Section 2964. Decision-making by an adult with capacity

1. (a) The consent
  of an adult with capacity must be obtained prior to issuing an order not
  to resuscitate, except as provided in subdivision three of this section.
    (b) If the adult has capacity at the time the order is to  be  issued,
  the  consent must be obtained at or about such time, notwithstanding any
  prior oral or written consent.
    2. (a) During hospitalization, an adult with capacity  may  express  a
  decision  consenting  to  an  order  not  to  resuscitate  orally in the
  presence of at least two witnesses eighteen years of age or  older,  one
  of whom is a physician affiliated with the hospital in which the patient
  is  being treated.  Any such decision shall be recorded in the patient's
  medical chart.
    (b) Prior to or during hospitalization, an  adult  with  capacity  may
  express a decision consenting to an order not to resuscitate in writing,
  dated  and  signed  in  the  presence of at least two witnesses eighteen
  years of age or older who shall sign the decision.
    (c) An attending physician who is  provided  with  or  informed  of  a
  decision  pursuant  to  this  subdivision  shall  record  or include the
  decision in the patient's medical chart if the  decision  has  not  been
  recorded or included, and either:
    (i) promptly issue an order not to resuscitate the patient or issue an
  order  at such time as the conditions, if any, specified in the decision
  are met, and inform the hospital staff  responsible  for  the  patient's
  care of the order; or
    (ii)  promptly  make  his  or her objection to the issuance of such an
  order and the reasons therefor known to the patient and either make  all
  reasonable efforts to arrange for the transfer of the patient to another
  physician,  if  necessary,  or promptly submit the matter to the dispute
  mediation system.
    (d) Prior to issuing an order not to resuscitate  a  patient  who  has
  expressed  a  decision  consenting  to an order not to resuscitate under
  specified medical  conditions,  the  attending  physician  must  make  a
  determination,  to  a  reasonable degree of medical certainty, that such
  conditions exist, and include the determination in the patient's medical
  chart.
    3. (a) In the  event  that  the  attending  physician  determines,  in
  writing,  that,  to  a  reasonable degree of medical certainty, an adult
  patient who has capacity would suffer immediate and severe injury from a
  discussion of cardiopulmonary resuscitation, the attending physician may
  issue an order  not  to  resuscitate  without  obtaining  the  patient's
  consent, but only after:
    (i)  consulting  with and obtaining the written concurrence of another
  physician selected by a person authorized by the hospital to  make  such
  selection,  given  after personal examination of the patient, concerning
  the assessment of immediate and severe injury  to  the  patient  from  a
  discussion of cardiopulmonary resuscitation;
    (ii)  ascertaining  the  wishes  of the patient to the extent possible
  without subjecting the patient to a risk of immediate and severe injury;
    (iii) including the reasons for not  consulting  the  patient  in  the
  patient's chart; and
    (iv) obtaining the consent of a health care agent who is available and
  would  be  authorized  to  make  a  decision  regarding  cardiopulmonary
  resuscitation if the patient lacked capacity or, if  there  is  no  such
  agent, a surrogate pursuant to section twenty-nine hundred sixty-five of
  this  article,  provided,  however,  that  the  consent  of  an agent or
  surrogate shall not be required if the patient has previously  consented
  to  an  order  not  to  resuscitate  pursuant to subdivision two of this
  section.

    (b) Where the provisions of this subdivision have  been  invoked,  the
  attending  physician  shall reassess the patient's risk of injury from a
  discussion of cardiopulmonary resuscitation on a regular basis and shall
  consult the patient regarding resuscitation as soon as the medical basis
  for not consulting the patient no longer exists.
    4.  If  the  patient  is  in  or  is transferred from a mental hygiene
  facility, notice of the patient's consent to an order not to resuscitate
  shall be given to the facility director prior to the  issuance  pursuant
  to  this  section  of  an  order not to resuscitate. Notification to the
  facility  director  shall  not  delay  issuance  of  an  order  not   to
  resuscitate.   If the facility director concludes that the patient lacks
  capacity or that  issuance  of  an  order  not  to  resuscitate  may  be
  inconsistent  with  the  patient's  wishes,  the facility director shall
  submit the matter to the dispute mediation system of this article.
    5. If the  patient  is  in  or  is  transferred  from  a  correctional
  facility, notice of the patient's consent to an order not to resuscitate
  shall  be given to the facility director and reasonable efforts shall be
  made to provide notice to an individual designated  by  the  patient  to
  receive  such  notification  prior  to  the issuance of the order not to
  resuscitate.  Notification to the facility director  or  the  individual
  designated  by  the  patient shall not unreasonably delay issuance of an
  order not to resuscitate.