Alicia M. Dodge, Albany Government Law Review Member
On March 16, 2010, the former New York State Governor Paterson signed into law New York’s Family Health Care Decisions Act (FHCDA), effective June 1, 2010. Through the enactment of the FHCDA, New York became the forty-ninth state to pass a “surrogate decision-making statute.” The FHCDA sets forth a list of persons who are deemed authorized to make health care decisions, including the decision to terminate life support for a patient without a health care proxy, who now lacks the capacity to make health care decisions. Prior to the enactment of the FHCDA, New York State law regarding end-of-life decision-making was well-established, and had been relatively uniform for the past twenty-five years. With the passage of the FHCDA, the precedent was greatly changed.
II. Precedent Established Prior to Enactment of FHCDA
Although the law regarding end-of-life decision-making in New York may have been relatively uniform, it was also viewed as often ineffective in honoring the patient’s wishes and best interests. A long-standing common-law principle of New York law is that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” However, it was not until the 1980s that this common-law principle was then recognized in the State’s Constitution as well, as a constitutionally-protected liberty interest. The idea that it is a “basic right of a competent adult to refuse treatment even when the treatment may be necessary to preserve the person’s life[,]” has since been re-affirmed numerous times by the New York Court of Appeals, and such right may be “overcome only by [demonstrating] a compelling State interest.”
New York law provides for a great deal of decision-making abilities for capable patients, but this right was severely undercut for incapable patients, prior to the enactment of the FHCDA. Under prior New York law, the State Legislature approved four rare scenarios in which life-sustaining treatment for an incapable patient could be withdrawn or withheld: 1) cardiopulmonary resuscitation decisions (otherwise known as do-not-resuscitate or “DNR” orders); 2) a health care agent previously appointed by the courts for the patient; 3) a health care agent previously appointed by the patient through a health care proxy; and 4) clear and convincing evidence that the patient would have chosen to withdraw or withhold the treatment.
The first three scenarios, which involve either a resuscitation treatment or a prior appointment of a health care agent, were not encountered nearly as much as the fourth scenario, which required a demonstration of “clear and convincing evidence” of the patient’s wishes, a difficult burden to establish. This standard was first enunciated in In re Storar, and further examined in In re Westchester County Medical Center on Behalf of O’Connor (O’Connor). In order to satisfy the “clear and convincing” standard, proof must be adduced to convince the trier of fact that “the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented.” According to O’Connor, ideally the individual will have executed a living will or some other form of writing, while competent, but clear oral statements may also suffice.
The primary focus of the “clear and convincing” standard is “what the patient would say if asked today whether the treatment in issue should be terminated.” The difficulty with this standard is that it often centers on discerning prior statements made by the patient, and the danger that the patient has since had a change of mind. However, despite the fact that the Court acknowledged the difficulties and dangers of the standard, it was unwilling to move away from determining the patient’s expressed intentions, at that time. The court seemed uneasy with abandoning the demanding “clear and convincing” standard, and held “it is appropriate here because if an error occurs it should be made on the side of life.”
In the facts of O’Connor, the patient was a mentally incompetent elderly patient, and was unable to eat or drink without medical assistance. The hospital decided to insert a nasogastric tube, but the patient’s daughters objected to this decision, claiming that it was “contrary to her ‘expressed wishes’ . . . [in numerous conversations] that ‘no artificial life support be started or maintained in order to continue to sustain her life’ . . . .” Although the statements may seem sufficient, the Court of Appeals held that the record did not establish “clear and convincing” proof that the patient “elected to die under circumstances such as these.” The O’Connor case emphasized the issues associated with this high standard of proof, as oftentimes the result would be contrary to both the family members’ wishes, as well as the patient’s desires.
III. Application of the FHCDA
The FHCDA is only applicable to persons eighteen years of age or older (or persons who are married earlier), without a health care proxy, who have been found to be incapable to make health care decisions by both an attending physician and a second physician who has confirmed this finding. Additionally, the law only applies to patients in a hospital or in a residential health care facility (nursing home). If the FHCDA is applicable, a person in the class highest in priority, and willing to act, will be appointed as the surrogate according to the list set out in PHL 2994-d. This list designates potential surrogates in order of priority, and includes:
a. A guardian authorized to decide about health care pursuant to article
eighty-one of the mental hygiene law;
b. The spouse, if not legally separated from the patient, or the domestic
c. A son or daughter eighteen years of age or older;
d. A parent;
e. A brother or sister eighteen years of age or older;
f. A close friend.
