"Checklist #3: Adult Hospital, Hospice or Nursing Home Patients Without Medical Decisionmaking Capacity Who Do Not Have a Health Care Proxy, and Decision-Maker Is Public Health Law Surrogate (A Surrogate Selected From the Surrogate List)" - New York

Checklist #3: Adult Hospital, Hospice or Nursing Home Patients Without Medical Decisionmaking Capacity Who Do Not Have a Health Care Proxy, and Decision-Maker Is Public Health Law Surrogate (A Surrogate Selected From the Surrogate List) is a legal document that was released by the New York State Department of Health - a government authority operating within New York.

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Checklist #3: Adult Hospital, Hospice or Nursing Home Patients Without Medical Decision-
Making Capacity Who Do Not Have a Health Care Proxy, and Decision-Maker is
Public Health Law Surrogate
(a surrogate selected from the surrogate list)
Under the Family Health Care Decisions Act, a surrogate selected from the surrogate list can make any kind of
medical decision in a hospital, hospice or nursing home, after the attending physician or nurse practitioner and
another health or social services practitioner at the facility concur that the patient lacks capacity. For decisions to
withhold or withdraw life-sustaining treatment, specific clinical criteria must be satisfied. Sometimes, the facility’s
ethics review committee must agree.
Complete each step and check the appropriate lines as indicated.
Step 1: Assess health status and prognosis.
___
Step 2: Check all advance directives known to have been completed.
__ Health Care Proxy __ Living Will __ Organ Donation __ Documentation of Oral Advance Directive
(If there is a health care proxy, and the health care agent can make the decision, stop filling out this checklist. Use
Checklist #2 for adults with a health care proxy.)
Step 3: If there is no health care proxy, assess capacity to complete a health care proxy.
A patient who lacks the capacity to consent to medical orders for life-sustaining treatment may still have the
capacity to choose a health care agent and complete a health care proxy. Any patient with that capacity should be
counseled to complete a health care proxy, if he/she has not already completed one.
Check one
Document the result of patient counseling.
:
___
Patient retains the capacity to choose a health care agent and completes a health care proxy. (If the patient
completes a health care proxy, use Checklist #2 for adults with a health care proxy).
___
Patient retains the capacity to choose a health care agent, but chooses not to complete a health care proxy.
___
Patient lacks capacity to choose a health care agent.
Check appropriate lines under
Step 4: Determine the patient’s medical decision-making capacity.
(A) and (B) (if a required item cannot be checked because the patient has capacity, use
Checklist #1 for patients with capacity.):
Check both:
(A) Attending Physician or Nurse Practitioner Determination
___
The attending physician or nurse practitioner has determined in writing to a reasonable degree of medical
certainty that the patient lacks capacity to understand and appreciate the nature and consequences of
DNR and Life-Sustaining Treatment
orders, including the benefits and burdens of, and alternatives to,
such orders, and to reach an informed decision regarding the orders.
___
The determination contains the attending physician’s or nurse practitioner’s assessment of the cause and
extent of the patient’s incapacity and the likelihood that the patient will regain medical decision-making
capacity. The determination is documented in the patient’s medical record.
Check (i)
(ii)
all line(s)
(B) Assessment for Mental Illness and Concurring Determination
or
and
underneath:
___
(i) The attending physician or nurse practitioner has determined that the patient’s lack of medical
not due
decision-making capacity is
to mental illness; and
___
A health or social services practitioner employed by, or formally affiliated with, the facility has
independently determined that the patient lacks medical decision-making capacity. The concurring
determination includes an assessment of the cause and extent of the patient’s incapacity and the
December 2018
1
Checklist #3: Adult Hospital, Hospice or Nursing Home Patients Without Medical Decision-
Making Capacity Who Do Not Have a Health Care Proxy, and Decision-Maker is
Public Health Law Surrogate
(a surrogate selected from the surrogate list)
Under the Family Health Care Decisions Act, a surrogate selected from the surrogate list can make any kind of
medical decision in a hospital, hospice or nursing home, after the attending physician or nurse practitioner and
another health or social services practitioner at the facility concur that the patient lacks capacity. For decisions to
withhold or withdraw life-sustaining treatment, specific clinical criteria must be satisfied. Sometimes, the facility’s
ethics review committee must agree.
Complete each step and check the appropriate lines as indicated.
Step 1: Assess health status and prognosis.
___
Step 2: Check all advance directives known to have been completed.
__ Health Care Proxy __ Living Will __ Organ Donation __ Documentation of Oral Advance Directive
(If there is a health care proxy, and the health care agent can make the decision, stop filling out this checklist. Use
Checklist #2 for adults with a health care proxy.)
Step 3: If there is no health care proxy, assess capacity to complete a health care proxy.
A patient who lacks the capacity to consent to medical orders for life-sustaining treatment may still have the
capacity to choose a health care agent and complete a health care proxy. Any patient with that capacity should be
counseled to complete a health care proxy, if he/she has not already completed one.
