N.J. Admin. Code § 10:48B-4.1

Current through Register Vol. 57, No. 1, January 6, 2025

Section 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.

N.J. Admin. Code § 10:48B-4.1

Amended by 49 N.J.R. 99(a), effective 1/3/2017