(b) A decision to provide major medical treatment, made in accordance with the following requirements, shall be authorized for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article.

1. (i) An attending physician shall make a recommendation in consultation with hospital staff directly responsible for the patient's care.
2. (ii) In a general hospital, at least one other physician designated by the hospital must independently determine that he or she concurs that the recommendation is appropriate.
3. (iii) In a residential health care facility, and for a hospice patient not in a general hospital, the medical director of the facility or hospice, or a physician designated by the medical director, must independently determine that he or she concurs that the recommendation is appropriate; provided that if the medical director is the patient's attending physician, a different physician designated by the residential health care facility or hospice must make this independent determination. Any health or social services practitioner employed by or otherwise formally affiliated with the facility or hospice may provide a second opinion for decisions about physical restraints made pursuant to this subdivision. * NB Effective until May 28, 2018 * 4. Major medical treatment. (a) For purposes of this subdivision, "major medical treatment" means any treatment, service or procedure to diagnose or treat an individual's physical or mental condition: (i) where general anesthetic is used; or (ii) which involves any significant risk; or (iii) which involves any significant invasion of bodily integrity requiring an incision, producing substantial pain, discomfort, debilitation or having a significant recovery period; or (iv) which involves the use of physical restraints, as specified in regulations promulgated by the commissioner, except in an emergency; or (v) which involves the use of psychoactive medications, except when provided as part of post-operative care or in response to an acute illness and treatment is reasonably expected to be administered over a period of forty-eight hours or less, or when provided in an emergency.

4. (b) A decision to provide major medical treatment, made in accordance with the following requirements, shall be authorized for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article.

   1. (i) An attending physician or attending nurse practitioner shall make a recommendation in consultation with hospital staff directly responsible for the patient's care.
   2. (ii) In a general hospital, at least one other physician or nurse practitioner designated by the hospital must independently determine that he or she concurs that the recommendation is appropriate.
   3. (iii) In a residential health care facility, and for a hospice patient not in a general hospital, the medical director of the facility or hospice, or a physician or nurse practitioner designated by the medical director, must independently determine that he or she concurs that the recommendation is appropriate; provided that if the medical director is the patient's attending physician or attending nurse practitioner, a different physician or nurse practitioner designated by the residential health care facility or hospice must make this independent determination. Any health or social services practitioner employed by or otherwise formally affiliated with the facility or hospice may provide a second opinion for decisions about physical restraints made pursuant to this subdivision. * NB Effective May 28, 2018 * 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A court of competent jurisdiction may make a decision to withhold or withdraw life-sustaining treatment for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article if the court finds that the decision accords with standards for decisions for adults set forth in subdivisions four and five of section twenty-nine hundred ninety-four-d of this article.

   4. (b) If the attending physician, with independent concurrence of a second physician designated by the hospital, determines to a reasonable degree of medical certainty that:

      1. (i) life-sustaining treatment offers the patient no medical benefit because the patient will die imminently, even if the treatment is provided; and
      2. (ii) the provision of life-sustaining treatment would violate accepted medical standards, then such treatment may be withdrawn or withheld from an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article, without judicial approval. This paragraph shall not apply to any treatment necessary to alleviate pain or discomfort. * NB Effective until May 28, 2018 * 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A court of competent jurisdiction may make a decision to withhold or withdraw life-sustaining treatment for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article if the court finds that the decision accords with standards for decisions for adults set forth in subdivisions four and five of section twenty-nine hundred ninety-four-d of this article.

      3. (b) If the attending physician or attending nurse practitioner, with independent concurrence of a second physician or nurse practitioner designated by the hospital, determines to a reasonable degree of medical certainty that:

         1. (i) life-sustaining treatment offers the patient no medical benefit because the patient will die imminently, even if the treatment is provided; and
         2. (ii) the provision of life-sustaining treatment would violate accepted medical standards, then such treatment may be withdrawn or withheld from an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article, without judicial approval. This paragraph shall not apply to any treatment necessary to alleviate pain or discomfort. * NB Effective May 28, 2018 * 5-a. Decisions regarding hospice care. An attending physician shall be authorized to make decisions regarding hospice care and execute appropriate documents for such decisions (including a hospice election form) for an adult patient under this section who is hospice eligible in accordance with the following requirements.
         3. (a) The attending physician shall make decisions under this section in consultation with staff directly responsible for the patient's care, and shall base his or her decisions on the standards for surrogate decisions set forth in subdivisions four and five of section twenty-nine hundred ninety-four-d of this article;

