By: Moncrief S.B. No. 414
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain advance directives for medical treatment;
1-2 providing administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1. ADVANCE DIRECTIVES
1-5 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-6 is amended by adding a chapter heading for Chapter 166 to read as
1-7 follows:
1-8 CHAPTER 166. ADVANCE DIRECTIVES
1-9 SECTION 1.02. Subtitle H, Title 2, Health and Safety Code,
1-10 is amended by adding Subchapter A, Chapter 166, to read as follows:
1-11 SUBCHAPTER A. GENERAL PROVISIONS
1-12 Sec. 166.001. SHORT TITLE. This chapter may be cited as the
1-13 Advance Directives Act.
1-14 Sec. 166.002. DEFINITIONS. In this chapter:
1-15 (1) "Advance directive" means:
1-16 (A) a directive, as that term is defined by
1-17 Section 166.031; or
1-18 (B) an out-of-hospital DNR order, as that term
1-19 is defined by Section 166.081.
1-20 (2) "Attending physician" means a physician selected
1-21 by or assigned to a patient who has primary responsibility for a
1-22 patient's treatment and care.
1-23 (3) "Competent" means possessing the ability, based on
2-1 reasonable medical judgment, to understand and appreciate the
2-2 nature and consequences of a treatment decision, including the
2-3 significant benefits and harms of and reasonable alternatives to a
2-4 proposed treatment decision.
2-5 (4) "Declarant" means a person who has executed or
2-6 issued a directive under this chapter.
2-7 (5) "Durable power of attorney for health care" means
2-8 a durable power of attorney for health care executed or issued
2-9 under Subchapter D.
2-10 (6) "Incompetent" means lacking the ability, based on
2-11 reasonable medical judgment, to understand and appreciate the
2-12 nature and consequences of a treatment decision, including the
2-13 significant benefits and harms of and reasonable alternatives to a
2-14 proposed treatment decision.
2-15 (7) "Life-sustaining procedure" means a medical
2-16 procedure, treatment, or intervention that uses mechanical or other
2-17 artificial means to sustain, restore, or supplant a vital function
2-18 and, when applied to a person in a terminal condition, serves only
2-19 to prolong the process of dying. The term does not include the
2-20 administration of medication or the performance of a medical
2-21 procedure considered to be necessary to provide comfort or care or
2-22 to alleviate pain.
2-23 (8) "Physician" means:
2-24 (A) a physician licensed by the Texas State
2-25 Board of Medical Examiners; or
3-1 (B) a properly credentialed physician who holds
3-2 a commission in the uniformed services of the United States and who
3-3 is serving on active duty in this state.
3-4 (9) "Terminal condition" means an incurable or
3-5 irreversible condition caused by injury, disease, or illness that
3-6 would produce death without the application of life-sustaining
3-7 procedures, according to reasonable medical judgment, and in which
3-8 the application of life-sustaining procedures serves only to
3-9 postpone the moment of the patient's death. A patient who has been
3-10 admitted to a program under which the person receives hospice
3-11 services provided by a home and community support services agency
3-12 licensed under Chapter 142 is presumed to have a terminal condition
3-13 for purposes of this chapter.
3-14 (10) "Witness" means a person who may serve as a
3-15 witness under Section 166.003.
3-16 Sec. 166.003. WITNESSES. (a) In any circumstance in which
3-17 this chapter requires the execution of an advance directive or the
3-18 issuance of a nonwritten advance directive to be witnessed, a
3-19 witness may not be:
3-20 (1) related to the declarant by blood or marriage;
3-21 (2) entitled to any part of the declarant's estate
3-22 after the declarant's death under a will or codicil executed by the
3-23 declarant or by operation of law;
3-24 (3) the attending physician;
3-25 (4) an employee of the attending physician;
4-1 (5) a patient in a health care facility in which the
4-2 declarant is a patient;
4-3 (6) a person who, at the time the directive is
4-4 executed or the nonwritten directive is issued, has a claim against
4-5 any part of the declarant's estate after the declarant's death; or
4-6 (7) an employee of a health care facility in which the
4-7 declarant is a patient if the employee is providing direct patient
4-8 care or is directly involved in the financial affairs of the
4-9 facility.
4-10 (b) For purposes of Subsection (a)(7), a person is directly
4-11 involved in the financial affairs of a health care facility if the
4-12 person serves as an officer, director, partner, or business office
4-13 employee of the health care facility or of any parent organization
4-14 of the health care facility.
4-15 Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE.
4-16 (a) A health care provider shall maintain written policies
4-17 regarding the implementation of advance directives. The policies
4-18 must include a clear and precise statement of any procedure the
4-19 health care provider is unwilling or unable to withhold in
4-20 accordance with an advance directive.
4-21 (b) The health care provider shall provide written notice to
4-22 an individual of the written policies described by Subsection (a).
4-23 The notice must be provided at the earlier of:
4-24 (1) the time the individual is admitted to receive
4-25 services from the health care provider; or
5-1 (2) the time the health care provider begins providing
5-2 care to the individual.
5-3 (c) If, at the time notice is to be provided under
5-4 Subsection (b), the individual is incompetent or otherwise
5-5 incapacitated and unable to receive the notice required by this
5-6 section, the provider shall provide the required written notice, in
5-7 the following order of preference, to:
5-8 (1) the individual's legal guardian;
5-9 (2) the individual's adult child;
5-10 (3) the individual's parent;
5-11 (4) the person admitting the individual; or
5-12 (5) another person responsible for the health care
5-13 decisions of the individual.
5-14 (d) If Subsection (c) applies and except as provided by
5-15 Subsection (e), if a health care provider is unable, after diligent
5-16 search, to locate an individual listed by Subsection (c), the
5-17 health care provider is not required to provide the required
5-18 notice.
5-19 (e) If an individual who was incompetent or otherwise
5-20 incapacitated and unable to receive the notice required by this
5-21 section at the time notice was to be provided under Subsection (b)
5-22 later becomes able to receive the notice, the health care provider
5-23 shall provide the written notice at the time the individual becomes
5-24 able to receive the notice.
5-25 (f) In this section, health care provider means:
6-1 (1) a hospital, including a rural primary care
6-2 hospital;
6-3 (2) an institution licensed under Chapter 242,
6-4 including skilled nursing facilities;
6-5 (3) a home and community support services agency;
6-6 (4) a personal care facility; and
6-7 (5) a special care facility.
6-8 SECTION 1.03. Chapter 672, Health and Safety Code, is
6-9 transferred to Subtitle H, Title 2, Health and Safety Code, is
6-10 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
6-11 and is amended to read as follows:
6-12 SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT]
6-13 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
6-14 the Natural Death Act.]
6-15 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
6-16 [chapter]:
6-17 (1) ["Attending physician" means the physician who has
6-18 primary responsibility for a patient's treatment and care.]
6-19 [(2) "Competent" means possessing the ability, based
6-20 on reasonable medical judgment, to understand and appreciate the
6-21 nature and consequences of a treatment decision, including the
6-22 significant benefits and harms of and reasonable alternatives to a
6-23 proposed treatment decision.]
6-24 [(3) "Declarant" means a person who has executed or
6-25 issued a directive under this chapter.]
7-1 [(4)] "Directive" means an instruction made under
7-2 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
7-3 to withhold or withdraw life-sustaining procedures in the event of
7-4 a terminal condition.
7-5 (2) [(5) "Incompetent" means lacking the ability,
7-6 based on reasonable medical judgment, to understand and appreciate
7-7 the nature and consequences of a treatment decision, including the
7-8 significant benefits and harms of and reasonable alternatives to a
7-9 proposed treatment decision.]
7-10 [(6) "Life-sustaining procedure" means a medical
7-11 procedure or intervention that uses mechanical or other artificial
7-12 means to sustain, restore, or supplant a vital function, and only
7-13 artificially postpones the moment of death of a patient in a
7-14 terminal condition whose death is imminent or will result within a
7-15 relatively short time without the application of the procedure.
7-16 The term does not include the administration of medication or the
7-17 performance of a medical procedure considered to be necessary to
7-18 provide comfort or care or to alleviate pain.]
7-19 [(7) "Physician" means a physician licensed by the
7-20 Texas State Board of Medical Examiners or a properly credentialed
7-21 physician who holds a commission in the uniformed services of the
7-22 United States and who is serving on active duty in this state.]
7-23 [(8)] "Qualified patient" means a patient with a
7-24 terminal condition that has been diagnosed and certified in writing
7-25 by the attending physician and one other physician who have
8-1 personally examined the patient.
8-2 [(9) "Terminal condition" means an incurable or
8-3 irreversible condition caused by injury, disease, or illness that
8-4 would produce death without the application of life-sustaining
8-5 procedures, according to reasonable medical judgment, and in which
8-6 the application of life-sustaining procedures serves only to
8-7 postpone the moment of the patient's death.]
8-8 Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT
8-9 ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time
8-10 execute a written directive.
8-11 (b) The declarant must sign the directive in the presence of
8-12 two witnesses, and those witnesses must sign the directive.
8-13 (c) [A witness may not be:]
8-14 [(1) related to the declarant by blood or marriage;]
8-15 [(2) entitled to any part of the declarant's estate
8-16 after the declarant's death under a will or codicil executed by the
8-17 declarant or by operation of law;]
8-18 [(3) the attending physician;]
8-19 [(4) an employee of the attending physician;]
8-20 [(5) an employee of a health care facility in which
8-21 the declarant is a patient if the employee is providing direct
8-22 patient care to the declarant or is directly involved in the
8-23 financial affairs of the facility;]
8-24 [(6) a patient in a health care facility in which the
8-25 declarant is a patient; or]
9-1 [(7) a person who, at the time the directive is
9-2 executed, has a claim against any part of the declarant's estate
9-3 after the declarant's death.]
9-4 [(d)] A declarant may include in a directive directions
9-5 other than those provided by Section 166.033 [672.004] and may
9-6 designate in a directive a person to make a treatment decision for
9-7 the declarant in the event the declarant becomes comatose,
9-8 incompetent, or otherwise mentally or physically incapable of
9-9 communication.
