BILL ANALYSIS
S.B. 1161
By: Rosson (McDonald, et al.)
05-04-95
Committee Report (Unamended)
BACKGROUND
State and federal courts have long recognized the right of a person
to make informed decisions regarding his or her own health care,
including the right to consent to or refuse treatment. The Texas
Legislature further extends this right to include delegation of a
person's authority to make health care decisions to others by means
of "advance directives" under the Natural Death Act (Chapter 672,
Health and Safety Code) and Durable Power of Attorney for Health
Care (Chapter 135, Civil Practice and Remedies Code).
It is common practice in hospitals for physicians to issue "Do Not
Resuscitate Orders" (DNR Orders), which direct health care
providers not to initiate or continue cardiopulmonary resuscitation
(CPR) and certain other life-sustaining procedures for terminally
ill patients at the direction of the patient or surrogate decision-makers authorized by the patient. The Natural Death Act authorizes
persons to issue written "Advance Directives to Physicians" to
achieve the same purpose in both hospital and non-hospital
settings. These directives may vary in content and format.
Emergency Medical Service (EMS) personnel and other health care
professionals engaged in the delivery of EMS services are required
by law to initiate and continue to administer CPR and other life-sustaining procedures whenever they respond to the scene of a
medical emergency, unless the patient refuses their care. Decisions
to initiate CPR are literally life-and-death decisions which must
be made in a very few minutes, if not seconds. If the patient
cannot communicate, responding EMS personnel do not have sufficient
time to interpret written documents such as the various "advance
directives" and cannot rely upon oral directions from persons
encountered at the scene to withhold such procedures claiming to
represent the wishes of the patient.
Persons who suffer cardiac or respiratory arrest in non-hospital
settings therefore do not have an effective means of refusing CPR
and other life-sustaining procedures. Frequently, EMS personnel
arrive at the home of a terminally ill hospice patient because a
family member called 911 to report the patient's death, and the
personnel must initiate CPR and other procedures. At times, these
actions frustrate the wishes of the dying patient and disrupt the
family, and occasionally result in reviving the patient for a brief
period of time, prolonging the natural dying process.
PURPOSE
S.B. 1161 would provide a simple mechanism, modeled upon the
Natural Death Act, by which a terminally ill person may refuse CPR
and certain other life-sustaining procedures in out-of-hospital
settings. Refusal can be communicated to to EMS health care
professionals through a distinctive written document called an
"out-of-hospital do-not-resuscitate order" or by wearing a
distinctive identification device representing such an order. The
bill provides safeguards against the inappropriate or illegal use
of the document or identification devices.
RULEMAKING AUTHORITY
It is the committee's opinion that SECTION 1 of this bill expressly
grants additional rulemaking authority to the Texas Board of Health
(TBH) in the following sections of Chapter 674, Subtitle A, Title
8, Health and Safety Code: Sec. 674.002(g), Sec. 674.003(a) and
(c), Sec. 674.010(a), Sec. 674.012(b), and Sec. 674.023. SECTION 1
of the bill also requires the Texas Board of Medical Examiners (in
Sec. 674.023(b), Health and Safety Code) to approve rules adopted
by the TBH under Sec. 674.023(a) of the Code.
SECTION BY SECTION ANALYSIS
SECTION 1. Adds Chapter 674 to Subtitle A, Title 8, Health and
Safety Code, as follows:
Sec. 674.001. Defines terms used in this Act.
Sec. 674.002. (a) Allows a person diagnosed with a terminal
condition to execute a written, out-of-hospital DNR order at any
time.
(b) Requires the declarant to sign the out-of-hospital
DNR order in the presence of two witnesses, who must also sign
the order. Requires the attending physician to sign the order
and note the existence of it and the reason for executing it as
part of the declarant's medical records.
(c) Requires a witness to have the same qualifications
as those provided by Sec. 672.003(c).
(d) Allows the physician to rely on a directive as a
person's instructions to issue an out-of-hospital DNR if the
person is incompetent but previously made a directive to physicians in accordance with the provisions of Chapter 672.
Requires the physician to sign the order in lieu of the person
specified in Subsection (b) of this bill.
(e) Allows a proxy to make any decisions required
regarding the out-of-hospital DNR order if the person is
incompetent but previously designated a proxy in accordance with the provisions of Chapter 672. Requires the proxy to sign
the order in lieu of the person signing under the provisions
of Subsection (b).
(f) Allows an agent to make any decisions required
regarding the out-of-hospital DNR order if the person is now
incompetent but previously executed or issued a durable power
of attorney for health care in accordance with Chapter 135, Civil
Practice and Remedies Code. Requires the agent to sign the order
in lieu of the person signing under the provisions of
Subsection (b).
(g) Requires the Texas Board of Health (TBH), by rule
and on the recommendation of the Texas Department of Health
(TDH), to adopt procedures for the disposition and maintenance
of the records of an original and any copies of the out-of- hospital DNR order.
(h) Establishes that an out-of-hospital DNR order is
effective on its execution.
