Ethical & Legal Requirements

There are multiple laws that govern advance care planning and end-of-life care in New York State. New York’s laws are all based on the nationally recommended ethical framework for end-of-life decisions.

Information about the specific laws and regulations including DNR Law, Health Care Proxy Law, Family Health Care Decisions Act and the 1750-b law are all available in the Ethics & Laws section.

In contrast, this area of the website is dedicated to the process clinicians use to honor these legal and ethical requirements for end-of-life discussions and MOLST completion. To simplify these laws for clinicians and their organizations (hospitals, nursing homes, hospices, etc.) the New York State Department of Health (NYSDOH) developed Checklists for accurate completion of any medical order to withhold or withdraw life-sustaining treatment. To give space to clinicians who want to correctly document the information required by the laws and Checklists, Chart Documentation Forms have also been developed to accompany them. While using the Chart Documentation Forms or Checklists is not mandatory, the content captured on them is mandatory and must be otherwise documented in the medical record.

Lastly, while this website is dedicated to MOLST, it is important to understand that even if a DNR or DNI order, or any other order to withhold/withdraw life-sustaining treatment is written in a medical chart, or on an old non-hospital DNR form is completed, the exact same process and checklists must be followed and the same legal and ethical requirements apply. There are no laws in NYS that exclusively apply to MOLST completion.

Checklists for Withholding / Withdrawing Life-Sustaining Treatment

There are seven Checklists – five are for adults, one is for children, and one is for patients who have developmental disabilities that are so significant that they  cannot make their own medical decisions or complete a health care proxy (this final checklist was created by OPWDD and must be attached to the completed MOLST).

The correct Checklist for the clinical scenario is driven primarily by three questions:

Checklist Name Adult or Child? Is there a Health Care Proxy completed? Can the patient make their own medical decisions? Who is making the decisions? Where is the decision being made?
Checklist 1 Adult Yes (every person 18+ should complete a health care proxy if they are able to do so) Yes The patient Any setting
Checklist 2 Adult Yes No The health care agent named on the health care proxy Any setting
Checklist 3 Adult No No Public Health Law Surrogate designated in FHCDA Only in a hospital, nursing home, or hospice
Checklist 4 Adult No No Two Physicians as designated in FHCDA ((only if no other surrogate from FHCDA is available) Only in a hospital, nursing home, or hospice
Checklist 5 Adult No No A Surrogate + Clear & Convincing Evidence from the Patient Community (not a hospital or nursing home)
Checklist for Minor Patients Child
Note: if they are emancipated, married, or have children of their own they should be treated as an adult
No No, but if the child has the ability to understand medical decisions they should be part of the discussion Parents or other surrogate as designated in FHCDA Any setting
OPWDD Checklist Adult or Child with Developmental Disabilities who cannot make their own medical decisions or complete a health care proxy No No A Surrogate as designated in the 1750-b law Any setting

The pages in this section will address these checklists in more depth in three major categories: adults, children, and patients with developmental disabilities who lack capacity and can’t complete a health care proxy. There is also a special section on the authority of a health care agent or a surrogate that addresses what agents/surrogate can or cannot do when they step into the patient’s shoes to make decisions.

It’s important to recognize that there are complexities and requirements in these Checklists that are not and cannot be fully captured in the table above and that can only be understood by reading and understanding each checklist and the laws that drive them. eMOLST, a free public health service and web-based system used for MOLST completion, will capture the correct logic and documentation required for all of the checklists and any decision to withhold/withdraw life-sustaining treatment in New York.

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