9-10 (d) [(e)] A declarant shall notify the attending physician
9-11 of the existence of a written directive. If the declarant is
9-12 comatose, incompetent, or otherwise mentally or physically
9-13 incapable of communication, another person may notify the attending
9-14 physician of the existence of the written directive. The attending
9-15 physician shall make the directive a part of the declarant's
9-16 medical record.
9-17 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
9-18 written directive may be in the following form:
9-19 "DIRECTIVE
9-20 TO PHYSICIANS
9-21 "Directive made this __________ day of __________ (month,
9-22 year).
9-23 "I ________________________, being of sound mind, wilfully
9-24 and voluntarily make known my desire that my life shall not be
9-25 artificially prolonged under the circumstances set forth in this
10-1 directive.
10-2 "1. If at any time I should have an incurable or
10-3 irreversible condition caused by injury, disease, or illness
10-4 certified to be a terminal condition by two physicians, and if the
10-5 application of life-sustaining procedures would serve only to
10-6 artificially postpone the moment of my death, and if my attending
10-7 physician determines that my death is imminent or will result
10-8 within a relatively short time without the application of
10-9 life-sustaining procedures, I direct that those procedures be
10-10 withheld or withdrawn, and that I be permitted to die naturally.
10-11 "2. In the absence of my ability to give directions
10-12 regarding the use of those life-sustaining procedures, it is my
10-13 intention that this directive be honored by my family and
10-14 physicians as the final expression of my legal right to refuse
10-15 medical or surgical treatment and accept the consequences from that
10-16 refusal.
10-17 "3. If I have been diagnosed as pregnant and that diagnosis
10-18 is known to my physician, this directive has no effect during my
10-19 pregnancy.
10-20 "4. This directive is in effect until it is revoked.
10-21 "5. I understand the full import of this directive and I am
10-22 emotionally and mentally competent to make this directive.
10-23 "6. I understand that I may revoke this directive at any
10-24 time.
11-1 "Signed ______________________________
11-2 (City, County, and State of Residence)
11-3 I am not related to the declarant by blood or marriage. I
11-4 would not be entitled to any portion of the declarant's estate on
11-5 the declarant's death. I am not the attending physician of the
11-6 declarant or an employee of the attending physician. I am not a
11-7 patient in the health care facility in which the declarant is a
11-8 patient. I have no claim against any portion of the declarant's
11-9 estate on the declarant's death. Furthermore, if I am an employee
11-10 of a health care facility in which the declarant is a patient, I am
11-11 not involved in providing direct patient care to the declarant and
11-12 am not an officer, director, partner, or business office employee
11-13 of the health care facility or of any parent organization of
11-14 the health care [directly involved in the financial affairs of the
11-15 health] facility.
11-16 "Witness_______________________________
11-17 "Witness______________________________"
11-18 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
11-19 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
11-20 patient who is an adult may issue a directive by a nonwritten means
11-21 of communication.
11-22 (b) A declarant must issue the nonwritten directive in the
11-23 presence of the attending physician and two witnesses. [The
11-24 witnesses must possess the same qualifications as are required by
11-25 Section 672.003(c).]
12-1 (c) The physician shall make the fact of the existence of
12-2 the directive a part of the declarant's medical record and the
12-3 witnesses shall sign the entry in the medical record.
12-4 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
12-5 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
12-6 execute a directive on behalf of a qualified patient who is younger
12-7 than 18 years of age:
12-8 (1) the patient's spouse, if the spouse is an adult;
12-9 (2) the patient's parents; or
12-10 (3) the patient's legal guardian.
12-11 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
12-12 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
12-13 under Section 166.033 or 166.035 is effective without regard to
12-14 whether the document has been notarized.
12-15 (b) A physician, health care facility, or health care
12-16 professional may not require that:
12-17 (1) a directive be notarized; or
12-18 (2) a person use a form provided by the physician,
12-19 health care facility, or health care professional.
12-20 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
12-21 The desire of a competent qualified patient, including a competent
12-22 qualified patient younger than 18 years of age, supersedes the
12-23 effect of a directive.
12-24 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
12-25 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
13-1 applies when an adult qualified patient has executed or issued a
13-2 directive and is comatose, incompetent, or otherwise mentally or
13-3 physically incapable of communication.
13-4 (b) If the adult qualified patient has designated a person
13-5 to make a treatment decision as authorized by Section 166.032(c)
13-6 [672.003(d)], the attending physician and the designated person may
13-7 make a treatment decision to withhold or withdraw life-sustaining
13-8 procedures from the patient.
13-9 (c) If the adult qualified patient has not designated a
13-10 person to make a treatment decision, the attending physician shall
13-11 comply with the directive unless the physician believes that the
13-12 directive does not reflect the patient's present desire.
13-13 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
13-14 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
13-15 COMMUNICATION. (a) If an adult qualified patient has not executed
13-16 or issued a directive and is comatose, incompetent, or otherwise
13-17 mentally or physically incapable of communication, the attending
13-18 physician and the patient's legal guardian or an agent under a
13-19 durable power of attorney for health care may make a treatment
13-20 decision that may include a decision to withhold or withdraw
13-21 life-sustaining procedures from the patient.
13-22 (b) If the patient does not have a legal guardian or an
13-23 agent under a durable power of attorney for health care, the
13-24 attending physician and one person from one [at least two persons,
13-25 if available,] of the following categories, in the following
14-1 priority, may make a treatment decision that may include a decision
14-2 to withhold or withdraw life-sustaining procedures:
14-3 (1) the patient's spouse;
14-4 (2) [a majority of] the patient's reasonably available
14-5 adult children;
14-6 (3) the patient's parents; or
14-7 (4) the patient's nearest living relative.
14-8 (c) A treatment decision made under Subsection (a) or (b)
14-9 must be based on knowledge of what the patient would desire, if
14-10 known.
14-11 (d) A treatment decision made under Subsection (b) must be
14-12 made in the presence of at least two witnesses who possess the same
14-13 qualifications and are subject to the same restrictions as provided
14-14 [as are required] by Section 166.003 [672.003(c)].
14-15 (e) The fact that an adult qualified patient has not
14-16 executed or issued a directive does not create a presumption that
14-17 the patient does not want a treatment decision to be made to
14-18 withhold or withdraw life-sustaining procedures.
14-19 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
14-20 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
14-21 physician who has been notified of the existence of a directive
14-22 shall provide for the declarant's certification as a qualified
14-23 patient on diagnosis of a terminal condition.
14-24 (b) Before withholding or withdrawing life-sustaining
14-25 procedures from a qualified patient under this subchapter
15-1 [chapter], the attending physician must:
15-2 (1) determine that the patient's death is imminent or
15-3 will result within a relatively short time without application of
15-4 those procedures;
15-5 (2) note that determination in the patient's medical
15-6 record; and
15-7 (3) determine that the steps proposed to be taken are
15-8 in accord with this subchapter [chapter] and the patient's existing
15-9 desires.
15-10 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
15-11 is effective until it is revoked as prescribed by Section 166.042
15-12 [672.012].
15-13 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
15-14 declarant may revoke a directive at any time without regard to the
15-15 declarant's mental state or competency. A directive may be revoked
15-16 by:
15-17 (1) the declarant or someone in the declarant's
15-18 presence and at the declarant's direction canceling, defacing,
15-19 obliterating, burning, tearing, or otherwise destroying the
15-20 directive;
15-21 (2) the declarant signing and dating a written
15-22 revocation that expresses the declarant's intent to revoke the
15-23 directive; or
15-24 (3) the declarant orally stating the declarant's
15-25 intent to revoke the directive.
16-1 (b) A written revocation executed as prescribed by
16-2 Subsection (a)(2) takes effect only when the declarant or a person
16-3 acting on behalf of the declarant notifies the attending physician
16-4 of its existence or mails the revocation to the attending
16-5 physician. The attending physician or the physician's designee
16-6 shall record in the patient's medical record the time and date when
16-7 the physician received notice of the written revocation and shall
16-8 enter the word "VOID" on each page of the copy of the directive in
16-9 the patient's medical record.
16-10 (c) An oral revocation issued as prescribed by Subsection
16-11 (a)(3) takes effect only when the declarant or a person acting on
16-12 behalf of the declarant notifies the attending physician of the
16-13 revocation. The attending physician or the physician's designee
16-14 shall record in the patient's medical record the time, date, and
16-15 place of the revocation, and, if different, the time, date, and
16-16 place that the physician received notice of the revocation. The
16-17 attending physician or the physician's designees shall also enter
16-18 the word "VOID" on each page of the copy of the directive in the
16-19 patient's medical record.
16-20 (d) Except as otherwise provided by this subchapter
16-21 [chapter], a person is not civilly or criminally liable for failure
16-22 to act on a revocation made under this section unless the person
16-23 has actual knowledge of the revocation.
16-24 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
16-25 declarant may at any time reexecute a directive in accordance with
17-1 the procedures prescribed by Section 166.032 [672.003], including
17-2 reexecution after the declarant is diagnosed as having a terminal
17-3 condition.
17-4 Sec. 166.044 [672.014]. EFFECT OF DIRECTIVE ON INSURANCE
17-5 POLICY AND PREMIUMS. (a) The fact that a person has executed or
17-6 issued a directive under this subchapter [chapter] does not:
17-7 (1) restrict, inhibit, or impair in any manner the
17-8 sale, procurement, or issuance of a life insurance policy to that
17-9 person; or
17-10 (2) modify the terms of an existing life insurance
17-11 policy.
17-12 (b) Notwithstanding the terms of any life insurance policy,
17-13 the fact that life-sustaining procedures are withheld or withdrawn
17-14 from an insured qualified patient under this subchapter [chapter]
17-15 does not legally impair or invalidate that person's life insurance
17-16 policy.
17-17 (c) A physician, health facility, health provider, insurer,
17-18 or health care service plan may not require a person to execute or
17-19 issue a directive as a condition for obtaining insurance for health
17-20 care services or receiving health care services.
17-21 (d) The fact that a person has executed or issued or failed
17-22 to execute or issue a directive under this subchapter [chapter] may
17-23 not be considered in any way in establishing insurance premiums.
17-24 Sec. 166.045 [672.015]. LIMITATION OF LIABILITY FOR
17-25 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
18-1 physician or health facility that, in good faith, causes
18-2 life-sustaining procedures to be withheld or withdrawn from a
18-3 qualified patient in accordance with this subchapter [chapter] is
18-4 not civilly liable for that action [unless negligent].
