by Thaddeus Mason Pope, JD, PhD

On May 1, 2014, New York State Senator Kemp Hannon introduced S.B. 7156, to amend the 2010 Family Healthcare Decisions Act. It is a fine bill that will modestly improve New York law. In this blog post, I will explain both current New York law and the changes that S.B. 7156 would make. But my main objective in analyzing this bill is to highlight the significant variability in U.S. end-of-life decisions laws concerning medical futility.

Current New York Law on Surrogate Decision Making
New York finally enacted the Family Healthcare Decisions Act, in 2010, after nearly two decades of trying to “catch up” to the rest of the country and authorize default surrogates. But this “success” was bittersweet. The FHCDA’s final passage was enabled only through material compromises and concessions. Yes, New York surrogates can make medical decisions on behalf of patients, even without either being appointed by a court or being designated in an advance directive. Like surrogates in most states, New York surrogates are authorized to act on the patient’s behalf solely on the basis of their relationship to the patient.

But in contrast to surrogates in most states, New York surrogates may consent to stopping life-sustaining treatment only under narrowly specified circumstances. N.Y. Pub. Health L. 2994d(5)(a). In New York, decisions by surrogates to withhold or withdraw life-sustaining treatment are authorized only if at least one of the following two conditions is satisfied:

1. “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, (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.”

2. “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.”

Changes Proposed in S.B. 7156
New York S.B. 7156 is short, simple, and straightforward. It would add a third condition under which a surrogate could consent to stopping an incapacitated patient’s life-sustaining treatment.

3. “With respect to a decision to enter an order not to resuscitate, an attending physician determines, with the independent concurrence of a second physician, to a reasonable degree of medical certainty, that in the event of a cardiac or respiratory arrest, resuscitation would be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs.”

Analysis and Significance of S.B. 7156
There are two key things to notice about S.B. 7156. First, the new third condition focuses on the situation in which the treating clinicians determine that CPR will not even work for the patient. This is not a “value” judgment about “worthwhileness” of the treatment. It is a “medical” judgment about the physiological “effectiveness” of the treatment.

Second, S.B. 7156 expands surrogates’ discretionary authority. Specifically, it permits surrogates to refuse CPR when it would be medically ineffective and physiologically futile. But even under such circumstances, clinicians must still seek and obtain surrogate permission for DNAR orders. (Elsewhere, I have characterized New York as a “red light” state, meaning that clinicians cannot withhold or withdraw life-sustaining treatment without surrogate consent.)

In short, S.B. 7156 permits clinicians to refuse futile CPR, so long as they get surrogate consent. But why does New York even require clinicians to seek and obtain surrogate consent under these extreme circumstances? Other states, like Maryland and Vermont, authorize clinicians to write DNR orders, even without surrogate consent, when CPR would be “medically ineffective” or “futile.” There remains a robust debate about which interventions clinicians can refuse as non-beneficial, medically inappropriate, or contrary to generally accepted healthcare standards. But there is a near consensus that clinicians can (and should) refuse ineffective, physiologically futile interventions. Yet, New York requires surrogate consent for clinicians to abstain from administering ineffective, physiologically futile CPR.

This highlights just how far away New York healthcare decisions law lies from the rest of the country. Under current New York law, surrogates cannot authorize clinicians to forgo futile CPR (unless it falls within one of the two existing exceptions). They “may not decline” futile CPR. Under S.B. 7156, surrogates could at least provide that authorization. They “may decline” futile CPR. While a move in this right direction, this is a rather small step. Already, in most U.S. states, physiologically futile treatment is completely outside the scope of surrogate choice or discretion. And it should be. It is both cruel and wasteful to require that clinicians seek and obtain permission to forgo interventions that will not even work.