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
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   3-64                                                  FOR   AGAINST  ON
   3-65  ___________________________________________________________________
   3-66  Name:  James T. Downes                           x
   3-67  Representing:  Harris Cty.
   3-68  City:  Houston
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   3-70  Name:  Mike Bright                               x
    4-1  Representing:  Disability Policy Consortium
    4-2  City:  Austin
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    4-4  Name:  David Latimer                             x
    4-5  Representing:  Tx Assoc. Homes For Aging
    4-6  City:  Austin
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