18-5 (b) A health professional, acting under the direction of a
18-6 physician, who participates, in good faith, in withholding or
18-7 withdrawing life-sustaining procedures from a qualified patient in
18-8 accordance with this subchapter [chapter] is not civilly liable for
18-9 that action [unless negligent].
18-10 (c) A physician, or a health professional acting under the
18-11 direction of a physician, who participates, in good faith, in
18-12 withholding or withdrawing life-sustaining procedures from a
18-13 qualified patient in accordance with this subchapter [chapter] is
18-14 not criminally liable or guilty of unprofessional conduct as a
18-15 result of that action [unless negligent].
18-16 Sec. 166.046 [672.016]. LIMITATION OF LIABILITY FOR FAILURE
18-17 TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility,
18-18 or health care professional who has no knowledge of a directive is
18-19 not civilly or criminally liable for failing to act in accordance
18-20 with the directive.
18-21 (b) A physician, or a health professional acting under the
18-22 direction of a physician, is not civilly or criminally liable for
18-23 failing to effectuate a qualified patient's directive.
18-24 (c) If an attending physician refuses to comply with a
18-25 directive or treatment decision, the physician shall make a
19-1 reasonable effort to transfer the patient to another physician.
19-2 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
19-3 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
19-4 offense under Section 22.08, Penal Code, by withholding or
19-5 withdrawing life-sustaining procedures from a qualified patient in
19-6 accordance with this subchapter [chapter].
19-7 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
19-8 (a) A person commits an offense if the person intentionally
19-9 conceals, cancels, defaces, obliterates, or damages another
19-10 person's directive without that person's consent. An offense under
19-11 this subsection is a Class A misdemeanor.
19-12 (b) A person is subject to prosecution for criminal homicide
19-13 under Chapter 19, Penal Code, if the person, with the intent to
19-14 cause life-sustaining procedures to be withheld or withdrawn from
19-15 another person contrary to the other person's desires, falsifies or
19-16 forges a directive or intentionally conceals or withholds personal
19-17 knowledge of a revocation and thereby directly causes
19-18 life-sustaining procedures to be withheld or withdrawn from the
19-19 other person with the result that the other person's death is
19-20 hastened.
19-21 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
19-22 withdraw or withhold life-sustaining procedures under this
19-23 subchapter [chapter] from a pregnant patient.
19-24 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
19-25 subchapter [chapter] does not condone, authorize, or approve mercy
20-1 killing or permit an affirmative or deliberate act or omission to
20-2 end life except to permit the natural process of dying as provided
20-3 by this subchapter [chapter].
20-4 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
20-5 AFFECTED. This subchapter [chapter] does not impair or supersede
20-6 any legal right or responsibility a person may have to effect the
20-7 withholding or withdrawal of life-sustaining procedures in a lawful
20-8 manner.
20-9 SECTION 1.04. Chapter 674, Health and Safety Code, is
20-10 transferred to Subtitle H, Title 2, Health and Safety Code, is
20-11 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
20-12 and is amended to read as follows:
20-13 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
20-14 DO-NOT-RESUSCITATE ORDERS
20-15 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
20-16 [chapter]:
20-17 (1) ["Attending physician" means the physician who has
20-18 primary responsibility for a person's treatment and care.]
20-19 [(2) "Board" means the Texas Board of Health.]
20-20 [(3)] "Cardiopulmonary resuscitation" includes a
20-21 component of cardiopulmonary resuscitation.
20-22 (2) [(4) "Competent" means possessing the ability,
20-23 based on reasonable medical judgment, to understand and appreciate
20-24 the nature and consequences of a treatment decision, including the
20-25 significant benefits and harms of, and reasonable alternatives to,
21-1 a proposed treatment decision.]
21-2 [(5) "Declarant" means a person who has executed or
21-3 issued an out-of-hospital do-not-resuscitate order under this
21-4 chapter.]
21-5 [(6) "Department" means the Texas Department of
21-6 Health.]
21-7 [(7)] "DNR identification device" means an
21-8 identification device specified by the board under Section 166.103
21-9 [674.023] that is worn for the purpose of identifying a person who
21-10 has executed or issued an out-of-hospital DNR order or on whose
21-11 behalf an out-of-hospital DNR order has been executed or issued
21-12 under this subchapter [chapter].
21-13 (3) [(8) "Durable power of attorney for health care"
21-14 means a document delegating to an agent the authority to make
21-15 health care decisions for a person in accordance with Chapter 135,
21-16 Civil Practice and Remedies Code.]
21-17 [(9)] "Emergency medical services" has the meaning
21-18 assigned by Section 773.003.
21-19 (4) [(10)] "Emergency medical services personnel" has
21-20 the meaning assigned by Section 773.003.
21-21 (5) [(11)] "Health care professionals" means
21-22 physicians, nurses, and emergency medical services personnel and,
21-23 unless the context requires otherwise, includes hospital emergency
21-24 personnel.
21-25 (6) [(12) "Incompetent" means lacking the ability,
22-1 based on reasonable medical judgment, to understand and appreciate
22-2 the nature and consequences of a treatment decision, including the
22-3 significant benefits and harms of, and reasonable alternatives to,
22-4 a proposed treatment decision.]
22-5 [(13) "Life-sustaining procedure" means a medical
22-6 procedure, treatment, or intervention that uses mechanical or other
22-7 artificial means to sustain, restore, or supplant a spontaneous
22-8 vital function and, when applied to a person in a terminal
22-9 condition, serves only to prolong the process of dying. The term
22-10 does not include the administration of medication or the
22-11 performance of a medical procedure considered to be necessary to
22-12 provide comfort or care or to alleviate pain or the provision of
22-13 water or nutrition.]
22-14 [(14)] "Out-of-hospital DNR order":
22-15 (A) means a legally binding out-of-hospital
22-16 do-not-resuscitate order, in the form specified by the board under
22-17 Section 166.083 [674.003], prepared and signed by the attending
22-18 physician of a person who has been diagnosed as having a terminal
22-19 condition, that documents the instructions of a person or the
22-20 person's legally authorized representative and directs health care
22-21 professionals acting in an out-of-hospital setting not to initiate
22-22 or continue the following life-sustaining procedures:
22-23 (i) cardiopulmonary resuscitation;
22-24 (ii) endotracheal intubation or other
22-25 means of advanced airway management;
23-1 (iii) artificial ventilation;
23-2 (iv) defibrillation;
23-3 (v) transcutaneous cardiac pacing;
23-4 (vi) the administration of cardiac
23-5 resuscitation medications; and
23-6 (vii) other life-sustaining procedures
23-7 specified by the board under Section 166.103(a) [674.023(a)]; and
23-8 (B) does not include authorization to withhold
23-9 medical interventions or therapies considered necessary to provide
23-10 comfort or care or to alleviate pain or to provide water or
23-11 nutrition.
23-12 (7) [(15)] "Out-of-hospital setting" means any setting
23-13 outside of a licensed acute care hospital in which health care
23-14 professionals are called for assistance, including long-term care
23-15 facilities, in-patient hospice facilities, private homes, and
23-16 vehicles during transport.
23-17 (8) [(16) "Physician" means a physician licensed by
23-18 the Texas State Board of Medical Examiners or a properly
23-19 credentialed physician who holds a commission in the uniformed
23-20 services of the United States and who is serving on active duty in
23-21 this state.]
23-22 [(17)] "Proxy" means a person designated and
23-23 authorized by a directive executed or issued in accordance with
23-24 Subchapter B [Chapter 672] to make a treatment decision for another
23-25 person in the event the other person becomes comatose, incompetent,
24-1 or otherwise mentally or physically incapable of communication.
24-2 (9) [(18)] "Qualified relatives" means those persons
24-3 authorized to execute or issue an out-of-hospital DNR order on
24-4 behalf of a person who is comatose, incompetent, or otherwise
24-5 mentally or physically incapable of communication under Section
24-6 166.088 [674.008].
24-7 (10) [(19)] "Statewide out-of-hospital DNR protocol"
24-8 means a set of statewide standardized procedures adopted by the
24-9 board under Section 166.103 [674.023] for withholding
24-10 cardiopulmonary resuscitation and certain other life-sustaining
24-11 procedures by health care professionals acting in out-of-hospital
24-12 settings.
24-13 [(20) "Terminal condition" means an incurable or
24-14 irreversible condition caused by injury, disease, or illness that
24-15 would produce death without the application of life-sustaining
24-16 procedures, according to reasonable medical judgment, and in which
24-17 the application of life-sustaining procedures serves only to
24-18 postpone the moment of the person's death.]
24-19 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
24-20 TO PHYSICIANS. (a) A competent person who has been diagnosed by a
24-21 physician as having a terminal condition may at any time execute a
24-22 written out-of-hospital DNR order directing health care
24-23 professionals acting in an out-of-hospital setting to withhold
24-24 cardiopulmonary resuscitation and certain other life-sustaining
24-25 procedures designated by the board.
25-1 (b) The declarant must sign the out-of-hospital DNR order in
25-2 the presence of two witnesses, and those witnesses must sign the
25-3 order. The attending physician of the declarant must sign the
25-4 order and shall make the fact of the existence of the order and the
25-5 reasons for execution of the order a part of the declarant's
25-6 medical record.
25-7 (c) [A witness must have the same qualifications as those
25-8 provided by Section 672.003(c).]
25-9 [(d)] If the person is incompetent but previously executed
25-10 or issued a directive to physicians in accordance with Subchapter B
25-11 [Chapter 672], the physician may rely on the directive as the
25-12 person's instructions to issue an out-of-hospital DNR order and
25-13 shall place a copy of the directive in the person's medical record.
25-14 The physician shall sign the order in lieu of the person signing
25-15 under Subsection (b).
25-16 (d) [(e)] If the person is incompetent but previously
25-17 executed or issued a directive to physicians in accordance with
25-18 Subchapter B [Chapter 672] designating a proxy, the proxy may make
25-19 any decisions required of the designating person as to an
25-20 out-of-hospital DNR order and shall sign the order in lieu of the
25-21 person signing under Subsection (b).
