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.