By: Moncrief S.B. No. 332 73R360 CLG-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to consent for medical treatment by surrogate 1-3 decision-makers on behalf of incapacitated or comatose patients. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle F, Title 4, Health and Safety Code, is 1-6 amended by adding Chapter 313 to read as follows: 1-7 CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT 1-8 Sec. 313.001. SHORT TITLE. This chapter may be cited as the 1-9 Consent to Medical Treatment Act. 1-10 Sec. 313.002. DEFINITIONS. In this chapter: 1-11 (1) "Adult" means a person 18 years of age or older or 1-12 a person under 18 years of age who has had the disabilities of 1-13 minority removed. 1-14 (2) "Attending physician" means the physician with 1-15 primary responsibility for a patient's treatment and care. 1-16 (3) "Decision-making capacity" means the ability to 1-17 understand and appreciate the nature and consequences of a decision 1-18 regarding medical treatment and the ability to reach an informed 1-19 decision in the matter. 1-20 (4) "Hospital" means a facility licensed under Chapter 1-21 241. 1-22 (5) "Incapacitated" means lacking the ability, based 1-23 on reasonable medical judgment, to understand and appreciate the 1-24 nature and consequences of a treatment decision, including the 2-1 significant benefits and harms of, and reasonable alternatives to, 2-2 any proposed treatment decision. 2-3 (6) "Medical treatment" means a health care treatment, 2-4 service, or procedure designed to maintain or treat a patient's 2-5 physical or mental condition, as well as preventative care. 2-6 (7) "Nursing home" means a facility licensed under 2-7 Chapter 242. 2-8 (8) "Patient" means a person who is admitted to a 2-9 hospital or residing in a nursing home. 2-10 (9) "Physician" means: 2-11 (A) a physician licensed by the Texas State 2-12 Board of Medical Examiners; or 2-13 (B) a physician with proper credentials who 2-14 holds a commission in a branch of the armed services of the United 2-15 States and who is serving on active duty in this state. 2-16 (10) "Psychoactive medication" means a therapeutic 2-17 agent of a chemical nature used in the treatment of mental illness 2-18 that has the propensity to reduce or eliminate a sign, symptom, or 2-19 disabling consequence of mental illness. 2-20 (11) "Surrogate decision-maker" means an individual 2-21 with decision-making capacity who is identified as the person who 2-22 has authority to consent to medical treatment on behalf of an 2-23 incapacitated patient in need of medical treatment. 2-24 Sec. 313.003. EXCEPTIONS AND APPLICATION. (a) This chapter 2-25 does not apply to: 2-26 (1) a decision to withhold or withdraw life-sustaining 2-27 treatment from qualified terminal patients under the terms of 3-1 Chapter 672; 3-2 (2) a health care decision made under a durable power 3-3 of attorney for health care under Chapter 135, Civil Practice and 3-4 Remedies Code; 3-5 (3) consent to medical treatment of minors under 3-6 Chapter 35, Family Code; 3-7 (4) consent for emergency care under Chapter 773; 3-8 (5) hospital patient transfers under Chapter 241; or 3-9 (6) a patient's legal guardian who has the authority 3-10 to make a decision regarding the patient's medical treatment. 3-11 (b) This chapter does not authorize a decision to withhold 3-12 or withdraw life-sustaining treatment. 3-13 Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an 3-14 adult patient in a hospital or nursing home is comatose, 3-15 incapacitated, or otherwise mentally or physically incapable of 3-16 communication, an adult surrogate from the following list who has 3-17 decision-making capacity, is available after a reasonably diligent 3-18 inquiry, and is willing to consent to medical treatment on behalf 3-19 of the patient, may consent to medical treatment on behalf of the 3-20 patient: 3-21 (1) the patient's spouse; 3-22 (2) an adult child of the patient who has the waiver 3-23 and consent of all other qualified adult children of the patient to 3-24 act as the sole decision-maker; 3-25 (3) a majority of the patient's reasonably available 3-26 adult children; or 3-27 (4) the patient's parents, the individual clearly 4-1 identified to act for the patient by the patient before the patient 4-2 became incapacitated, the patient's nearest living relative, or a 4-3 close friend of the patient. 4-4 (b) Any dispute as to the right of a party to act as a 4-5 surrogate decision-maker may be resolved only by a court of record 4-6 under Chapter V, Texas Probate Code. 4-7 (c) Any medical treatment consented to under Subsection (a) 4-8 must be based on knowledge of what the patient would desire, if 4-9 known. 4-10 (d) Notwithstanding any other provision of this chapter, a 4-11 surrogate decision-maker may not consent to: 4-12 (1) voluntary inpatient mental health services; 4-13 (2) convulsive treatment; 4-14 (3) the appointment of another surrogate 4-15 decision-maker; or 4-16 (4) psychoactive medication. 4-17 Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult 4-18 patient in a hospital or nursing home is comatose, incapacitated, 4-19 or otherwise mentally or physically incapable of communication, 4-20 and, according to reasonable medical judgment, is in need of 4-21 medical treatment, the attending physician shall: 4-22 (1) note the fact of the patient's comatose state, 4-23 incapacity, or other mental or physical inability to communicate in 4-24 the patient's medical record; and 4-25 (2) describe the proposed medical treatment in the 4-26 patient's medical record. 4-27 (b) The attending physician shall make a reasonably diligent 5-1 effort to contact, or cause to be contacted, the persons eligible 5-2 to serve as surrogate decision-makers. Efforts to contact those 5-3 persons shall be recorded in the patient's medical record. 5-4 (c) If a surrogate decision-maker consents to medical 5-5 treatment on behalf of the patient, the attending physician shall 5-6 record the date and time of the consent and sign the patient's 5-7 medical record. The surrogate decision-maker shall countersign the 5-8 patient's medical record or execute an informed consent form. 5-9 (d) A surrogate decision-maker's consent to medical 5-10 treatment that is not made in person shall be reduced to writing in 5-11 the patient's medical record, signed by the hospital or nursing 5-12 home staff member receiving the consent, and countersigned in the 5-13 patient's medical record or on an informed consent form by the 5-14 surrogate decision-maker as soon as possible. 5-15 Sec. 313.006. LIABILITY FOR MEDICAL TREATMENT COSTS. 5-16 Liability for the cost of medical treatment provided as a result of 5-17 consent to medical treatment by a surrogate decision-maker is the 5-18 same as the liability for that cost if the medical treatment were 5-19 provided as a result of the patient's own consent to the treatment. 5-20 Sec. 313.007. LIMITATION ON LIABILITY. (a) A surrogate 5-21 decision-maker is not subject to criminal or civil liability for 5-22 consenting to medical care under this chapter if the consent is 5-23 made in good faith. 5-24 (b) An attending physician, hospital, or nursing home or a 5-25 person acting as an agent for, or under the control of, the 5-26 physician, hospital, or nursing home is not subject to criminal or 5-27 civil liability and has not engaged in unprofessional conduct if 6-1 the medical treatment consented to under this chapter: 6-2 (1) is done in good faith under the consent to medical 6-3 treatment; and 6-4 (2) does not constitute a failure to exercise due care 6-5 in the provision of the medical treatment. 6-6 SECTION 2. This Act takes effect September 1, 1993. 6-7 SECTION 3. The importance of this legislation and the 6-8 crowded condition of the calendars in both houses create an 6-9 emergency and an imperative public necessity that the 6-10 constitutional rule requiring bills to be read on three several 6-11 days in each house be suspended, and this rule is hereby suspended.