25-22 (e) [(f)] If the person is now incompetent but previously
25-23 executed or issued a durable power of attorney for health care [in
25-24 accordance with Chapter 135, Civil Practice and Remedies Code],
25-25 designating an agent, the agent may make any decisions required of
26-1 the designating person as to an out-of-hospital DNR order and shall
26-2 sign the order in lieu of the person signing under Subsection (b).
26-3 (f) [(g)] The board, on the recommendation of the
26-4 department, shall by rule adopt procedures for the disposition and
26-5 maintenance of records of an original out-of-hospital DNR order and
26-6 any copies of the order.
26-7 (g) [(h)] An out-of-hospital DNR order is effective on its
26-8 execution.
26-9 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
26-10 (a) A written out-of-hospital DNR order shall be in the standard
26-11 form specified by board rule as recommended by the department.
26-12 (b) The standard form of an out-of-hospital DNR order
26-13 specified by the board must, at a minimum, contain the following:
26-14 (1) a distinctive single-page format that readily
26-15 identifies the document as an out-of-hospital DNR order;
26-16 (2) a title that readily identifies the document as an
26-17 out-of-hospital DNR order;
26-18 (3) the printed or typed name of the person;
26-19 (4) a statement that the physician signing the
26-20 document is the attending physician of the person, that the
26-21 physician has diagnosed the person as having a terminal condition,
26-22 and that the physician is directing health care professionals
26-23 acting in out-of-hospital settings not to initiate or continue
26-24 certain life-sustaining procedures on behalf of the person, and a
26-25 listing of those procedures not to be initiated or continued;
27-1 (5) a statement that the person understands that the
27-2 person may revoke the out-of-hospital DNR order at any time by
27-3 destroying the order and removing the DNR identification device, if
27-4 any, or by communicating to health care professionals at the scene
27-5 the person's desire to revoke the out-of-hospital DNR order;
27-6 (6) places for the printed names and signatures of the
27-7 witnesses and attending physician of the person and the medical
27-8 license number of the attending physician;
27-9 (7) a separate section for execution of the document
27-10 by the legal guardian of the person, the person's proxy, an agent
27-11 of the person having a durable power of attorney for health care,
27-12 or the attending physician attesting to the issuance of an
27-13 out-of-hospital DNR order by nonwritten means of communication or
27-14 acting in accordance with a previously executed or previously
27-15 issued directive to physicians under Section 166.082(c)
27-16 [674.002(d)] that includes the following:
27-17 (A) a statement that the legal guardian, the
27-18 proxy, the agent, the person by nonwritten means of communication,
27-19 or the physician directs that the listed life-sustaining procedures
27-20 should not be initiated or continued in behalf of the person; and
27-21 (B) places for the printed names and signatures
27-22 of the witnesses and, as applicable, the legal guardian, proxy,
27-23 agent, or physician;
27-24 (8) a separate section for execution of the document
27-25 by at least two qualified relatives of the person when the person
28-1 does not have a legal guardian, proxy, or agent having a durable
28-2 power of attorney for health care and is comatose, incompetent, or
28-3 otherwise mentally or physically incapable of communication,
28-4 including:
28-5 (A) a statement that the relatives of the person
28-6 are qualified to make a treatment decision to withhold
28-7 cardiopulmonary resuscitation and certain other designated
28-8 life-sustaining procedures under Section 166.088 [674.008] and,
28-9 based on the known desires of the person or a determination of the
28-10 best interest of the person, direct that the listed life-sustaining
28-11 procedures should not be initiated or continued in behalf of the
28-12 person; and
28-13 (B) places for the printed names and signatures
28-14 of the witnesses and qualified relatives of the person;
28-15 (9) a place for entry of the date of execution of the
28-16 document;
28-17 (10) a statement that the document is in effect on the
28-18 date of its execution and remains in effect until the death of the
28-19 person or until the document is revoked;
28-20 (11) a statement that the document must accompany the
28-21 person during transport;
28-22 (12) a statement regarding the proper disposition of
28-23 the document or copies of the document, as the board determines
28-24 appropriate; and
28-25 (13) a statement at the bottom of the document, with
29-1 places for the signature of each person executing the document,
29-2 that the document has been properly completed.
29-3 (c) The board may, by rule and as recommended by the
29-4 department, modify the standard form of the out-of-hospital DNR
29-5 order described by Subsection (b) in order to accomplish the
29-6 purposes of this subchapter [chapter].
29-7 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
29-8 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
29-9 an adult may issue an out-of-hospital DNR order by nonwritten
29-10 communication.
29-11 (b) A declarant must issue the nonwritten out-of-hospital
29-12 DNR order in the presence of the attending physician and two
29-13 witnesses. [The witnesses must possess the same qualifications as
29-14 those provided by Section 672.003(c).]
29-15 (c) The attending physician and witnesses shall sign the
29-16 out-of-hospital DNR order in the [that] place of the document
29-17 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
29-18 physician shall sign the document in the place required by Section
29-19 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
29-20 of the existence of the out-of-hospital DNR order a part of the
29-21 declarant's medical record and the witnesses shall sign that entry
29-22 in the medical record.
29-23 (d) An out-of-hospital DNR order issued in the manner
29-24 provided by this section is valid and shall be honored by
29-25 responding health care professionals as if executed in the manner
30-1 provided by Section 166.082 [674.002].
30-2 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
30-3 ORDER ON BEHALF OF A MINOR. The following persons may execute an
30-4 out-of-hospital DNR order on behalf of a minor:
30-5 (1) the minor's parents;
30-6 (2) the minor's legal guardian; or
30-7 (3) the minor's managing conservator.
30-8 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
30-9 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
30-10 including a competent minor, supersedes the effect of an
30-11 out-of-hospital DNR order executed or issued by or on behalf of the
30-12 person when the desire is communicated to responding health care
30-13 professionals as provided by this subchapter [chapter].
30-14 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
30-15 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
30-16 applies when a person 18 years of age or older has executed or
30-17 issued an out-of-hospital DNR order and subsequently becomes
30-18 comatose, incompetent, or otherwise mentally or physically
30-19 incapable of communication.
30-20 (b) If the adult person has designated a person to make a
30-21 treatment decision as authorized by Section 166.032(c)
30-22 [672.003(d)], the attending physician and the designated person
30-23 shall comply with the out-of-hospital DNR order.
30-24 (c) If the adult person has not designated a person to make
30-25 a treatment decision as authorized by Section 166.032(c)
31-1 [672.003(d)], the attending physician shall comply with the
31-2 out-of-hospital DNR order unless the physician believes that the
31-3 order does not reflect the person's present desire.
31-4 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
31-5 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
31-6 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
31-7 executed or issued an out-of-hospital DNR order and is comatose,
31-8 incompetent, or otherwise mentally or physically incapable of
31-9 communication, the attending physician and the person's legal
31-10 guardian, proxy, or agent having a durable power of attorney for
31-11 health care may execute an out-of-hospital DNR order on behalf of
31-12 the person.
31-13 (b) If the person does not have a legal guardian, proxy, or
31-14 agent, the attending physician and at least two qualified relatives
31-15 may execute an out-of-hospital DNR order in the same manner as a
31-16 treatment decision made under Section 166.039(b) [672.009(b)].
31-17 (c) A decision to execute an out-of-hospital DNR order made
31-18 under Subsection (a) or (b) must be based on knowledge of what the
31-19 person would desire, if known.
31-20 (d) An out-of-hospital DNR order executed under Subsection
31-21 (b) must be made in the presence of at least two witnesses [who
31-22 possess the same qualifications that are required by Section
31-23 672.003(c)].
31-24 (e) The fact that an adult person has not executed or issued
31-25 an out-of-hospital DNR order does not create a presumption that the
32-1 person does not want a treatment decision made to withhold
32-2 cardiopulmonary resuscitation and certain other designated
32-3 life-sustaining procedures designated by the board.
32-4 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
32-5 ORDER. (a) When responding to a call for assistance, health care
32-6 professionals shall honor an out-of-hospital DNR order in
32-7 accordance with the statewide out-of-hospital DNR protocol and,
32-8 where applicable, locally adopted out-of-hospital DNR protocols not
32-9 in conflict with the statewide protocol if:
32-10 (1) the responding health care professionals discover
32-11 an executed or issued out-of-hospital DNR order form on their
32-12 arrival at the scene; and
32-13 (2) the responding health care professionals comply
32-14 with this section.
32-15 (b) If the person is wearing a DNR identification device,
32-16 the responding health care professionals must comply with Section
32-17 166.090 [674.010].
32-18 (c) The responding health care professionals must establish
32-19 the identity of the person as the person who executed or issued the
32-20 out-of-hospital DNR order or for whom the out-of-hospital DNR order
32-21 was executed or issued.
32-22 (d) The responding health care professionals must determine
32-23 that the out-of-hospital DNR order form appears to be valid in that
32-24 it includes:
32-25 (1) written responses in the places designated on the
33-1 form for the names, signatures, and other information required of
33-2 persons executing or issuing, or witnessing the execution or
33-3 issuance of, the order;
33-4 (2) a date in the place designated on the form for the
33-5 date the order was executed or issued; and
33-6 (3) the signature of the declarant or persons
33-7 executing or issuing the order and the attending physician in the
33-8 appropriate places designated on the form for indicating that the
33-9 order form has been properly completed.
33-10 (e) If the conditions prescribed by Subsections (a) through
33-11 (d) are not determined to apply by the responding health care
33-12 professionals at the scene, the out-of-hospital DNR order may not
33-13 be honored and life-sustaining procedures otherwise required by law
33-14 or local emergency medical services protocols shall be initiated or
33-15 continued. Health care professionals acting in out-of-hospital
33-16 settings are not required to accept or interpret an out-of-hospital
33-17 DNR order that does not meet the requirements of this subchapter
33-18 [chapter].
33-19 (f) The out-of-hospital DNR order form, when available, must
33-20 accompany the person during transport.
33-21 (g) A record shall be made and maintained of the
33-22 circumstances of each emergency medical services response in which
33-23 an out-of-hospital DNR order or DNR identification device is
33-24 encountered, in accordance with the statewide out-of-hospital DNR
33-25 protocol and any applicable local out-of-hospital DNR protocol not
34-1 in conflict with the statewide protocol.
