Transfer of New York Hospital Inpatients Without Consent To Relieve Overcrowding: Legal, Ethical and Operational Issues

Written By Robert N. Swidler

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During the most recent COVID-19 surge, overcrowded and understaffed hospitals were forced to consider transferring inpatients to other hospitals—whether or not the transferred patient or family consented to the transfer. On December 21, 2021, the New York State Department of Health issued a remarkable “Dear CEO Letter,” authorizing such transfers subject to various requirements.1 This article examines the need for such transfers, the law regarding consent to transfer, the DOH directive, and some ethical and operational issues raised by transferring a patient without consent.

 
Robert N. Swidler

Robert N. Swidler is General Counsel to both St. Peter’s Health Partners and St. Joseph’s Health, not-for-profit healthcare systems in New York’s Capital and Central Regions. Previously, he was Counsel to the NYS Task Force on Life and the Law, Assistant Counsel to Governor Mario Cuomo and Counsel to the NYS Office of Mental Health. Robert played a key role in the development of NY’s Health Care Proxy Law and Family Health Care Decisions Act, and has written over 30 published articles and book chapters on health law, policy and ethics. He is an adjunct faculty member of the Alden March Bioethics Center at Albany Medical College.

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