PUBLIC HEALTH LAW
ARTICLE 25.  MATERNAL AND CHILD HEALTH
TITLE I.  GENERAL PROVISIONS
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NY CLS Pub Health § 2504  (2012)

§ 2504.  Enabling certain persons to consent for certain medical, dental, health and hospital services

   1. Any person who is eighteen years of age or older, or is the parent of a child or has married, may give effective con-sent for medical, dental, health and hospital services for himself or herself, and the consent of no other person shall be necessary.

2. Any person who has been married or who has borne a child may give effective consent for medical, dental, health and hospital services for his or her child. Any person who has been designated pursuant to title fifteen-A of article five of the general obligations law as a person in parental relation to a child may consent to any medical, dental, health and hospital services for such child for which consent is otherwise required which are not: (a) major medical treatment as defined in subdivision (a) of section 80.03 of the mental hygiene law; (b) electroconvulsive therapy; or (c) the with-drawal or discontinuance of medical treatment which is sustaining life functions.

3. Any person who is pregnant may give effective consent for medical, dental, health and hospital services relating to prenatal care.

4. Medical, dental, health and hospital services may be rendered to persons of any age without the consent of a parent or legal guardian when, in the physician's judgment an emergency exists and the person is in immediate need of medical attention and an attempt to secure consent would result in delay of treatment which would increase the risk to the per-son's life or health.

5. Where not otherwise already authorized by law to do so, any person in a parental relation to a child as defined in sec-tion twenty-one hundred sixty-four of this chapter and, (i) a grandparent, an adult brother or sister, an adult aunt or un-cle, any of whom has assumed care of the child and, (ii) an adult who has care of the child and has written authorization to consent from a person in a parental relation to a child as defined in section twenty-one hundred sixty-four of this chapter, may give effective consent for the immunization of a child. However, a person other than one in a parental rela-tion to the child shall not give consent under this subdivision if he or she has reason to believe that a person in parental relation to the child as defined in section twenty-one hundred sixty-four of this chapter objects to the immunization.

6. Anyone who acts in good faith based on the representation by a person that he is eligible to consent pursuant to the terms of this section shall be deemed to have received effective consent.

 

HISTORY:

   Add, L 1972, ch 769, § 1, eff June 2, 1972.

   Sub 2, amd, L 2005, ch 119, § 4, eff June 30, 2005.

   Sub 3, add, L 1984, ch 976, § 1, eff July 24, 1984.

   Former sub 3, redesignated sub 4, L 1984, ch 976, § 1, eff July 24, 1984.

   Sub 4, formerly sub 3, so designated sub 4, L 1984, ch 976, § 1, eff July 24, 1984.

   Former sub 4, redesignated sub 5, L 1984, ch 976, § 1, eff July 24, 1984.

   Sub 5, add, L 1994, ch 521, § 9, eff July 26, 1994.

   Former sub 5, previously sub 4, redesignated sub 5, L 1984, ch 976, § 1; redesignated sub 6, L 1994, ch 521, § 9, eff July 26, 1994.

   Sub 6, formerly sub 4, redesignated sub 5, L 1984, ch 976, § 1; redesignated sub 6, L 1994, ch 521, § 9, eff July 26, 1994

NOTES:

New York References:

   This section referred to in CLS Men Hyg §§ 33.21, 80.03

Research References & Practice Aids:

   45 NY Jur 2d Domestic Relations § 514

   83A NY Jur 2d Physicians, Surgeons, and Other Healers § 195

   28 Am Jur Proof of Facts 629, Electrical Treatment of Cardiac Arrhythmias

Matthew Bender's New York Practice Guides:

      1 New York Practice Guide: Probate and Estate Administration § 16.19a

Law Reviews:

      Batterman, Underage: a minor's right to consent to health care. 10 Touro L Rev 637

Case Notes:

The petition of the guardian of an 83-year-old man, who was being maintained by a respirator in a permanent and irreversible vegetative state, to remove the respirator was properly granted, where the evidence clearly and convincingly showed that before becoming incompetent the patient had made it known that under the circumstances he would want the respirator removed.  The application of a state official for permission to administer blood transfusions to a pro-foundly retarded 52-year-old man with terminal cancer, after the patient's mother had refused consent on the grounds that such transfusions would only prolong his discomfort and would be against his wishes if he were competent, should have been granted where the evidence convincingly showed that the transfusions did not involve excessive pain, and that with the transfusions the patient's mental and physical abilities would be maintained at their usual levels.  In re Sto-rar (1981) 52 NY2d 363, 438 NYS2d 266, 420 NE2d 64, cert den (1981) 454 US 858, 70 L Ed 2d 153, 102 S Ct 309.