34-2 (h) An out-of-hospital DNR order executed or issued and
34-3 documented or evidenced in the manner prescribed by this subchapter
34-4 [chapter] is valid and shall be honored by responding health care
34-5 professionals unless the person or persons found at the scene:
34-6 (1) identify themselves as the declarant or as the
34-7 attending physician, legal guardian, qualified relative, or agent
34-8 of the person having a durable power of attorney for health care
34-9 who executed or issued the out-of-hospital DNR order on behalf of
34-10 the person; and
34-11 (2) request that cardiopulmonary resuscitation or
34-12 certain other life-sustaining procedures designated by the board be
34-13 initiated or continued.
34-14 (i) If the policies of a health care facility preclude
34-15 compliance with the out-of-hospital DNR order of a person or an
34-16 out-of-hospital DNR order issued by an attending physician on
34-17 behalf of a person who is admitted to or a resident of the
34-18 facility, or if the facility is unwilling to accept DNR
34-19 identification devices as evidence of the existence of an
34-20 out-of-hospital DNR order, that facility shall take all reasonable
34-21 steps to notify the person or, if the person is incompetent, the
34-22 person's guardian or the person or persons having authority to make
34-23 health care treatment decisions on behalf of the person, of the
34-24 facility's policy and shall take all reasonable steps to effect the
34-25 transfer of the person to the person's home or to a facility where
35-1 the provisions of this subchapter [chapter] can be carried out.
35-2 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
35-3 person who has a valid out-of-hospital DNR order under this
35-4 subchapter [chapter] may wear a DNR identification device around
35-5 the neck or on the wrist as prescribed by board rule adopted under
35-6 Section 166.103 [674.023].
35-7 (b) The presence of a DNR identification device on the body
35-8 of a person is conclusive evidence that the person has executed or
35-9 issued a valid out-of-hospital DNR order or has a valid
35-10 out-of-hospital DNR order executed or issued on the person's
35-11 behalf. Responding health care professionals shall honor the DNR
35-12 identification device as if a valid out-of-hospital DNR order form
35-13 executed or issued by the person were found in the possession of
35-14 the person.
35-15 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
35-16 ORDER. An out-of-hospital DNR order is effective until it is
35-17 revoked as prescribed by Section 166.092 [674.012].
35-18 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
35-19 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
35-20 any time without regard to the declarant's mental state or
35-21 competency. An order may be revoked by:
35-22 (1) the declarant or someone in the declarant's
35-23 presence and at the declarant's direction destroying the order form
35-24 and removing the DNR identification device, if any;
35-25 (2) a person who identifies himself or herself as the
36-1 legal guardian, as a qualified relative, or as the agent of the
36-2 declarant having a durable power of attorney for health care who
36-3 executed the out-of-hospital DNR order or another person in the
36-4 person's presence and at the person's direction destroying the
36-5 order form and removing the DNR identification device, if any;
36-6 (3) the declarant communicating the declarant's intent
36-7 to revoke the order; or
36-8 (4) a person who identifies himself or herself as the
36-9 legal guardian, a qualified relative, or the agent of the declarant
36-10 having a durable power of attorney for health care who executed the
36-11 out-of-hospital DNR order orally stating the person's intent to
36-12 revoke the order.
36-13 (b) An oral revocation under Subsection (a)(3) or (a)(4)
36-14 takes effect only when the declarant or a person who identifies
36-15 himself or herself as the legal guardian, a qualified relative, or
36-16 the agent of the declarant having a durable power of attorney for
36-17 health care who executed the out-of-hospital DNR order communicates
36-18 the intent to revoke the order to the responding health care
36-19 professionals or the attending physician at the scene. The
36-20 responding health care professionals shall record the time, date,
36-21 and place of the revocation in accordance with the statewide
36-22 out-of-hospital DNR protocol and rules adopted by the board and any
36-23 applicable local out-of-hospital DNR protocol. The attending
36-24 physician or the physician's designee shall record in the person's
36-25 medical record the time, date, and place of the revocation and, if
37-1 different, the time, date, and place that the physician received
37-2 notice of the revocation. The attending physician or the
37-3 physician's designee shall also enter the word "VOID" on each page
37-4 of the copy of the order in the person's medical record.
37-5 (c) Except as otherwise provided by this subchapter
37-6 [chapter], a person is not civilly or criminally liable for failure
37-7 to act on a revocation made under this section unless the person
37-8 has actual knowledge of the revocation.
37-9 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
37-10 ORDER. A declarant may at any time reexecute or reissue an
37-11 out-of-hospital DNR order in accordance with the procedures
37-12 prescribed by Section 166.082 [674.002], including reexecution or
37-13 reissuance after the declarant is diagnosed as having a terminal
37-14 condition.
37-15 Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW
37-16 [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE. To the extent
37-17 that an out-of-hospital DNR order conflicts with a directive or
37-18 treatment decision executed or issued under Subchapter B [Chapter
37-19 672] or a durable power of attorney for health care [executed or
37-20 issued in accordance with Chapter 135, Civil Practice and Remedies
37-21 Code], the instrument executed later in time controls.
37-22 Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER
37-23 ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
37-24 executed or issued an out-of-hospital DNR order under this
37-25 subchapter [chapter] does not:
38-1 (1) restrict, inhibit, or impair in any manner the
38-2 sale, procurement, or issuance of a life insurance policy to that
38-3 person; or
38-4 (2) modify the terms of an existing life insurance
38-5 policy.
38-6 (b) Notwithstanding the terms of any life insurance policy,
38-7 the fact that cardiopulmonary resuscitation or certain other
38-8 life-sustaining procedures designated by the board are withheld
38-9 from an insured person under this subchapter [chapter] does not
38-10 legally impair or invalidate that person's life insurance policy
38-11 and may not be a factor for the purpose of determining the
38-12 payability of benefits or the cause of death under the life
38-13 insurance policy.
38-14 (c) A physician, health facility, health care provider,
38-15 insurer, or health care service plan may not require a person to
38-16 execute or issue an out-of-hospital DNR order as a condition for
38-17 obtaining insurance for health care services or receiving health
38-18 care services.
38-19 (d) The fact that a person has executed or issued or failed
38-20 to execute or issue an out-of-hospital DNR order under this
38-21 subchapter [chapter] may not be considered in any way in
38-22 establishing insurance premiums.
38-23 Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR
38-24 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
38-25 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
39-1 health care facility or entity that in good faith causes
39-2 cardiopulmonary resuscitation or certain other life-sustaining
39-3 procedures designated by the board to be withheld from a person in
39-4 accordance with this subchapter [chapter] is not civilly liable for
39-5 that action.
39-6 (b) A health care professional or health care facility or
39-7 entity that in good faith participates in withholding
39-8 cardiopulmonary resuscitation or certain other life-sustaining
39-9 procedures designated by the board from a person in accordance with
39-10 this subchapter [chapter] is not civilly liable for that action.
39-11 (c) A health care professional or health care facility or
39-12 entity that in good faith participates in withholding
39-13 cardiopulmonary resuscitation or certain other life-sustaining
39-14 procedures designated by the board from a person in accordance with
39-15 this subchapter [chapter] is not criminally liable or guilty of
39-16 unprofessional conduct as a result of that action.
39-17 (d) A health care professional or health care facility or
39-18 entity that in good faith causes or participates in withholding
39-19 cardiopulmonary resuscitation or certain other life-sustaining
39-20 procedures designated by the board from a person in accordance with
39-21 this subchapter [chapter] and rules adopted under this subchapter
39-22 [chapter] is not in violation of any other licensing or regulatory
39-23 laws or rules of this state and is not subject to any disciplinary
39-24 action or sanction by any licensing or regulatory agency of this
39-25 state as a result of that action.
40-1 Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
40-2 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
40-3 professional or health care facility or entity that has no actual
40-4 knowledge of an out-of-hospital DNR order is not civilly or
40-5 criminally liable for failing to act in accordance with the order.
40-6 (b) A health care professional or health care facility or
40-7 entity is not civilly or criminally liable for failing to
40-8 effectuate an out-of-hospital DNR order.
40-9 (c) If an attending physician refuses to execute or comply
40-10 with an out-of-hospital DNR order, the physician shall inform the
40-11 person, the legal guardian or qualified relatives of the person, or
40-12 the agent of the person having a durable power of attorney for
40-13 health care and, if the person or another authorized to act on
40-14 behalf of the person so directs, shall make a reasonable effort to
40-15 transfer the person to another physician who is willing to execute
40-16 or comply with an out-of-hospital DNR order.
40-17 Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
40-18 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
40-19 commit an offense under Section 22.08, Penal Code, by withholding
40-20 cardiopulmonary resuscitation or certain other life-sustaining
40-21 procedures designated by the board from a person in accordance with
40-22 this subchapter [chapter].
40-23 Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION.
40-24 (a) A person commits an offense if the person intentionally
40-25 conceals, cancels, defaces, obliterates, or damages another
41-1 person's out-of-hospital DNR order or DNR identification device
41-2 without that person's consent or the consent of the person or
41-3 persons authorized to execute or issue an out-of-hospital DNR order
41-4 on behalf of the person under this subchapter [chapter]. An
41-5 offense under this subsection is a Class A misdemeanor.
41-6 (b) A person is subject to prosecution for criminal homicide
41-7 under Chapter 19, Penal Code, if the person, with the intent to
41-8 cause cardiopulmonary resuscitation or certain other
41-9 life-sustaining procedures designated by the board to be withheld
41-10 from another person contrary to the other person's desires,
41-11 falsifies or forges an out-of-hospital DNR order or intentionally
41-12 conceals or withholds personal knowledge of a revocation and
41-13 thereby directly causes cardiopulmonary resuscitation and certain
41-14 other life-sustaining procedures designated by the board to be
41-15 withheld from the other person with the result that the other
41-16 person's death is hastened.
41-17 Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not
41-18 withhold cardiopulmonary resuscitation or certain other
41-19 life-sustaining procedures designated by the board under this
41-20 subchapter [chapter] from a person known by the responding health
41-21 care professionals to be pregnant.
41-22 Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This
41-23 subchapter [chapter] does not condone, authorize, or approve mercy
41-24 killing or permit an affirmative or deliberate act or omission to
41-25 end life except to permit the natural process of dying as provided
42-1 by this subchapter [chapter].
