N.Y. Mental Hyg. Law § 80.07

§ 80.07 Procedures of the committees and panels.\n (a) The committee shall receive declarations filed on behalf of\npatients, as follows:\n 1. A declaration may be filed by a declarant on behalf of any patient,\nresiding within the geographic area served by the committee, who is\nbelieved to be in need of major medical treatment and to lack the\ncapacity to consent to or refuse major medical treatment. Jurisdiction\nby the surrogate decision-making committee may continue throughout all\nsubsequent proceedings related to the major medical treatment proposed\nin the initial declaration notwithstanding the patient's transfer\noutside of the geographic region or discharge from the facility.\n 2. A declaration shall be signed by the declarant and shall state the\nfollowing:\n (i) the patient does not have a parent, spouse, adult child, committee\nof the person, conservator or legal guardian, or other available\nsurrogate authorized by regulation in accordance with section 33.03 of\nthis chapter; or that the patient's parent, spouse, adult child,\ncommittee of the person, conservator, legal guardian, or other available\nsurrogate authorized by regulation in accordance with section 33.03 of\nthis chapter is willing to allow the panel to act upon the declaration;\n (ii) the reasons for believing that the patient lacks the capacity to\nconsent to or refuse major medical treatment and the factual and\nprofessional basis for this belief, which may include an independent\nevaluation by a person qualified to assess the patient's capacity to\nmake such medical decisions;\n (iii) a description of the proposed major medical treatment and of the\npatient's medical condition which requires such treatment; the risks,\nalternatives and benefits to the patient of such treatment; a statement\nof declarant's opinion of whether the best interests of the patient\nwould be promoted by such treatment and the basis for the opinion; the\npatient's view of the proposed treatment, if known; and such other\ninformation as may be necessary to establish the need for such\ntreatment.\n (b) Upon receipt of the declaration, the committee shall send a copy\nof the declaration forthwith to the patient and to the patient's parent,\nspouse, adult child, or other available surrogate authorized by\nregulation in accordance with section 33.03 of this chapter, committee\nof the person, conservator, legal guardian or correspondent, if known,\nthe director of the patient's residential mental hygiene facility, if\nany, or such director's designee and the mental hygiene legal service\nwhich serves the same region as the committee. The chairperson of the\ncommittee or his or her designee shall assign the declaration to one of\nits panels, whose members will also receive a copy of the declaration.\nThe declaration shall be accompanied by a notice of the time, place and\ndate of the panel hearing on the declaration. The hearing shall be\nscheduled no earlier than five days after such declaration is sent,\nexcept where medical circumstances require a more immediate hearing or\nwhere the consent of the patient's parent, spouse, adult child,\ncommittee of the person, conservator, legal guardian or correspondent,\nif known, the director of the patient's mental hygiene residential\nfacility, if any, or such director's designee and the mental hygiene\nlegal service has been obtained for conducting a more immediate hearing.\nThe notice shall inform recipients of the procedures of the panels,\nincluding the opportunity for the recipient to be present and to be\nheard.\n (c) The declaration shall, prior to the date of the panel hearing, be\nreviewed by the panel chairman or his designee to ascertain whether\nadditional information may be necessary to assist the panel in\ndetermining the patient's need for surrogate decision-making and in\ndetermining whether the patient's best interests will be served by\nconsenting to or refusing major medical treatment on the patient's\nbehalf. The panel chairman or his designee may:\n 1. Request and shall, notwithstanding any other law to the contrary,\nbe entitled to receive from any physician, mental hygiene facility or\nhealth care facility or person licensed to render health care, any\ninformation which is relevant to the patient's need for surrogate\ndecision-making or for the proposed major medical treatment.\nInformation, books, records or data which are confidential as provided\nfor by law shall be kept confidential by the panel and any limitations\non the further release thereof imposed by law upon the party furnishing\nthe information, books, records or data shall apply to the panel.\n 2. Order an independent assessment of the patient, or of information\nconcerning the patient, to be undertaken, including obtaining an\nindependent opinion, where such independent assessment or opinion is\ndetermined by the panel chairman to be necessary.\n 3. Consult with any other person who might assist in such a\ndetermination of the best interests of the patient, including\nascertainment of the personal beliefs and values of the patient.\n (d) The panel shall conduct a hearing, at which the patient, any other\nperson requested by the patient to appear on his or her behalf, and the\nmental hygiene legal service have the right to be present and to be\nheard. Where practicable, the panel members shall personally interview\nand observe the patient prior to making their decision. The panel shall\nbe empowered to administer oaths to and to take testimony from any\nperson who might assist the panel in making its decision. Such hearing\nshall be recorded and any information, record, assessment or\nconsultation submitted to or considered by the panel shall be maintained\nas part of the record of the deliberations of the panel. Formal rules of\nevidence shall not apply to the proceedings of the panel.\n (e) The panel shall make a determination, based on clear and\nconvincing evidence, as to whether the patient is in need of surrogate\ndecision-making; provided, however, that minor patients shall be deemed\nto lack such capacity, to the extent that minors generally are deemed to\nlack such capacity. Unless three panel members concur in the\ndetermination that the patient is in need of surrogate decision-making,\nthe patient shall be deemed not to need surrogate decision-making. In\nsuch event, a record of such determination shall be made and the\npatient's consent to such treatment, if given, shall constitute legally\nvalid consent.\n (f) For any patient determined to be in need of surrogate\ndecision-making, the panel shall make a further determination as to\nwhether the proposed major medical treatment is or is not in the best\ninterests of the patient based on a fair preponderance of the evidence;\nprovided, however, that evidence of a previously articulated preference\nby the patient concerning the proposed treatment shall be given full\nconsideration by the panel. The panel shall provide a record of its\ndetermination which consents to or refuses major medical treatment on\nthe patient's behalf, which shall reflect the opinion of at least three\nof the panel members. If the panel determination consents to such\ntreatment, such consent shall constitute legally valid consent to such\ntreatment in the same manner and to the same extent as if the patient\nwere able to consent to or refuse such treatment on his or her own\nbehalf.\n (g) If at anytime during the pendency of a proceeding, a parent,\nspouse or adult child, or other available surrogate authorized by\nregulation in accordance with section 33.03 of this chapter objects to\nthe panel acting upon the declaration or a committee of the person,\nconservator or legal guardian who is legally authorized to consent to or\nrefuse such treatment on the patient's behalf, objects to the panel\nacting upon the declaration, the proceedings regarding such patient\nshall cease. A record of such person's objection shall be included as\npart of the record as provided for by this section.\n (h) A copy of any determination made pursuant to this section shall\ncontain a statement describing the right to appeal set forth herein and\nshall promptly be sent or provided to the patient; other persons\nrequested by the patient to appear on his or her behalf; declarant;\nparent, spouse, adult child, legal guardian, committee of the person, or\nother available surrogate authorized by regulation in accordance with\nsection 33.03 of this chapter or, in the absence of such persons, known\ncorrespondents of the patient; the director of the patient's mental\nhygiene residential facility, if any; and the mental hygiene legal\nservice. Where practicable, the panel shall reach its determination or\ndeterminations at the time of the hearing and provide notice to the\nabove persons forthwith. The terms of such determinations and the giving\nof such notice shall be made a part of the record. The decision shall\nstate when the consent shall become effective after such determination\nhas been provided or mailed to the parties specified in this section.\nThe panel may delay the effective date of its decision for up to five\ndays in order to enable an objecting party to exercise the right of\nappeal, pursuant to section 80.09 of this article.\n