N.J. Admin. Code § 10:48B-4.1 - Determination of terminally ill individual's capacity regarding either Do Not Resuscitate (DNR) orders or the withholding or withdrawing of life-sustaining medical treatment (LSMT)
(a) It is the
treating practitioner's role to recommend a course of treatment for a
terminally ill individual or an individual in a permanently unconscious state,
including a Do Not Resuscitate (DNR) Order and/or the initiation, withholding,
or withdrawing of life sustaining medical treatment (LSMT). In some instances,
the treating practitioner may recommend a DNR order when the act of
cardiopulmonary resuscitation is contraindicated due to the medical condition
and/or age of the individual and could cause more physical harm than
benefit.
(b) To the extent
possible, Division staff shall provide to the treating practitioner any
information or records pertinent to the issue of whether a terminally ill
individual may or may not have the capacity to make medical treatment
decisions, including documents such as a previous adjudication of incapacity or
a determination that the individual has capacity to make medical treatment
decisions.
(c) If the treating
practitioner recommends a DNR Order or the initiation, withdrawal, or
withholding of LSMT, the treating practitioner must determine whether the
individual has the capacity to make these medical treatment decisions. In some
instances, the individual may not have the capacity to make major medical
decisions, but may have the capacity to express some preferences about
treatment options in the face of a terminal illness. The treating practitioner
should make an effort to determine the preferences of the individual, and these
should be considered in the development of the final treatment plan. If an
individual who lacks decision-making capacity clearly expresses or manifests
the contemporaneous wish that medically appropriate measures utilized to
sustain life be provided, that wish shall take precedence over any contrary
recommendation or determination.
(d) The treating practitioner may consider
information supplied by the Division staff, BGS, or other interested persons to
determine whether the terminally ill individual has the capacity to make
medical decisions.
(e) The treating
practitioner shall determine whether the patient lacks capacity to make a
particular health care decision. The determinations shall be stated in writing,
shall include the treating practitioner's opinion concerning the nature, cause,
extent, and probable duration of the patient's incapacity, and shall be made a
part of the patient's medical records.
(f) The treating practitioner's determination
of a lack of decision-making capacity shall be confirmed by one or more
physicians. The opinion of the confirming physician shall be stated in writing
and made a part of the patient's record in the same manner as that of the
treating practitioner. Confirmation of a lack of decision-making capacity is
not required when the patient's lack of decision-making capacity is clearly
apparent, and the treating practitioner and the legal guardian or health care
representative agree that confirmation is unnecessary.
(g) If the treating practitioner or the
confirming physician determines that a patient lacks decision-making capacity
because of a mental or psychological impairment or a developmental disability,
and neither the treating practitioner or the confirming physician has
specialized training or experience in diagnosing mental or psychological
conditions or developmental disabilities of the same or similar nature, a
determination of a lack of decision-making capacity shall be confirmed by one
or more physicians with appropriate specialized training or experience. The
opinion of the confirming physician shall be stated in writing and made a part
of the patient's record in the same manner as that of the treating
practitioner.
(h) The treating
practitioner will notify the individual, the guardian, or the immediate family
when the individual is determined to lack capacity to make a particular
healthcare decision, the right to appeal this decision, and how to
appeal.
Notes
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