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;
1-18 (B) an out-of-hospital DNR order, as that term
1-19 is defined by Section 166.081; or
1-20 (C) a durable power of attorney for health care.
1-21 (2) "Attending physician" means a physician selected
1-22 by or assigned to a patient who has primary responsibility for a
1-23 patient's treatment and care.
2-1 (3) "Competent" means possessing the ability, based on
2-2 reasonable medical judgment, to understand and appreciate the
2-3 nature and consequences of a treatment decision, including the
2-4 significant benefits and harms of and reasonable alternatives to a
2-5 proposed treatment decision.
2-6 (4) "Declarant" means a person who has executed or
2-7 issued a directive under this chapter.
2-8 (5) "Durable power of attorney for health care" means
2-9 a document delegating to an agent authority to make health care
2-10 decisions executed or issued under Subchapter D.
2-11 (6) "Incompetent" means lacking the ability, based on
2-12 reasonable medical judgment, to understand and appreciate the
2-13 nature and consequences of a treatment decision, including the
2-14 significant benefits and harms of and reasonable alternatives to a
2-15 proposed treatment decision.
2-16 (7) "Life-sustaining procedure" means a medical
2-17 procedure, treatment, or intervention that uses mechanical or other
2-18 artificial means to sustain, restore, or supplant a vital function
2-19 and, when applied to a person in a terminal condition, serves only
2-20 to prolong the process of dying. The term does not include the
2-21 administration of medication or the performance of a medical
2-22 procedure considered to be necessary to provide comfort or care or
2-23 to alleviate pain.
2-24 (8) "Physician" means:
2-25 (A) a physician licensed by the Texas State
3-1 Board of Medical Examiners; or
3-2 (B) a properly credentialed physician who holds
3-3 a commission in the uniformed services of the United States and who
3-4 is serving on active duty in this state.
3-5 (9) "Terminal condition" means an incurable or
3-6 irreversible condition caused by injury, disease, or illness that
3-7 would produce death without the application of life-sustaining
3-8 procedures, according to reasonable medical judgment, and in which
3-9 the application of life-sustaining procedures serves only to
3-10 postpone the moment of the patient's death. A patient who has been
3-11 admitted to a program under which the person receives hospice
3-12 services provided by a home and community support services agency
3-13 licensed under Chapter 142 is presumed to have a terminal condition
3-14 for purposes of this chapter.
3-15 (10) "Witness" means a person who may serve as a
3-16 witness under Section 166.003.
3-17 Sec. 166.003. WITNESSES. (a) In any circumstance in which
3-18 this chapter requires the execution of an advance directive or the
3-19 issuance of a nonwritten advance directive to be witnessed, a
3-20 witness may not be:
3-21 (1) related to the declarant by blood or marriage;
3-22 (2) entitled to any part of the declarant's estate
3-23 after the declarant's death under a will or codicil executed by the
3-24 declarant or by operation of law;
3-25 (3) the attending physician;
4-1 (4) an employee of the attending physician;
4-2 (5) a person or agent designated by the declarant to
4-3 make a treatment decision;
4-4 (6) a person who, at the time the directive is
4-5 executed or the nonwritten directive is issued, has a claim against
4-6 any part of the declarant's estate after the declarant's death; or
4-7 (7) an employee of a health care facility in which the
4-8 declarant is a patient if the employee is providing direct patient
4-9 care or is directly involved in the financial affairs of the
4-10 facility.
4-11 (b) For purposes of Subsection (a)(7), a person is directly
4-12 involved in the financial affairs of a health care facility if the
4-13 person serves as an officer, director, partner, or business office
4-14 employee of the health care facility or of any parent organization
4-15 of the health care facility.
4-16 Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE.
4-17 (a) A health care provider shall maintain written policies
4-18 regarding the implementation of advance directives. The policies
4-19 must include a clear and precise statement of any procedure the
4-20 health care provider is unwilling or unable to withhold in
4-21 accordance with an advance directive.
4-22 (b) Except as provided by Subsection (g), the health care
4-23 provider shall provide written notice to an individual of the
4-24 written policies described by Subsection (a). The notice must be
4-25 provided at the earlier of:
5-1 (1) the time the individual is admitted to receive
5-2 services from the health care provider; or
5-3 (2) the time the health care provider begins providing
5-4 care to the individual.
5-5 (c) If, at the time notice is to be provided under
5-6 Subsection (b), the individual is incompetent or otherwise
5-7 incapacitated and unable to receive the notice required by this
5-8 section, the provider shall provide the required written notice, in
5-9 the following order of preference, to:
5-10 (1) the individual's legal guardian;
5-11 (2) the individual's spouse;
5-12 (3) the individual's adult child;
5-13 (4) the individual's parent;
5-14 (5) the person admitting the individual; or
5-15 (6) another person responsible for the health care
5-16 decisions of the individual.
5-17 (d) If Subsection (c) applies and except as provided by
5-18 Subsection (e), if a health care provider is unable, after diligent
5-19 search, to locate an individual listed by Subsection (c), the
5-20 health care provider is not required to provide the required
5-21 notice.
5-22 (e) If an individual who was incompetent or otherwise
5-23 incapacitated and unable to receive the notice required by this
5-24 section at the time notice was to be provided under Subsection (b)
5-25 later becomes able to receive the notice, the health care provider
6-1 shall provide the written notice at the time the individual becomes
6-2 able to receive the notice.
6-3 (f) In this section, health care provider means:
6-4 (1) a hospital, including a rural primary care
6-5 hospital;
6-6 (2) an institution licensed under Chapter 242,
6-7 including skilled nursing facilities;
6-8 (3) a home and community support services agency;
6-9 (4) a personal care facility; and
6-10 (5) a special care facility.
6-11 (g) This section does not apply to outpatient hospital
6-12 services, including emergency services.
6-13 SECTION 1.03. Chapter 672, Health and Safety Code, is
6-14 transferred to Subtitle H, Title 2, Health and Safety Code, is
6-15 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
6-16 and is amended to read as follows:
6-17 SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT]
6-18 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
6-19 the Natural Death Act.]
6-20 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
6-21 [chapter]:
6-22 (1) ["Attending physician" means the physician who has
6-23 primary responsibility for a patient's treatment and care.]
6-24 [(2) "Competent" means possessing the ability, based
6-25 on reasonable medical judgment, to understand and appreciate the
7-1 nature and consequences of a treatment decision, including the
7-2 significant benefits and harms of and reasonable alternatives to a
7-3 proposed treatment decision.]
7-4 [(3) "Declarant" means a person who has executed or
7-5 issued a directive under this chapter.]
7-6 [(4)] "Directive" means an instruction made under
7-7 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
7-8 to withhold or withdraw life-sustaining procedures in the event of
7-9 a terminal condition.
7-10 (2) [(5) "Incompetent" means lacking the ability,
7-11 based on reasonable medical judgment, to understand and appreciate
7-12 the nature and consequences of a treatment decision, including the
7-13 significant benefits and harms of and reasonable alternatives to a
7-14 proposed treatment decision.]
7-15 [(6) "Life-sustaining procedure" means a medical
7-16 procedure or intervention that uses mechanical or other artificial
7-17 means to sustain, restore, or supplant a vital function, and only
7-18 artificially postpones the moment of death of a patient in a
7-19 terminal condition whose death is imminent or will result within a
7-20 relatively short time without the application of the procedure.
7-21 The term does not include the administration of medication or the
7-22 performance of a medical procedure considered to be necessary to
7-23 provide comfort or care or to alleviate pain.]
7-24 [(7) "Physician" means a physician licensed by the
7-25 Texas State Board of Medical Examiners or a properly credentialed
8-1 physician who holds a commission in the uniformed services of the
8-2 United States and who is serving on active duty in this state.]
8-3 [(8)] "Qualified patient" means a patient with a
8-4 terminal condition that has been diagnosed and certified in writing
8-5 by the attending physician and one other physician who have
8-6 personally examined the patient.
8-7 [(9) "Terminal condition" means an incurable or
8-8 irreversible condition caused by injury, disease, or illness that
8-9 would produce death without the application of life-sustaining
8-10 procedures, according to reasonable medical judgment, and in which
8-11 the application of life-sustaining procedures serves only to
8-12 postpone the moment of the patient's death.]
8-13 Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT
8-14 ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time
8-15 execute a written directive.
8-16 (b) The declarant must sign the directive in the presence of
8-17 two witnesses, and those witnesses must sign the directive.
8-18 (c) [A witness may not be:]
8-19 [(1) related to the declarant by blood or marriage;]
8-20 [(2) entitled to any part of the declarant's estate
8-21 after the declarant's death under a will or codicil executed by the
8-22 declarant or by operation of law;]
8-23 [(3) the attending physician;]
8-24 [(4) an employee of the attending physician;]
8-25 [(5) an employee of a health care facility in which
9-1 the declarant is a patient if the employee is providing direct
9-2 patient care to the declarant or is directly involved in the
9-3 financial affairs of the facility;]
9-4 [(6) a patient in a health care facility in which the
9-5 declarant is a patient; or]
9-6 [(7) a person who, at the time the directive is
9-7 executed, has a claim against any part of the declarant's estate
9-8 after the declarant's death.]
9-9 [(d)] A declarant may include in a directive directions
9-10 other than those provided by Section 166.033 [672.004] and may
9-11 designate in a directive a person to make a treatment decision for
9-12 the declarant in the event the declarant becomes comatose,
9-13 incompetent, or otherwise mentally or physically incapable of
9-14 communication.
9-15 (d) [(e)] A declarant shall notify the attending physician
9-16 of the existence of a written directive. If the declarant is
9-17 comatose, incompetent, or otherwise mentally or physically
9-18 incapable of communication, another person may notify the attending
9-19 physician of the existence of the written directive. The attending
9-20 physician shall make the directive a part of the declarant's
9-21 medical record.
9-22 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
9-23 written directive may be in the following form:
10-1 "DIRECTIVE TO PHYSICIANS
10-2 "Directive made this __________ day of __________ (month,
10-3 year).
10-4 "I ________________________, being of sound mind, wilfully
10-5 and voluntarily make known my desire that my life shall not be
10-6 artificially prolonged under the circumstances set forth in this
10-7 directive.
