Current through Register Vol. 56, No. 24, December 18, 2024
(a) Unless one or
more of the circumstances set forth in
N.J.A.C.
17:41-2.3(d) apply, the
surrogate decision-maker for the resident shall notify the Office, in writing,
of a contemplated decision to withhold or to withdraw life-sustaining treatment
from the resident.
(b) The
resident's attending physician or advanced practice nurse shall provide to the
Office, in writing, evidence of the resident's condition.
(c) The Office shall advise the facility
administrator, in writing, of the proposal to withhold or to withdraw
life-sustaining treatment.
(d) The
Office shall then inquire into the resident's intent, if any, pertaining to the
proposal to withhold or to withdraw the life-sustaining treatment. In making
its intent inquiry, the Office shall:
1.
Inquire into whether there exists any declaration or designation including an
oral declaration or designation;
2.
Make reasonable efforts to interview the resident's family and friends, the
attending physician, healthcare providers, employees of the facility at which
the resident is residing, and others having knowledge of the resident's intent;
and
3. Do anything that the Office,
in its discretion, deems necessary to discover the resident's intent.
(e) Concurrent with its
intent inquiry, the Office shall engage the services of two physicians,
unaffiliated with the facility and with the attending physician, to confirm the
resident's medical condition and prognosis.
1. The Office shall provide to each
physician, in writing, an explanation of the areas that must be covered in the
physician's report. The areas are:
i. The
date(s) of the physician's examination(s) and the identity of anyone assisting
or accompanying the physician;
ii.
A synopsis of the physician's examination(s), the resident's medical history on
which the physician bases his or her conclusions and any limitations on either,
which the physician believes significant. The physician should also advise
whether the medical history indicates whether the resident ever was competent
during adult life;
iii. The
resident's diagnosis and condition;
iv. The medical alternatives available
including the various treatment options and the risks, side effects and
benefits of each of those options;
v. The resident's prognosis, both with and
without the life-sustaining treatment which has been proposed to now be
withheld or withdrawn;
vi. Whether
the resident is in a persistent vegetative state because there is no reasonable
possibility of the resident's recovery to a cognitive, sapient state;
vii. The likely outcome if treatment is
discontinued or withheld;
viii.
Whether the resident currently has the mental and communicative capacity to
reasonably understand his or her own condition, the nature and effect of the
medical treatment proposed to be withheld or withdrawn, the attendant risks in
selecting such treatment, and to decide whether or not to submit to such
treatment;
ix. A brief description
of the resident and whether the resident was able to communicate anything about
his or her own condition to the physician;
x. The resident's present level of:
(1) Physical functioning;
(2) Sensory functioning;
(3) Emotional functioning; and
(4) Cognitive functioning;
xi. The degree of pain resulting
from the resident's medical condition, the resident's medical treatment, and
terminating or withholding treatment, including the degree, expected duration
and constancy of pain (with and without treatment) and the possibility that the
pain could be reduced by drugs or other means short of terminating or
withdrawing the life-sustaining treatment;
xii. The resident's life expectancy with and
without the treatment in question. In particular, whether or not the resident,
even with the life-sustaining treatment, likely will not live more than one
year from the date of the physician's examination; and
xiii. Whether the patient likely will regain
capacity, with or without the proposed treatment.
2. After reviewing the Office's
correspondence, each physician shall acknowledge, in writing, his or her
agreement to perform the examination.
3. Each physician shall then travel to the
facility and perform the examination. An Office representative shall be at the
facility to assist each physician.
4. Each physician shall promptly provide to
the Office a written report of the physician's conclusions.
5. The identity of each physician and the
contents of each report shall be confidential.
6. Each physician shall be compensated by one
or more of the following:
i. The resident's
estate;
ii. The resident's
family;
iii. The surrogate
decision-maker;
iv. The
facility;
v. Medicare or
Medicaid;
vi. Private insurance;
and/or
vii. If the above sources
are insufficient to compensate the physicians, the Office of the Ombudsperson
shall compensate the physicians, within the limitations of the Office's
budget.
(f)
Upon completion of the intent inquiry and the physicians' examinations, if both
physicians conclude that the resident is permanently unconscious or in a
persistent vegetative state, the surrogate decision-maker may withhold or
withdraw the life-sustaining treatment if:
1.
There exists clear and convincing evidence that the resident would have refused
the life-sustaining treatment in the circumstances involved; or
2. If there does not exist clear and
convincing evidence regarding the resident's attitude toward life-sustaining
treatment, the surrogate decision-maker may withhold or withdraw the
life-sustaining treatment if both physicians have also concluded that there is
no reasonable possibility that the resident will recover to a cognitive,
sapient state. Additionally, the attending physician must concur with the
conclusion of both independent physicians and the Ombudsman concurs that the
withholding or withdrawing of treatment is appropriate under the circumstances.
(g) A surrogate
decision-maker may seek a determination in a court of competent jurisdiction
where the Ombudsperson does not concur.
(h) If (f)2 above is satisfied, the
resident's family member must also concur with the surrogate decision-maker's
decision. A family member or domestic partner, as defined in
section
3 of
P.L.
2003, c. 246,
N.J.S.A. 26:8A-3 who opposes or disagrees with the
decision of the surrogate decision-maker retains the right to challenge that
decision in a court of competent jurisdiction.
(i) Upon completion of the intent inquiry and
the physicians' examinations, if both physicians find that the resident is not
permanently unconscious or in a persistent vegetative state, but is incapable
of making a healthcare decision, is suffering from severe and permanent mental
and physical impairments, and probably would have less than one year to live
from the date of the examination with or without life-sustaining treatment, the
surrogate decisionmaker may withhold or withdraw the life-sustaining treatment
if:
1. There exists clear and convincing
evidence that the resident would have refused the life-sustaining treatment in
the circumstances involved;
2.
There exists some trustworthy evidence that the resident would have refused the
life-sustaining treatment in the circumstances involved, and on the basis of
the medical evidence, the surrogate decision-maker is satisfied that it is
clear that the burdens of the resident's continued life with the treatment
outweighs the benefit of the resident's continued life and the Ombudsperson
concurs that withholding or withdrawing of treatment is appropriate under the
circumstances; or
3. There exists
no evidence of the resident's intent, but on the basis of the medical evidence,
the net burdens of the resident's life with the treatment clearly and markedly
outweigh the benefits that the resident would derive from life. Additionally,
the recurring, unavoidable and severe pain of the resident's life with the
treatment would be such that the effect of administering the life-sustaining
treatment would be inhumane; and the Ombudsperson concurs that withholding or
withdrawing of treatment is appropriate under the circumstances.
(j) The surrogate decision-maker
may seek a determination in a court of competent jurisdiction where the
Ombudsperson does not concur.
(k)
If either of (i)2 or 3 above is satisfied, the resident's family member must
also concur with the decision made by the surrogate decision-maker. Any family
member or domestic partner who opposed or disagrees with the decision of the
surrogate decision-maker retains the right to challenge that decision in a
court of competent jurisdiction.
(l) In the absence of bad faith, no
participant in the decision-making process shall be civilly or criminally
liable.