42-2 Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
42-3 AFFECTED. This subchapter [chapter] does not impair or supersede
42-4 any legal right or responsibility a person may have under a
42-5 constitution, other statute, regulation, or court decision to
42-6 effect the withholding of cardiopulmonary resuscitation or certain
42-7 other life-sustaining procedures designated by the board.
42-8 Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
42-9 (a) The board shall, on the recommendation of the department,
42-10 adopt all reasonable and necessary rules to carry out the purposes
42-11 of this subchapter [chapter], including rules:
42-12 (1) adopting a statewide out-of-hospital DNR order
42-13 protocol that sets out standard procedures for the withholding of
42-14 cardiopulmonary resuscitation and certain other life-sustaining
42-15 procedures by health care professionals acting in out-of-hospital
42-16 settings;
42-17 (2) designating life-sustaining procedures that may be
42-18 included in an out-of-hospital DNR order, including all procedures
42-19 listed in Sections 166.081(6)(A)(i) through (vi) [Section
42-20 674.001(14)(A)(i) through (vi)]; and
42-21 (3) governing recordkeeping in circumstances in which
42-22 an out-of-hospital DNR order or DNR identification device is
42-23 encountered by responding health care professionals.
42-24 (b) The rules adopted by the board under Subsection (a) are
42-25 not effective until approved by the Texas State Board of Medical
43-1 Examiners.
43-2 (c) Local emergency medical services authorities may adopt
43-3 local out-of-hospital DNR order protocols if the local protocols do
43-4 not conflict with the statewide out-of-hospital DNR order protocol
43-5 adopted by the board.
43-6 (d) The board by rule shall specify a distinctive standard
43-7 design for a necklace and a bracelet DNR identification device that
43-8 signifies, when worn by a person, that the possessor has executed
43-9 or issued a valid out-of-hospital DNR order under this subchapter
43-10 [chapter] or is a person for whom a valid out-of-hospital DNR order
43-11 has been executed or issued.
43-12 (e) The department shall report to the board from time to
43-13 time regarding issues identified in emergency medical services
43-14 responses in which an out-of-hospital DNR order or DNR
43-15 identification device is encountered. The report may contain
43-16 recommendations to the board for necessary modifications to the
43-17 form of the standard out-of-hospital DNR order or the designated
43-18 life-sustaining procedures listed in the standard out-of-hospital
43-19 DNR order, the statewide out-of-hospital DNR order protocol, or the
43-20 DNR identification devices.
43-21 Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR
43-22 ORDER EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR
43-23 order executed, issued, or authorized in another state or a
43-24 territory or possession of the United States in compliance with the
43-25 law of that jurisdiction is effective for purposes of this
44-1 subchapter [chapter].
44-2 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
44-3 is transferred to Subtitle H, Title 2, Health and Safety Code, is
44-4 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
44-5 and is amended to read as follows:
44-6 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
44-7 HEALTH CARE
44-8 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
44-9 [chapter]:
44-10 (1) "Adult" means a person 18 years of age or older or
44-11 a person under 18 years of age who has had the disabilities of
44-12 minority removed.
44-13 (2) "Agent" means an adult to whom authority to make
44-14 health care decisions is delegated under a durable power of
44-15 attorney for health care.
44-16 (3) ["Attending physician" means the physician,
44-17 selected by or assigned to a patient, who has primary
44-18 responsibility for the treatment and care of the patient.]
44-19 [(4) "Capacity to make health care decisions" means
44-20 the ability to understand and appreciate the nature and
44-21 consequences of a health care decision, including the significant
44-22 benefits and harms of and reasonable alternatives to any proposed
44-23 health care.]
44-24 [(5) "Durable power of attorney for health care" means
44-25 a document delegating to an agent the authority to make health care
45-1 decisions as provided by this chapter.]
45-2 [(6) "Health care decision" means consent, refusal to
45-3 consent, or withdrawal of consent to health care, treatment,
45-4 service, or procedure to maintain, diagnose, or treat an
45-5 individual's physical or mental condition.]
45-6 [(7)] "Health care provider" means an individual or
45-7 facility licensed, certified, or otherwise authorized to administer
45-8 health care, for profit or otherwise, in the ordinary course of
45-9 business or professional practice and includes a physician.
45-10 (4) [(8) "Physician" means:]
45-11 [(A) a physician licensed by the Texas State
45-12 Board of Medical Examiners; or]
45-13 [(B) a physician with proper credentials who
45-14 holds a commission in a branch of the armed services of the United
45-15 States and who is serving on active duty in this state.]
45-16 [(9)] "Principal" means an adult who has executed a
45-17 durable power of attorney for health care.
45-18 (5) [(10)] "Residential care provider" means an
45-19 individual or facility licensed, certified, or otherwise authorized
45-20 to operate, for profit or otherwise, a residential care home.
45-21 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
45-22 (a) Subject to this subchapter [chapter] or any express limitation
45-23 on the authority of the agent contained in the durable power of
45-24 attorney for health care, the agent may make any health care
45-25 decision on the principal's behalf that the principal could make if
46-1 the principal were competent [but for the principal's lack of
46-2 capacity to make health care decisions].
46-3 (b) An agent may exercise authority only if the principal's
46-4 attending physician certifies in writing and files the
46-5 certification in the principal's medical record that, based on the
46-6 attending physician's reasonable medical judgment, the principal is
46-7 incompetent [lacks capacity to make health care decisions].
46-8 (c) Notwithstanding any other provisions of this subchapter
46-9 [chapter], treatment may not be given to or withheld from the
46-10 principal if the principal objects regardless of whether, at the
46-11 time of the objection:
46-12 (1) a durable power of attorney for health care is in
46-13 effect; or
46-14 (2) the principal is competent [has the capacity to
46-15 make health care decisions].
46-16 (d) The principal's attending physician shall make
46-17 reasonable efforts to inform the principal of any proposed
46-18 treatment or of any proposal to withdraw or withhold treatment
46-19 before implementing an agent's directive.
46-20 (e) After consultation with the attending physician and
46-21 other health care providers, the agent shall make a health care
46-22 decision:
46-23 (1) according to the agent's knowledge of the
46-24 principal's wishes, including the principal's religious and moral
46-25 beliefs; or
47-1 (2) if the agent does not know the principal's wishes,
47-2 according to the agent's assessment of the principal's best
47-3 interests.
47-4 (f) Notwithstanding any other provision of this subchapter
47-5 [chapter], an agent may not consent to:
47-6 (1) voluntary inpatient mental health services;
47-7 (2) convulsive treatment;
47-8 (3) psychosurgery;
47-9 (4) abortion; or
47-10 (5) neglect of the principal through the omission of
47-11 care primarily intended to provide for the comfort of the
47-12 principal.
47-13 (g) The power of attorney is effective indefinitely on
47-14 execution as provided by this subchapter [chapter] and delivery of
47-15 the document to the agent, unless it is revoked as provided by this
47-16 subchapter [chapter] or the principal becomes competent [regains
47-17 the capacity to make health care decisions]. If the durable power
47-18 of attorney includes an expiration date and on that date the
47-19 principal becomes incompetent [lacks the capacity to make health
47-20 care decisions], the power of attorney continues to be effective
47-21 until the principal becomes competent [regains the capacity to make
47-22 health care decisions] unless it is revoked as provided by this
47-23 subchapter [chapter].
47-24 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
47-25 AUTHORITY OF AGENT. A person may not exercise the authority of an
48-1 agent while the person serves as:
48-2 (1) the principal's health care provider;
48-3 (2) an employee of the principal's health care
48-4 provider unless the person is a relative of the principal;
48-5 (3) the principal's residential care provider; or
48-6 (4) an employee of the principal's residential care
48-7 provider unless the person is a relative of the principal.
48-8 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
48-9 durable power of attorney for health care must be signed by the
48-10 principal in the presence of at least two [or more] subscribing
48-11 witnesses.
48-12 (b) A witness must possess the qualifications and be subject
48-13 to the restrictions provided by Section 166.003. In addition, a
48-14 witness may not, at the time of execution, be[:]
48-15 [(1)] the agent[;]
48-16 [(2) the principal's health or residential care
48-17 provider or the provider's employee;]
48-18 [(3) the principal's spouse or heir;]
48-19 [(4) a person entitled to any part of the estate of
48-20 the principal on the death of the principal under a will or deed in
48-21 existence or by operation of law; or]
48-22 [(5) any other person who has any claim against the
48-23 estate] of the principal.
48-24 (c) The witnesses shall affirm that, at the time the durable
48-25 power of attorney for health care was signed, the principal:
49-1 (1) appeared to be competent [of sound mind to make a
49-2 health care decision];
49-3 (2) stated in the witness's presence that the
49-4 principal was aware of the nature of the durable power of attorney
49-5 for health care and that the principal was signing the document
49-6 voluntarily and free from any duress; and
49-7 (3) requested that the witness serve as a witness to
49-8 the principal's execution of the document.
49-9 (d) If the principal is physically unable to sign, another
49-10 person may sign the durable power of attorney for health care with
49-11 the principal's name in the principal's presence and at the
49-12 principal's express direction.
49-13 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
49-14 attorney for health care is revoked by:
49-15 (1) oral or written notification at any time by the
49-16 principal to the agent or a licensed or certified health or
49-17 residential care provider or by any other act evidencing a specific
49-18 intent to revoke the power, without regard to whether the principal
49-19 is competent or the principal's mental state[, competency, or
49-20 capacity to make health care decisions];
49-21 (2) execution by the principal of a subsequent durable
49-22 power of attorney for health care; or
49-23 (3) the divorce of the principal and spouse, if the
49-24 spouse is the principal's agent.
49-25 (b) A principal's licensed or certified health or
50-1 residential care provider who is informed of or provided with a
50-2 revocation of a durable power of attorney for health care shall
50-3 immediately record the revocation in the principal's medical record
50-4 and give notice of the revocation to the agent and any known health
50-5 and residential care providers currently responsible for the
50-6 principal's care.
50-7 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
50-8 motion filed in connection with a petition for appointment of a
50-9 guardian or, if a guardian has been appointed, on petition of the
50-10 guardian, a probate court shall determine whether to suspend or
50-11 revoke the authority of the agent.