         4. (b) There is a concurring opinion as follows:

            1. (i) in a general hospital, at least one other physician designated by the hospital must independently determine that he or she concurs that the recommendation is consistent with such standards for surrogate decisions;
            2. (ii) in a residential health care facility, the medical director of the facility, or a physician designated by the medical director, must independently determine that he or she concurs that the recommendation is consistent with such standards for surrogate decisions; provided that if the medical director is the patient's attending physician, a different physician designated by the residential health care facility must make this independent determination; or
            3. (iii) in settings other than a general hospital or residential health care facility, the medical director of the hospice, or a physician designated by the medical director, must independently determine that he or she concurs that the recommendation is medically appropriate and consistent with such standards for surrogate decisions; provided that if the medical director is the patient's attending physician, a different physician designated by the hospice must make this independent determination; and
         5. (c) The ethics review committee of the general hospital, residential health care facility or hospice, as applicable, including at least one physician who is not the patient's attending physician, or a court of competent jurisdiction, must review the decision and determine that it is consistent with such standards for surrogate decisions. * NB Effective until May 28, 2018 * 5-a. Decisions regarding hospice care. An attending physician or attending nurse practitioner shall be authorized to make decisions regarding hospice care and execute appropriate documents for such decisions (including a hospice election form) for an adult patient under this section who is hospice eligible in accordance with the following requirements.
         6. (a) The attending physician or attending nurse practitioner shall make decisions under this section in consultation with staff directly responsible for the patient's care, and shall base his or her decisions on the standards for surrogate decisions set forth in subdivisions four and five of section twenty-nine hundred ninety-four-d of this article;

         7. (b) There is a concurring opinion as follows:

            1. (i) in a general hospital, at least one other physician or nurse practitioner designated by the hospital must independently determine that he or she concurs that the recommendation is consistent with such standards for surrogate decisions;
            2. (ii) in a residential health care facility, the medical director of the facility, or a physician or nurse practitioner designated by the medical director, must independently determine that he or she concurs that the recommendation is consistent with such standards for surrogate decisions; provided that if the medical director is the patient's attending physician or attending nurse practitioner, a different physician or nurse practitioner designated by the residential health care facility must make this independent determination; or
            3. (iii) in settings other than a general hospital or residential health care facility, the medical director of the hospice, or a physician designated by the medical director, must independently determine that he or she concurs that the recommendation is medically appropriate and consistent with such standards for surrogate decisions; provided that if the medical director is the patient's attending physician, a different physician designated by the hospice must make this independent determination; and
         8. (c) The ethics review committee of the general hospital, residential health care facility or hospice, as applicable, including at least one physician or nurse practitioner who is not the patient's attending physician or attending nurse practitioner, or a court of competent jurisdiction, must review the decision and determine that it is consistent with such standards for surrogate decisions. * NB Effective May 28, 2018 * 6. Physician objection. If a physician consulted for a concurring opinion objects to an attending physician's recommendation or determination made pursuant to this section, or a member of the hospital staff directly responsible for the patient's care objects to an attending physician's recommendation about major medical treatment or treatment without medical benefit, the matter shall be referred to the ethics review committee if it cannot be otherwise resolved. * NB Effective until May 28, 2018 * 6. Physician or nurse practitioner objection. If a physician or nurse practitioner consulted for a concurring opinion objects to an attending physician's or attending nurse practitioner's recommendation or determination made pursuant to this section, or a member of the hospital staff directly responsible for the patient's care objects to an attending physician's or attending nurse practitioner's recommendation about major medical treatment or treatment without medical benefit, the matter shall be referred to the ethics review committee if it cannot be otherwise resolved. * NB Effective May 28, 2018