SRC-JFA S.B. 414 75(R) BILL ANALYSIS
Senate Research CenterS.B. 414
By: Moncrief
Health & Human Services
2-10-97
As Filed
DIGEST
Currently, under Texas Law, advance directives or out-of-hospital orders
relating to the withholding or withdrawing of life-sustaining procedures
in the event of a terminal condition are governed by three separate
chapters within two different codes: Chapters 672 and 674, Health and
Safety Code, and Chapter 135, Civil Practice and Remedies Code. The three
chapters use similar terminology, have repetitive provisions, and deal
with the issue of a directive or an order withholding or withdrawing
life-sustaining procedures of an individual with a terminal condition.
Inconsistencies between the three chapters causes confusion for
individuals who want to develop advance directives or orders as well as
providers who must carry out such directives or orders. This bill would
consolidate and set forth uniform provisions governing the execution of
these advance directives or orders.
PURPOSE
As proposed, S.B. 414 sets forth the conditions for execution of an
advance directive in regard to the withholding or withdrawing
life-sustaining procedures in the event of a terminal condition and
redesignates the following relevant provisions under Chapter 166, Health
and Safety Code: Chapter 672, Health and Safety Code, relating to the
Natural Death Act; Chapter 676, Health and Safety Code, relating to
out-of-hospital do-not-resuscitate orders; and Chapter 135, Civil Practice
and Remedies Code, relating to the durable power-of-attorney for health
care.
RULEMAKING AUTHORITY
This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1.02. Amends Title 2H, Health and Safety Code, by adding Chapter
166, as follows:
CHAPTER 166. ADVANCE DIRECTIVES
SECTION 1.02. Amends Title 2H, Health and Safety Code, by adding Chapter
166A, as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 166.001. SHORT TITLE: ADVANCE DIRECTIVES ACT.
Sec. 166.002. DEFINITIONS. Defines "advance directive," "attending
physician," "competent," "declarant," "durable power of attorney for
health care," "incompetent," "lifesustaining procedure," "physician,"
"terminal condition," and "witness."
Sec. 166.003. WITNESSES. Sets forth who may not be a witness to the
execution of an advance directive or the issuance of a nonwritten advance
directive.
SECTION 1.03. Amends Chapter 672, Health and Safety Code, by transferring
it to Title 2H, Health and Safety Code, redesignated as Chapter 166B,
Health and Safety Code, as follows:
SUBCHAPTER B. NATURAL DEATH
Sec. 166.031. DEFINITIONS. Redesignated from existing Section 672.002.
Deletes definitions of "attending physician," "competent," "declarant,"
"incompetent," "physician," and "terminal condition." Makes conforming
changes.
Sec. 166.032. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO PHYSICIAN.
Makes conforming changes.
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. Makes conforming changes.
Sec. 166.034. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT ADULT
QUALIFIED PATIENT. Makes conforming changes.
Sec. 166.035. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT YOUNGER THAN 18
YEARS OF AGE Makes a conforming change.
Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF SPECIFIC
FORM PROHIBITED. Provides that a written directive executed under Section
166.033 or 166.035 does not need to be notarized. Prohibits a physician,
health care facility, or health care professional from requiring that the
directive be notarized or a person use a form provided by the physician,
health care facility, or health care professional.
Sec. 166.037. PATIENT DESIRE SUPERSEDES DIRECTIVE. Makes a conforming
change.
Sec. 166.038. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. Makes conforming changes.
Sec. 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A
DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Authorizes an
attending physician and the patient's legal guardian or an agent under a
durable power of attorney for health care to make a treatment decision to
withhold or withdraw lifesustaining procedures from the patient, if the
patient has not executed or issued a directive and is comatose,
incompetent, or otherwise mentally or physically incapable of
communication. Authorizes an attending physician and one person, instead
of two, from a specified category, to make a treatment decision if the
patient does not have a legal guardian. Makes conforming changes.
Sec. 166.040. PATIENT CERTIFICATION AND PREREQUISITES FOR COMPLYING WITH
DIRECTIVE. Makes conforming changes.
Sec. 166.041. DURATION OF DIRECTIVE. Makes conforming changes.
Sec. 166.042. REVOCATION OF DIRECTIVE. Makes conforming changes.
Sec. 166.043. REEXECUTION OF DIRECTIVE. Makes conforming changes.
Sec. 166.044. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND PREMIUMS. Makes
conforming changes.
Sec. 166.045. LIMITATION OF LIABILITY FOR WITHHOLDING OR WITHDRAWING
LIFE-SUSTAINING PROCEDURES. Provides that a physician or health facility
that, in good faith, causes life-sustaining procedures to be withheld or
withdrawn from a patient in accordance with this subchapter is not civilly
liable for that action. Deletes the negligent exception to such
prohibition of civil liability. Makes conforming changes.
Sec. 166.046. LIMITATION OF LIABILITY FOR FAILURE TO EFFECTUATE
DIRECTIVE. Makes a conforming change.
Sec. 166.047. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF AIDING
SUICIDE. Makes conforming changes.
Sec. 166.048. CRIMINAL PENALTY; PROSECUTION. Makes a conforming change.
Sec. 166.049. PREGNANT PATIENTS. Makes conforming changes.
Sec. 166.050. MERCY KILLING NOT CONDONED. Makes conforming changes.
Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Makes
conforming changes.
SECTION 1.04. Amends Chapter 674, Health and Safety Code, by transferring
it to Title 2H, Health and Safety Code, redesignated as Chapter 166C,
Health and Safety Code, as follows:
SUBCHAPTER C. New heading: OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS
Sec. 166.081. DEFINITIONS. Redesignated from existing Section 674.001.
Deletes definitions of "attending physician," "board," "competent,"
"declarant," "department," "durable power of attorney for health care,"
"incompetent," "physician," and "terminal condition." Redefines
"life-sustaining procedure" and "out-of-hospital DNR order." Makes
conforming changes.
Sec. 166.082. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO PHYSICIANS. Deletes
reference to an executed or issued durable power of attorney for health
care in accordance with Chapter 135, Civil Practice and Remedies Code.
Makes conforming changes.
Sec. 166.083. FORM OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.084. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY NONWRITTEN
COMMUNICATION. Makes conforming changes.
Sec. 166.085. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF OF A
MINOR. Makes a conforming change.
Sec. 166.086. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR ORDER.
Makes conforming changes.
Sec. 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. Makes conforming changes.
Sec. 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED
OUTOF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION.
Makes conforming changes.
Sec. 166.089. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. Makes
conforming changes.
Sec. 166.090. DNR IDENTIFICATION DEVICE. Makes conforming changes.
Sec. 166.091. DURATION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.092. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.093. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.094. CONFLICT WITH NATURAL DEATH ACT OR DURABLE POWER OF
ATTORNEY FOR HEALTH CARE. Makes conforming changes.
Sec. 166.095. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON INSURANCE POLICY AND
PREMIUMS. Makes conforming changes.
Sec. 166.096. LIMITATION ON LIABILITY FOR WITHHOLDING CARDIOPULMONARY
RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING PROCEDURES. Makes
conforming changes.
Sec. 166.097. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE
OUTOF-HOSPITAL DNR ORDER. Makes a conforming change.
Sec. 166.098. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT CONSTITUTE
OFFENSE OF AIDING SUICIDE.. Makes conforming changes.
Sec. 166.099. CRIMINAL PENALTY; PROSECUTION. Makes conforming changes.
Sec. 166.100. PREGNANT PERSONS. Makes conforming changes.
Sec. 166.101. MERCY KILLING NOT CONDONED. Makes conforming changes.
Sec. 166.102. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Makes conforming
changes.
Sec. 166.103. DUTIES OF DEPARTMENT AND BOARD. Makes conforming changes.
Sec. 166.104. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER EXECUTED OR ISSUED
IN OTHER STATE. Makes conforming changes.
SECTION 1.05. Amends Chapter 135, Civil Practice and Remedies Code, by
transferring it to Title 2H, Health and Safety Code, redesignated as
Chapter 166D, Health and Safety Code, as follows:
SUBCHAPTER D. DURABLE POWER OF ATTORNEY FOR HEALTH CARE
Sec. 166.151. DEFINITIONS. Redesignated from existing Section 135.001.
Deletes definitions of "attending physician," "capacity to make health
care decisions," "durable power of attorney for health care," "health care
decision," and "physician." Makes conforming changes.
Sec. 166.152. SCOPE AND DURATION OF AUTHORITY. Makes conforming changes.
Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. Makes a
conforming change.
Sec. 166.154. EXECUTION AND WITNESSES. Requires the durable power of
attorney for health care to be signed by the principal in the presence of
at least two, instead of two or more, subscribing witnesses. Requires a
witness to possess the qualifications and be subject to the restrictions
provided by Section 166.003. Makes conforming changes.
Sec. 166.155. REVOCATION. Makes conforming changes.
Sec. 166.156. APPOINTMENT OF GUARDIAN. Makes a conforming change.
Sec. 166.157. DISCLOSURE OF MEDICAL INFORMATION. Makes a conforming
change.
Sec. 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. Makes
conforming changes.
Sec. 166.159. DISCRIMINATION RELATING TO EXECUTION OF DURABLE POWER OF
ATTORNEY FOR HEALTH CARE. Makes a conforming change.
Sec. 166.160. LIMITATION ON LIABILITY. Makes conforming changes.
Sec. 166.161. LIABILITY FOR HEALTH CARE COSTS. Makes a conforming
change.
Sec. 166.162. NATURAL DEATH ACT. Makes conforming changes.
Sec. 166.163. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY EXECUTED IN
ANOTHER JURISDICTION. Makes conforming changes.
Sec. 166.164. DISCLOSURE STATEMENT. Makes a conforming change.
Sec. 166.165. FORM OF DISCLOSURE STATEMENT. Makes conforming changes.
Sec. 166.166. FORM OF DURABLE POWER OF ATTORNEY. Sets forth the language
required in the statement of witnesses. Deletes certain declarations in
the statement. Makes conforming changes.
Sec. 166.167. CIVIL ACTION. Makes conforming changes.
Sec. 166.168. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. Makes
conforming changes.
SECTION 2.01. Amends Section 313.003(a), Health and Safety Code, to make
conforming and standard recodification changes.
SECTION 3.01. Effective date: September 1, 1998.
SECTION 3.02. Makes application of this Act prospective.
SECTION 3.03. Makes application of this Act prospective.
SECTION 3.04. Emergency clause.