50-12 (b) The court shall consider the preferences of the
50-13 principal as expressed in the durable power of attorney for health
50-14 care.
50-15 (c) During the pendency of the court's determination under
50-16 Subsection (a), the guardian has the sole authority to make any
50-17 health care decisions unless the court orders otherwise. If a
50-18 guardian has not been appointed, the agent has the authority to
50-19 make any health care decisions unless the court orders otherwise.
50-20 (d) A person, including any attending physician or health or
50-21 residential care provider, who does not have actual knowledge of
50-22 the appointment of a guardian or an order of the court granting
50-23 authority to someone other than the agent to make health care
50-24 decisions is not subject to criminal or civil liability and has not
50-25 engaged in unprofessional conduct for implementing an agent's
51-1 health care decision.
51-2 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
51-3 Subject to any limitations in the durable power of attorney for
51-4 health care, an agent may, for the purpose of making a health care
51-5 decision:
51-6 (1) request, review, and receive any information, oral
51-7 or written, regarding the principal's physical or mental health,
51-8 including medical and hospital records;
51-9 (2) execute a release or other document required to
51-10 obtain the information; and
51-11 (3) consent to the disclosure of the information.
51-12 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
51-13 PROVIDER. (a) A principal's health or residential care provider
51-14 and an employee of the provider who knows of the existence of the
51-15 principal's durable power of attorney for health care shall follow
51-16 a directive of the principal's agent to the extent it is consistent
51-17 with the desires of the principal, this subchapter [chapter], and
51-18 the durable power of attorney for health care.
51-19 (b) The attending physician does not have a duty to verify
51-20 that the agent's directive is consistent with the principal's
51-21 wishes or religious or moral beliefs.
51-22 (c) A principal's health or residential care provider who
51-23 finds it impossible to follow a directive by the agent because of a
51-24 conflict with this subchapter [chapter] or the durable power of
51-25 attorney for health care shall inform the agent as soon as is
52-1 reasonably possible. The agent may select another attending
52-2 physician.
52-3 (d) This subchapter [chapter] may not be construed to
52-4 require a health or residential care provider who is not a
52-5 physician to act in a manner contrary to a physician's order.
52-6 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
52-7 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
52-8 residential care provider, health care service plan, insurer
52-9 issuing disability insurance, self-insured employee benefit plan,
52-10 or nonprofit hospital service plan may not:
52-11 (1) charge a person a different rate solely because
52-12 the person has executed a durable power of attorney for health
52-13 care;
52-14 (2) require a person to execute a durable power of
52-15 attorney for health care before:
52-16 (A) admitting the person to a hospital, nursing
52-17 home, or residential care home;
52-18 (B) insuring the person; or
52-19 (C) allowing the person to receive health or
52-20 residential care; or
52-21 (3) refuse health or residential care to a person
52-22 solely because the person has executed a durable power of attorney
52-23 for health care.
52-24 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
52-25 agent is not subject to criminal or civil liability for a health
53-1 care decision if the decision is made in good faith under the terms
53-2 of the durable power of attorney for health care and the provisions
53-3 of this subchapter [chapter].
53-4 (b) An attending physician, health or residential care
53-5 provider, or a person acting as an agent for or under the
53-6 physician's or provider's control is not subject to criminal or
53-7 civil liability and has not engaged in unprofessional conduct for
53-8 an act or omission if the act or omission:
53-9 (1) is done in good faith under the terms of the
53-10 durable power of attorney for health care, the directives of the
53-11 agent, and the provisions of this subchapter [chapter]; and
53-12 (2) does not constitute a failure to exercise due care
53-13 in the provision of health care services.
53-14 (c) An attending physician, health or residential care
53-15 provider, or person acting as an agent for or under the physician's
53-16 or provider's control has not engaged in unprofessional conduct
53-17 for:
53-18 (1) failure to act as required by the directive of an
53-19 agent or a durable power of attorney for health care if the
53-20 physician, provider, or person was not provided with a copy of the
53-21 durable power of attorney for health care or had no knowledge of a
53-22 directive; or
53-23 (2) acting as required by an agent's directive if the
53-24 durable power of attorney for health care has expired or been
53-25 revoked but the physician, provider, or person does not have
54-1 knowledge of the expiration or revocation.
54-2 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
54-3 Liability for the cost of health care provided as a result of the
54-4 agent's decision is the same as if the health care were provided as
54-5 a result of the principal's decision.
54-6 Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the
54-7 extent that a durable power of attorney for health care conflicts
54-8 with a directive or treatment decision executed under Subchapter B
54-9 [the Natural Death Act (Chapter 672, Health and Safety Code)], the
54-10 instrument executed later in time controls. A physician who
54-11 withholds or withdraws life-sustaining procedures from a principal
54-12 with a terminal condition as required by an agent's directive is
54-13 not required to comply with Subchapter B [the Natural Death Act].
54-14 Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF
54-15 ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This subchapter
54-16 [chapter] does not limit the enforceability of a durable power of
54-17 attorney for health care or similar instrument executed in another
54-18 state or jurisdiction if the instrument complies with the law of
54-19 the state or jurisdiction.
54-20 Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable
54-21 power of attorney for health care is not effective unless the
54-22 principal, before executing the durable power of attorney for
54-23 health care, signs a statement that the principal has received a
54-24 disclosure statement and has read and understood its contents.
54-25 Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The
55-1 disclosure statement must be in substantially the following form:
55-2 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
55-3 HEALTH CARE
55-4 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING
55-5 THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
55-6 Except to the extent you state otherwise, this
55-7 document gives the person you name as your agent the
55-8 authority to make any and all health care decisions for
55-9 you in accordance with your wishes, including your
55-10 religious and moral beliefs, when you are no longer
55-11 capable of making them yourself. Because "health care"
55-12 means any treatment, service, or procedure to maintain,
55-13 diagnose, or treat your physical or mental condition,
55-14 your agent has the power to make a broad range of
55-15 health care decisions for you. Your agent may consent,
55-16 refuse to consent, or withdraw consent to medical
55-17 treatment and may make decisions about withdrawing or
55-18 withholding life-sustaining treatment. Your agent may
55-19 not consent to voluntary inpatient mental health
55-20 services, convulsive treatment, psychosurgery, or
55-21 abortion. A physician must comply with your agent's
55-22 instructions or allow you to be transferred to another
55-23 physician.
55-24 Your agent's authority begins when your doctor
55-25 certifies that you lack the capacity to make health
56-1 care decisions.
56-2 Your agent is obligated to follow your
56-3 instructions when making decisions on your behalf.
56-4 Unless you state otherwise, your agent has the same
56-5 authority to make decisions about your health care as
56-6 you would have had.
56-7 It is important that you discuss this document
56-8 with your physician or other health care provider
56-9 before you sign it to make sure that you understand the
56-10 nature and range of decisions that may be made on your
56-11 behalf. If you do not have a physician, you should
56-12 talk with someone else who is knowledgeable about these
56-13 issues and can answer your questions. You do not need
56-14 a lawyer's assistance to complete this document, but if
56-15 there is anything in this document that you do not
56-16 understand, you should ask a lawyer to explain it to
56-17 you.
56-18 The person you appoint as agent should be someone
56-19 you know and trust. The person must be 18 years of age
56-20 or older or a person under 18 years of age who has had
56-21 the disabilities of minority removed. If you appoint
56-22 your health or residential care provider (e.g., your
56-23 physician or an employee of a home health agency,
56-24 hospital, nursing home, or residential care home, other
56-25 than a relative), that person has to choose between
57-1 acting as your agent or as your health or residential
57-2 care provider; the law does not permit a person to do
57-3 both at the same time.
57-4 You should inform the person you appoint that you
57-5 want the person to be your health care agent. You
57-6 should discuss this document with your agent and your
57-7 physician and give each a signed copy. You should
57-8 indicate on the document itself the people and
57-9 institutions who have signed copies. Your agent is not
57-10 liable for health care decisions made in good faith on
57-11 your behalf.
57-12 Even after you have signed this document, you
57-13 have the right to make health care decisions for
57-14 yourself as long as you are able to do so and treatment
57-15 cannot be given to you or stopped over your objection.
57-16 You have the right to revoke the authority granted to
57-17 your agent by informing your agent or your health or
57-18 residential care provider orally or in writing or by
57-19 your execution of a subsequent durable power of
57-20 attorney for health care. Unless you state otherwise,
57-21 your appointment of a spouse dissolves on divorce.
57-22 This document may not be changed or modified. If
57-23 you want to make changes in the document, you must make
57-24 an entirely new one.
57-25 You may wish to designate an alternate agent in
58-1 the event that your agent is unwilling, unable, or
58-2 ineligible to act as your agent. Any alternate agent
58-3 you designate has the same authority to make health
58-4 care decisions for you.
58-5 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED
58-6 IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.
58-7 THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
58-8 (1) the person you have designated as your
58-9 agent;
58-10 (2) a person related to you by blood or
58-11 marriage [your health or residential care provider or
58-12 an employee of your health or residential care
58-13 provider];
58-14 (3) a person entitled to any part of your
58-15 estate after your death under a will or codicil
58-16 executed by you or by operation of law [your spouse];
58-17 (4) your attending physician [lawful heirs
58-18 or beneficiaries named in your will or a deed]; [or]
58-19 (5) an employee of the attending
58-20 physician;
58-21 (6) an employee of a health care facility
58-22 in which you are a patient if the employee is providing
58-23 direct patient care to you or is an officer, director,
58-24 partner, or business office employee of the health care
58-25 facility or of any parent organization of the health
59-1 care facility;
59-2 (7) a patient in a health care facility in
59-3 which you are a patient; or
59-4 (8) a person who, at the time this power
59-5 of attorney is executed, has a claim against any part
59-6 of your estate after your death [creditors or persons
59-7 who have a claim against you].
59-8 Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
59-9 The durable power of attorney for health care must be in
59-10 substantially the following form:
59-11 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
59-12 DESIGNATION OF HEALTH CARE AGENT.