10-8 "1. If at any time I should have an incurable or
10-9 irreversible condition caused by injury, disease, or illness
10-10 certified to be a terminal condition by two physicians, and if the
10-11 application of life-sustaining procedures would serve only to
10-12 artificially postpone the moment of my death, and if my attending
10-13 physician determines that my death is imminent or will result
10-14 within a relatively short time without the application of
10-15 life-sustaining procedures, I direct that those procedures be
10-16 withheld or withdrawn, and that I be permitted to die
10-17 naturally.
10-18 "2. In the absence of my ability to give directions
10-19 regarding the use of those life-sustaining procedures, it is my
10-20 intention that this directive be honored by my family and
10-21 physicians as the final expression of my legal right to refuse
10-22 medical or surgical treatment and accept the consequences from that
10-23 refusal.
10-24 "3. If I have been diagnosed as pregnant and that diagnosis
10-25 is known to my physician, this directive has no effect during my
11-1 pregnancy.
11-2 "4. This directive is in effect until it is revoked.
11-3 "5. I understand the full import of this directive and I am
11-4 emotionally and mentally competent to make this directive.
11-5 "6. I understand that I may revoke this directive at any
11-6 time.
11-7 "Signed ______________________________
11-8 (City, County, and State of Residence)
11-9 I am not related to the declarant by blood or marriage. I
11-10 would not be entitled to any portion of the declarant's estate on
11-11 the declarant's death. I am not the attending physician of the
11-12 declarant or an employee of the attending physician. [I am not a
11-13 patient in the health care facility in which the declarant is a
11-14 patient.] I have no claim against any portion of the declarant's
11-15 estate on the declarant's death. Furthermore, if I am an employee
11-16 of a health care facility in which the declarant is a patient, I am
11-17 not involved in providing direct patient care to the declarant and
11-18 am not an officer, director, partner, or business office employee
11-19 of the health care facility or of any parent organization of
11-20 the health care [directly involved in the financial affairs of the
11-21 health] facility.
11-22 "Witness_______________________________
11-23 "Witness______________________________"
11-24 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
11-25 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
12-1 patient who is an adult may issue a directive by a nonwritten means
12-2 of communication.
12-3 (b) A declarant must issue the nonwritten directive in the
12-4 presence of the attending physician and two witnesses. [The
12-5 witnesses must possess the same qualifications as are required by
12-6 Section 672.003(c).]
12-7 (c) The physician shall make the fact of the existence of
12-8 the directive a part of the declarant's medical record and the
12-9 witnesses shall sign the entry in the medical record.
12-10 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
12-11 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
12-12 execute a directive on behalf of a qualified patient who is younger
12-13 than 18 years of age:
12-14 (1) the patient's spouse, if the spouse is an adult;
12-15 (2) the patient's parents; or
12-16 (3) the patient's legal guardian.
12-17 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
12-18 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
12-19 under Section 166.033 or 166.035 is effective without regard to
12-20 whether the document has been notarized.
12-21 (b) A physician, health care facility, or health care
12-22 professional may not require that:
12-23 (1) a directive be notarized; or
12-24 (2) a person use a form provided by the physician,
12-25 health care facility, or health care professional.
13-1 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
13-2 The desire of a competent qualified patient, including a competent
13-3 qualified patient younger than 18 years of age, supersedes the
13-4 effect of a directive.
13-5 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
13-6 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
13-7 applies when an adult qualified patient has executed or issued a
13-8 directive and is comatose, incompetent, or otherwise mentally or
13-9 physically incapable of communication.
13-10 (b) If the adult qualified patient has designated a person
13-11 to make a treatment decision as authorized by Section 166.032(c)
13-12 [672.003(d)], the attending physician and the designated person may
13-13 make a treatment decision to withhold or withdraw life-sustaining
13-14 procedures from the patient.
13-15 (c) If the adult qualified patient has not designated a
13-16 person to make a treatment decision, the attending physician shall
13-17 comply with the directive unless the physician believes that the
13-18 directive does not reflect the patient's present desire.
13-19 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
13-20 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
13-21 COMMUNICATION. (a) If an adult qualified patient has not executed
13-22 or issued a directive and is comatose, incompetent, or otherwise
13-23 mentally or physically incapable of communication, the attending
13-24 physician and the patient's legal guardian or an agent under a
13-25 durable power of attorney for health care may make a treatment
14-1 decision that may include a decision to withhold or withdraw
14-2 life-sustaining procedures from the patient.
14-3 (b) If the patient does not have a legal guardian or an
14-4 agent under a durable power of attorney for health care, the
14-5 attending physician and one person from one [at least two persons,
14-6 if available,] of the following categories, in the following
14-7 priority, may make a treatment decision that may include a decision
14-8 to withhold or withdraw life-sustaining procedures:
14-9 (1) the patient's spouse;
14-10 (2) [a majority of] the patient's reasonably available
14-11 adult children;
14-12 (3) the patient's parents; or
14-13 (4) the patient's nearest living relative.
14-14 (c) A treatment decision made under Subsection (a) or (b)
14-15 must be based on knowledge of what the patient would desire, if
14-16 known.
14-17 (d) A treatment decision made under Subsection (b) must be
14-18 documented in the patient's medical record and signed by the
14-19 attending physician [made in the presence of at least two witnesses
14-20 who possess the same qualifications as are required by Section
14-21 672.003(c)].
14-22 (e) If the patient does not have a legal guardian and a
14-23 person listed in Subsection (b) is not available, a treatment
14-24 decision made under Subsection (b) must be witnessed by another
14-25 physician who is not involved in the treatment of the patient.
15-1 (f) The fact that an adult qualified patient has not
15-2 executed or issued a directive does not create a presumption that
15-3 the patient does not want a treatment decision to be made to
15-4 withhold or withdraw life-sustaining procedures.
15-5 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
15-6 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
15-7 physician who has been notified of the existence of a directive
15-8 shall provide for the declarant's certification as a qualified
15-9 patient on diagnosis of a terminal condition.
15-10 (b) Before withholding or withdrawing life-sustaining
15-11 procedures from a qualified patient under this subchapter
15-12 [chapter], the attending physician must:
15-13 (1) determine that the patient's death is imminent or
15-14 will result within a relatively short time without application of
15-15 those procedures;
15-16 (2) note that determination in the patient's medical
15-17 record; and
15-18 (3) determine that the steps proposed to be taken are
15-19 in accord with this subchapter [chapter] and the patient's existing
15-20 desires.
15-21 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
15-22 is effective until it is revoked as prescribed by Section 166.042
15-23 [672.012].
15-24 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
15-25 declarant may revoke a directive at any time without regard to the
16-1 declarant's mental state or competency. A directive may be revoked
16-2 by:
16-3 (1) the declarant or someone in the declarant's
16-4 presence and at the declarant's direction canceling, defacing,
16-5 obliterating, burning, tearing, or otherwise destroying the
16-6 directive;
16-7 (2) the declarant signing and dating a written
16-8 revocation that expresses the declarant's intent to revoke the
16-9 directive; or
16-10 (3) the declarant orally stating the declarant's
16-11 intent to revoke the directive.
16-12 (b) A written revocation executed as prescribed by
16-13 Subsection (a)(2) takes effect only when the declarant or a person
16-14 acting on behalf of the declarant notifies the attending physician
16-15 of its existence or mails the revocation to the attending
16-16 physician. The attending physician or the physician's designee
16-17 shall record in the patient's medical record the time and date when
16-18 the physician received notice of the written revocation and shall
16-19 enter the word "VOID" on each page of the copy of the directive in
16-20 the patient's medical record.
16-21 (c) An oral revocation issued as prescribed by Subsection
16-22 (a)(3) takes effect only when the declarant or a person acting on
16-23 behalf of the declarant notifies the attending physician of the
16-24 revocation. The attending physician or the physician's designee
16-25 shall record in the patient's medical record the time, date, and
17-1 place of the revocation, and, if different, the time, date, and
17-2 place that the physician received notice of the revocation. The
17-3 attending physician or the physician's designees shall also enter
17-4 the word "VOID" on each page of the copy of the directive in the
17-5 patient's medical record.
17-6 (d) Except as otherwise provided by this subchapter
17-7 [chapter], a person is not civilly or criminally liable for failure
17-8 to act on a revocation made under this section unless the person
17-9 has actual knowledge of the revocation.
17-10 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
17-11 declarant may at any time reexecute a directive in accordance with
17-12 the procedures prescribed by Section 166.032 [672.003], including
17-13 reexecution after the declarant is diagnosed as having a terminal
17-14 condition.
17-15 Sec. 166.044 [672.014]. EFFECT OF DIRECTIVE ON INSURANCE
17-16 POLICY AND PREMIUMS. (a) The fact that a person has executed or
17-17 issued a directive under this subchapter [chapter] does not:
17-18 (1) restrict, inhibit, or impair in any manner the
17-19 sale, procurement, or issuance of a life insurance policy to that
17-20 person; or
17-21 (2) modify the terms of an existing life insurance
17-22 policy.
17-23 (b) Notwithstanding the terms of any life insurance policy,
17-24 the fact that life-sustaining procedures are withheld or withdrawn
17-25 from an insured qualified patient under this subchapter [chapter]
18-1 does not legally impair or invalidate that person's life insurance
18-2 policy.
18-3 (c) A physician, health facility, health provider, insurer,
18-4 or health care service plan may not require a person to execute or
18-5 issue a directive as a condition for obtaining insurance for health
18-6 care services or receiving health care services.
18-7 (d) The fact that a person has executed or issued or failed
18-8 to execute or issue a directive under this subchapter [chapter] may
18-9 not be considered in any way in establishing insurance premiums.
18-10 Sec. 166.045 [672.015]. LIMITATION OF LIABILITY FOR
18-11 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
18-12 physician or health facility that, in good faith, causes
18-13 life-sustaining procedures to be withheld or withdrawn from a
18-14 qualified patient in accordance with this subchapter [chapter] is
18-15 not civilly liable for that action [unless negligent].
18-16 (b) A health professional, acting under the direction of a
18-17 physician, who participates, in good faith, in withholding or
18-18 withdrawing life-sustaining procedures from a qualified patient in
18-19 accordance with this subchapter [chapter] is not civilly liable for
18-20 that action [unless negligent].
