BILL ANALYSIS
S.B. 1161
By: Rosson
Health and Human Services
4-20-95
Committee Report (Unamended)
BACKGROUND
Current state law lacks a clear and effective legal basis upon
which emergency medical services personnel acting in out-of-hospital settings may give effect to the decision of terminally-ill
persons to refuse to consent to resuscitative measures.
PURPOSE
As proposed, S.B. 1161 sets forth provisions relating to out-of-hospital do-not-resuscitate orders.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Texas Board of Health under SECTION 1 (Sections 674.002(g),
674.003(c), 674.023(a) and (d), Health and Safety Code) of this
bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 8A, Health and Safety Code, by adding
Chapter 674, as follows:
Sec. 674.001. DEFINITIONS. Defines "attending physician,"
"board," "cardiopulmonary resuscitation," "competent,"
"declarant," "department," "DNR identification device,"
"durable power of attorney for health care," "emergency
medical services," "emergency medical services personnel,"
"health care professionals," "incompetent," "life-sustaining
procedure," "out-of-hospital DNR order," "out-of-hospital
setting," "physician," "proxy," "qualified relatives,"
"statewide out-of-hospital DNR protocol," and "terminal
condition."
Sec. 674.002. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO
PHYSICIANS. (a) Authorizes a competent person who has been
diagnosed by a physician as having a terminal condition to
execute at any time a written out-of-hospital do-not-resuscitate (DNR) order directing health care professionals
acting in an out-of-hospital setting to withhold certain life-sustaining procedures designated by the Texas Board of Health
(board).
(b) Requires the Texas Department of Health (department) to
sign the out-of-state DNR order (order) in the presence of
two witnesses, who must also sign the order. Requires the
attending physician to sign the order and record the
existence of the order and the reasons for its execution in
the declarant's medical record.
(c) Requires a witness to have the same qualifications as
those provided by Section 672.003(c).
(d) Authorizes the physician, if the person is incompetent
but previously executed or issued a directive under Chapter
672, to rely on the directive as the person's instructions
to issue an order, and requires the physician to place a
copy of the directive in the patient's medical record.
Requires the physician to sign the order in lieu of the
person signing under Subsection (b).
(e) Authorizes the proxy, if the person is incompetent but
previously executed or issued a directive under Chapter 672
designating a proxy, to make any decisions required of the
designating person as to an order, and requires the proxy to
sign the order in lieu of the person signing under
Subsection (b).
(f) Authorizes the agent, if the person is now competent but
previously executed or issued a durable power of attorney
for health care under Chapter 135, Civil Practice and
Remedies Code, designating an agent, to make any decisions
required of the designating person as to an order, and
requires the agent to sign the order in lieu of the person
signing under Subsection (b).
(g) Requires the board, by rule, to adopt procedures for the
disposition and maintenance of records of an original order
and copies of the order.
(h) Makes an order effective on its execution.
Sec. 674.003. FORM OF OUT-OF-HOSPITAL DNR ORDER. (a)
Requires a written order to be in the standard form specified
by board rule.
(b) Requires a standard order form to contain certain
information.
(c) Authorizes the board, by rule and as recommended by the
department, to modify the standard form in order to
accomplish the purposes of this chapter.
Sec. 674.004. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY
NONWRITTEN COMMUNICATION. (a) Authorizes a competent adult to
issue an order by nonwritten communication.
(b) Requires a declarant to issue the nonwritten order in
the presence of the attending physician and two witnesses
possessing the same qualifications as those provided by
Section 672.003(c).
(c) Requires the attending physician and witnesses to sign
the order in certain areas of the document, and sets forth
the procedures for updating the medical record.
(d) Makes an order issued under this section valid and to be
honored as if executed under Section 674.002.
Sec. 674.005. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON
BEHALF OF A MINOR. Authorizes a minor's parents, legal
guardian, or managing conservator to execute an order on
behalf of a minor.
Sec. 674.006. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR
ORDER. Provides that the desire of a competent person
supersedes the effect of an order when the desire is
communicated to responding health care professionals
(responding professionals) as provided by this chapter.
Sec. 674.007. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR
INCAPABLE OF COMMUNICATION. (a) Provides that this section
applies when a person 18 years of age or older has executed or
issued an order and subsequently becomes comatose,
incompetent, or otherwise mentally or physically incapable of
communication.
(b) Requires the attending physician and designee, if the
adult person has designated a person to make a treatment
decision under Section 672.003(d), to comply with the order.
(c) Requires the attending physician, if the adult person
has not designated a person to make a treatment decision
under Section 672.003(d), to comply with the order, unless
the physician believes that the order does not reflect the
person's present desire.
