N.Y. Public Health Law 2963 – Determination of capacity to make a decision regarding cardiopulmonary resuscitation
* § 2963. Determination of capacity to make a decision regarding cardiopulmonary resuscitation. 1. Every adult shall be presumed to have the capacity to make a decision regarding cardiopulmonary resuscitation unless determined otherwise pursuant to this § of the mental hygiene law or article seventeen-A of the surrogate's court procedure act. The attending practitioner shall not rely on the presumption stated in this subdivision if clinical indicia of incapacity are present.
Terms Used In N.Y. Public Health Law 2963
- Adult: means any person who is eighteen years of age or older, or is the parent of a child, or has married. See N.Y. Public Health Law 2961
- Attending practitioner: means the physician, nurse practitioner, or physician assistant, licensed or certified pursuant to title eight of the education law, selected by or assigned to a patient in a hospital who has primary responsibility for the treatment and care of the patient. See N.Y. Public Health Law 2961
- Capacity: means the ability to understand and appreciate the nature and consequences of an order not to resuscitate, including the benefits and disadvantages of such an order, and to reach an informed decision regarding the order. See N.Y. Public Health Law 2961
- Cardiopulmonary resuscitation: means measures to restore cardiac function or to support ventilation in the event of a cardiac or respiratory arrest. See N.Y. Public Health Law 2961
- Developmental disability: means a developmental disability as defined in subdivision twenty-two of § 1. See N.Y. Public Health Law 2961
- Hospital: means a hospital as defined in subdivision ten of § 1. See N.Y. Public Health Law 2961
- Mental illness: means a mental illness as defined in subdivision twenty of § 1. See N.Y. Public Health Law 2961
- Order not to resuscitate: means an order not to attempt cardiopulmonary resuscitation in the event a patient suffers cardiac or respiratory arrest. See N.Y. Public Health Law 2961
- Patient: means a person admitted to a hospital. See N.Y. Public Health Law 2961
- Reasonably available: means that a person to be contacted can be contacted with diligent efforts by an attending practitioner or another person acting on behalf of the attending practitioner or the hospital. See N.Y. Public Health Law 2961
- Surrogate: means the person selected to make a decision regarding resuscitation on behalf of another person pursuant to section twenty-nine hundred sixty-five of this article. See N.Y. Public Health Law 2961
- Surrogate list: means the list set forth in subdivision two of section twenty-nine hundred sixty-five of this article. See N.Y. Public Health Law 2961
2. A determination that an adult patient lacks capacity shall be made by the attending practitioner to a reasonable degree of medical certainty. The determination shall be made in writing and shall contain such attending practitioner's opinion regarding the cause and nature of the patient's incapacity as well as its extent and probable duration. The determination shall be included in the patient's medical chart.
3. (a) At least one other physician, selected by a person authorized by the hospital to make such selection, must concur in the determination that an adult lacks capacity. The concurring determination shall be made in writing after personal examination of the patient and shall contain the physician's opinion regarding the cause and nature of the patient's incapacity as well as its extent and probable duration. Each concurring determination shall be included in the patient's medical chart.
(b) If the attending practitioner determines that a patient lacks capacity because of mental illness, the concurring determination required by paragraph (a) of this subdivision shall be provided by a physician licensed to practice medicine in New York state, who is a diplomate or eligible to be certified by the American Board of Psychiatry and Neurology or who is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.
(c) If the attending practitioner determines that a patient lacks capacity because of a developmental disability, the concurring determination required by paragraph (a) of this subdivision shall be provided by a physician or psychologist employed by a developmental disabilities services office named in § 13.17 of the mental hygiene law, or who has been employed for a minimum of two years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or who has been approved by the commissioner of developmental disabilities in accordance with regulations promulgated by such commissioner. Such regulations shall require that a physician or psychologist possess specialized training or three years experience in treating developmental disabilities.
4. Notice of a determination that the patient lacks capacity shall promptly be given (a) to the patient, where there is any indication of the patient's ability to comprehend such notice, together with a copy of a statement prepared in accordance with section twenty-nine hundred seventy-eight of this article, and (b) to the person on the surrogate list highest in order of priority listed, when persons in prior subparagraphs are not reasonably available. Nothing in this subdivision shall preclude or require notice to more than one person on the surrogate list.
5. A determination that a patient lacks capacity to make a decision regarding an order not to resuscitate pursuant to this section shall not be construed as a finding that the patient lacks capacity for any other purpose.
* NB Repealed March 21, 2024