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The Family Health Care Decisions Act

(FHCDA) & the Withholding/Withdrawing of Life

Sustaining Treatment and Non-Resuscitation:

Implications for Care & What You Need to Know

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FHCDA Highlights

• Patients’ decisions control• Surrogate hierarchy empowers

• “Domestic partner”• “Close friend”

• If patient’s wishes are not known, decisions are made in patient’s best interests.

• Defines procedure for patients without surrogate• Authorizes parents to make end-of-life decisions for

minors

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Surrogate’s Right to Information

• Entitled to medical information and medical records necessary to make informed decisions about the patient's health care.

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NYC HHC Withholding & WithdrawingLife-Sustaining Treatment & Non-Resuscitation Documentation Form for Adult Patients in Acute Care Facilities

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Documentation - Five Sections

1. Determination of patient’s decisional capacity

2. Identification of decision-maker (Health Care Agent or Surrogate)

3. Decision-making standard for patient who lacks capacity & has surrogate

4. Consent of decision-maker

5. Threshold for patient without capacity & without a decision-maker

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Use of the Form

• Use the form for adult patients in general care hospitals.

• Do not use the form for individuals with mental retardation or developmental disabilities. Special rules apply to these groups.

• Do not use the form for adults in psychiatric units.

• The form MAY be used for individuals with mental illness. Special rules apply to the determination of incapacity for this group.

• Long term care facilities should use a form appropriate for nursing homes.

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1. Determination of Patient’s Decisional Capacity

• To a reasonable degree of medical certainty, the patient lacks capacity to make this health care decision.

• The cause* and extent of the patient’s incapacity are:

• Attending & concurring physician signatures

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Practitioner Guide for Section 1. Determination of Patient’s Decisional Capacity

• Decisional capacity is not “On/Off” – it varies with the decision

• Decisional capacity requires the ability to:

– Engage with staff and evaluate information

– Apply personal values

– Communicate a decision

• When decisional capacity fluctuates, note in chart & engage when most lucid

• Note that when the cause of incapacity is mental illness, a board certified or board eligible psychiatrist must also make a capacity determination.

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2. Identification of Decision Maker

1. Proxy Agent [SKIP TO STEP 4]

2. FHCDA surrogate [GO TO STEP 3, THEN COMPLETE STEP 4]

3. No Health Care Agent/Proxy or surrogate (“decision-maker”) [SKIP TO STEP 5]

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Practitioner Guide for Section 2. Identification of Decision-Maker• Priority list for decision-maker:

1. Appointed proxy agent (technically not a surrogate)

2. Legal guardian (review w/risk management)

3. Spouse, if not legally separated, or domestic partner

4. Adult children

5. Parent

6. Adult siblings

7. Close friends (extended family, documented relationship)• Appropriate Notification given to:

– Patient, where there is any indication of the patient’s ability to comprehend the information;

– At least one (highest available) surrogate on list– Health Care Agent– When the patient has been transferred from a mental hygiene facility,

facility director and Mental Hygiene Legal Service (Notice to MHLS not required with proxy agent)

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Practitioner Guide: Identification of Decision Maker Healthcare Agent, Artificial Nutrition and Hydration

• Health Care Agent/Proxy is the first empowered decision-maker.

• Artificial Nutrition & Hydration– A designated Health Care Agent/Proxy is not

authorized to withhold artificial nutrition and hydration when the patient’s specific wishes are not known to the agent and cannot be ascertained.

– However, a surrogate under the FHCDA, DOES NOT need specific knowledge of the patient’s wishes to consent to withholding artificial nutrition and hydration.

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Decision Flow

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3. Decision-making standard

for surrogate

1. Determine Capacity

2. Identify Decision-

Maker

4. Consent of decision-maker

5. Threshold for patient without decision-maker

FHCDA Surrogate

No Proxy/Surrogate

Proxy

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Decision-Making Standard for a Patient Who Lacks Capacity & Has a FHCDA Surrogate

• Criteria A1. To a reasonable degree of medical certainty

A. the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided;

OR

B. the patient is permanently unconscious;

AND

2. Treatment would be an extraordinary burden to the patient.

• Criteria B1. To a reasonable degree of medical certainty the patient has an irreversible or

incurable condition;

AND2. The provision of treatment would involve such pain, suffering or other burden

that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances.

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CHECK ONE SET OF CRITERIA (A OR B)

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Decision-Making Standard for a Patient Who Lacks Capacity & Has a FHCDA Surrogate

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• Requires attending and concurring physicians’ signatures

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Practitioner Guide for Section 3: Decision-Making Standard for the Withholding/Withdrawing of Life Sustaining Treatment for a Patient Who Lacks Capacity & Has a FHCDA Surrogate

• Palliative care may be an appropriate alternative.

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4. Consent of Decision-Maker

• The decision-maker has participated in a discussion of the patient’s medical condition as indicated [SEE BACK, 4], understands the alternatives and chooses and consents to: [CHECK ALL THAT APPLY]

1. _____ Non-resuscitation Order (NRO);

AND/OR2. _____ Withhold/Withdraw Order (WWO) for the following interventions:

________________________________________________________

• This form replaces the former “DNR Form”

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5. Threshold for Patient Without Capacity and Without a Decision-Maker

• Section for DNR order & withholding/withdrawing life sustaining treatment

• Requires both attending and concurring physician’s signatures

• Consider Ad-Hoc Bioethics Consultation

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5. Threshold for Patient Without Capacity and Without a Decision-Maker – DNR

• To enter a Non-resuscitation Order: I have determined, to a reasonable degree of medical certainty, that– (i) in the event of cardiac arrest or the need for intubation,

CPR or intubation would offer the patient no medical benefit because the patient will die imminently, even if the treatment is provided;

AND – (ii) the provision of CPR or intubation under the

circumstances would violate accepted medical standards and would be an extraordinary burden to patient.

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5. Threshold for Patient Without Capacity and Without a Decision-Maker –Withholding & Withdrawing Treatment

• To order the withdrawal or withholding of the following life-sustaining treatment: _______________________, I have determined, to a reasonable degree of medical certainty, that– (i) the treatment would offer the patient no medical benefit because

the patient will die imminently, even if the treatment is provided;

AND

– (ii) the provision of the treatment under the circumstances would violate accepted medical standards and would be an extraordinary burden to the patient.

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FHCDA PROCEDURE SUMMARY

• Has the patient already decided?• Document lack of capacity • Identify decision-maker• Notice to decision-maker and when

appropriate, the patient.• Confirm and document continuing lack of

capacity

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For questions

• IF YOU HAVE ANY QUESTIONS, PLEASE CALL FOR ASSISTANCE.

• Please no not hesitate to contact Risk Management, who can easily liaison with the Office of Legal Affairs.

• During off hours, attorneys from the Office of Legal Affairs remain available. A memo has been distributed to the facilities with the respective contact information.

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For questions…

• Here are a few examples of when Risk Management should be contacted: – For individuals with mental retardation or developmental

disabilities– If the patient disagrees with or objects to the determination of

incapacity or the health care decision– Conflicts among the health care team or with the family or

patient– If there is a prior treatment decision by the patient – If the patient lacks capacity and has no decision maker

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For questions…

• Aside from legal advice, you may also reach out to our office through Risk Management if you have a situation where you would like a fresh pair of eyes. We remain available to assist in matters related to this form, or even the mediation of problematic situations.