Once the surrogate accepts the position, he or she will have the authority to make any and all health care decisions for the patient, including the decision to administer or withdraw life-sustaining treatment. In order to make an informed decision, the surrogate is given rights and access to the medical records of the patient. When making an ordinary health care decision or one that does not involve a decision to administer or withdraw life-sustaining treatment, the surrogate shall base such decisions on the patient’s “religious and moral beliefs.” Only if the patient’s religious and moral beliefs are “not reasonably known or cannot with reasonable diligence be ascertained, [may such decisions be made] in accordance with the patient’s best interests.” If the decision involves one of life-sustaining treatment, the above-mentioned criteria must be utilized, along with additional requirements as set out in PHL 2994-d(5).
A special proceeding may be commenced by either a person with a relationship to the patient or any member of the hospital’s ethics review committee if there is an objection to “the incapacity determination, the choice of surrogate, or the surrogate decisions . . . .”
Prior to the enactment of the FHCDA, “absent indication from the principal to the contrary, a ‘presumption of life applie[d].’” Unless a patient’s wishes were established by “clear and convincing” evidence, “medical personnel were legally required to take all practical measures to keep the patient alive, sometimes for years at great expense.”
The enactment of the FHCDA now provides a list of individuals who may act as a patient’s surrogate, in the absence of a signed health care proxy. The FHCDA will more likely allow for decisions to be made in accordance with the patient’s best interests, but this statute applies similarly to the intestacy statutes. In order to guarantee that a patient’s wishes will be followed, the patient is best-advised to sign a health care proxy, while he or she is capable to make his or her own health care decisions.
 N.Y. Pub. Health Law (PHL) Art. 29-CC (McKinney 2010); Robert N. Swidler, New York’s Family Health Care Decisions Act, N.Y. State Bar Assoc. J., Jun. 2010, at 18.
 Jeffrey G. Abrandt, Esq., The Family Health Care Decisions Act: A New Law Permits Health Care Decisions to be Made for Incapacitated People in New York Who Have Not Signed a Health Care Proxy, http://www.seniorlaw.com/fhcda-abrandt.htm(last visited Apr. 10, 2011) (Missouri was the only other remaining state without such statute).
 PHL §§ 2994-b(1), 2994-d(1); Abrandt, supra note 2.
 Swidler, supra note 1, at 18.
 Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (1914); Elisabeth Ryden Benjamin, Testimony: The Family Health Care Decision Act, N.Y. Civil Liberties Union (Dec. 8, 2005), http://www.nyclu.org/content/testimony-family-health-care-decision-act.
 Rivers v. Katz, 495 N.E.2d 337 (1986); Benjamin, supra note 6.
 Fosmire v. Nicoleau, 551 N.E.2d 77, 81 (1990) (emphasis added).
 Swidler, supra note 1, at 19; Benjamin, supra note 6.
 Swidler, supra note 1, at 19.
 In re Storar, 52 N.Y.2d 363 (1981); Swidler, supra note 1, at 19; Benjamin, supra note 6.
 In re Westchester Cnty. Med. Ctr., O.B.O. Mary O’Connor (O’Connor), 532 N.E.2d 607 (1988); Swidler, supra note 1, at 19.
 O’Connor, 531 N.E.2d at 613.
 Id.; Swidler, supra note 1, at 19.
 O’Connor, 531 N.E.2d at 613.
 Id. at 608.
 O’Connor, 531 N.E.2d at 615.
 Swidler, supra note 1, at 20.
 PHL §§ 2994-a(1), 2994-b(1), 2994-c(2), (3).
 PHL §§ 2994-a(18), 2994-b.
 PHL § 2994-d(1).
 PHL § 2994-d(1)(a)-(f).
 Abrandt, supra note 2.
 PHL § 2994-d(3)(c).
 PHL § 2994-d(4)(a)(i).
 PHL § 2994-d(4)(a)(ii).
 PHL § 2994-d(5).
 PHL § 2994-r(1); Abrandt, supra note 2.
 In re Zornow, 2010 WL 5860446, at *3 (Sup. Ct., Monroe Cnty. 2010).
 Jeffrey M. Johnstone, Strategies for Trusts and Estates in New York: Leading Lawyers on Navigating the Estate Planning Process, Counseling Clients, and Responding to the Latest Trends and Challenges, The Evolving Practice of Trust and Estate Law in New York, Aspatore, Nov. 2010, at *3.