Ethical & Legal Requirements for Adult Patients

As described in the overview of Ethical & Legal Requirements there are seven checklists available to ensure the correct requirements are followed when making end-of-life decisions. These requirements are based on the nationally recommended ethical framework and they’re codified in NYS Public Health Law. Five of these checklists (Checklists 1-5) apply to adult patients; those are the checklists that will be described on this page. Once the correct checklist is determined, there are various requirements related to witnessing, capacity determination, clinical standards, ethics review committees and notifications that vary by Checklist and by the special considerations for an individual patient.

Requirements That Apply to All Checklists

Several requirements apply on all pathways including:

While these items always hold true, there are a number of requirements that vary by checklist. A comparison of the major variable components of these checklists is available in the chart below.

Specific Requirements by Checklist

Checklist 1

The simplest pathway is always when the patient is able to make their own decisions. This pathway is known as Checklist 1.

MOLST completion is encouraged in a setting where the patient and physician or nurse practitioner know each other and can have a calm conversation about health status, prognosis, goals and preferences prior to making decisions about end-of-life medical orders. This is an ideal situation and physicians and nurse practitioners are always encouraged to offer MOLST discussions with appropriate patients.

Checklist 2

Because it is not always possible for every patient to make their own decisions at all times, all patients 18+ should be encouraged to have advance care planning conversations with their family and complete a health care proxy. If necessary, their designated health care agent can step into their shoes and make end-of-life decisions for them. The health care agent is obligated to make decisions as the patient would make them. This pathway is known as Checklist 2. Because the patient lacks capacity to make decisions on this pathway, capacity determination from the attending physician or nurse practitioner and a concurring physician or nurse practitioner are required.

Checklists 3, 4 & 5

After the first two pathways the legal and ethical requirements become more complex as the patient did not designate their own health care agent to speak for them and additional patient protections are put into place to ensure decisions are patient-centered and appropriate for the clinical situation. Attending and concurring capacity determination and attending and concurring clinical standards documentation are always required on these pathways. Checklist 3 and Checklist 4 may only be used in the hospital, nursing home or hospice setting. Checklist 5 may only be used in the community. The surrogates in all these situations are obligated to make decisions as the patient would make them or using the best interest standard if wishes are not known; one pathway (Checklist 5) additionally requires “clear and convincing evidence” for decisions other than DNR and DNI. Depending on the setting and the patient’s prognosis, review of the decisions by the facility’s ethics committee may also be required.

Selecting the Right Surrogate on Checklist 3, 4 or 5

Checklists 3, 4 & 5 depend on the correct surrogate being selected from the list provided in New York’s Family Health Care Decisions Act (FHCDA). The surrogate list is in order of priority as follows:

  1. Mental Hygiene Law Article 81 Guardian
  2. Spouse, if not legally separated from the patient, or domestic partner
  3. Adult Child (all biological & adopted adult children may participate – there is no legal priority among the children)
  4. Parent
  5. Adult Sibling
  6. Close Friend (additional documentation is required)

The attending physician or nurse practitioner must engage the right surrogate in order of priority. Surrogates may defer and in those circumstances the next surrogate on the list is engaged. Surrogates may also choose to not be involved in the discussion or decisions. This should be documented as part of the conversation.

Physician Assistants

Beginning June 17, 2020, physician assistants will have responsibility for the legal and ethical requirements of MOLST, the pathways above, as well as the ability to sign MOLST forms.

Special Considerations

Each of these pathways also has special requirements for patients who lack capacity due to mental illness (Checklist 2, 3, 4 & 5) or developmental disabilities (Checklist 2 only; patients with DD cannot use Checklists 3, 4 or 5), as well as notifications that are required for patients coming from certain settings.

Checklist NameWho makes the decisions?Where are the decisions being made?Attending & Concurring Capacity Determination Required?Attending & Concurring Clinical Standards Documentation Required?Ethics Committee Review Required?Documentation of Clear & Convincing Evidence Required?
Checklist 1The patientAny settingNo, the patient has capacityNoNoNo, the patient is making the decisions
Checklist 2The health care agent named on the health care proxyAny settingYesNoNoNo
Checklist 3Public Health Law Surrogate designated in FHCDAOnly in a hospital, nursing home, or hospiceYesYesYes, for decisions other than DNR ethics review is often required in nursing homes (depends on prognosis) and not commonly needed in hospitalsNo, but it is sometimes helpful for the surrogate
Checklist 4Two physicians, nurse practitioners, or beginning June 17, 2020, physician assistants as designated in FHCDA (only if no other surrogate from FHCDA is available)Only in a hospital, nursing home, or hospiceYesYesNo, but they are sometimes used to validate the decisions that the physicians, nurse practitioners, or physician assistants are makingNo, but it is sometimes helpful for the physicians, nurse practitioners, or physician assistants
Checklist 5A Surrogate + Clear & Convincing Evidence from the PatientCommunity (not a hospital or nursing home)YesYesNoYes, for any decisions other than DNR & DNI

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