18-21 (c) A physician, or a health professional acting under the
18-22 direction of a physician, who participates, in good faith, in
18-23 withholding or withdrawing life-sustaining procedures from a
18-24 qualified patient in accordance with this subchapter [chapter] is
18-25 not criminally liable or guilty of unprofessional conduct as a
19-1 result of that action [unless negligent].
19-2 Sec. 166.046 [672.016]. LIMITATION OF LIABILITY FOR FAILURE
19-3 TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility,
19-4 or health care professional who has no knowledge of a directive is
19-5 not civilly or criminally liable for failing to act in accordance
19-6 with the directive.
19-7 (b) A physician, or a health professional acting under the
19-8 direction of a physician, is not civilly or criminally liable for
19-9 failing to effectuate a qualified patient's directive.
19-10 (c) If an attending physician refuses to comply with a
19-11 directive or treatment decision, the physician shall make a
19-12 reasonable effort to transfer the patient to another physician.
19-13 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
19-14 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
19-15 offense under Section 22.08, Penal Code, by withholding or
19-16 withdrawing life-sustaining procedures from a qualified patient in
19-17 accordance with this subchapter [chapter].
19-18 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
19-19 (a) A person commits an offense if the person intentionally
19-20 conceals, cancels, defaces, obliterates, or damages another
19-21 person's directive without that person's consent. An offense under
19-22 this subsection is a Class A misdemeanor.
19-23 (b) A person is subject to prosecution for criminal homicide
19-24 under Chapter 19, Penal Code, if the person, with the intent to
19-25 cause life-sustaining procedures to be withheld or withdrawn from
20-1 another person contrary to the other person's desires, falsifies or
20-2 forges a directive or intentionally conceals or withholds personal
20-3 knowledge of a revocation and thereby directly causes
20-4 life-sustaining procedures to be withheld or withdrawn from the
20-5 other person with the result that the other person's death is
20-6 hastened.
20-7 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
20-8 withdraw or withhold life-sustaining procedures under this
20-9 subchapter [chapter] from a pregnant patient.
20-10 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
20-11 subchapter [chapter] does not condone, authorize, or approve mercy
20-12 killing or permit an affirmative or deliberate act or omission to
20-13 end life except to permit the natural process of dying as provided
20-14 by this subchapter [chapter].
20-15 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
20-16 AFFECTED. This subchapter [chapter] does not impair or supersede
20-17 any legal right or responsibility a person may have to effect the
20-18 withholding or withdrawal of life-sustaining procedures in a lawful
20-19 manner.
20-20 SECTION 1.04. Chapter 674, Health and Safety Code, is
20-21 transferred to Subtitle H, Title 2, Health and Safety Code, is
20-22 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
20-23 and is amended to read as follows:
21-1 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
21-2 DO-NOT-RESUSCITATE ORDERS
21-3 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
21-4 [chapter]:
21-5 (1) ["Attending physician" means the physician who has
21-6 primary responsibility for a person's treatment and care.]
21-7 [(2) "Board" means the Texas Board of Health.]
21-8 [(3)] "Cardiopulmonary resuscitation" includes a
21-9 component of cardiopulmonary resuscitation.
21-10 (2) [(4) "Competent" means possessing the ability,
21-11 based on reasonable medical judgment, to understand and appreciate
21-12 the nature and consequences of a treatment decision, including the
21-13 significant benefits and harms of, and reasonable alternatives to,
21-14 a proposed treatment decision.]
21-15 [(5) "Declarant" means a person who has executed or
21-16 issued an out-of-hospital do-not-resuscitate order under this
21-17 chapter.]
21-18 [(6) "Department" means the Texas Department of
21-19 Health.]
21-20 [(7)] "DNR identification device" means an
21-21 identification device specified by the board under Section 166.103
21-22 [674.023] that is worn for the purpose of identifying a person who
21-23 has executed or issued an out-of-hospital DNR order or on whose
21-24 behalf an out-of-hospital DNR order has been executed or issued
21-25 under this subchapter [chapter].
22-1 (3) [(8) "Durable power of attorney for health care"
22-2 means a document delegating to an agent the authority to make
22-3 health care decisions for a person in accordance with Chapter 135,
22-4 Civil Practice and Remedies Code.]
22-5 [(9)] "Emergency medical services" has the meaning
22-6 assigned by Section 773.003.
22-7 (4) [(10)] "Emergency medical services personnel" has
22-8 the meaning assigned by Section 773.003.
22-9 (5) [(11)] "Health care professionals" means
22-10 physicians, nurses, and emergency medical services personnel and,
22-11 unless the context requires otherwise, includes hospital emergency
22-12 personnel.
22-13 (6) [(12) "Incompetent" means lacking the ability,
22-14 based on reasonable medical judgment, to understand and appreciate
22-15 the nature and consequences of a treatment decision, including the
22-16 significant benefits and harms of, and reasonable alternatives to,
22-17 a proposed treatment decision.]
22-18 [(13) "Life-sustaining procedure" means a medical
22-19 procedure, treatment, or intervention that uses mechanical or other
22-20 artificial means to sustain, restore, or supplant a spontaneous
22-21 vital function and, when applied to a person in a terminal
22-22 condition, serves only to prolong the process of dying. The term
22-23 does not include the administration of medication or the
22-24 performance of a medical procedure considered to be necessary to
22-25 provide comfort or care or to alleviate pain or the provision of
23-1 water or nutrition.]
23-2 [(14)] "Out-of-hospital DNR order":
23-3 (A) means a legally binding out-of-hospital
23-4 do-not-resuscitate order, in the form specified by the board under
23-5 Section 166.083 [674.003], prepared and signed by the attending
23-6 physician of a person who has been diagnosed as having a terminal
23-7 condition, that documents the instructions of a person or the
23-8 person's legally authorized representative and directs health care
23-9 professionals acting in an out-of-hospital setting not to initiate
23-10 or continue the following life-sustaining procedures:
23-11 (i) cardiopulmonary resuscitation;
23-12 (ii) endotracheal intubation or other
23-13 means of advanced airway management;
23-14 (iii) artificial ventilation;
23-15 (iv) defibrillation;
23-16 (v) transcutaneous cardiac pacing;
23-17 (vi) the administration of cardiac
23-18 resuscitation medications; and
23-19 (vii) other life-sustaining procedures
23-20 specified by the board under Section 166.103(a) [674.023(a)]; and
23-21 (B) does not include authorization to withhold
23-22 medical interventions or therapies considered necessary to provide
23-23 comfort or care or to alleviate pain or to provide water or
23-24 nutrition.
23-25 (7) [(15)] "Out-of-hospital setting" means any setting
24-1 outside of a licensed acute care hospital in which health care
24-2 professionals are called for assistance, including long-term care
24-3 facilities, in-patient hospice facilities, private homes, and
24-4 vehicles during transport.
24-5 (8) [(16) "Physician" means a physician licensed by
24-6 the Texas State Board of Medical Examiners or a properly
24-7 credentialed physician who holds a commission in the uniformed
24-8 services of the United States and who is serving on active duty in
24-9 this state.]
24-10 [(17)] "Proxy" means a person designated and
24-11 authorized by a directive executed or issued in accordance with
24-12 Subchapter B [Chapter 672] to make a treatment decision for another
24-13 person in the event the other person becomes comatose, incompetent,
24-14 or otherwise mentally or physically incapable of communication.
24-15 (9) [(18)] "Qualified relatives" means those persons
24-16 authorized to execute or issue an out-of-hospital DNR order on
24-17 behalf of a person who is comatose, incompetent, or otherwise
24-18 mentally or physically incapable of communication under Section
24-19 166.088 [674.008].
24-20 (10) [(19)] "Statewide out-of-hospital DNR protocol"
24-21 means a set of statewide standardized procedures adopted by the
24-22 board under Section 166.103 [674.023] for withholding
24-23 cardiopulmonary resuscitation and certain other life-sustaining
24-24 procedures by health care professionals acting in out-of-hospital
24-25 settings.
25-1 [(20) "Terminal condition" means an incurable or
25-2 irreversible condition caused by injury, disease, or illness that
25-3 would produce death without the application of life-sustaining
25-4 procedures, according to reasonable medical judgment, and in which
25-5 the application of life-sustaining procedures serves only to
25-6 postpone the moment of the person's death.]
25-7 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
25-8 TO PHYSICIANS. (a) A competent person who has been diagnosed by a
25-9 physician as having a terminal condition may at any time execute a
25-10 written out-of-hospital DNR order directing health care
25-11 professionals acting in an out-of-hospital setting to withhold
25-12 cardiopulmonary resuscitation and certain other life-sustaining
25-13 procedures designated by the board.
25-14 (b) The declarant must sign the out-of-hospital DNR order in
25-15 the presence of two witnesses, and those witnesses must sign the
25-16 order. The attending physician of the declarant must sign the
25-17 order and shall make the fact of the existence of the order and the
25-18 reasons for execution of the order a part of the declarant's
25-19 medical record.
25-20 (c) [A witness must have the same qualifications as those
25-21 provided by Section 672.003(c).]
25-22 [(d)] If the person is incompetent but previously executed
25-23 or issued a directive to physicians in accordance with Subchapter B
25-24 [Chapter 672], the physician may rely on the directive as the
25-25 person's instructions to issue an out-of-hospital DNR order and
26-1 shall place a copy of the directive in the person's medical record.
26-2 The physician shall sign the order in lieu of the person signing
26-3 under Subsection (b).
26-4 (d) [(e)] If the person is incompetent but previously
26-5 executed or issued a directive to physicians in accordance with
26-6 Subchapter B [Chapter 672] designating a proxy, the proxy may make
26-7 any decisions required of the designating person as to an
26-8 out-of-hospital DNR order and shall sign the order in lieu of the
26-9 person signing under Subsection (b).
26-10 (e) [(f)] If the person is now incompetent but previously
26-11 executed or issued a durable power of attorney for health care [in
26-12 accordance with Chapter 135, Civil Practice and Remedies Code],
26-13 designating an agent, the agent may make any decisions required of
26-14 the designating person as to an out-of-hospital DNR order and shall
26-15 sign the order in lieu of the person signing under Subsection (b).
