1-1 By: Moncrief, Harris of Tarrant, Zaffirini, Sibley S.B. No. 332 1-2 (In the Senate - Filed February 11, 1993; February 15, 1993, 1-3 read first time and referred to Committee on Health and Human 1-4 Services; March 11, 1993, rereferred to Committee on Jurisprudence; 1-5 March 23, 1993, reported favorably, as amended, by the following 1-6 vote: Yeas 5, Nays 0; March 23, 1993, sent to printer.) 1-7 COMMITTEE VOTE 1-8 Yea Nay PNV Absent 1-9 Henderson x 1-10 Harris of Tarrant x 1-11 Brown x 1-12 Harris of Dallas x 1-13 Luna x 1-14 Parker x 1-15 West x 1-16 COMMITTEE AMENDMENT NO. 1 By: West 1-17 Amend S.B. No. 332, as follows: 1-18 On page 2, line 47, add "electro-" prior to the word 1-19 "convulsive". 1-20 A BILL TO BE ENTITLED 1-21 AN ACT 1-22 relating to consent for medical treatment by surrogate 1-23 decision-makers on behalf of incapacitated or comatose patients. 1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-25 SECTION 1. Subtitle F, Title 4, Health and Safety Code, is 1-26 amended by adding Chapter 313 to read as follows: 1-27 CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT 1-28 Sec. 313.001. SHORT TITLE. This chapter may be cited as the 1-29 Consent to Medical Treatment Act. 1-30 Sec. 313.002. DEFINITIONS. In this chapter: 1-31 (1) "Adult" means a person 18 years of age or older or 1-32 a person under 18 years of age who has had the disabilities of 1-33 minority removed. 1-34 (2) "Attending physician" means the physician with 1-35 primary responsibility for a patient's treatment and care. 1-36 (3) "Decision-making capacity" means the ability to 1-37 understand and appreciate the nature and consequences of a decision 1-38 regarding medical treatment and the ability to reach an informed 1-39 decision in the matter. 1-40 (4) "Hospital" means a facility licensed under Chapter 1-41 241. 1-42 (5) "Incapacitated" means lacking the ability, based 1-43 on reasonable medical judgment, to understand and appreciate the 1-44 nature and consequences of a treatment decision, including the 1-45 significant benefits and harms of and reasonable alternatives to 1-46 any proposed treatment decision. 1-47 (6) "Medical treatment" means a health care treatment, 1-48 service, or procedure designed to maintain or treat a patient's 1-49 physical or mental condition, as well as preventative care. 1-50 (7) "Nursing home" means a facility licensed under 1-51 Chapter 242. 1-52 (8) "Patient" means a person who is admitted to a 1-53 hospital or residing in a nursing home. 1-54 (9) "Physician" means: 1-55 (A) a physician licensed by the Texas State 1-56 Board of Medical Examiners; or 1-57 (B) a physician with proper credentials who 1-58 holds a commission in a branch of the armed services of the United 1-59 States and who is serving on active duty in this state. 1-60 (10) "Psychoactive medication" means a therapeutic 1-61 agent of a chemical nature used in the treatment of mental illness 1-62 that has the propensity to reduce or eliminate a sign, symptom, or 1-63 disabling consequence of mental illness. 1-64 (11) "Surrogate decision-maker" means an individual 1-65 with decision-making capacity who is identified as the person who 1-66 has authority to consent to medical treatment on behalf of an 1-67 incapacitated patient in need of medical treatment. 1-68 Sec. 313.003. EXCEPTIONS AND APPLICATION. (a) This chapter 2-1 does not apply to: 2-2 (1) a decision to withhold or withdraw life-sustaining 2-3 treatment from qualified terminal patients under the terms of 2-4 Chapter 672; 2-5 (2) a health care decision made under a durable power 2-6 of attorney for health care under Chapter 135, Civil Practice and 2-7 Remedies Code; 2-8 (3) consent to medical treatment of minors under 2-9 Chapter 35, Family Code; 2-10 (4) consent for emergency care under Chapter 773; 2-11 (5) hospital patient transfers under Chapter 241; or 2-12 (6) a patient's legal guardian who has the authority 2-13 to make a decision regarding the patient's medical treatment. 2-14 (b) This chapter does not authorize a decision to withhold 2-15 or withdraw life-sustaining treatment. 2-16 Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an 2-17 adult patient in a hospital or nursing home is comatose, 2-18 incapacitated, or otherwise mentally or physically incapable of 2-19 communication, an adult surrogate from the following list who has 2-20 decision-making capacity, is available after a reasonably diligent 2-21 inquiry, and is willing to consent to medical treatment on behalf 2-22 of the patient may consent to medical treatment on behalf of the 2-23 patient: 2-24 (1) the patient's spouse; 2-25 (2) an adult child of the patient who has the waiver 2-26 and consent of all other qualified adult children of the patient to 2-27 act as the sole decision-maker; 2-28 (3) a majority of the patient's reasonably available 2-29 adult children; or 2-30 (4) the patient's parents, the individual clearly 2-31 identified to act for the patient by the patient before the patient 2-32 became incapacitated, the patient's nearest living relative, or a 2-33 close friend of the patient. 2-34 (b) Any dispute as to the right of a party to act as a 2-35 surrogate decision-maker may be resolved only by a court of record 2-36 under Chapter V, Texas Probate Code. 2-37 (c) Any medical treatment consented to under Subsection (a) 2-38 must be based on knowledge of what the patient would desire, if 2-39 known. 