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.