26-16 (f) [(g)] The board, on the recommendation of the
26-17 department, shall by rule adopt procedures for the disposition and
26-18 maintenance of records of an original out-of-hospital DNR order and
26-19 any copies of the order.
26-20 (g) [(h)] An out-of-hospital DNR order is effective on its
26-21 execution.
26-22 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
26-23 (a) A written out-of-hospital DNR order shall be in the standard
26-24 form specified by board rule as recommended by the department.
26-25 (b) The standard form of an out-of-hospital DNR order
27-1 specified by the board must, at a minimum, contain the following:
27-2 (1) a distinctive single-page format that readily
27-3 identifies the document as an out-of-hospital DNR order;
27-4 (2) a title that readily identifies the document as an
27-5 out-of-hospital DNR order;
27-6 (3) the printed or typed name of the person;
27-7 (4) a statement that the physician signing the
27-8 document is the attending physician of the person, that the
27-9 physician has diagnosed the person as having a terminal condition,
27-10 and that the physician is directing health care professionals
27-11 acting in out-of-hospital settings not to initiate or continue
27-12 certain life-sustaining procedures on behalf of the person, and a
27-13 listing of those procedures not to be initiated or continued;
27-14 (5) a statement that the person understands that the
27-15 person may revoke the out-of-hospital DNR order at any time by
27-16 destroying the order and removing the DNR identification device, if
27-17 any, or by communicating to health care professionals at the scene
27-18 the person's desire to revoke the out-of-hospital DNR order;
27-19 (6) places for the printed names and signatures of the
27-20 witnesses and attending physician of the person and the medical
27-21 license number of the attending physician;
27-22 (7) a separate section for execution of the document
27-23 by the legal guardian of the person, the person's proxy, an agent
27-24 of the person having a durable power of attorney for health care,
27-25 or the attending physician attesting to the issuance of an
28-1 out-of-hospital DNR order by nonwritten means of communication or
28-2 acting in accordance with a previously executed or previously
28-3 issued directive to physicians under Section 166.082(c)
28-4 [674.002(d)] that includes the following:
28-5 (A) a statement that the legal guardian, the
28-6 proxy, the agent, the person by nonwritten means of communication,
28-7 or the physician directs that the listed life-sustaining procedures
28-8 should not be initiated or continued in behalf of the person; and
28-9 (B) places for the printed names and signatures
28-10 of the witnesses and, as applicable, the legal guardian, proxy,
28-11 agent, or physician;
28-12 (8) a separate section for execution of the document
28-13 by at least two qualified relatives of the person when the person
28-14 does not have a legal guardian, proxy, or agent having a durable
28-15 power of attorney for health care and is comatose, incompetent, or
28-16 otherwise mentally or physically incapable of communication,
28-17 including:
28-18 (A) a statement that the relatives of the person
28-19 are qualified to make a treatment decision to withhold
28-20 cardiopulmonary resuscitation and certain other designated
28-21 life-sustaining procedures under Section 166.088 [674.008] and,
28-22 based on the known desires of the person or a determination of the
28-23 best interest of the person, direct that the listed life-sustaining
28-24 procedures should not be initiated or continued in behalf of the
28-25 person; and
29-1 (B) places for the printed names and signatures
29-2 of the witnesses and qualified relatives of the person;
29-3 (9) a place for entry of the date of execution of the
29-4 document;
29-5 (10) a statement that the document is in effect on the
29-6 date of its execution and remains in effect until the death of the
29-7 person or until the document is revoked;
29-8 (11) a statement that the document must accompany the
29-9 person during transport;
29-10 (12) a statement regarding the proper disposition of
29-11 the document or copies of the document, as the board determines
29-12 appropriate; and
29-13 (13) a statement at the bottom of the document, with
29-14 places for the signature of each person executing the document,
29-15 that the document has been properly completed.
29-16 (c) The board may, by rule and as recommended by the
29-17 department, modify the standard form of the out-of-hospital DNR
29-18 order described by Subsection (b) in order to accomplish the
29-19 purposes of this subchapter [chapter].
29-20 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
29-21 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
29-22 an adult may issue an out-of-hospital DNR order by nonwritten
29-23 communication.
29-24 (b) A declarant must issue the nonwritten out-of-hospital
29-25 DNR order in the presence of the attending physician and two
30-1 witnesses. [The witnesses must possess the same qualifications as
30-2 those provided by Section 672.003(c).]
30-3 (c) The attending physician and witnesses shall sign the
30-4 out-of-hospital DNR order in the [that] place of the document
30-5 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
30-6 physician shall sign the document in the place required by Section
30-7 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
30-8 of the existence of the out-of-hospital DNR order a part of the
30-9 declarant's medical record and the witnesses shall sign that entry
30-10 in the medical record.
30-11 (d) An out-of-hospital DNR order issued in the manner
30-12 provided by this section is valid and shall be honored by
30-13 responding health care professionals as if executed in the manner
30-14 provided by Section 166.082 [674.002].
30-15 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
30-16 ORDER ON BEHALF OF A MINOR. The following persons may execute an
30-17 out-of-hospital DNR order on behalf of a minor:
30-18 (1) the minor's parents;
30-19 (2) the minor's legal guardian; or
30-20 (3) the minor's managing conservator.
30-21 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
30-22 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
30-23 including a competent minor, supersedes the effect of an
30-24 out-of-hospital DNR order executed or issued by or on behalf of the
30-25 person when the desire is communicated to responding health care
31-1 professionals as provided by this subchapter [chapter].
31-2 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
31-3 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
31-4 applies when a person 18 years of age or older has executed or
31-5 issued an out-of-hospital DNR order and subsequently becomes
31-6 comatose, incompetent, or otherwise mentally or physically
31-7 incapable of communication.
31-8 (b) If the adult person has designated a person to make a
31-9 treatment decision as authorized by Section 166.032(c)
31-10 [672.003(d)], the attending physician and the designated person
31-11 shall comply with the out-of-hospital DNR order.
31-12 (c) If the adult person has not designated a person to make
31-13 a treatment decision as authorized by Section 166.032(c)
31-14 [672.003(d)], the attending physician shall comply with the
31-15 out-of-hospital DNR order unless the physician believes that the
31-16 order does not reflect the person's present desire.
31-17 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
31-18 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
31-19 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
31-20 executed or issued an out-of-hospital DNR order and is comatose,
31-21 incompetent, or otherwise mentally or physically incapable of
31-22 communication, the attending physician and the person's legal
31-23 guardian, proxy, or agent having a durable power of attorney for
31-24 health care may execute an out-of-hospital DNR order on behalf of
31-25 the person.
32-1 (b) If the person does not have a legal guardian, proxy, or
32-2 agent, the attending physician and at least two qualified relatives
32-3 may execute an out-of-hospital DNR order in the same manner as a
32-4 treatment decision made under Section 166.039(b) [672.009(b)].
32-5 (c) A decision to execute an out-of-hospital DNR order made
32-6 under Subsection (a) or (b) must be based on knowledge of what the
32-7 person would desire, if known.
32-8 (d) An out-of-hospital DNR order executed under Subsection
32-9 (b) must be made in the presence of at least two witnesses [who
32-10 possess the same qualifications that are required by Section
32-11 672.003(c)].
32-12 (e) The fact that an adult person has not executed or issued
32-13 an out-of-hospital DNR order does not create a presumption that the
32-14 person does not want a treatment decision made to withhold
32-15 cardiopulmonary resuscitation and certain other designated
32-16 life-sustaining procedures designated by the board.
32-17 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
32-18 ORDER. (a) When responding to a call for assistance, health care
32-19 professionals shall honor an out-of-hospital DNR order in
32-20 accordance with the statewide out-of-hospital DNR protocol and,
32-21 where applicable, locally adopted out-of-hospital DNR protocols not
32-22 in conflict with the statewide protocol if:
32-23 (1) the responding health care professionals discover
32-24 an executed or issued out-of-hospital DNR order form on their
32-25 arrival at the scene; and
33-1 (2) the responding health care professionals comply
33-2 with this section.
33-3 (b) If the person is wearing a DNR identification device,
33-4 the responding health care professionals must comply with Section
33-5 166.090 [674.010].
33-6 (c) The responding health care professionals must establish
33-7 the identity of the person as the person who executed or issued the
33-8 out-of-hospital DNR order or for whom the out-of-hospital DNR order
33-9 was executed or issued.
33-10 (d) The responding health care professionals must determine
33-11 that the out-of-hospital DNR order form appears to be valid in that
33-12 it includes:
33-13 (1) written responses in the places designated on the
33-14 form for the names, signatures, and other information required of
33-15 persons executing or issuing, or witnessing the execution or
33-16 issuance of, the order;
33-17 (2) a date in the place designated on the form for the
33-18 date the order was executed or issued; and
33-19 (3) the signature of the declarant or persons
33-20 executing or issuing the order and the attending physician in the
33-21 appropriate places designated on the form for indicating that the
33-22 order form has been properly completed.
33-23 (e) If the conditions prescribed by Subsections (a) through
33-24 (d) are not determined to apply by the responding health care
33-25 professionals at the scene, the out-of-hospital DNR order may not
34-1 be honored and life-sustaining procedures otherwise required by law
34-2 or local emergency medical services protocols shall be initiated or
34-3 continued. Health care professionals acting in out-of-hospital
34-4 settings are not required to accept or interpret an out-of-hospital
34-5 DNR order that does not meet the requirements of this subchapter
34-6 [chapter].
34-7 (f) The out-of-hospital DNR order form, when available, must
34-8 accompany the person during transport.
34-9 (g) A record shall be made and maintained of the
34-10 circumstances of each emergency medical services response in which
34-11 an out-of-hospital DNR order or DNR identification device is
34-12 encountered, in accordance with the statewide out-of-hospital DNR
34-13 protocol and any applicable local out-of-hospital DNR protocol not
34-14 in conflict with the statewide protocol.
