New York Consolidated Laws, Public Health Law - PBH § 2966. Decision-making on behalf of an adult patient without capacity for whom no surrogate is available

1. If no surrogate is reasonably available, willing to make a decision regarding issuance of an order not to resuscitate, and competent to make a decision regarding issuance of an order not to resuscitate on behalf of an adult patient who lacks capacity and who had not previously expressed a decision regarding cardiopulmonary resuscitation, an attending physician or attending nurse practitioner (a) may issue an order not to resuscitate the patient, provided that the attending physician or attending nurse practitioner determines, in writing, that, to a reasonable degree of medical certainty, resuscitation would be medically futile, and another physician or nurse practitioner selected by a person authorized by the hospital to make such selection, after personal examination of the patient, reviews and concurs in writing with such determination, or, (b) shall issue an order not to resuscitate the patient, provided that, pursuant to subdivision one of section twenty-nine hundred seventy-six of this article, a court has granted a judgment directing the issuance of such an order.

2. Notwithstanding any other provision of this section, where a decision to consent to an order not to resuscitate has been made, notice of the decision shall be given to the patient where there is any indication of the patient's ability to comprehend such notice.  If the patient objects, an order not to resuscitate shall not be issued.


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