Transcript Family Health Care Decisions Act (FHCDA)

Family Health Care
Decisions Act (FHCDA)
for EMS
Jonathan B. Karmel
Associate Counsel
New York State Department of Health
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Family Health Care
Decisions Act (FHCDA)
• Part of Laws of 2010, Chapter 8, effective June 1, 2010
• FHCDA is Public Health Law (PHL) Article 29-CC.
• PHL Article 29-CC is applicable in general hospitals and
residential health care facilities (nursing homes).
• Laws of 2010, Chapter 8 also repealed PHL § 2977
(Nonhospital orders not to resuscitate) and created a new
PHL Article 29-CCC (Nonhospital Orders Not to
Resuscitate).
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Before FHCDA, PHL Article 29-B was the
law for all Orders Not to Resuscitate
• Article 29-B had been the law for do not resuscitate
(DNR) orders since 1987.
• A DNR order is a physician’s order not to perform
cardiopulmonary resuscitation (CPR) in the event of
cardio or pulmonary arrest.
• Article 29-B provided definite procedures for consent to
and issuing DNR orders.
• Article 29-B used to include § 2977, which was the law
for nonhospital orders not to resuscitate.
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FHCDA Changes
• A new article of the Public Health Law
(Article 29-CC: Family Health Care
Decisions Act) applies to all health care
decisions for patients of general
hospitals and residents of nursing
homes, including DNR orders.
• Under FHCDA, a DNR order is just one
type of decision to withhold or
withdraw life-sustaining treatment.
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FHCDA Applicability
• Applies only to “health care,” not providing
nutrition or hydration orally
• Applies to patients of general hospitals and
residents of nursing homes but not OMH and
OMRDD facilities
• Not applicable if:
– a health care agent under a health care proxy has
authority to make decisions
– a SCPA Article 17-A guardian has authority to make
decisions (for a person with a developmental disability)
– Surrogate decision-making is provided for by MHL
Article 80 and 14 NYCRR Part 710 (Surrogate DecisionMaking Committees), 14 NYCRR §§ 633.11 (OMRDD
facility patients), 27.9 or 527.8 (OMH facility patients)
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Decisions by Adults with Capacity
under FHCDA
• No “therapeutic exception” anymore
• Even if the patient lacks capacity, there is no
surrogate decision-making where the patient has
already made a decision about the health care prior
to losing capacity:
– in writing or orally
– with respect to a decision to withdraw or withhold lifesustaining treatment, such oral consent must be during
hospitalization in the presence of two witnesses
eighteen years of age or older, at least one of whom is a
health or social services practitioner affiliated with the
hospital
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Surrogate Decision-Making
Under FHCDA
• Patients are presumed to have capacity unless a
physician, with the concurrence of another health
or social service practitioner at the facility acting
within his or her scope of practice, determines that
the patient lacks capacity. In a general hospital,
the concurring determination is only required for
decisions to withhold or withdraw life-sustaining
treatment.
• If patients lack capacity, there is a surrogate list.
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Surrogate List
• MHL Article 81 guardian
• Spouse, if not legally separated from the
patient, or the domestic partner
• Adult child
• Parent
• Adult sibling
• Close friend
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Surrogate Decision-Making
Under FHCDA
• Decisions based on “patient’s wishes,” or if
they’re unknown, “best interests”
• Special provisions for decisions to withhold
or withdraw life-sustaining treatment
– Includes DNR orders
– Consent must be in writing or expressed orally
to an attending physician
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Surrogate Decision-Making Under FHCDA:
Clinical Criteria for Decisions to Withhold or
Withdraw Life-Sustaining Treatment
• Treatment would be an extraordinary burden to the patient and an attending
physician determines, with the independent concurrence of another
physician, that, to a reasonable degree of medical certainty and in accord
with accepted medical standards:
– the patient has an illness or injury which can be expected to cause death within
six months, whether or not treatment is provided; or
– the patient is permanently unconscious; or
• 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 and the patient has an irreversible or
incurable condition, as determined by an attending physician with the
independent concurrence of another physician to a reasonable degree of
medical certainty and in accord with accepted medical standards
• For DNR orders, this is a change in the law, because the criteria are slightly
different under Article 29-B
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Surrogate Decision-Making Clinical Criteria for
DNR Orders: FHCDA vs. Article 29-B
FHCDA (new law)
Article 29-B (old law)
patient has an illness or injury which
can be expected to cause death
within six months, whether or not
treatment is provided;
patient has a terminal condition: an
illness or injury from which there is no
recovery, and which reasonably can be
expected to cause death within one year;
patient is permanently unconscious;
or
patient is permanently unconscious;
resuscitation would be medically futile;
or
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
and the patient has an irreversible or
incurable condition
resuscitation would impose an
extraordinary burden on the patient in
light of the patient's medical condition
and the expected outcome of
resuscitation for the patient
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Health Care Decision-Making for Patients for
Whom No Surrogate is Available under FHCDA
• Different procedures for:
– Routine medical treatment
– Major medical treatment: 2nd physician must concur
– Decisions to withhold or withdraw life-sustaining
treatment, which again include DNR orders (see next
slide)
• Change in clinical standard for DNR Orders: under
Article 29-B, a DNR Order could have been put in
place if CPR would have been “medically futile,”
meaning that CPR would have been unsuccessful in
restoring cardiac and respiratory function or that the
patient would have experienced repeated arrest in a
short time period before death occurred.