Sec. 674.003. (a) Requires a written out-of-hospital DNR order
to be in the standard form specified by TBH rule as recommended
by the TDH.
(b) Requires the standard form of an out-of-hospital DNR
order specified by the TBH to contain, at a minimum, the
requirements specified in this Subsection.
(c) Allows the TBH, by rule, and as recommended by the
TDH, to modify the standard form of the out-of-hospital DNR order
described by Subsection (b) in order to accomplish the
purposes of this Chapter.
Sec. 674.004. (a) Establishes that a competent adult may issue
an out-of-hospital DNR by nonwritten communication.
(b) Requires a declarant to issue the nonwritten out-of-hospital DNR order in the presence of the attending physician
and two witnesses. Requires the witnesses to meet the same
qualifications as those specified in Section 672.003(c).
(c) Requires the attending physician and witnesses to
sign in the place on the document specified in Sec.
674.003(b)(7), and requires the attending physician to sign at the bottom of the document, as required by Sec.
674.003(b)(13).
(d) States that an out-of-hospital DNR order issued in
the manner provided by this Section is valid, and requires
responding health care professionals to honor this.
Sec. 674.005. Allows the minor's parents, legal guardian or
managing conservator to execute an out-of-hospital DNR order on
behalf of a minor.
Sec. 674.006. Establishes that the desire of a competent
person, even a minor, supersedes the effect of an out-of-hospital
DNR order, when that desire is communicated to responding health
care professionals.
Sec. 674.007. (a) States that this Section applies when a
person age 18 or older has made an out-of-hospital DNR order and
subsequently becomes comatose, incompetent, or otherwise mentally
or physically incapable of communication.
(b) States that if the adult has designated a person to
make a treatment decision, then the attending physician and the
designated person are required to comply with the out-of-hospital DNR order.
(c) Requires the attending physician to comply with the
out-of-hospital DNR order if the adult has not designated a
person to make a treatment decision, unless the physician
believes that the order does not reflect the person's present
desire.
Sec. 674.008. (a) States that the attending physician or
person's legal guardian, proxy or agent having durable power of
attorney may execute an out-of-hospital DNR order on behalf of
the person if the adult person has not done this and is comatose,
incompetent, or otherwise mentally or physically incapable of
communication.
(b) Allows the attending physician and at least two
qualified relatives to execute an out-of-hospital DNR order if
the person does not have a legal guardian, proxy or agent.
(c) Requires the decision to execute the out-of-hospital
DNR order under Subsections (a) and (b) of this Section to be
based on the desire of the person, if known.
(d) Requires the out-of-hospital DNR order to be made
in the presence of at least two witnesses possessing the
qualifications required in Section 672.003(c) of this Chapter.
(e) States that the fact that an adult has not made an
out-of-hospital DNR order does not create a presumption that
the person does not want a treatment decision made to withhold
CPR and other life-sustaining procedures.
Sec. 674.009. (a) Requires health care professionals, when
responding to a call for assistance, to honor an out-of-hospital DNR order in accordance with statewide and local protocols, if it does not conflict with statewide protocols, and if
the responding health care professionals discover a completed
out-of-hospital DNR order on arrival at the scene, and the
professionals comply with this Section.
(b) Requires the responding health care professional to
comply with the requirements concerning DNR devices specified
in Section 674.010 of this Chapter.
(c) Requires the responding health care professional to
establish the identity of the person as the person either
making an out-of-hospital DNR order or for whom such an order was
made.
(d) Requires the responding health care professional to
determine that the out-of- hospital DNR order form is valid and
includes the required written responses, the date the order was
made, and the required signatures indicating that the form is
complete.
(e) Establishes that if the conditions prescribed in
Subsections (a) through (d) of this Section are not determined
to be applicable by the responding health care professionals at
the scene, the out-of-hospital DNR order may not be honored, and
life- sustaining procedures are required to be initiated or
continued. The responding health care professionals are not
required to accept or interpret an out-of-hospital DNR order that does not meet the requirements of this Chapter.
(f) Requires the out-of-hospital DNR form to accompany
the person during transport, when available.
(g) Requires a record to be made and maintained about
the emergency medical response in which an out-of-hospital DNR
or a DNR identification device is encountered, in accordance
with statewide and local protocol.
(h) Requires an out-of-hospital DNR order made and
documented in the manner prescribed by this Chapter to be
honored and considered valid, unless the persons found at the
scene identify themselves as the declarant or attending physician,
legal guardian, qualified relative or agent of the person
having durable power of attorney and having executed the order on
behalf of the person, or if a request is made for CPR or other
life- sustaining procedures.
(i) Requires a facility to notify the person or, if
incompetent, the person's guardian or person with decision-making authority if the policies of a health care facility preclude compliance or if the facility is unwilling to accept DNR
identification devices as evidence of an out-of-hospital DNR
order, and requires the facility to take all reasonable steps
to transfer the person.
