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 -------------------------------------------------------------------