Sec. 674.008. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR
ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
INCAPABLE OF COMMUNICATION. (a) Requires the attending
physician and the person's legal guardian, proxy, or agent
having a durable power of attorney for health care, if an
adult person has not executed or issued an order and is
comatose, incompetent, or otherwise mentally or physically
incapable of communication, to execute an order on behalf of
the person.
(b) Authorizes the attending physician and at least two
qualified relatives, if the person does not have a legal
guardian, proxy, or agent, to execute an order in the same
manner as a treatment decision under Section 672.009(b).
(c) Requires a decision to execute an order under Subsection
(a) or (b) to be based on knowledge of what the person would
desire, if known.
(d) Requires an order made under Subsection (b) to be made
in the presence of at least two witnesses possessing the
same qualifications required by Section 672.003(c).
(e) Provides that the fact that an adult has not executed or
issued an order does not create a presumption that the adult
does not want a treatment decision made to withhold certain
life-sustaining procedures.
Sec. 674.009. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. (a)
Requires responding professionals to honor an order according
to certain out-of-hospital DNR protocols if the responding
professionals discover an executed or issued order form on
arrival at the scene and the responding professionals comply
with this section.
(b) Requires the responding professionals, if the person is
wearing a DNR identification device, to comply with Section
674.010.
(c) Requires the responding professionals to establish the
identity of the person who executed or issued the order or
for whom the order was executed or issued.
(d) Requires the responding professionals to determine, by
locating certain information on the order form, that the
form appears to be valid.
(e) Prohibits the order, if the conditions under Subsections
(a)-(d) are not determined to apply by the responding
professionals at the scene, from being honored, and requires
life-sustaining procedures otherwise required by law or
local emergency medical services (EMS) protocols to be
initiated or continued. Provides that health care
professionals acting in out-of-hospital settings are not
required to accept or interpret an order that does not meet
the requirements of this chapter.
(f) Requires the order form, when available, to accompany
the person during transport.
(g) Requires a record to be made and maintained of the
circumstances of each EMS response in which an order or DNR
identification device is encountered.
(h) Validates an order executed or issued and documented or
evidenced under this chapter, and requires the order to be
honored by responding professionals, except under certain
circumstances.
(i) Sets forth requirements when the policies of a health
care facility preclude compliance with the order of a person
or an order issued by an attending physician on behalf of a
person admitted to or a resident of the facility, or when
the facility is unwilling to accept DNR identification
devices as evidence of the existence of an order.
Sec. 674.010. DNR IDENTIFICATION DEVICE. (a) Authorizes a
person having a valid order to wear a DNR identification
device around the neck or wrist.
(b) Makes the presence of a DNR identification device on the
body of a person conclusive evidence that the person has
executed or issued a valid order or has a valid order
executed or issued on the person's behalf. Requires
responding professionals to honor the device as if a valid
order form were found in the possession of the person.
Sec. 674.011. DURATION OF OUT-OF-HOSPITAL DNR ORDER. Makes
an order effective until it is revoked under Section 674.012.
Sec. 674.012. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. (a)
Authorizes a declarant to revoke an order at any time without
regard to the declarant's mental state or competency.
Authorizes certain persons to revoke an order.
(b) Sets forth requirements for the oral revocation of an
order.
(c) Provides that a person is not civilly or criminally
liable for failure to act on a revocation under this section
unless the person has actual knowledge of the revocation.
Sec. 674.013. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER.
Authorizes a declarant, at any time, to reexecute or reissue
an order under Section 674.002.
Sec. 674.014. CONFLICT WITH NATURAL DEATH ACT OR DURABLE
POWER OF ATTORNEY FOR HEALTH CARE. Provides that the
instrument executed later in time controls when an order
conflicts with a directive or treatment decision under Chapter
672 or a durable power of attorney for health care under
Chapter 135, Civil Practice and Remedies Code.
Sec. 674.015. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON
INSURANCE POLICY PREMIUMS. (a) Prohibits the fact that a
person has executed or issued an order under this chapter from
restricting, inhibiting, or impairing the sale, procurement,
or issuance of a life insurance policy to that person or
modifying the terms of an existing life insurance policy.
(b) Prohibits the fact that life-sustaining procedures
designated by the board are withheld from an insured person
from legally impairing or invalidating that person's life
insurance policy, and from being a factor in determining the
payability of benefits or the cause of death under the life
insurance policy.
(c) Prohibits a physician, health facility, health care
provider, insurer, or health care service plan from
requiring a person to execute or issue an order as a
condition for obtaining insurance for health care services
or receiving health care services.