34-15 (h) An out-of-hospital DNR order executed or issued and
34-16 documented or evidenced in the manner prescribed by this subchapter
34-17 [chapter] is valid and shall be honored by responding health care
34-18 professionals unless the person or persons found at the scene:
34-19 (1) identify themselves as the declarant or as the
34-20 attending physician, legal guardian, qualified relative, or agent
34-21 of the person having a durable power of attorney for health care
34-22 who executed or issued the out-of-hospital DNR order on behalf of
34-23 the person; and
34-24 (2) request that cardiopulmonary resuscitation or
34-25 certain other life-sustaining procedures designated by the board be
35-1 initiated or continued.
35-2 (i) If the policies of a health care facility preclude
35-3 compliance with the out-of-hospital DNR order of a person or an
35-4 out-of-hospital DNR order issued by an attending physician on
35-5 behalf of a person who is admitted to or a resident of the
35-6 facility, or if the facility is unwilling to accept DNR
35-7 identification devices as evidence of the existence of an
35-8 out-of-hospital DNR order, that facility shall take all reasonable
35-9 steps to notify the person or, if the person is incompetent, the
35-10 person's guardian or the person or persons having authority to make
35-11 health care treatment decisions on behalf of the person, of the
35-12 facility's policy and shall take all reasonable steps to effect the
35-13 transfer of the person to the person's home or to a facility where
35-14 the provisions of this subchapter [chapter] can be carried out.
35-15 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
35-16 person who has a valid out-of-hospital DNR order under this
35-17 subchapter [chapter] may wear a DNR identification device around
35-18 the neck or on the wrist as prescribed by board rule adopted under
35-19 Section 166.103 [674.023].
35-20 (b) The presence of a DNR identification device on the body
35-21 of a person is conclusive evidence that the person has executed or
35-22 issued a valid out-of-hospital DNR order or has a valid
35-23 out-of-hospital DNR order executed or issued on the person's
35-24 behalf. Responding health care professionals shall honor the DNR
35-25 identification device as if a valid out-of-hospital DNR order form
36-1 executed or issued by the person were found in the possession of
36-2 the person.
36-3 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
36-4 ORDER. An out-of-hospital DNR order is effective until it is
36-5 revoked as prescribed by Section 166.092 [674.012].
36-6 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
36-7 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
36-8 any time without regard to the declarant's mental state or
36-9 competency. An order may be revoked by:
36-10 (1) the declarant or someone in the declarant's
36-11 presence and at the declarant's direction destroying the order form
36-12 and removing the DNR identification device, if any;
36-13 (2) a person who identifies himself or herself as the
36-14 legal guardian, as a qualified relative, or as the agent of the
36-15 declarant having a durable power of attorney for health care who
36-16 executed the out-of-hospital DNR order or another person in the
36-17 person's presence and at the person's direction destroying the
36-18 order form and removing the DNR identification device, if any;
36-19 (3) the declarant communicating the declarant's intent
36-20 to revoke the order; or
36-21 (4) a person who identifies himself or herself as the
36-22 legal guardian, a qualified relative, or the agent of the declarant
36-23 having a durable power of attorney for health care who executed the
36-24 out-of-hospital DNR order orally stating the person's intent to
36-25 revoke the order.
37-1 (b) An oral revocation under Subsection (a)(3) or (a)(4)
37-2 takes effect only when the declarant or a person who identifies
37-3 himself or herself as the legal guardian, a qualified relative, or
37-4 the agent of the declarant having a durable power of attorney for
37-5 health care who executed the out-of-hospital DNR order communicates
37-6 the intent to revoke the order to the responding health care
37-7 professionals or the attending physician at the scene. The
37-8 responding health care professionals shall record the time, date,
37-9 and place of the revocation in accordance with the statewide
37-10 out-of-hospital DNR protocol and rules adopted by the board and any
37-11 applicable local out-of-hospital DNR protocol. The attending
37-12 physician or the physician's designee shall record in the person's
37-13 medical record the time, date, and place of the revocation and, if
37-14 different, the time, date, and place that the physician received
37-15 notice of the revocation. The attending physician or the
37-16 physician's designee shall also enter the word "VOID" on each page
37-17 of the copy of the order in the person's medical record.
37-18 (c) Except as otherwise provided by this subchapter
37-19 [chapter], a person is not civilly or criminally liable for failure
37-20 to act on a revocation made under this section unless the person
37-21 has actual knowledge of the revocation.
37-22 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
37-23 ORDER. A declarant may at any time reexecute or reissue an
37-24 out-of-hospital DNR order in accordance with the procedures
37-25 prescribed by Section 166.082 [674.002], including reexecution or
38-1 reissuance after the declarant is diagnosed as having a terminal
38-2 condition.
38-3 Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW
38-4 [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE. To the extent
38-5 that an out-of-hospital DNR order conflicts with a directive or
38-6 treatment decision executed or issued under Subchapter B [Chapter
38-7 672] or a durable power of attorney for health care [executed or
38-8 issued in accordance with Chapter 135, Civil Practice and Remedies
38-9 Code], the instrument executed later in time controls.
38-10 Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER
38-11 ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
38-12 executed or issued an out-of-hospital DNR order under this
38-13 subchapter [chapter] does not:
38-14 (1) restrict, inhibit, or impair in any manner the
38-15 sale, procurement, or issuance of a life insurance policy to that
38-16 person; or
38-17 (2) modify the terms of an existing life insurance
38-18 policy.
38-19 (b) Notwithstanding the terms of any life insurance policy,
38-20 the fact that cardiopulmonary resuscitation or certain other
38-21 life-sustaining procedures designated by the board are withheld
38-22 from an insured person under this subchapter [chapter] does not
38-23 legally impair or invalidate that person's life insurance policy
38-24 and may not be a factor for the purpose of determining the
38-25 payability of benefits or the cause of death under the life
39-1 insurance policy.
39-2 (c) A physician, health facility, health care provider,
39-3 insurer, or health care service plan may not require a person to
39-4 execute or issue an out-of-hospital DNR order as a condition for
39-5 obtaining insurance for health care services or receiving health
39-6 care services.
39-7 (d) The fact that a person has executed or issued or failed
39-8 to execute or issue an out-of-hospital DNR order under this
39-9 subchapter [chapter] may not be considered in any way in
39-10 establishing insurance premiums.
39-11 Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR
39-12 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
39-13 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
39-14 health care facility or entity that in good faith causes
39-15 cardiopulmonary resuscitation or certain other life-sustaining
39-16 procedures designated by the board to be withheld from a person in
39-17 accordance with this subchapter [chapter] is not civilly liable for
39-18 that action.
39-19 (b) A health care professional or health care facility or
39-20 entity that in good faith participates in withholding
39-21 cardiopulmonary resuscitation or certain other life-sustaining
39-22 procedures designated by the board from a person in accordance with
39-23 this subchapter [chapter] is not civilly liable for that action.
39-24 (c) A health care professional or health care facility or
39-25 entity that in good faith participates in withholding
40-1 cardiopulmonary resuscitation or certain other life-sustaining
40-2 procedures designated by the board from a person in accordance with
40-3 this subchapter [chapter] is not criminally liable or guilty of
40-4 unprofessional conduct as a result of that action.
40-5 (d) A health care professional or health care facility or
40-6 entity that in good faith causes or participates in withholding
40-7 cardiopulmonary resuscitation or certain other life-sustaining
40-8 procedures designated by the board from a person in accordance with
40-9 this subchapter [chapter] and rules adopted under this subchapter
40-10 [chapter] is not in violation of any other licensing or regulatory
40-11 laws or rules of this state and is not subject to any disciplinary
40-12 action or sanction by any licensing or regulatory agency of this
40-13 state as a result of that action.
40-14 Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
40-15 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
40-16 professional or health care facility or entity that has no actual
40-17 knowledge of an out-of-hospital DNR order is not civilly or
40-18 criminally liable for failing to act in accordance with the order.
40-19 (b) A health care professional or health care facility or
40-20 entity is not civilly or criminally liable for failing to
40-21 effectuate an out-of-hospital DNR order.
40-22 (c) If an attending physician refuses to execute or comply
40-23 with an out-of-hospital DNR order, the physician shall inform the
40-24 person, the legal guardian or qualified relatives of the person, or
40-25 the agent of the person having a durable power of attorney for
41-1 health care and, if the person or another authorized to act on
41-2 behalf of the person so directs, shall make a reasonable effort to
41-3 transfer the person to another physician who is willing to execute
41-4 or comply with an out-of-hospital DNR order.
41-5 Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
41-6 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
41-7 commit an offense under Section 22.08, Penal Code, by withholding
41-8 cardiopulmonary resuscitation or certain other life-sustaining
41-9 procedures designated by the board from a person in accordance with
41-10 this subchapter [chapter].
41-11 Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION.
41-12 (a) A person commits an offense if the person intentionally
41-13 conceals, cancels, defaces, obliterates, or damages another
41-14 person's out-of-hospital DNR order or DNR identification device
41-15 without that person's consent or the consent of the person or
41-16 persons authorized to execute or issue an out-of-hospital DNR order
41-17 on behalf of the person under this subchapter [chapter]. An
41-18 offense under this subsection is a Class A misdemeanor.
41-19 (b) A person is subject to prosecution for criminal homicide
41-20 under Chapter 19, Penal Code, if the person, with the intent to
41-21 cause cardiopulmonary resuscitation or certain other
41-22 life-sustaining procedures designated by the board to be withheld
41-23 from another person contrary to the other person's desires,
41-24 falsifies or forges an out-of-hospital DNR order or intentionally
41-25 conceals or withholds personal knowledge of a revocation and
42-1 thereby directly causes cardiopulmonary resuscitation and certain
42-2 other life-sustaining procedures designated by the board to be
42-3 withheld from the other person with the result that the other
42-4 person's death is hastened.
42-5 Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not
42-6 withhold cardiopulmonary resuscitation or certain other
42-7 life-sustaining procedures designated by the board under this
42-8 subchapter [chapter] from a person known by the responding health
42-9 care professionals to be pregnant.
42-10 Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This
42-11 subchapter [chapter] does not condone, authorize, or approve mercy
42-12 killing or permit an affirmative or deliberate act or omission to
42-13 end life except to permit the natural process of dying as provided
42-14 by this subchapter [chapter].
42-15 Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
42-16 AFFECTED. This subchapter [chapter] does not impair or supersede
42-17 any legal right or responsibility a person may have under a
42-18 constitution, other statute, regulation, or court decision to
42-19 effect the withholding of cardiopulmonary resuscitation or certain
42-20 other life-sustaining procedures designated by the board.