59-13 I,_____________________________(insert your name)
59-14 appoint:
59-15 Name:____________________________________________
59-16 Address:_________________________________________
59-17 Phone________________________________
59-18 as my agent to make any and all health care decisions
59-19 for me, except to the extent I state otherwise in this
59-20 document. This durable power of attorney for health
59-21 care takes effect if I become unable to make my own
59-22 health care decisions and this fact is certified in
59-23 writing by my physician.
59-24 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY
59-25 AGENT ARE AS FOLLOWS:___________________________
60-1 _______________________________________________________
60-2 DESIGNATION OF ALTERNATE AGENT.
60-3 (You are not required to designate an alternate
60-4 agent but you may do so. An alternate agent may make
60-5 the same health care decisions as the designated agent
60-6 if the designated agent is unable or unwilling to act
60-7 as your agent. If the agent designated is your spouse,
60-8 the designation is automatically revoked by law if your
60-9 marriage is dissolved.)
60-10 If the person designated as my agent is unable or
60-11 unwilling to make health care decisions for me, I
60-12 designate the following persons to serve as my agent to
60-13 make health care decisions for me as authorized by this
60-14 document, who serve in the following order:
60-15 A. First Alternate Agent
60-16 Name:________________________________________
60-17 Address:_____________________________________
60-18 Phone____________________________
60-19 B. Second Alternate Agent
60-20 Name:________________________________________
60-21 Address:_____________________________________
60-22 Phone____________________________
60-23 The original of this document is kept
60-24 at_____________________________________________________
60-25 _______________________________________________________
61-1 _______________________________________________________
61-2 The following individuals or institutions have signed
61-3 copies:
61-4 Name:____________________________________________
61-5 Address:_________________________________________
61-6 _________________________________________________
61-7 Name:____________________________________________
61-8 Address:_________________________________________
61-9 _________________________________________________
61-10 DURATION.
61-11 I understand that this power of attorney exists
61-12 indefinitely from the date I execute this document
61-13 unless I establish a shorter time or revoke the power
61-14 of attorney. If I am unable to make health care
61-15 decisions for myself when this power of attorney
61-16 expires, the authority I have granted my agent
61-17 continues to exist until the time I become able to make
61-18 health care decisions for myself.
61-19 (IF APPLICABLE) This power of attorney ends on
61-20 the following date:________________
61-21 PRIOR DESIGNATIONS REVOKED.
61-22 I revoke any prior durable power of attorney for
61-23 health care.
61-24 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
61-25 I have been provided with a disclosure statement
62-1 explaining the effect of this document. I have read
62-2 and understand that information contained in the
62-3 disclosure statement.
62-4 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
62-5 I sign my name to this durable power of attorney for
62-6 health care on _____ day of ______________ 19 _________
62-7 at_________________________________________________
62-8 (City and State)
62-9 ___________________________________________________
62-10 (Signature)
62-11 ___________________________________________________
62-12 (Print Name)
62-13 STATEMENT OF WITNESSES.
62-14 I declare under penalty of perjury that the
62-15 principal has identified himself or herself to me, that
62-16 the principal signed or acknowledged this durable power
62-17 of attorney in my presence, that I believe the
62-18 principal to be of sound mind, that the principal has
62-19 affirmed that the principal is aware of the nature of
62-20 the document and is signing it voluntarily and free
62-21 from duress, that the principal requested that I serve
62-22 as witness to the principal's execution of this
62-23 document, that I am not the person appointed as agent
62-24 by this document, and that I am not related to the
62-25 principal by blood or marriage, I would not be entitled
63-1 to any portion of the principal's estate on the
63-2 principal's death, I am not the attending physician of
63-3 the principal or an employee of the attending
63-4 physician, I am not a patient in the health care
63-5 facility in which the principal is a patient, and I
63-6 have no claim against any portion of the principal's
63-7 estate on the principal's death. Furthermore, if I am
63-8 an employee of a health care facility in which the
63-9 principal is a patient, I am not involved in providing
63-10 direct patient care to the principal and am not an
63-11 officer, director, partner, or business office
63-12 employee of the health care facility or of any
63-13 parent organization of the health care facility [a
63-14 provider of health or residential care, an employee of
63-15 a provider of health or residential care, the operator
63-16 of a community care facility, or an employee of an
63-17 operator of a health care facility.]
63-18 [I declare that I am not related to the principal
63-19 by blood, marriage, or adoption and that to the best of
63-20 my knowledge I am not entitled to any part of the
63-21 estate of the principal on the death of the principal
63-22 under a will or by operation of law].
63-23 Witness Signature:_______________
63-24 Print Name:_____________________Date:____________
63-25 Address:_______________________________________________
64-1 Witness Signature:_______________
64-2 Print Name:_____________________Date:____________
64-3 Address:_______________________________________________
64-4 Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is
64-5 a near relative of the principal or a responsible adult who is
64-6 directly interested in the principal, including a guardian, social
64-7 worker, physician, or clergyman, may bring an action in district
64-8 court to request that the durable power of attorney for health care
64-9 be revoked because the principal, at the time the durable power of
64-10 attorney for health care was signed:
64-11 (1) was not competent [of sound mind to make a health
64-12 care decision]; or
64-13 (2) was under duress, fraud, or undue influence.
64-14 (b) The action may be brought in the county of the
64-15 principal's residence or the residence of the person bringing the
64-16 action.
64-17 (c) During the pendency of the action, the authority of the
64-18 agent to make health care decisions continues in effect unless the
64-19 district court orders otherwise.
64-20 Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
64-21 AFFECTED. This subchapter [chapter] does not limit or impair any
64-22 legal right or responsibility that any person, including a
64-23 physician or health or residential care provider, may have to make
64-24 or implement health care decisions on behalf of a person.
65-1 ARTICLE 2. CONFORMING AMENDMENTS
65-2 SECTION 2.01. Subsection (a), Section 313.003, Health and
65-3 Safety Code, is amended to read as follows:
65-4 (a) This chapter does not apply to:
65-5 (1) a decision to withhold or withdraw life-sustaining
65-6 treatment from qualified terminal patients under Subchapter B,
65-7 Chapter 166 [the terms of Chapter 672];
65-8 (2) a health care decision made under a durable power
65-9 of attorney for health care under Subchapter D, Chapter 166
65-10 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
65-11 XII, Texas Probate Code;
65-12 (3) consent to medical treatment of minors under
65-13 Chapter 32 [35], Family Code;
65-14 (4) consent for emergency care under Chapter 773;
65-15 (5) hospital patient transfers under Chapter 241; or
65-16 (6) a patient's legal guardian who has the authority
65-17 to make a decision regarding the patient's medical treatment.
65-18 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
65-19 Code, is amended by adding Section 142.0145 to read as follows:
65-20 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
65-21 DIRECTIVES. (a) The department shall assess an administrative
65-22 penalty against a home and community support services agency that
65-23 violates Section 166.004.
65-24 (b) A penalty assessed under this section shall be $500.
65-25 (c) The penalty shall be assessed in accordance with
66-1 department rules. The rules must provide for notice and an
66-2 opportunity for a hearing.
66-3 SECTION 2.03. Subsections (a) and (c), Section 241.059,
66-4 Health and Safety Code, are amended to read as follows:
66-5 (a) The commissioner of health may assess an administrative
66-6 penalty against a hospital that violates this chapter, a rule
66-7 adopted pursuant to this chapter, a special license provision, an
66-8 order or emergency order issued by the commissioner or the
66-9 commissioner's designee, or another enforcement procedure permitted
66-10 under this chapter. The commissioner shall assess an
66-11 administrative penalty against a hospital that violates Section
66-12 166.004.
66-13 (c) The penalty may not exceed $1,000 for each violation,
66-14 except that the penalty for a violation of Section 166.004 shall be
66-15 $500. Each day of a continuing violation, other than a violation
66-16 of Section 166.004, may be considered a separate violation.
66-17 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
66-18 Code, is amended by adding Section 242.071 to read as follows:
66-19 Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE
66-20 DIRECTIVES. The commissioner shall assess an administrative
66-21 penalty under this subchapter against an institution that violates
66-22 Section 166.004. Notwithstanding Sections 242.066(b) and (c), a
66-23 penalty assessed in accordance with this section shall be $500 and
66-24 a separate penalty may not be assessed for a separate day of a
66-25 continuing violation.
67-1 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
67-2 Code, is amended by adding Section 247.0455 to read as follows:
67-3 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
67-4 DIRECTIVES. (a) The department shall assess an administrative
67-5 penalty against a personal care facility that violates Section
67-6 166.004.
67-7 (b) A penalty assessed under this section shall be $500.
67-8 (c) The penalty shall be assessed in accordance with
67-9 department rules. The rules must provide for notice and an
67-10 opportunity for a hearing.
67-11 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
67-12 Code, is amended by adding Section 248.0545 to read as follows:
67-13 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
67-14 DIRECTIVES. (a) The department shall assess an administrative
67-15 penalty against a special care facility that violates Section
67-16 166.004.
67-17 (b) A penalty assessed under this section shall be $500.
67-18 (c) The penalty shall be assessed in accordance with
67-19 department rules. The rules must provide for notice and an
67-20 opportunity for a hearing.
67-21 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
67-22 SECTION 3.01. This Act takes effect January 1, 1998.
67-23 SECTION 3.02. The change in law made by this Act does not
67-24 affect the validity of a document executed under Chapter 672 or
67-25 674, Health and Safety Code, or Chapter 135, Civil Practice and
68-1 Remedies Code, before the effective date of this Act. A document
68-2 executed before the effective date of this Act is governed by the
68-3 law in effect on the date the document was executed, and that law
68-4 continues in effect for that purpose.
68-5 SECTION 3.03. (a) The change in law made by this Act
68-6 applies only to the punishment for an offense committed on or after
68-7 the effective date of this Act. For purposes of this section, an
68-8 offense is committed before the effective date of this Act if any
68-9 element of the offense occurs before the effective date.
68-10 (b) An offense committed before the effective date of this
68-11 Act is covered by the law in effect when the offense was committed,
68-12 and the former law is continued in effect for that purpose.
68-13 SECTION 3.04. The importance of this legislation and the
68-14 crowded condition of the calendars in both houses create an
68-15 emergency and an imperative public necessity that the
68-16 constitutional rule requiring bills to be read on three several
68-17 days in each house be suspended, and this rule is hereby suspended.