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Health Care Decision-Making for Patients for
Whom No Surrogate is Available under
FHCDA: Life-Sustaining Treatment
• A Court may make a decision to withhold or
withdraw life-sustaining treatment; or
• The attending physician, with independent
concurrence of a second physician, determines to a
reasonable degree of medical certainty that:
– life-sustaining treatment offers the patient no medical
benefit because the patient will die imminently, even if
the treatment is provided; and
– the provision of life-sustaining treatment would violate
accepted medical standards
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Nonhospital DNR Orders
• New Article 29-CCC clarifies that home care services
agencies and hospices must honor them, as well as
EMS
• Surrogates can consent to them under FHCDA rules
• Consent must be orally to the attending physician or in
writing
• Department authorized use of a new “alternative form”
(MOLST form) that complies with FHCDA
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DOH-5033 MOLST Form
• Medical Orders for
Life-Sustaining
Treatment
• Bright pink form
• May include Do Not
Intubate (DNI) order
in addition to DNR
order
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MOLST Orders
• Under the statute (now PHL § 2994-dd(6)),
The Department of Health “may authorize
the use of . . . alternative forms for issuing a
nonhospital order not to resuscitate. . . .
Such alternative form or forms may also be
used to issue a non-hospital do not intubate
order.”
• What about other MOLST orders besides
DNR and DNI?
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MOLST orders in addition to
DNR and DNI
• The courts have said that all individuals have a
constitutional right to refuse medical treatment.
• Before a patient’s right of self-determination can
be enforced, however, his or her wishes must be
ascertained.
• If the patient cannot presently express those
wishes, they will be enforced if established by
“clear and convincing evidence.”
• In the EMS context, this is difficult to
operationalize.
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DOH-5033 MOLST Form
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DOH-5003 MOLST Form
• Patient demographics
• eMOLST Number (This is not an eMOLST Form)
• HIPAA permits disclosure of MOLST to other health care
professionals & electronic registry as necessary for treatment
• This MOLST form has been approved by the NYSDOH for use20
in all settings.
DOH-5003 MOLST Form
• Description of MOLST program
• Target patient population
• If patient has DD and lacks medical decision-making
capacity, physician must follow Surrogate Court
Procedures §1750-b process and legal requirements
checklist must be attached
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DOH-5003 MOLST Form – Section A
• Resuscitation Instructions when the patient has no pulse
and/or is not breathing
• CPR Order: Attempt Cardio-Pulmonary Resuscitation
– defined; includes intubation
• DNR Order: Do Not Attempt Resuscitation (Allow Natural
Death)
• DNR and DNI differ
• DNR does NOT mean “Do Not Treat”
• N.B. reverse order of CPR and DNR
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DOH-5003 MOLST Form – Section B
• Two witnesses are always recommended.
• The physician who signs the orders may be a witness.
• If it is documented that the attending physician witnessed the
consent, the attending physician just needs to sign the order
and does not need to sign a second time as a witness.
• Witness signatures are not required.
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• Identify who made the decision.
DOH-5003 MOLST Form – Section C
• Physician signature, name, date/time, license # and
phone/pager#
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DOH-5003 MOLST Form – Section D
•
•
•
•
Health Care Proxy
Living Will
Organ Donation
Documentation of Oral Advance Directive
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DOH-5003 MOLST Form – Section E
• New form separates treatment guidelines and future
hospitalization/transfer
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DOH-5003 MOLST Form – Section E
• DNI vs. A trial period vs. Intubation & long-term
mechanical ventilation
• DNI should not be checked if full CPR is checked in
Section A.
• For trial period, discuss mechanical and/or noninvasive
ventilation options, if it is appropriate
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DOH-5003 MOLST Form – Section E
• New form separates treatment guidelines and future
hospitalization/transfer
• Specific directions to EMS re: preferences for future
hospitalization/transfer
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DOH-5003 MOLST Form – Section E
• Make a choice for feeding tube and IV fluids
• See Guidelines for long-term feeding tube placement
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DOH-5003 MOLST Form – Section E
• New language for choices for use of antibiotics
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DOH-5003 MOLST Form – Section E
• Include “Other Instructions” about starting or stopping
treatments discussed with the doctor or about treatments
not otherwise listed
– Dialysis
– Transfusions
– Etc.
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DOH-5003 MOLST Form – Section E
• Two witnesses are always recommended.
• The physician who signs the orders may be a witness.
• If it is documented that the attending physician witnessed the
consent, the attending physician just needs to sign the order and does
not need to sign a second time as a witness.
• Witness signatures are not required.
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• Identify who made the decision.
DOH-5003 MOLST Form – Section E
• Physician signature, name and date/time
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DOH-5003 MOLST Form – Section F
No change
Form voided, new form completed
Form voided, no new form
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MOLST and EMS
• MOLST page 1 may include DNR order
• MOLST page 2 may include DNI order
• MOLST page 2 may include other orders
– On page 2, look at “CONSENT FOR LIFESUSTAINING TREATMENT ORDERS
(SECTION E)”
– If “patient” made the decision, either directly or
based on clear and convincing evidence, EMS
can follow it.
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Nonhospital Orders
• EMS personnel may disregard orders if:
– They believe in good faith that consent to the order has
been revoked, or that the order has been cancelled; or
– Family members or others on the scene, excluding such
personnel, object to the order and physical
confrontation appears likely; and
• Hospital emergency services physicians may
direct that the order be disregarded if other
significant and exceptional medical circumstances
warrant disregarding the order.
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