42-21 Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
42-22 (a) The board shall, on the recommendation of the department,
42-23 adopt all reasonable and necessary rules to carry out the purposes
42-24 of this subchapter [chapter], including rules:
42-25 (1) adopting a statewide out-of-hospital DNR order
43-1 protocol that sets out standard procedures for the withholding of
43-2 cardiopulmonary resuscitation and certain other life-sustaining
43-3 procedures by health care professionals acting in out-of-hospital
43-4 settings;
43-5 (2) designating life-sustaining procedures that may be
43-6 included in an out-of-hospital DNR order, including all procedures
43-7 listed in Sections 166.081(6)(A)(i) through (vi) [Section
43-8 674.001(14)(A)(i) through (vi)]; and
43-9 (3) governing recordkeeping in circumstances in which
43-10 an out-of-hospital DNR order or DNR identification device is
43-11 encountered by responding health care professionals.
43-12 (b) The rules adopted by the board under Subsection (a) are
43-13 not effective until approved by the Texas State Board of Medical
43-14 Examiners.
43-15 (c) Local emergency medical services authorities may adopt
43-16 local out-of-hospital DNR order protocols if the local protocols do
43-17 not conflict with the statewide out-of-hospital DNR order protocol
43-18 adopted by the board.
43-19 (d) The board by rule shall specify a distinctive standard
43-20 design for a necklace and a bracelet DNR identification device that
43-21 signifies, when worn by a person, that the possessor has executed
43-22 or issued a valid out-of-hospital DNR order under this subchapter
43-23 [chapter] or is a person for whom a valid out-of-hospital DNR order
43-24 has been executed or issued.
43-25 (e) The department shall report to the board from time to
44-1 time regarding issues identified in emergency medical services
44-2 responses in which an out-of-hospital DNR order or DNR
44-3 identification device is encountered. The report may contain
44-4 recommendations to the board for necessary modifications to the
44-5 form of the standard out-of-hospital DNR order or the designated
44-6 life-sustaining procedures listed in the standard out-of-hospital
44-7 DNR order, the statewide out-of-hospital DNR order protocol, or the
44-8 DNR identification devices.
44-9 Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR
44-10 ORDER EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR
44-11 order executed, issued, or authorized in another state or a
44-12 territory or possession of the United States in compliance with the
44-13 law of that jurisdiction is effective for purposes of this
44-14 subchapter [chapter].
44-15 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
44-16 is transferred to Subtitle H, Title 2, Health and Safety Code, is
44-17 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
44-18 and is amended to read as follows:
44-19 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
44-20 HEALTH CARE
44-21 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
44-22 [chapter]:
44-23 (1) "Adult" means a person 18 years of age or older or
44-24 a person under 18 years of age who has had the disabilities of
44-25 minority removed.
45-1 (2) "Agent" means an adult to whom authority to make
45-2 health care decisions is delegated under a durable power of
45-3 attorney for health care.
45-4 (3) ["Attending physician" means the physician,
45-5 selected by or assigned to a patient, who has primary
45-6 responsibility for the treatment and care of the patient.]
45-7 [(4) "Capacity to make health care decisions" means
45-8 the ability to understand and appreciate the nature and
45-9 consequences of a health care decision, including the significant
45-10 benefits and harms of and reasonable alternatives to any proposed
45-11 health care.]
45-12 [(5) "Durable power of attorney for health care" means
45-13 a document delegating to an agent the authority to make health care
45-14 decisions as provided by this chapter.]
45-15 [(6) "Health care decision" means consent, refusal to
45-16 consent, or withdrawal of consent to health care, treatment,
45-17 service, or procedure to maintain, diagnose, or treat an
45-18 individual's physical or mental condition.]
45-19 [(7)] "Health care provider" means an individual or
45-20 facility licensed, certified, or otherwise authorized to administer
45-21 health care, for profit or otherwise, in the ordinary course of
45-22 business or professional practice and includes a physician.
45-23 (4) [(8) "Physician" means:]
45-24 [(A) a physician licensed by the Texas State
45-25 Board of Medical Examiners; or]
46-1 [(B) a physician with proper credentials who
46-2 holds a commission in a branch of the armed services of the United
46-3 States and who is serving on active duty in this state.]
46-4 [(9)] "Principal" means an adult who has executed a
46-5 durable power of attorney for health care.
46-6 (5) [(10)] "Residential care provider" means an
46-7 individual or facility licensed, certified, or otherwise authorized
46-8 to operate, for profit or otherwise, a residential care home.
46-9 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
46-10 (a) Subject to this subchapter [chapter] or any express limitation
46-11 on the authority of the agent contained in the durable power of
46-12 attorney for health care, the agent may make any health care
46-13 decision on the principal's behalf that the principal could make if
46-14 the principal were competent [but for the principal's lack of
46-15 capacity to make health care decisions].
46-16 (b) An agent may exercise authority only if the principal's
46-17 attending physician certifies in writing and files the
46-18 certification in the principal's medical record that, based on the
46-19 attending physician's reasonable medical judgment, the principal is
46-20 incompetent [lacks capacity to make health care decisions].
46-21 (c) Notwithstanding any other provisions of this subchapter
46-22 [chapter], treatment may not be given to or withheld from the
46-23 principal if the principal objects regardless of whether, at the
46-24 time of the objection:
46-25 (1) a durable power of attorney for health care is in
47-1 effect; or
47-2 (2) the principal is competent [has the capacity to
47-3 make health care decisions].
47-4 (d) The principal's attending physician shall make
47-5 reasonable efforts to inform the principal of any proposed
47-6 treatment or of any proposal to withdraw or withhold treatment
47-7 before implementing an agent's directive.
47-8 (e) After consultation with the attending physician and
47-9 other health care providers, the agent shall make a health care
47-10 decision:
47-11 (1) according to the agent's knowledge of the
47-12 principal's wishes, including the principal's religious and moral
47-13 beliefs; or
47-14 (2) if the agent does not know the principal's wishes,
47-15 according to the agent's assessment of the principal's best
47-16 interests.
47-17 (f) Notwithstanding any other provision of this subchapter
47-18 [chapter], an agent may not consent to:
47-19 (1) voluntary inpatient mental health services;
47-20 (2) convulsive treatment;
47-21 (3) psychosurgery;
47-22 (4) abortion; or
47-23 (5) neglect of the principal through the omission of
47-24 care primarily intended to provide for the comfort of the
47-25 principal.
48-1 (g) The power of attorney is effective indefinitely on
48-2 execution as provided by this subchapter [chapter] and delivery of
48-3 the document to the agent, unless it is revoked as provided by this
48-4 subchapter [chapter] or the principal becomes competent [regains
48-5 the capacity to make health care decisions]. If the durable power
48-6 of attorney includes an expiration date and on that date the
48-7 principal becomes incompetent [lacks the capacity to make health
48-8 care decisions], the power of attorney continues to be effective
48-9 until the principal becomes competent [regains the capacity to make
48-10 health care decisions] unless it is revoked as provided by this
48-11 subchapter [chapter].
48-12 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
48-13 AUTHORITY OF AGENT. A person may not exercise the authority of an
48-14 agent while the person serves as:
48-15 (1) the principal's health care provider;
48-16 (2) an employee of the principal's health care
48-17 provider unless the person is a relative of the principal;
48-18 (3) the principal's residential care provider; or
48-19 (4) an employee of the principal's residential care
48-20 provider unless the person is a relative of the principal.
48-21 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
48-22 durable power of attorney for health care must be signed by the
48-23 principal in the presence of at least two [or more] subscribing
48-24 witnesses.
48-25 (b) A witness must possess the qualifications and be subject
49-1 to the restrictions provided by Section 166.003. In addition, a
49-2 witness may not, at the time of execution, be[:]
49-3 [(1)] the agent[;]
49-4 [(2) the principal's health or residential care
49-5 provider or the provider's employee;]
49-6 [(3) the principal's spouse or heir;]
49-7 [(4) a person entitled to any part of the estate of
49-8 the principal on the death of the principal under a will or deed in
49-9 existence or by operation of law; or]
49-10 [(5) any other person who has any claim against the
49-11 estate] of the principal.
49-12 (c) The witnesses shall affirm that, at the time the durable
49-13 power of attorney for health care was signed, the principal:
49-14 (1) [appeared to be of sound mind to make a health
49-15 care decision;]
49-16 [(2)] stated in the witness's presence that the
49-17 principal was aware of the nature of the durable power of attorney
49-18 for health care and that the principal was signing the document
49-19 voluntarily and free from any duress; and
49-20 (2) [(3)] requested that the witness serve as a
49-21 witness to the principal's execution of the document.
49-22 (d) If the principal is physically unable to sign, another
49-23 person may sign the durable power of attorney for health care with
49-24 the principal's name in the principal's presence and at the
49-25 principal's express direction.
50-1 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
50-2 attorney for health care is revoked by:
50-3 (1) oral or written notification at any time by the
50-4 principal to the agent or a licensed or certified health or
50-5 residential care provider or by any other act evidencing a specific
50-6 intent to revoke the power, without regard to whether the principal
50-7 is competent or the principal's mental state[, competency, or
50-8 capacity to make health care decisions];
50-9 (2) execution by the principal of a subsequent durable
50-10 power of attorney for health care; or
50-11 (3) the divorce of the principal and spouse, if the
50-12 spouse is the principal's agent.
50-13 (b) A principal's licensed or certified health or
50-14 residential care provider who is informed of or provided with a
50-15 revocation of a durable power of attorney for health care shall
50-16 immediately record the revocation in the principal's medical record
50-17 and give notice of the revocation to the agent and any known health
50-18 and residential care providers currently responsible for the
50-19 principal's care.
50-20 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
50-21 motion filed in connection with a petition for appointment of a
50-22 guardian or, if a guardian has been appointed, on petition of the
50-23 guardian, a probate court shall determine whether to suspend or
50-24 revoke the authority of the agent.
50-25 (b) The court shall consider the preferences of the
51-1 principal as expressed in the durable power of attorney for health
51-2 care.