(d) Prohibits the fact that a person has executed or issued,
or has failed to execute or issue, an order under this
chapter from being considered in any way in establishing
insurance premiums.
Sec. 674.016. LIMITATION ON LIABILITY FOR WITHHOLDING
CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING PROCEDURES. (a) Prohibits a health care
professional or facility, or entity, that in good faith causes
certain life-sustaining procedures to be withheld from a
person in accordance with this chapter from being civilly
liable for that action.
(b)-(c) Prohibits a health care professional or facility, or
entity, that in good faith participates in withholding
certain life-sustaining procedures from a person in
accordance with this chapter from being civilly liable for
that action, or criminally liable or guilty of
unprofessional conduct as a result of that action.
(d) Provides that a health care professional or facility, or
entity, that in good faith causes or participates in
withholding certain life-sustaining procedures from a person
in accordance with this chapter is not in violation of any
other licensing or regulatory laws or rules of this state
and is not subject to any disciplinary action or sanction by
any licensing or regulatory agency of this state as a result
of that action.
Sec. 674.017. LIMITATION ON LIABILITY FOR FAILURE TO
EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) Prohibits a health
care professional or facility, or entity, that has no actual
knowledge of an order from being civilly or criminally liable
for failing to act in accordance with the order.
(b) Prohibits a health care professional or facility, or
entity, from being civilly or criminally liable for failing
to effectuate an order.
(c) Requires an attending physician who refuses to execute
or comply with an order to inform the person, or the legal
guardians, qualified relatives, or agent of the person, and
to make a reasonable effort to transfer the person to
another physician willing to execute or comply with the
order, if the person so directs.
Sec. 674.018. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT
CONSTITUTE OFFENSE OF AIDING SUICIDE. Provides that a person
does not commit an offense under Section 22.08, Penal Code, by
withholding certain life-sustaining procedures from a person
in accordance with this chapter.
Sec. 674.019. CRIMINAL PENALTY; PROSECUTION. (a) Provides
that a person commits an offense, classified as a Class A
misdemeanor, if the person intentionally conceals, cancels,
defaces, obliterates, or damages another person's order or DNR
identification device without that person's consent or the
consent of the person authorized to execute an order on behalf
of the person under this chapter.
(b) Subjects a person to prosecution for criminal homicide
under Chapter 19, Penal Code, if the person, intending to
have certain life-sustaining procedures withheld from
another person contrary to the other's person's desires,
falsifies or forges an order or intentionally conceals or
withholds personal knowledge of a revocation, thereby
causing certain life-sustaining procedures to be withheld
from the other person with the result that the other
person's death is hastened.
Sec. 674.020. PREGNANT PERSONS. Prohibits a person from
withholding certain life-sustaining procedures from a person
known by the responding professionals to be pregnant.
Sec. 674.021. MERCY KILLING NOT CONDONED. Declares that this
chapter does not condone, authorize, or approve mercy killing
or permit an affirmative or deliberate act or omission to end
life, except to permit the natural process of dying under this
chapter.
Sec. 674.022. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED.
Provides that this chapter does not impair or supersede any
legal right or responsibility a person may have under a
constitution, other statute, regulation, or court decision to
effect the withholding of certain life-sustaining procedures.
Sec. 674.023. DUTIES OF DEPARTMENT AND BOARD. (a) Requires
the board to adopt all reasonable and necessary rules to carry
out the purposes of this chapter.
(b) Prohibits the rules adopted by the board under
Subsection (a) from being effective until approved by the
Texas State Board of Medical Examiners.
(c) Authorizes local EMS authorities to adopt local order
protocols if the local protocols do not conflict with the
statewide order protocol adopted by the board.
(d) Requires the board, by rule, to specify a distinctive
standard design for a necklace and a bracelet DNR
identification device that signifies, when worn by a person,
that the possessor has executed or issued a valid order
under this chapter or is a person for whom a valid order has
been executed or issued.
(e) Requires the department to report to the board from time
to time regarding issues identified in EMS responses in
which an order or DNR identification device is encountered.
Authorizes the report to contain recommendations to the
board for necessary modifications to the form of the
standard order or the designated life-sustaining procedures
listed in the standard order, the statewide order protocol,
or the DNR identification devices.
Sec. 674.024. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER
EXECUTED OR ISSUED IN OTHER STATE. Provides that an order
executed, issued, or authorized in another state or territory
or possession of the United States in compliance with the law
of that jurisdiction is effective for the purposes of this
chapter.
SECTION 2. Effective date: January 1, 1996.
SECTION 3. Emergency clause.