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On any given day, a medical practitioner will evaluate a patient, determine the appropriate care and then provide the required services upon the patient’s consent. However, what happens if a patient lacks capacity and is unable to consent to treatment and has no designated decision maker to take on that role?

The Family Health Care Decisions Act (FHCDA) was put in place to address this situation. However, its provisions are often difficult to interpret or apply, which is why it is imperative that our legislators address the limitations of the FHCDA.

Background of the FHCDA

The FHCDA sets forth procedures and standards for medical facilities and practitioners to follow in determining how, what and when treatment can be administered to a patient who lacks capacity.

Pursuant to the FHCDA, the attending physician must determine if the patient lacks decision-making capacity, the cause and extent of the incapacity, and the likelihood that the patient will regain decision-making capacity.  In doing so, the provider must analyze the patient’s ability to factually and rationally understand and appreciate the nature and consequences of the proposed treatment, including its benefits, risks and alternatives.

Generally, an incapacitated patient’s medical decisions will be made either by the patient’s health care proxy or an assigned surrogate, such as a family member or court-appointed guardian pursuant to the FHCDA.  Unfortunately, not all patients have a health care proxy or a surrogate, leaving no qualified individual to make the incapacitated patient’s health care decisions.  The FHCDA attempts to provide medical practitioners with guidance for issuing treatment to such individuals, for instance, by allowing the administration of routine medical treatment to an incapacitated patient based upon the treating physician’s recommendation.  However, the FHCDA’s limitations are emphasized when analyzing its procedures for determining whether to withhold or withdraw life-sustaining treatment from an incapacitated patient who lacks a surrogate.

Limitations of the FHCDA

Currently, the FHCDA offers two courses of action for making decisions to withhold or withdraw life-sustaining treatment from surrogate-less patients.  For one, the provider can seek court authorization to withdraw and/or withhold life-sustaining treatment from the patient. Alternatively, such treatment can be withheld and/or withdrawn only when “the attending practitioner, with independent concurrence of a second physician, nurse practitioner or physician assistant designated by the hospital, determines to a reasonable degree of medical certainty that” (1) life-sustaining treatment offers the patient no medical benefit because the patient is subject to imminent death, and (2) that providing life-sustaining treatment would violate accepted medical standards.

The FHCDA provides very little procedural guidance to the practitioner and requires the practitioner to interpret whether a treatment “violates” accepted medical standards.  It seems likely that the standard’s use of the term “violate” should be construed to mean “contrary to,” but there has been no commentary offered to clarify this provision.  As the language currently stands, it places the medical practitioner in a difficult position.  Practically speaking, few, if any, physicians are going to note in a patient’s chart that the continuation of life support violates accepted medical standards, even if the process is futile.

Proposed New York Senate Bill S4685 seeks to clarify the standards for providers by adding an additional scenario to consider when caring for an incapacitated and surrogate-less patient’s health care.  Specifically, the proposed law allows for the withholding or withdrawal of life-sustaining treatment from the incapacitated and surrogate-less patient upon the attending practitioner and an independent, concurring practitioner determining to a reasonable degree of medical certainty that, “in the event of cardiac or respiratory arrest, resuscitation will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs….”

This proposed amendment clarifies certain ambiguities a practitioner may face when caring for a patient who has no reasonable expectation for recovery from an event of cardiac or respiratory arrest.  However, while Bill S4685 adds some clarity to the FHCDA’s requirements, the Bill addresses just one instance where a medical practitioner must decide whether to withdraw life-sustaining treatment to an incapacitated patient who lacks a surrogate and proxy.  Medical practitioners would benefit from more thorough and less ambiguous guidelines to determine whether to withdraw life-sustaining treatment from a patient in other circumstances as well.  We recommend the legislature seek commentary from practitioners on specific scenarios that could be addressed in conjunction with the proposed amendment.


The FHCDA is a useful statute guiding the care of incapacitated individuals, as it ensures there are meaningful considerations for the individual’s appropriate health care.  To strengthen the statute and increase its usefulness, the FHCDA’s language must be as unambiguous and precise as reasonably possible, without overriding the expertise of the respective practitioners.

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