If patient who is in need of immediate medical attention is unconscious or otherwise unable to consent, physician may treat condition under emergency doctrine recognized at common law and by statute, and it is not necessary for phy-sician or hospital to obtain court order before providing treatment.  Fosmire v Nicoleau (1990) 75 NY2d 218, 551 NYS2d 876, 551 NE2d 77, complaint dismd (1992, 2d Dept) 181 App Div 2d 815, 581 NYS2d 382, app den (1992) 80 NY2d 754, 587 NYS2d 905, 600 NE2d 632, later proceeding (1994, 2d Dept) 201 App Div 2d 544, 607 NYS2d 703.

Competent adult patient had right to determine course of her own treatment, which included right to decline blood transfusions, without regard to her physical condition or status as parent.  Fosmire v Nicoleau (1990) 75 NY2d 218, 551 NYS2d 876, 551 NE2d 77, complaint dismd (1992, 2d Dept) 181 App Div 2d 815, 581 NYS2d 382, app den (1992) 80 NY2d 754, 587 NYS2d 905, 600 NE2d 632, later proceeding (1994, 2d Dept) 201 App Div 2d 544, 607 NYS2d 703.

One hour delay in transfusing hemorrhaging patient is not negligence, as matter of law, where patient has given prior instructions, based on religious beliefs, not to administer blood transfusion and delay is necessary to obtain legal authorization to proceed.  Randolph v New York (1986, 1st Dept) 117 App Div 2d 44, 501 NYS2d 837, mod (1987) 69 NY2d 844, 514 NYS2d 705, 507 NE2d 298.

Conservator of patient in persistent vegetative state with no hope of recovery should be authorized to direct discon-tinuance of all medical treatment, including termination of nutrition and hydration by artificial means, where clear and convincing evidence existed that patient made solemn, intelligent determination while competent that he would refuse to be maintained in vegetative state with nutrition and hydration tubes, and no compelling countervailing state interest existed to override patient's common-law right to refuse treatment; hospital providing treatment should be directed ei-ther to assist in discontinuance of treatment or to take whatever steps were reasonably necessary to assist in patient's transfer to suitable facility or to his home where his wishes might be effectuated.  Delio v Westchester County Medical Center (1987, 2d Dept) 129 App Div 2d 1, 516 NYS2d 677.

Court properly denied defendants' summary judgment motion in action alleging lack of informed consent relating to vasectomy performed on plaintiff where both sides submitted affidavits of nonparty physicians as expert witnesses who offered differing opinions on several central issues as to whether side effects from which plaintiff allegedly suffered were known risks associated with procedure at time of surgery and whether surgery itself was proximate cause of plain-tiff's current condition; moreover, plaintiff's specific assertion that he would not have undergone elective surgery had he been informed of possible permanent side effects sufficiently rebutted defendants' contention that information would have had no impact on plaintiff's decision, raising fact question on second element of action. Santilli v CHP Inc. (2000, 3d Dept) 274 App Div 2d 905, 711 NYS2d 249.

N.Y. Pub. Health Law § 2504(2) fully supported the proposition that a mother was authorized to make a decision to withhold mechanical ventilation from her three-year-old child because it was in the best interest of the child to do so; numerous physicians had certified that the child was in a persistent vegetative state from which there was no possibility of recovery, there was no treatment the mother could elect that would improve the child's prognosis, the only mode of treatment the mother could select that she believed would ameliorate the child's condition was removal of the ventilator, and the child's treating physicians all concurred with the mother's decision.  In re AB (2003, Sup) 196 Misc 2d 940, 768 NYS2d 256.

DNA evidence taken from two homicide victims, a hospital patient, and a fourth person was admissible in defen-dant's trial for murder and assault although defendant did not consent to the testing; N.Y. Pub. Health Law § 2504(1) was permissive, not mandatory, and medical, dental, health, and hospital services did not include DNA tests taken from two homicide victims during a criminal investigation under N.Y. Penal Law § 125 and N.Y. Pub. Health Law § 4210-c(2)(i) or by law enforcement officers from two living individuals. People v Zacher (2006, Sup) 12 Misc 3d 772, 818 NYS2d 893, findings of fact/conclusions of law (2006, Sup) 11 Misc 3d 1090A, 819 NYS2d 850.

