S.B. No. 332 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) "Surrogate decision-maker" means an individual 2-16 with decision-making capacity who is identified as the person who 2-17 has authority to consent to medical treatment on behalf of an 2-18 incapacitated patient in need of medical treatment. 2-19 Sec. 313.003. EXCEPTIONS AND APPLICATION. (a) This chapter 2-20 does not apply to: 2-21 (1) a decision to withhold or withdraw life-sustaining 2-22 treatment from qualified terminal patients under the terms of 2-23 Chapter 672; 2-24 (2) a health care decision made under a durable power 2-25 of attorney for health care under Chapter 135, Civil Practice and 2-26 Remedies Code, or under Chapter XII, Texas Probate Code; 2-27 (3) consent to medical treatment of minors under 3-1 Chapter 35, Family Code; 3-2 (4) consent for emergency care under Chapter 773; 3-3 (5) hospital patient transfers under Chapter 241; or 3-4 (6) a patient's legal guardian who has the authority 3-5 to make a decision regarding the patient's medical treatment. 3-6 (b) This chapter does not authorize a decision to withhold 3-7 or withdraw life-sustaining treatment. 3-8 Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an 3-9 adult patient in a hospital or nursing home is comatose, 3-10 incapacitated, or otherwise mentally or physically incapable of 3-11 communication, an adult surrogate from the following list, in order 3-12 of priority, who has decision-making capacity, is available after a 3-13 reasonably diligent inquiry, and is willing to consent to medical 3-14 treatment on behalf of the patient may consent to medical treatment 3-15 on behalf of the patient: 3-16 (1) the patient's spouse; 3-17 (2) an adult child of the patient who has the waiver 3-18 and consent of all other qualified adult children of the patient to 3-19 act as the sole decision-maker; 3-20 (3) a majority of the patient's reasonably available 3-21 adult children; 3-22 (4) the patient's parents; or 3-23 (5) the individual clearly identified to act for the 3-24 patient by the patient before the patient became incapacitated, the 3-25 patient's nearest living relative, or a member of the clergy. 3-26 (b) Any dispute as to the right of a party to act as a 3-27 surrogate decision-maker may be resolved only by a court of record 4-1 having jurisdiction under Chapter V, Texas Probate Code. 4-2 (c) Any medical treatment consented to under Subsection (a) 4-3 must be based on knowledge of what the patient would desire, if 4-4 known. 4-5 (d) Notwithstanding any other provision of this chapter, a 4-6 surrogate decision-maker may not consent to: 4-7 (1) voluntary inpatient mental health services; 4-8 (2) electro-convulsive treatment; or 4-9 (3) the appointment of another surrogate 4-10 decision-maker. 4-11 Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult 4-12 patient in a hospital or nursing home is comatose, incapacitated, 4-13 or otherwise mentally or physically incapable of communication and, 4-14 according to reasonable medical judgment, is in need of medical 4-15 treatment, the attending physician shall describe the: 4-16 (1) patient's comatose state, incapacity, or other 4-17 mental or physical inability to communicate in the patient's 4-18 medical record; and 4-19 (2) proposed medical treatment in the patient's 4-20 medical record. 4-21 (b) The attending physician shall make a reasonably diligent 4-22 effort to contact or cause to be contacted the persons eligible to 4-23 serve as surrogate decision-makers. Efforts to contact those 4-24 persons shall be recorded in detail in the patient's medical 4-25 record. 4-26 (c) If a surrogate decision-maker consents to medical 4-27 treatment on behalf of the patient, the attending physician shall 5-1 record the date and time of the consent and sign the patient's 5-2 medical record. The surrogate decision-maker shall countersign the 5-3 patient's medical record or execute an informed consent form. 5-4 (d) A surrogate decision-maker's consent to medical 5-5 treatment that is not made in person shall be reduced to writing in 5-6 the patient's medical record, signed by the hospital or nursing 5-7 home staff member receiving the consent, and countersigned in the 5-8 patient's medical record or on an informed consent form by the 5-9 surrogate decision-maker as soon as possible. 5-10 Sec. 313.006. LIABILITY FOR MEDICAL TREATMENT COSTS. 5-11 Liability for the cost of medical treatment provided as a result of 5-12 consent to medical treatment by a surrogate decision-maker is the 5-13 same as the liability for that cost if the medical treatment were 5-14 provided as a result of the patient's own consent to the treatment. 5-15 Sec. 313.007. LIMITATION ON LIABILITY. (a) A surrogate 5-16 decision-maker is not subject to criminal or civil liability for 5-17 consenting to medical care under this chapter if the consent is 5-18 made in good faith. 5-19 (b) An attending physician, hospital, or nursing home or a 5-20 person acting as an agent for or under the control of the 5-21 physician, hospital, or nursing home is not subject to criminal or 5-22 civil liability and has not engaged in unprofessional conduct if 5-23 the medical treatment consented to under this chapter: 5-24 (1) is done in good faith under the consent to medical 5-25 treatment; and 5-26 (2) does not constitute a failure to exercise due care 5-27 in the provision of the medical treatment. 6-1 SECTION 2. This Act takes effect September 1, 1993. 6-2 SECTION 3. The importance of this legislation and the 6-3 crowded condition of the calendars in both houses create an 6-4 emergency and an imperative public necessity that the 6-5 constitutional rule requiring bills to be read on three several 6-6 days in each house be suspended, and this rule is hereby suspended.