By: Moncrief, Harris of Tarrant S.B. No. 332 Zaffirini, Sibley A BILL TO BE ENTITLED AN ACT 1-1 relating to consent for medical treatment by surrogate 1-2 decision-makers on behalf of incapacitated or comatose patients. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Subtitle F, Title 4, Health and Safety Code, is 1-5 amended by adding Chapter 313 to read as follows: 1-6 CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT 1-7 Sec. 313.001. SHORT TITLE. This chapter may be cited as the 1-8 Consent to Medical Treatment Act. 1-9 Sec. 313.002. DEFINITIONS. In this chapter: 1-10 (1) "Adult" means a person 18 years of age or older or 1-11 a person under 18 years of age who has had the disabilities of 1-12 minority removed. 1-13 (2) "Attending physician" means the physician with 1-14 primary responsibility for a patient's treatment and care. 1-15 (3) "Decision-making capacity" means the ability to 1-16 understand and appreciate the nature and consequences of a decision 1-17 regarding medical treatment and the ability to reach an informed 1-18 decision in the matter. 1-19 (4) "Hospital" means a facility licensed under Chapter 1-20 241. 1-21 (5) "Incapacitated" means lacking the ability, based 1-22 on reasonable medical judgment, to understand and appreciate the 1-23 nature and consequences of a treatment decision, including the 1-24 significant benefits and harms of and reasonable alternatives to 2-1 any proposed treatment decision. 2-2 (6) "Medical treatment" means a health care treatment, 2-3 service, or procedure designed to maintain or treat a patient's 2-4 physical or mental condition, as well as preventative care. 2-5 (7) "Nursing home" means a facility licensed under 2-6 Chapter 242. 2-7 (8) "Patient" means a person who is admitted to a 2-8 hospital or residing in a nursing home. 2-9 (9) "Physician" means: 2-10 (A) a physician licensed by the Texas State 2-11 Board of Medical Examiners; or 2-12 (B) a physician with proper credentials who 2-13 holds a commission in a branch of the armed services of the United 2-14 States and who is serving on active duty in this state. 2-15 (10) "Psychoactive medication" means a therapeutic 2-16 agent of a chemical nature used in the treatment of mental illness 2-17 that has the propensity to reduce or eliminate a sign, symptom, or 2-18 disabling consequence of mental illness. 2-19 (11) "Surrogate decision-maker" means an individual 2-20 with decision-making capacity who is identified as the person who 2-21 has authority to consent to medical treatment on behalf of an 2-22 incapacitated patient in need of medical treatment. 2-23 Sec. 313.003. EXCEPTIONS AND APPLICATION. (a) This chapter 2-24 does not apply to: 2-25 (1) a decision to withhold or withdraw life-sustaining 2-26 treatment from qualified terminal patients under the terms of 2-27 Chapter 672; 3-1 (2) a health care decision made under a durable power 3-2 of attorney for health care under Chapter 135, Civil Practice and 3-3 Remedies Code; 3-4 (3) consent to medical treatment of minors under 3-5 Chapter 35, Family Code; 3-6 (4) consent for emergency care under Chapter 773; 3-7 (5) hospital patient transfers under Chapter 241; or 3-8 (6) a patient's legal guardian who has the authority 3-9 to make a decision regarding the patient's medical treatment. 3-10 (b) This chapter does not authorize a decision to withhold 3-11 or withdraw life-sustaining treatment. 3-12 Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an 3-13 adult patient in a hospital or nursing home is comatose, 3-14 incapacitated, or otherwise mentally or physically incapable of 3-15 communication, an adult surrogate from the following list who has 3-16 decision-making capacity, is available after a reasonably diligent 3-17 inquiry, and is willing to consent to medical treatment on behalf 3-18 of the patient may consent to medical treatment on behalf of the 3-19 patient: 3-20 (1) the patient's spouse; 3-21 (2) an adult child of the patient who has the waiver 3-22 and consent of all other qualified adult children of the patient to 3-23 act as the sole decision-maker; 3-24 (3) a majority of the patient's reasonably available 3-25 adult children; or 3-26 (4) the patient's parents, the individual clearly 3-27 identified to act for the patient by the patient before the patient 4-1 became incapacitated, the patient's nearest living relative, or a 4-2 close friend of the patient. 4-3 (b) Any dispute as to the right of a party to act as a 4-4 surrogate decision-maker may be resolved only by a court of record 4-5 under Chapter V, Texas Probate Code. 4-6 (c) Any medical treatment consented to under Subsection (a) 4-7 must be based on knowledge of what the patient would desire, if 4-8 known. 4-9 (d) Notwithstanding any other provision of this chapter, a 4-10 surrogate decision-maker may not consent to: 4-11 (1) voluntary inpatient mental health services; 4-12 (2) electro-convulsive treatment; 4-13 (3) the appointment of another surrogate 4-14 decision-maker; or 4-15 (4) psychoactive medication. 4-16 Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult 4-17 patient in a hospital or nursing home is comatose, incapacitated, 4-18 or otherwise mentally or physically incapable of communication and, 4-19 according to reasonable medical judgment, is in need of medical 4-20 treatment, the attending physician shall: 4-21 (1) note the fact of the patient's comatose state, 4-22 incapacity, or other mental or physical inability to communicate in 4-23 the patient's medical record; and 4-24 (2) describe the proposed medical treatment in the 4-25 patient's medical record. 4-26 (b) The attending physician shall make a reasonably diligent 4-27 effort to contact or cause to be contacted the persons eligible to 5-1 serve as surrogate decision-makers. Efforts to contact those 5-2 persons shall be recorded in the patient's medical record. 5-3 (c) If a surrogate decision-maker consents to medical 5-4 treatment on behalf of the patient, the attending physician shall 5-5 record the date and time of the consent and sign the patient's 5-6 medical record. The surrogate decision-maker shall countersign the 5-7 patient's medical record or execute an informed consent form. 5-8 (d) A surrogate decision-maker's consent to medical 5-9 treatment that is not made in person shall be reduced to writing in 5-10 the patient's medical record, signed by the hospital or nursing 5-11 home staff member receiving the consent, and countersigned in the 5-12 patient's medical record or on an informed consent form by the 5-13 surrogate decision-maker as soon as possible. 5-14 Sec. 313.006. LIABILITY FOR MEDICAL TREATMENT COSTS. 5-15 Liability for the cost of medical treatment provided as a result of 5-16 consent to medical treatment by a surrogate decision-maker is the 5-17 same as the liability for that cost if the medical treatment were 5-18 provided as a result of the patient's own consent to the treatment. 5-19 Sec. 313.007. LIMITATION ON LIABILITY. (a) A surrogate 5-20 decision-maker is not subject to criminal or civil liability for 5-21 consenting to medical care under this chapter if the consent is 5-22 made in good faith. 5-23 (b) An attending physician, hospital, or nursing home or a 5-24 person acting as an agent for or under the control of the 5-25 physician, hospital, or nursing home is not subject to criminal or 5-26 civil liability and has not engaged in unprofessional conduct if 5-27 the medical treatment consented to under this chapter: 6-1 (1) is done in good faith under the consent to medical 6-2 treatment; and 6-3 (2) does not constitute a failure to exercise due care 6-4 in the provision of the medical treatment. 6-5 SECTION 2. This Act takes effect September 1, 1993. 6-6 SECTION 3. The importance of this legislation and the 6-7 crowded condition of the calendars in both houses create an 6-8 emergency and an imperative public necessity that the 6-9 constitutional rule requiring bills to be read on three several 6-10 days in each house be suspended, and this rule is hereby suspended.