51-3 (c) During the pendency of the court's determination under
51-4 Subsection (a), the guardian has the sole authority to make any
51-5 health care decisions unless the court orders otherwise. If a
51-6 guardian has not been appointed, the agent has the authority to
51-7 make any health care decisions unless the court orders otherwise.
51-8 (d) A person, including any attending physician or health or
51-9 residential care provider, who does not have actual knowledge of
51-10 the appointment of a guardian or an order of the court granting
51-11 authority to someone other than the agent to make health care
51-12 decisions is not subject to criminal or civil liability and has not
51-13 engaged in unprofessional conduct for implementing an agent's
51-14 health care decision.
51-15 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
51-16 Subject to any limitations in the durable power of attorney for
51-17 health care, an agent may, for the purpose of making a health care
51-18 decision:
51-19 (1) request, review, and receive any information, oral
51-20 or written, regarding the principal's physical or mental health,
51-21 including medical and hospital records;
51-22 (2) execute a release or other document required to
51-23 obtain the information; and
51-24 (3) consent to the disclosure of the information.
51-25 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
52-1 PROVIDER. (a) A principal's health or residential care provider
52-2 and an employee of the provider who knows of the existence of the
52-3 principal's durable power of attorney for health care shall follow
52-4 a directive of the principal's agent to the extent it is consistent
52-5 with the desires of the principal, this subchapter [chapter], and
52-6 the durable power of attorney for health care.
52-7 (b) The attending physician does not have a duty to verify
52-8 that the agent's directive is consistent with the principal's
52-9 wishes or religious or moral beliefs.
52-10 (c) A principal's health or residential care provider who
52-11 finds it impossible to follow a directive by the agent because of a
52-12 conflict with this subchapter [chapter] or the durable power of
52-13 attorney for health care shall inform the agent as soon as is
52-14 reasonably possible. The agent may select another attending
52-15 physician.
52-16 (d) This subchapter [chapter] may not be construed to
52-17 require a health or residential care provider who is not a
52-18 physician to act in a manner contrary to a physician's order.
52-19 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
52-20 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
52-21 residential care provider, health care service plan, insurer
52-22 issuing disability insurance, self-insured employee benefit plan,
52-23 or nonprofit hospital service plan may not:
52-24 (1) charge a person a different rate solely because
52-25 the person has executed a durable power of attorney for health
53-1 care;
53-2 (2) require a person to execute a durable power of
53-3 attorney for health care before:
53-4 (A) admitting the person to a hospital, nursing
53-5 home, or residential care home;
53-6 (B) insuring the person; or
53-7 (C) allowing the person to receive health or
53-8 residential care; or
53-9 (3) refuse health or residential care to a person
53-10 solely because the person has executed a durable power of attorney
53-11 for health care.
53-12 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
53-13 agent is not subject to criminal or civil liability for a health
53-14 care decision if the decision is made in good faith under the terms
53-15 of the durable power of attorney for health care and the provisions
53-16 of this subchapter [chapter].
53-17 (b) An attending physician, health or residential care
53-18 provider, or a person acting as an agent for or under the
53-19 physician's or provider's control is not subject to criminal or
53-20 civil liability and has not engaged in unprofessional conduct for
53-21 an act or omission if the act or omission:
53-22 (1) is done in good faith under the terms of the
53-23 durable power of attorney for health care, the directives of the
53-24 agent, and the provisions of this subchapter [chapter]; and
53-25 (2) does not constitute a failure to exercise due care
54-1 in the provision of health care services.
54-2 (c) An attending physician, health or residential care
54-3 provider, or person acting as an agent for or under the physician's
54-4 or provider's control has not engaged in unprofessional conduct
54-5 for:
54-6 (1) failure to act as required by the directive of an
54-7 agent or a durable power of attorney for health care if the
54-8 physician, provider, or person was not provided with a copy of the
54-9 durable power of attorney for health care or had no knowledge of a
54-10 directive; or
54-11 (2) acting as required by an agent's directive if the
54-12 durable power of attorney for health care has expired or been
54-13 revoked but the physician, provider, or person does not have
54-14 knowledge of the expiration or revocation.
54-15 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
54-16 Liability for the cost of health care provided as a result of the
54-17 agent's decision is the same as if the health care were provided as
54-18 a result of the principal's decision.
54-19 Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the
54-20 extent that a durable power of attorney for health care conflicts
54-21 with a directive or treatment decision executed under Subchapter B
54-22 [the Natural Death Act (Chapter 672, Health and Safety Code)], the
54-23 instrument executed later in time controls. A physician who
54-24 withholds or withdraws life-sustaining procedures from a principal
54-25 with a terminal condition as required by an agent's directive is
55-1 not required to comply with Subchapter B [the Natural Death Act].
55-2 Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF
55-3 ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This subchapter
55-4 [chapter] does not limit the enforceability of a durable power of
55-5 attorney for health care or similar instrument executed in another
55-6 state or jurisdiction if the instrument complies with the law of
55-7 the state or jurisdiction.
55-8 Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable
55-9 power of attorney for health care is not effective unless the
55-10 principal, before executing the durable power of attorney for
55-11 health care, signs a statement that the principal has received a
55-12 disclosure statement and has read and understood its contents.
55-13 Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The
55-14 disclosure statement must be in substantially the following form:
55-15 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
55-16 HEALTH CARE
55-17 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING
55-18 THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
55-19 Except to the extent you state otherwise, this
55-20 document gives the person you name as your agent the
55-21 authority to make any and all health care decisions for
55-22 you in accordance with your wishes, including your
55-23 religious and moral beliefs, when you are no longer
55-24 capable of making them yourself. Because "health care"
55-25 means any treatment, service, or procedure to maintain,
56-1 diagnose, or treat your physical or mental condition,
56-2 your agent has the power to make a broad range of
56-3 health care decisions for you. Your agent may consent,
56-4 refuse to consent, or withdraw consent to medical
56-5 treatment and may make decisions about withdrawing or
56-6 withholding life-sustaining treatment. Your agent may
56-7 not consent to voluntary inpatient mental health
56-8 services, convulsive treatment, psychosurgery, or
56-9 abortion. A physician must comply with your agent's
56-10 instructions or allow you to be transferred to another
56-11 physician.
56-12 Your agent's authority begins when your doctor
56-13 certifies that you lack the capacity to make health
56-14 care decisions.
56-15 Your agent is obligated to follow your
56-16 instructions when making decisions on your behalf.
56-17 Unless you state otherwise, your agent has the same
56-18 authority to make decisions about your health care as
56-19 you would have had.
56-20 It is important that you discuss this document
56-21 with your physician or other health care provider
56-22 before you sign it to make sure that you understand the
56-23 nature and range of decisions that may be made on your
56-24 behalf. If you do not have a physician, you should
56-25 talk with someone else who is knowledgeable about these
57-1 issues and can answer your questions. You do not need
57-2 a lawyer's assistance to complete this document, but if
57-3 there is anything in this document that you do not
57-4 understand, you should ask a lawyer to explain it to
57-5 you.
57-6 The person you appoint as agent should be someone
57-7 you know and trust. The person must be 18 years of age
57-8 or older or a person under 18 years of age who has had
57-9 the disabilities of minority removed. If you appoint
57-10 your health or residential care provider (e.g., your
57-11 physician or an employee of a home health agency,
57-12 hospital, nursing home, or residential care home, other
57-13 than a relative), that person has to choose between
57-14 acting as your agent or as your health or residential
57-15 care provider; the law does not permit a person to do
57-16 both at the same time.
57-17 You should inform the person you appoint that you
57-18 want the person to be your health care agent. You
57-19 should discuss this document with your agent and your
57-20 physician and give each a signed copy. You should
57-21 indicate on the document itself the people and
57-22 institutions who have signed copies. Your agent is not
57-23 liable for health care decisions made in good faith on
57-24 your behalf.
57-25 Even after you have signed this document, you
58-1 have the right to make health care decisions for
58-2 yourself as long as you are able to do so and treatment
58-3 cannot be given to you or stopped over your objection.
58-4 You have the right to revoke the authority granted to
58-5 your agent by informing your agent or your health or
58-6 residential care provider orally or in writing or by
58-7 your execution of a subsequent durable power of
58-8 attorney for health care. Unless you state otherwise,
58-9 your appointment of a spouse dissolves on divorce.
58-10 This document may not be changed or modified. If
58-11 you want to make changes in the document, you must make
58-12 an entirely new one.
58-13 You may wish to designate an alternate agent in
58-14 the event that your agent is unwilling, unable, or
58-15 ineligible to act as your agent. Any alternate agent
58-16 you designate has the same authority to make health
58-17 care decisions for you.
58-18 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED
58-19 IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.
58-20 THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
58-21 (1) the person you have designated as your
58-22 agent;
58-23 (2) a person related to you by blood or
58-24 marriage [your health or residential care provider or
58-25 an employee of your health or residential care
59-1 provider];
59-2 (3) a person entitled to any part of your
59-3 estate after your death under a will or codicil
59-4 executed by you or by operation of law [your spouse];
59-5 (4) your attending physician [lawful heirs
59-6 or beneficiaries named in your will or a deed]; [or]
59-7 (5) an employee of the attending
59-8 physician;
59-9 (6) an employee of a health care facility
59-10 in which you are a patient if the employee is providing
59-11 direct patient care to you or is an officer, director,
59-12 partner, or business office employee of the health care
59-13 facility or of any parent organization of the health
59-14 care facility; or
59-15 (7) a person who, at the time this power
59-16 of attorney is executed, has a claim against any part
59-17 of your estate after your death [creditors or persons
59-18 who have a claim against you].
59-19 Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
59-20 The durable power of attorney for health care must be in
59-21 substantially the following form:
59-22 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
59-23 DESIGNATION OF HEALTH CARE AGENT.
59-24 I,_____________________________(insert your name)
59-25 appoint:
60-1 Name:____________________________________________
60-2 Address:_________________________________________
60-3 Phone________________________________
60-4 as my agent to make any and all health care decisions
60-5 for me, except to the extent I state otherwise in this
60-6 document. This durable power of attorney for health
60-7 care takes effect if I become unable to make my own
60-8 health care decisions and this fact is certified in
60-9 writing by my physician.
60-10 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY
60-11 AGENT ARE AS FOLLOWS:___________________________
60-12 _______________________________________________________
60-13 DESIGNATION OF ALTERNATE AGENT.