Sec. 674.010. (a) Allows a person having a valid out-of-hospital DNR order to wear a DNR identification device around the
neck or on the wrist, as prescribed by TBH rule in Section
674.023 of this Act.
(b) Establishes that a DNR identification device on a
person's body is conclusive evidence that a person has made a
valid out-of-hospital DNR order or one executed on a person's
behalf. Requires responding health care professionals to honor this
form of out- of-hospital DNR order as valid.
Sec. 674.011. States that an out-of-hospital DNR order is
effective until revoked as prescribed by Sec. 674.012 of this
Act.
Sec. 674.012. (a) Allows a declarant to revoke an out-of-hospital DNR order at any time without regard to the
declarant's mental state or competency, and specifies others who may revoke the order.
(b) Establishes that an oral revocation takes effect
only when the declarant or other qualified person communicates
the intent to revoke the order to the responding health care
professionals or to the attending physician at the scene. Requires
the responding professionals to record the time, place and date of
the revocation in accordance with statewide protocol and rules
adopted by the TBH, and applicable local protocol. Requires the
attending physician or the physician's designee to record the time,
date and place of the revocation in the person's medical record,
and if different, the time, date and place that the physician
received notice. Requires the physician or designee to write "VOID" on each page of the order in the person's medical
record.
(c) States that except as otherwise provided by this
Chapter, a person is not liable for failure to act on a
revocation unless the person knows about it.
Sec. 674.013. Provides that a declarant may re-execute or
reissue an out-of-hospital DNR order at any time.
Sec. 674.014. Specifies that if an order under this Chapter
conflicts with a directive or treatment decision executed or
issued under the Natural Death Act or under a durable power of
attorney for health care, the instrument issued later in time
controls.
Sec. 674.015. Establishes that the execution or issuance of an
order by a person will not affect in any way life or health
insurance coverage, premiums or insurability regarding that
person, and a person may not be required to execute or issue an
order as a condition for obtaining health care insurance or
services.
Sec. 674.016. States that a health care professional or
facility or entity which acts in good faith in compliance with
this Act is not civilly or criminally liable or subject to administrative sanction for such acts.
Sec. 674.017. States that a health care professional, facility
or entity that has no actual knowledge or fails to effectuate an
out-of-hospital DNR order is not civilly or criminally liable
for this. Requires a physician to inform the person or other
qualified persons if refusing to comply with or execute an out-of-hospital DNR order, and requires the physician to make an
effort to transfer the person to another willing physician.
Sec. 674.018. Establishes that a person who acts in accordance
with this act is not guilty of the criminal offense of aiding the
suicide of another person under Section 22.08, Penal Code.
Sec. 674.019. (a) Establishes a Class A misdemeanor for a
person who intentionally conceals, cancels, defaces,
obliterates or damages another person's out-of-hospital DNR order without the consent of the person or other authorized
persons.
(b) States that a person is subject to prosecution for
criminal homicide under Chapter 19, Penal Code, if that person
intentionally conceals or withholds personal knowledge of a
revocation, thereby hastening the person's death when emergency procedures are withheld.
Sec. 674.020. Provides that life-sustaining procedures may not
be withheld from a person known to be pregnant.
Sec. 674.021. States that this Chapter does not condone,
authorize or approve mercy killing or any act or omission to end
life except to permit the natural process of dying as provided by
this Chapter.
Sec. 674.022. States that this Chapter does not impair or
supersede any legal right or responsibility a person may have with
regard to the withholding of life-sustaining procedures.
Sec. 674.023. (a) Requires the TBH, on recommendation of the
TDH, to adopt rules to establish this Chapter, including rules
governing statewide standard procedures for the withholding of
CPR and other life-sustaining procedures for out-of-hospital
settings, a specified, standard out-of-hospital DNR order form,
and recordkeeping for the responding health care professionals.
(b) Establishes that the rules adopted by the TBH under
Subsection (a) of this Section, are not effective until approved
by the Texas State Board of Medical Examiners.
(c) Allows local EMS authorities to adopt local out-of-hospital DNR order protocols if they don't conflict with the
statewide protocol adopted by the TBH.
(d) Requires the TBH, by rule, to specify a distinctive
standard design for a necklace and a bracelet DNR identification
device to signify a valid out-of-hospital DNR order.
(e) Requires the TDH to report to the TBH at times
regarding issues identified when out-of-hospital DNR orders or
devices are encountered by EMS personnel, including recommendations for modifications of the form or procedures to the
TBH.
Sec. 674.024. Establishes that an out-of-hospital do-not-resuscitate order legally executed or issued in another state
or jurisdiction is effective in Texas.
SECTION 2. Effective date: January 1, 1996.
SECTION 3. Emergency clause.
SUMMARY OF COMMITTEE ACTION
S.B. 1161 was considered by the Public Health Committee in a formal
meeting on May 4, 1995.
The bill was reported favorably without amendment, and with the
recommendation that it do pass and be printed, by a record vote of
7 AYES, 0 NAYS, 0 PNV, and 2 ABSENT.