Check one
Document the result of patient counseling.
:
___
Patient retains the capacity to choose a health care agent and completes a health care proxy. (If the patient
completes a health care proxy, use Checklist #2 for adults with a health care proxy).
___
Patient retains the capacity to choose a health care agent, but chooses not to complete a health care proxy.
___
Patient lacks capacity to choose a health care agent.
Check appropriate lines under
Step 4: Determine the patient’s medical decision-making capacity.
(A) and (B) (if a required item cannot be checked because the patient has capacity, use
Checklist #1 for patients with capacity.):
Check both:
(A) Attending Physician or Nurse Practitioner Determination
___
The attending physician or nurse practitioner has determined in writing to a reasonable degree of medical
certainty that the patient lacks capacity to understand and appreciate the nature and consequences of
DNR and Life-Sustaining Treatment
orders, including the benefits and burdens of, and alternatives to,
such orders, and to reach an informed decision regarding the orders.
___
The determination contains the attending physician’s or nurse practitioner’s assessment of the cause and
extent of the patient’s incapacity and the likelihood that the patient will regain medical decision-making
capacity. The determination is documented in the patient’s medical record.
Check (i)
(ii)
all line(s)
(B) Assessment for Mental Illness and Concurring Determination
or
and
underneath:
___
(i) The attending physician or nurse practitioner has determined that the patient’s lack of medical
not due
decision-making capacity is
to mental illness; and
___
A health or social services practitioner employed by, or formally affiliated with, the facility has
independently determined that the patient lacks medical decision-making capacity. The concurring
determination includes an assessment of the cause and extent of the patient’s incapacity and the
December 2018
1
likelihood that the patient will regain medical decision-making capacity. Such determination is also
included in the patient’s medical record.
___
(ii) The attending physician or nurse practitioner has determined that the lack of medical decision-
making capacity
is due
to mental illness (this does not include dementia); and
Check both
:
___
A health or social services practitioner employed by, or formally affiliated with, the facility has
independently determined that the patient lacks medical decision-making capacity. The concurring
determination includes an assessment of the cause and extent of the patient’s incapacity and the
likelihood that the patient will regain medical decision-making capacity. Such determination is also
included in the patient’s medical record.
___
Either the attending physician or the health or social services practitioner who determined that
the patient lacks medical decision-making capacity is a qualified psychiatrist. The determination
by the qualified psychiatrist is documented in the medical record.
Check one:
Step 5: Notify the patient.
___
Notice of the determination that the patient lacks medical decision-making capacity and that a surrogate
will make medical decisions on his/her behalf has been given to the patient (the patient may be able to
comprehend such notice).
___
Notice of the determination that the patient lacks medical decision-making capacity and that a surrogate
will make decisions on his/her behalf has not been given to the patient because there is no indication of
the patient’s ability to comprehend the information.
Check both
Step 6: Identify and notify the appropriate Public Health Law surrogate.
:
___
The attending physician or nurse practitioner has identified a person from the class highest in priority
who is reasonably available, willing, and competent to serve as a surrogate decision-maker. Such person
may designate any other person on the list to be surrogate, provided no one in a class higher in priority
than the person designated objects.
Check one:
___ a. Patient’s guardian authorized to decide about health care pursuant to Mental Hygiene
Law Article 81
___ b. Patient’s spouse, if not legally separated from the patient, or the domestic partner
___ c. Patient’s son or daughter, age 18 or older
___ d. Patient’s parent
___ e. Patient’s brother or sister, age 18 or older
___ f. Patient’s actively involved close friend, age 18 or older
The attending physician or nurse practitioner has notified at least one person on the surrogate list who is
___
highest in order of priority, and who is reasonably available, that he/she will make medical decisions
because the patient has been determined to lack medical decision-making capacity.
Check one
Step 7: Document where the MOLST form is being completed.
:
___
Hospital (see Glossary for definition, includes hospice, regardless of setting)
___
Nursing Home (see Glossary for definition)
Step 8: Be sure you have selected the appropriate legal requirements checklist, based on who
Check one:
makes the decision and the setting.
This is Checklist # 3 (for adult hospital, hospice or nursing home patients without medical decision-making capacity who
do not have a health care proxy, and whose decision-maker is a Public Health Law surrogate). If this is the appropriate
checklist, proceed to Step 9 below. If this is the wrong checklist, find and complete the correct checklist. All checklists
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2
can be found on the Department of Health’s website at
https://www.health.ny.gov/professionals/patients/patient_rights/molst/
___
Checklist #1 - Adult patients with medical decision-making capacity (any setting)
___
Checklist #2 - Adult patients without medical decision-making capacity who have a health care proxy
(any setting)
___
Checklist #3 - Adult hospital, hospice or nursing home patients without medical decision-making
capacity who do not have a health care proxy, and decision-maker is Public Health Law
Surrogate (surrogate selected from the surrogate list)
___
Checklist #4 - Adult hospital, hospice or nursing home patients without medical decision-making
capacity who do not have a health care proxy and for whom no surrogate from the
surrogate list is available
___
Checklist #5 - Adult patients without medical decision-making capacity who do not have a health care
proxy, and MOLST form is being completed in the community
Step 9: Discuss goals for care with the Public Health Law surrogate.
