Determining Incapacity

The agent's decision–making authority begins when the patient's attending physician determines that the patient lacks capacity to decide about health care. The capacity to make health care decisions is defined in the Proxy Law as "the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision."

The patient must be promptly informed orally and in writing of an incapacity determination, if the patient can understand this information. The agent must also be promptly informed.

If the patient objects to the determination, or to a decision by the agent, health care professionals cannot honor the agent's decision or override the patient's wishes without obtaining a court order.

After the initial determination that the patient lacks capacity, the attending physician must confirm that the patient still lacks capacity before honoring new decisions by the health care agent. The confirmation must be written in the patient's medical record.

Steps for Determining Incapacity

  • Attending physician must find to a reasonable degree of medical certainty that the patient lacks capacity, and make chart entry describing cause, nature, extent and probable duration of incapacity.
  • Before an agent decides to withdraw or withhold life–sustaining treatment, a second physician must confirm the incapacity determination and make chart entry.
  • If the patient can understand the information, a health care professional must inform the patient orally and in writing of the incapacity determination and the fact that the agent will now make health care decisions.
  • The agent must be informed of the incapacity determination and the fact that his or her authority to decide for the patient has begun.
  • After the initial incapacity determination is made, the attending physician must confirm that the patient still lacks capacity and make chart entry before complying with new decisions by the agent.

Incapacity Due to Mental Illness or Developmental Disability

If the attending physician determines that a patient in a general hospital or mental hygiene facility lacks capacity due to mental illness, the attending physician who makes the determination must be certified by the American Board of Psychiatry and Neurology, or must consult with a physician with these qualifications. This consultation must be recorded in the medical record. Under the Proxy Law, "mental illness" covers conditions such as schizophrenia and psychosis. It does not cover dementias, such as those resulting from Alzheimer's Disease.

To determine that a patient lacks capacity due to developmental disability, the attending physician who makes the determination must be, or must consult with, a physician

or clinical psychologist who: (i) is employed by a school named in Section 13.17 of the Mental Hygiene Law; or (ii) has been employed for a minimum of two years to render care and service in a facility operated or licensed by the Office of Mental Retardation and Developmental Disability (OMRDD); or (iii) has been approved by the Commissioner of OMRDD. The consultation must be recorded in the medical record.

If an individual is determined to lack capacity to make health care decisions, and he or she is in, or has been transferred from, a mental hygiene facility, the facility director must be promptly informed of the determination.

Must the patient and agent be informed when the Patient is determined to lack decision–making capacity, and the agent's authority under the proxy begins?

Yes, but the patient must be informed only if he or she can understand the determination and the fact that the agent will now make decisions.

Must health care professionals inform the patient or agent when the patient's continued incapacity is confirmed?

No.

What if the agent asks the attending physician to determine whether the patient has decision–making capacity?

The physician must make the determination.

What if the attending physician determines that the patient has regained capacity?

The agent's decision–making authority ends. The agent's authority begins again if the patient loses capacity.

What if the attending Physician determines that the patient lacks capacity, and the patient objects to the determination or to the agent's decision?

The agent has no authority to decide about treatment unless a court finds that the patient lacks capacity to make a particular health care decision or is incompetent to make all decisions.

If the patient has been determined to lack capacity and a decision arises later about withdrawing or withholding life–sustaining treatment, must a second physician confirm that the patient lacks capacity?

Yes.

What is the difference between "incapacity" and "incompetence" under the Proxy Law?

Incapacity is the inability to make health care decisions, as initially determined by the attending physician, and if disputed, by a court. Incompetence is a finding by a court that an individual lacks the ability to make all decisions, including health care decisions and decisions about creating a health care proxy.

Do the special requirements for determining incapacity for individuals who are mentally ill apply in a nursing home?

No. Physicians do not have to be certified by the American Board of Psychiatry and Neurology to determine incapacity for mentally ill nursing home residents.