DNA samples taken from two homicide victims during autopsies and by law enforcement officers from a hospital patient and a fourth person during the investigation of charges of murder and assault against defendant did not constitute "medical services" as defined in N.Y. Pub. Health Law § 2581(2) for purposes of determining whether defendant's con-sent for the testing was required under N.Y. Pub. Health Law § 2504 or N.Y. Soc. Serv. Law § 383-b. People v Zacher (2006, Sup) 12 Misc 3d 772, 818 NYS2d 893, findings of fact/conclusions of law (2006, Sup) 11 Misc 3d 1090A, 819 NYS2d 850.

Mother did not give informed consent under Public Health Law, §§ 2504(2), 2805-d for the use of psychotropic drug on her son who was in foster care when (1) the mother was unable to talk to the prescribing doctor, (2) a case worker rather than the doctor sought the mother's consent, (3) the mother was given no information about the drug or any way to stop its administration. When parents oppose the administration of psychotropic drugs for their children in foster care the Department of Human Services shall be required to go to court for an order before it can medically treat a child in a way not approved by a parent. Matter of Lyle A. (2006, Fam Ct) 14 Misc 3d 842, 830 NYS2d 486.

Social service officials who removed child from parents' home after mother signed voluntary placement agreement (authorizing state to take temporary custody of child) were qualifiedly immune from claim that they violated parents' constitutional right to control of their child by administering medical treatment to child without parents' consent. Defore v Premore (1996, CA2 NY) 86 F3d 48.

Plaintiff's forced medical treatment claim failed because at the time he refused medical treatment plaintiff was not able to understand the consequences of his actions due to his state of intoxication (plaintiff was blacking out throughout the evening) and was not able to intelligently refuse medical treatment. Miller v O'Bryan (2007, ND NY) 498 F Supp 2d 548.

Forms:

Form 1 -- Parent's Consent--Surgical Operation on Child

Form 2 -- Parent's Consent--Medical Treatment for Child

 

                                    Form 1 

                 Parent's Consent--Surgical Operation on Child

 

I, [-----] , the undersigned, of [-----] [street address], City of [-----] , State of New York, declare:

 

   1. I am the [-----] [father or mother] of [-----] , a minor.

 

   2. I hereby give my authorization and consent to an operation to be performed on the minor on or about the [---] day of [-----] , 20 [--] , by Doctor [-----] . The purpose of the operation is to correct the following condition: [-----] .

 

   3. I also consent that Doctor [-----] , during, preceding, and following the operation, may perform any other procedure which he deems necessary or desirable in order to achieve the correction of the above-named condition, or any other unhealthy condition he may encounter during the operation.

 

   4. I realize that an operation by modern methods requires the cooperation of numerous technicians, assistants, nurses, and other personnel. I, therefore, give my further consent to ministrations and medical procedures on the minor child by all such qualified medical personnel working under the supervision of Doctor [-----] , before, during, and after the op-eration to be performed.

 

   5. I consent also to the administration of such anesthetics as may be deemed necessary by Doctor [-----] .

 

   6. I have been fully informed of the hazards and possible consequences of such an operation as well as possible alter-native methods of treatment. I understand that this operation may not be successful in curing or alleviating the condition named in Paragraph 2 hereof, and also that there is danger that certain unfavorable results may follow, such as: [-----] .

 

Dated [-----] , 20 [--] .

 [Signature of parent]

[Signature of witness, if such is required by hospital]

 

Add the following, if required by the hospital:

                                CONSENT OF MINOR

 

I have read the above "Consent" form signed by my [-----] [father or mother], and join with [-----] [him or her] in such consent.

 

Paragraph 6 above has been specially pointed out to me and I am aware of the possible unfavorable consequences of the operation therein enumerated, namely, [-----] .

 [Signature of minor]

[Signature of witness, if such is required by hospital]

 

 

                                    Form 2 

                 Parent's Consent--Medical Treatment for Child

 

I, [-----] , the undersigned, of [-----] [street address], City of [-----] , State of New York, declare:

 

I am the [-----] [father or mother] of [-----] , a minor. I have been fully informed by Doctor [-----] of the hazards and possible consequences, as well as the alternative methods of treatment, involved in treating the minor by means of [-----] for the relief of [-----] [indicate condition to be treated]. I hereby consent to such treatment for the minor by Doctor [-----] .

 

Dated [-----] , 20 [--] .

 [Signature of parent]

[Signature of witness, if required by doctor or other person or organization administering treatment]

 

[If required by doctor or organization treating minor, add:]

                                CONSENT OF MINOR

 

I have read the above "Consent" form signed by my [-----] [father or mother], and join with [-----] [him or her] in such consent.

 

I, too, have been fully informed of the hazards and possible consequences involved in such treatment.

 [Signature of minor]

[Signature of witness, if required by doctor or other person or organization administering treatment]