___
Check all:
Step 10: Surrogate has given informed consent.
___
Surrogate has been fully informed about the patient’s medical condition and the risks, benefits, burdens
and alternatives of possible life-sustaining treatment.
___
Surrogate has consented to the withholding, withdrawal or delivery of certain life-sustaining treatment,
for which medical orders are written.
patient-centered
___
Surrogate’s decision is
, in accordance with the patient’s wishes, including the patient’s
religious and moral beliefs; or if the patient’s wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with the patient’s best interests. The surrogate’s
assessment is based on the patient’s wishes and best interests, not the surrogate’s, and includes
consideration of:
o the dignity and uniqueness of every person;
o the possibility and extent of preserving the patient’s life;
o the preservation, improvement or restoration of the patient’s health or functioning;
o the relief of the patient’s suffering; and
o any medical condition and such other concerns and values as a reasonable person in the
patient’s circumstances would wish to consider.
Step 11: If the decision is to withhold or withdraw life sustaining treatment, the surrogate’s
decision complies with the following clinical standards, as determined by the physician or
nurse practitioner, with independent physician or nurse practitioner concurrence and,
Check (i) and/or (ii) and (iii) and any
where applicable, by an ethics review committee.
applicable lines underneath:
__ (i) Treatment would be an extraordinary burden to the patient, and an attending physician or nurse
practitioner determines, with the independent concurrence of another physician or nurse practitioner,
that, to a reasonable degree of medical certainty and in accord with accepted medical standards,
o the patient has an illness or injury which can be expected to cause death within six months,
whether or not treatment is provided; or
o the patient is permanently unconscious.
December 2018
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__ (ii) 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 or nurse
practitioner with the independent concurrence of another physician or nurse practitioner to a
reasonable degree of medical certainty and in accordance with accepted medical standards.
Special requirements for declining artificial nutrition and hydration in a hospital over the
__
attending physician’s or nurse practitioner’s objection, and for certain life sustaining treatments
in a nursing home, based on “irreversible or incurable condition” (clinical standard (ii) above)
Note – These requirements do not apply to a decision for a patient in hospice or to a decision to
withhold or withdraw life-sustaining treatment under clinical standard (i) above (death is
expected within 6 months with or without treatment, or patient is permanently unconscious):
__ In a hospital (other than a hospice), when the medical order involves the withdrawal or
withholding of nutrition or hydration provided by means of medical treatment, and the
attending physician or nurse practitioner objects to the order, the ethics review committee
(including a physician or nurse practitioner who is not directly responsible for the patient’s
care) or an appropriate court has determined that the medical order meets the patient-
centered and clinical standards.
__ In a nursing home, for MOLST orders other than a DNR order, the ethics review committee,
(including at least one physician or nurse practitioner who is not directly responsible for the
patient’s care) or an appropriate court has determined that the orders meet the patient-centered and
clinical standards described above.
__ (iii) The concurring physician’s or nurse practitioner’s determination is documented in the medical
record.
Check one:
Step 12: Witness requirements are met.
Two witnesses are always recommended. The physician or nurse practitioner who signs the orders may be a witness.
To document that the attending physician or nurse practitioner witnessed the consent, the attending physician or
nurse practitioner signs the order and prints his/her name as a witness. Witness signatures are not required – printing
the witnesses’ names is sufficient.
__
The surrogate consented in writing.
__
The surrogate consented verbally, and the attending physician or nurse practitioner witnessed the consent.
Step 13: If the surrogate is a close friend, verify the age and relationship with the patient.
__
The surrogate is 18 or older and has signed a statement that he or she is a close friend of the patient, or a
relative of the patient (other than a spouse, adult child, parent, brother or sister), who has maintained
such regular contact with the patient as to be familiar with the patient’s activities, health, and religious or
moral beliefs. A copy of the signed statement is in the medical record.
Step 14: Physician or nurse practitioner signature
__
The attending physician or nurse practitioner signed the MOLST form.
Step 15: Notify director of mental hygiene facility and Mental Hygiene Legal Services (MHLS).
For patients who are residents in, or are transferred from, a mental hygiene facility, the attending
___
physician or nurse practitioner has notified the director of the facility and MHLS of the determination
that the resident lacks medical decision-making capacity and that the resident has MOLST orders
.
December 2018
4
Step 16: Notify director of correctional facility.
For adult patients who are inmates in, or are transferred from, a correctional facility, the attending
___
physician or nurse practitioner has notified the director of the correctional facility of the determination
that the inmate lacks medical decision-making capacity and that the inmate has MOLST orders.
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