2-40 (d) Notwithstanding any other provision of this chapter, a 2-41 surrogate decision-maker may not consent to: 2-42 (1) voluntary inpatient mental health services; 2-43 (2) convulsive treatment; 2-44 (3) the appointment of another surrogate 2-45 decision-maker; or 2-46 (4) psychoactive medication. 2-47 Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult 2-48 patient in a hospital or nursing home is comatose, incapacitated, 2-49 or otherwise mentally or physically incapable of communication and, 2-50 according to reasonable medical judgment, is in need of medical 2-51 treatment, the attending physician shall: 2-52 (1) note the fact of the patient's comatose state, 2-53 incapacity, or other mental or physical inability to communicate in 2-54 the patient's medical record; and 2-55 (2) describe the proposed medical treatment in the 2-56 patient's medical record. 2-57 (b) The attending physician shall make a reasonably diligent 2-58 effort to contact or cause to be contacted the persons eligible to 2-59 serve as surrogate decision-makers. Efforts to contact those 2-60 persons shall be recorded in the patient's medical record. 2-61 (c) If a surrogate decision-maker consents to medical 2-62 treatment on behalf of the patient, the attending physician shall 2-63 record the date and time of the consent and sign the patient's 2-64 medical record. The surrogate decision-maker shall countersign the 2-65 patient's medical record or execute an informed consent form. 2-66 (d) A surrogate decision-maker's consent to medical 2-67 treatment that is not made in person shall be reduced to writing in 2-68 the patient's medical record, signed by the hospital or nursing 2-69 home staff member receiving the consent, and countersigned in the 2-70 patient's medical record or on an informed consent form by the 3-1 surrogate decision-maker as soon as possible. 3-2 Sec. 313.006. LIABILITY FOR MEDICAL TREATMENT COSTS. 3-3 Liability for the cost of medical treatment provided as a result of 3-4 consent to medical treatment by a surrogate decision-maker is the 3-5 same as the liability for that cost if the medical treatment were 3-6 provided as a result of the patient's own consent to the treatment. 3-7 Sec. 313.007. LIMITATION ON LIABILITY. (a) A surrogate 3-8 decision-maker is not subject to criminal or civil liability for 3-9 consenting to medical care under this chapter if the consent is 3-10 made in good faith. 3-11 (b) An attending physician, hospital, or nursing home or a 3-12 person acting as an agent for or under the control of the 3-13 physician, hospital, or nursing home is not subject to criminal or 3-14 civil liability and has not engaged in unprofessional conduct if 3-15 the medical treatment consented to under this chapter: 3-16 (1) is done in good faith under the consent to medical 3-17 treatment; and 3-18 (2) does not constitute a failure to exercise due care 3-19 in the provision of the medical treatment. 3-20 SECTION 2. This Act takes effect September 1, 1993. 3-21 SECTION 3. The importance of this legislation and the 3-22 crowded condition of the calendars in both houses create an 3-23 emergency and an imperative public necessity that the 3-24 constitutional rule requiring bills to be read on three several 3-25 days in each house be suspended, and this rule is hereby suspended. 3-26 * * * * * 3-27 Austin, 3-28 Texas 3-29 March 23, 1993 3-30 Hon. Bob Bullock 3-31 President of the Senate 3-32 Sir: 3-33 We, your Committee on Jurisprudence to which was referred S.B. No. 3-34 332, have had the same under consideration, and I am instructed to 3-35 report it back to the Senate with the recommendation that it do 3-36 pass, as amended, and be printed. 3-37 Henderson, 3-38 Chairman 3-39 * * * * * 3-40 WITNESSES 3-41 FOR AGAINST ON 3-42 ___________________________________________________________________ 3-43 Name: Gerald A. Beathard x 3-44 Representing: TMA 3-45 City: Austin 3-46 ------------------------------------------------------------------- 3-47 Name: David B. Sloane x 3-48 Representing: Advocacy, Inc. 3-49 City: Austin 3-50 ------------------------------------------------------------------- 3-51 Name: Janie McMahan x 3-52 Representing: Texas Hospital Assoc. 3-53 City: Austin 3-54 ------------------------------------------------------------------- 3-55 Name: Katherine Cates x 3-56 Representing: Tx Protect. & Reg. Services 3-57 City: Austin 3-58 ------------------------------------------------------------------- 3-59 Name: Mary Jo Magruder x 3-60 Representing: Tx Plan. Cncl for Dev 3-61 Disabil 3-62 City: Austin 3-63 ------------------------------------------------------------------- 3-64 FOR AGAINST ON 3-65 ___________________________________________________________________ 3-66 Name: James T. Downes x 3-67 Representing: Harris Cty. 3-68 City: Houston 3-69 ------------------------------------------------------------------- 3-70 Name: Mike Bright x 4-1 Representing: Disability Policy Consortium 4-2 City: Austin 4-3 ------------------------------------------------------------------- 4-4 Name: David Latimer x 4-5 Representing: Tx Assoc. Homes For Aging 4-6 City: Austin 4-7 -------------------------------------------------------------------