Landmark health care legislation, which will impact tens of thousands of New Yorkers each year, was recently enacted in New York, effective June 1. The Family Health Care Decisions Act finally brings New York in line with virtually every other state. Loved ones will now be able to make health care decisions for patients who have lost the ability to do so, in certain situations and under rigid criteria, when those patients have not completed a health care proxy or a living will. The law is critically important as the vast majority of New Yorkers, like people nationwide, have not, often to their detriment, appointed a trust person to be their health care agent by completing a health care proxy form.

The goal of this laudable legislation is to ensure that the wishes and values of patients without decision making capacity will be respected. The FHCDA requires the surrogate to decide about treatment based on the patient's wishes, including the patient's religious and moral beliefs, or, if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, based on the patient’s best interests. This is a reasonable standard. However, the Family Health Care Decisions Act has many stringent limitations and criteria for surrogate decision making, which do not govern health care agents.        

For example, it now only applies to hospitals and nursing homes. Thus, health care decisions cannot be made for those at home whether in hospice or not, although the law may be amended to include those at home (an amendment may be passed next year to include those at home).  

Additionally, the decision maker is chosen in order of priority from a hierarchy, as in some other states, with a spouse or domestic partner first, followed by an adult child. And, while a challenge can be made by one lower in the hierarchy, in many cases it is likely that a person will be authorized to make health care decisions for patients whom patients would not have chosen.

Finally, the act only authorizes decisions to withhold or withdraw life-sustaining treatment if treatment would be an extraordinary burden to the patient and the patient is terminally ill or permanently unconscious, or if the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or an extraordinary burden under the circumstances. Certain such decisions require ethics committee review.

These are very strict standards that are difficult to meet and not applicable to health care agents. Those of you in states with surrogate decision making laws may want to review them. When enacted they may have had stringent safeguards, understandably, in order to protect vulnerable patients. With two decades of mostly positive experience with surrogate decision making, do those laws still need to have very difficult standards for decisions, particularly for those involving life sustaining treatment?