patient.

(d) The panel shall conduct a hearing, at which the patient, any other person requested by the patient to appear on his or her behalf, and the mental health information service have the right to be present and to be heard. Where practicable, the panel members shall personally interview and observe the patient prior to making their decision. The panel shall be empowered to administer oaths to and to take testimony from any person who might assist the panel in making its decision. Such hearing shall be recorded and any information, record, assessment or consultation submitted to or considered by the panel shall be maintained as part of the record of the deliberations of the panel. Formal rules of evidence shall not apply to the proceedings of the panel.

(e) The panel shall make a determination, based on clear and convincing evidence, as to whether the patient is in need of surrogate decision-making; provided, however, that minor patients shall be deemed to lack such capacity to the extent that minors generally are deemed to lack such capacity. Unless three panel members concur in the determination that the patient is in need of surrogate decision-making, the patient shall be deemed not to need surrogate decision-making. In such event, a record of such determination shall be made and the patient's consent to such treatment, if given, shall constitute legally valid

consent.

(f) For any patient determined to be in need of surrogate decisionmaking, the panel shall make a further determination as to whether the proposed major medical treatment is or is not in the best interests of the patient based on a fair preponderance of the evidence; provided, however, that evidence of a previously articulated preference by the

patient concerning the proposed treatment shall be given full consideration by the panel. The panel shall provide a record of its determination which consents to or refuses major medical treatment on the patient's behalf, which shall reflect the opinion of at least three of the panel members. If the panel determination consents to such treatment, such consent shall constitute legally valid consent to such treatment in the same manner and to the same extent as if the patient were able sent to or refuse such treatment on his or her own behalf.

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(g) If at anytime during the pendency of a proceeding, a parent, spouse or adult child objects to the panel acting upon the declaration or a committee of the person, conservator or legal guardian who is legally authorized to consent to or refuse such treatment on the patient's behalf, objects to the panel acting upon the declaration, the proceedings regarding such patient shall cease. A record of such person's objection shall be included as part of the record as provided for by this section.

(h) A copy of any determination made pursuant to this section shall contain a statement describing the right to appeal set forth herein and shall promptly be sent or provided to the patient; other persons requested by the patient to appear on his or her behalf; declarant; parent, spouse, adult child, legal guardian, committee of the person or, in the absence of such persons, known correspondents of the patient; the director of the patient's residential facility; and the mental health information service. Where practicable, the panel shall reach its determination or determinations at the time of the hearing and provide notice to the above persons forthwith. The terms of such determinations and the giving of such notice shall be made a part of the record. The decision shall state when the consent shall become effective after such determination has been provided or mailed to the parties specified in this section. The panel may delay the effective date of its decision for up to five days in order to enable an objecting party to exercise the right of appeal, pursuant to section 80.09 of this article. $80.09 Right of appeal; temporary restraining order.

The patient, declarant, a parent, spouse, adult child, conservator, legal guardian, committee of the person or correspondent of the patient, the mental health information service, or the director of the patient's residential facility may apply to the supreme court for review, pursuant to article seventy-eight of the civil practice law and rules, of whether a determination by a panel is supported by substantial evidence. If a trial is required, it shall receive an immediate preference, as provided for in section thirty-four hundred three of the civil practice law and rules.

Within the discretion of the court, a temporary restraining order may be granted by the supreme court to facilitate appeal by a proper party, unless it is found by the court to be inconsistent with a need for more timely medical attention. In the event such an order is granted, the court shall conduct an expedited review of the panel's determination. $ 80.11 Effect of determination that a person is in need of surrogate decision-making.

The determination by a panel that a patient is in need of surrogate decision-making under this article shall not be construed or deemed to be a determination that such person is impaired or incompetent pursuant to article seventy-seven or seventy-eight of this chapter, nor shall it be valid for any other purpose or any other future medical treatment, unless the determination explicitly applies to related or continuing treatment necessitated by the original treatment. Nothing in this article shall be construed to limit the availability of other lawful means to obtain substitute consent for medical treatment, without utilizing the procedures set forth in this article. No person shall be deemed have failed to exhaust administrative remedies by commencing a legal action to obtain consent to or refusal of medical treatment in the absence of or prior to a review of the case by a surrogate decision-making committee or panel.

$80.13 Committee reports.

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The chairman of each committee shall provide a quarterly report on the activities of the committee and its panels to the commission on quality of care for the mentally disabled. Such report shall provide all information in the manner and form requested by the commission.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law