60-14 (You are not required to designate an alternate
60-15 agent but you may do so. An alternate agent may make
60-16 the same health care decisions as the designated agent
60-17 if the designated agent is unable or unwilling to act
60-18 as your agent. If the agent designated is your spouse,
60-19 the designation is automatically revoked by law if your
60-20 marriage is dissolved.)
60-21 If the person designated as my agent is unable or
60-22 unwilling to make health care decisions for me, I
60-23 designate the following persons to serve as my agent to
60-24 make health care decisions for me as authorized by this
60-25 document, who serve in the following order:
61-1 A. First Alternate Agent
61-2 Name:________________________________________
61-3 Address:_____________________________________
61-4 Phone____________________________
61-5 B. Second Alternate Agent
61-6 Name:________________________________________
61-7 Address:_____________________________________
61-8 Phone____________________________
61-9 The original of this document is kept
61-10 at_____________________________________________________
61-11 _______________________________________________________
61-12 _______________________________________________________
61-13 The following individuals or institutions have signed
61-14 copies:
61-15 Name:____________________________________________
61-16 Address:_________________________________________
61-17 _________________________________________________
61-18 Name:____________________________________________
61-19 Address:_________________________________________
61-20 _________________________________________________
61-21 DURATION.
61-22 I understand that this power of attorney exists
61-23 indefinitely from the date I execute this document
61-24 unless I establish a shorter time or revoke the power
61-25 of attorney. If I am unable to make health care
62-1 decisions for myself when this power of attorney
62-2 expires, the authority I have granted my agent
62-3 continues to exist until the time I become able to make
62-4 health care decisions for myself.
62-5 (IF APPLICABLE) This power of attorney ends on
62-6 the following date:________________
62-7 PRIOR DESIGNATIONS REVOKED.
62-8 I revoke any prior durable power of attorney for
62-9 health care.
62-10 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
62-11 I have been provided with a disclosure statement
62-12 explaining the effect of this document. I have read
62-13 and understand that information contained in the
62-14 disclosure statement.
62-15 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
62-16 I sign my name to this durable power of attorney for
62-17 health care on _____ day of ______________ 19 _________
62-18 at_________________________________________________
62-19 (City and State)
62-20 ___________________________________________________
62-21 (Signature)
62-22 ___________________________________________________
62-23 (Print Name)
62-24 STATEMENT OF WITNESSES.
62-25 I declare under penalty of perjury that the
63-1 principal has identified himself or herself to me, that
63-2 the principal signed or acknowledged this durable power
63-3 of attorney in my presence, [that I believe the
63-4 principal to be of sound mind,] that the principal has
63-5 affirmed that the principal is aware of the nature of
63-6 the document and is signing it voluntarily and free
63-7 from duress, that the principal requested that I serve
63-8 as witness to the principal's execution of this
63-9 document, that I am not the person appointed as agent
63-10 by this document, and that I am not related to the
63-11 principal by blood or marriage, I would not be entitled
63-12 to any portion of the principal's estate on the
63-13 principal's death, I am not the attending physician of
63-14 the principal or an employee of the attending
63-15 physician, and I have no claim against any portion of
63-16 the principal's estate on the principal's death.
63-17 Furthermore, if I am an employee of a health care
63-18 facility in which the principal is a patient, I am not
63-19 involved in providing direct patient care to the
63-20 principal and am not an officer, director, partner, or
63-21 business office employee of the health care facility or
63-22 of any parent organization of the health care
63-23 facility [a provider of health or residential care, an
63-24 employee of a provider of health or residential care,
63-25 the operator of a community care facility, or an
64-1 employee of an operator of a health care facility.]
64-2 [I declare that I am not related to the principal
64-3 by blood, marriage, or adoption and that to the best of
64-4 my knowledge I am not entitled to any part of the
64-5 estate of the principal on the death of the principal
64-6 under a will or by operation of law].
64-7 Witness Signature:_____________________________________
64-8 Print Name:_______________________Date:________________
64-9 Address:_______________________________________________
64-10 Witness Signature:_____________________________________
64-11 Print Name:_______________________Date:________________
64-12 Address:_______________________________________________
64-13 Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is
64-14 a near relative of the principal or a responsible adult who is
64-15 directly interested in the principal, including a guardian, social
64-16 worker, physician, or clergyman, may bring an action in district
64-17 court to request that the durable power of attorney for health care
64-18 be revoked because the principal, at the time the durable power of
64-19 attorney for health care was signed:
64-20 (1) was not competent [of sound mind to make a health
64-21 care decision]; or
64-22 (2) was under duress, fraud, or undue influence.
64-23 (b) The action may be brought in the county of the
64-24 principal's residence or the residence of the person bringing the
64-25 action.
65-1 (c) During the pendency of the action, the authority of the
65-2 agent to make health care decisions continues in effect unless the
65-3 district court orders otherwise.
65-4 Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
65-5 AFFECTED. This subchapter [chapter] does not limit or impair any
65-6 legal right or responsibility that any person, including a
65-7 physician or health or residential care provider, may have to make
65-8 or implement health care decisions on behalf of a person.
65-9 ARTICLE 2. CONFORMING AMENDMENTS
65-10 SECTION 2.01. Subsection (a), Section 313.003, Health and
65-11 Safety Code, is amended to read as follows:
65-12 (a) This chapter does not apply to:
65-13 (1) a decision to withhold or withdraw life-sustaining
65-14 treatment from qualified terminal patients under Subchapter B,
65-15 Chapter 166 [the terms of Chapter 672];
65-16 (2) a health care decision made under a durable power
65-17 of attorney for health care under Subchapter D, Chapter 166
65-18 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
65-19 XII, Texas Probate Code;
65-20 (3) consent to medical treatment of minors under
65-21 Chapter 32 [35], Family Code;
65-22 (4) consent for emergency care under Chapter 773;
65-23 (5) hospital patient transfers under Chapter 241; or
65-24 (6) a patient's legal guardian who has the authority
65-25 to make a decision regarding the patient's medical treatment.
66-1 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
66-2 Code, is amended by adding Section 142.0145 to read as follows:
66-3 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
66-4 DIRECTIVES. (a) The department shall assess an administrative
66-5 penalty against a home and community support services agency that
66-6 violates Section 166.004.
66-7 (b) A penalty assessed under this section shall be $500.
66-8 (c) The penalty shall be assessed in accordance with
66-9 department rules. The rules must provide for notice and an
66-10 opportunity for a hearing.
66-11 SECTION 2.03. Subsections (a) and (c), Section 241.059,
66-12 Health and Safety Code, are amended to read as follows:
66-13 (a) The commissioner of health may assess an administrative
66-14 penalty against a hospital that violates this chapter, a rule
66-15 adopted pursuant to this chapter, a special license provision, an
66-16 order or emergency order issued by the commissioner or the
66-17 commissioner's designee, or another enforcement procedure permitted
66-18 under this chapter. The commissioner shall assess an
66-19 administrative penalty against a hospital that violates Section
66-20 166.004.
66-21 (c) The penalty may not exceed $1,000 for each violation,
66-22 except that the penalty for a violation of Section 166.004 shall be
66-23 $500. Each day of a continuing violation, other than a violation
66-24 of Section 166.004, may be considered a separate violation.
66-25 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
67-1 Code, is amended by adding Section 242.071 to read as follows:
67-2 Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE
67-3 DIRECTIVES. The commissioner shall assess an administrative
67-4 penalty under this subchapter against an institution that violates
67-5 Section 166.004. Notwithstanding Sections 242.066(b) and (c), a
67-6 penalty assessed in accordance with this section shall be $500 and
67-7 a separate penalty may not be assessed for a separate day of a
67-8 continuing violation.
67-9 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
67-10 Code, is amended by adding Section 247.0455 to read as follows:
67-11 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
67-12 DIRECTIVES. (a) The department shall assess an administrative
67-13 penalty against a personal care facility that violates Section
67-14 166.004.
67-15 (b) A penalty assessed under this section shall be $500.
67-16 (c) The penalty shall be assessed in accordance with
67-17 department rules. The rules must provide for notice and an
67-18 opportunity for a hearing.
67-19 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
67-20 Code, is amended by adding Section 248.0545 to read as follows:
67-21 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
67-22 DIRECTIVES. (a) The department shall assess an administrative
67-23 penalty against a special care facility that violates Section
67-24 166.004.
67-25 (b) A penalty assessed under this section shall be $500.
68-1 (c) The penalty shall be assessed in accordance with
68-2 department rules. The rules must provide for notice and an
68-3 opportunity for a hearing.
68-4 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
68-5 SECTION 3.01. This Act takes effect January 1, 1998.
68-6 SECTION 3.02. The change in law made by this Act does not
68-7 affect the validity of a document executed under Chapter 672 or
68-8 674, Health and Safety Code, or Chapter 135, Civil Practice and
68-9 Remedies Code, before the effective date of this Act. A document
68-10 executed before the effective date of this Act is governed by the
68-11 law in effect on the date the document was executed, and that law
68-12 continues in effect for that purpose.
68-13 SECTION 3.03. (a) The change in law made by this Act
68-14 applies only to the punishment for an offense committed on or after
68-15 the effective date of this Act. For purposes of this section, an
68-16 offense is committed before the effective date of this Act if any
68-17 element of the offense occurs before the effective date.
68-18 (b) An offense committed before the effective date of this
68-19 Act is covered by the law in effect when the offense was committed,
68-20 and the former law is continued in effect for that purpose.
68-21 SECTION 3.04. The importance of this legislation and the
68-22 crowded condition of the calendars in both houses create an
68-23 emergency and an imperative public necessity that the
68-24 constitutional rule requiring bills to be read on three several
68-25 days in each house be suspended, and this rule is hereby suspended.
S.B. No. 414
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 414 passed the Senate on
April 2, 1997, by the following vote: Yeas 31, Nays 0;
May 29, 1997, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 30, 1997, House
granted request of the Senate; June 1, 1997, Senate adopted
Conference Committee Report by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 414 passed the House, with
amendments, on May 27, 1997, by a non-record vote; May 30, 1997,
House granted request of the Senate for appointment of Conference
Committee; June 1, 1997, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor