1-1 By: Moncrief S.B. No. 414
A BILL TO BE ENTITLED
AN ACT
1-2 relating to certain advance directives for medical treatment;
1-3 providing administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. ADVANCE DIRECTIVES
1-6 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-7 is amended by adding a chapter heading for Chapter 166 to read as
1-8 follows:
1-9 CHAPTER 166. ADVANCE DIRECTIVES
1-10 SECTION 1.02. Subtitle H, Title 2, Health and Safety Code,
1-11 is amended by adding Subchapter A, Chapter 166, to read as follows:
1-12 SUBCHAPTER A. GENERAL PROVISIONS
1-13 Sec. 166.001. SHORT TITLE. This chapter may be cited as the
1-14 Advance Directives Act.
1-15 Sec. 166.002. DEFINITIONS. In this chapter:
1-16 (1) "Advance directive" means:
1-17 (A) a directive, as that term is defined by
1-18 Section 166.031; or
1-19 (B) an out-of-hospital DNR order, as that term
1-20 is defined by Section 166.081.
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.
1-24 (3) "Competent" means possessing the ability, based on
1-25 reasonable medical judgment, to understand and appreciate the
1-26 nature and consequences of a treatment decision, including the
1-27 significant benefits and harms of and reasonable alternatives to a
1-28 proposed treatment decision.
1-29 (4) "Declarant" means a person who has executed or
1-30 issued a directive under this chapter.
1-31 (5) "Durable power of attorney for health care" means
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2-1 a durable power of attorney for health care executed or issued
2-2 under Subchapter D.
2-3 (6) "Incompetent" means lacking the ability, based on
2-4 reasonable medical judgment, to understand and appreciate the
2-5 nature and consequences of a treatment decision, including the
2-6 significant benefits and harms of and reasonable alternatives to a
2-7 proposed treatment decision.
2-8 (7) "Life-sustaining procedure" means a medical
2-9 procedure, treatment, or intervention that uses mechanical or other
2-10 artificial means to sustain, restore, or supplant a vital function
2-11 and, when applied to a person in a terminal condition, serves only
2-12 to prolong the process of dying. The term does not include the
2-13 administration of medication or the performance of a medical
2-14 procedure considered to be necessary to provide comfort or care or
2-15 to alleviate pain.
2-16 (8) "Physician" means:
2-17 (A) a physician licensed by the Texas State
2-18 Board of Medical Examiners; or
2-19 (B) a properly credentialed physician who holds
2-20 a commission in the uniformed services of the United States and who
2-21 is serving on active duty in this state.
2-22 (9) "Terminal condition" means an incurable or
2-23 irreversible condition caused by injury, disease, or illness that
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3-1 would produce death without the application of life-sustaining
3-2 procedures, according to reasonable medical judgment, and in which
3-3 the application of life-sustaining procedures serves only to
3-4 postpone the moment of the patient's death. A patient who has been
3-5 admitted to a program under which the person receives hospice
3-6 services provided by a home and community support services agency
3-7 licensed under Chapter 142 is presumed to have a terminal condition
3-8 for purposes of this chapter.
3-9 (10) "Witness" means a person who may serve as a
3-10 witness under Section 166.003.
3-11 Sec. 166.003. WITNESSES. (a) In any circumstance in which
3-12 this chapter requires the execution of an advance directive or the
3-13 issuance of a nonwritten advance directive to be witnessed, a
3-14 witness may not be:
3-15 (1) related to the declarant by blood or marriage;
3-16 (2) entitled to any part of the declarant's estate
3-17 after the declarant's death under a will or codicil executed by the
3-18 declarant or by operation of law;
3-19 (3) the attending physician;
3-20 (4) an employee of the attending physician;
3-21 (5) a patient in a health care facility in which the
3-22 declarant is a patient;
3-23 (6) a person who, at the time the directive is
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4-1 executed or the nonwritten directive is issued, has a claim against
4-2 any part of the declarant's estate after the declarant's death; or
4-3 (7) an employee of a health care facility in which the
4-4 declarant is a patient if the employee is providing direct patient
4-5 care or is directly involved in the financial affairs of the
4-6 facility.
4-7 (b) For purposes of Subsection (a)(7), a person is directly
4-8 involved in the financial affairs of a health care facility if the
4-9 person serves as an officer, director, partner, or business office
4-10 employee of the health care facility or of any parent organization
4-11 of the health care facility.
4-12 Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE.
4-13 (a) A health care provider shall maintain written policies
4-14 regarding the implementation of advance directives. The policies
4-15 must include a clear and precise statement of any procedure the
4-16 health care provider is unwilling or unable to withhold in
4-17 accordance with an advance directive.
4-18 (b) The health care provider shall provide written notice to
4-19 an individual of the written policies described by Subsection (a).
4-20 The notice must be provided at the earlier of:
4-21 (1) the time the individual is admitted to receive
4-22 services from the health care provider; or
4-23 (2) the time the health care provider begins providing
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5-1 care to the individual.
5-2 (c) If, at the time notice is to be provided under
5-3 Subsection (b), the individual is incompetent or otherwise
5-4 incapacitated and unable to receive the notice required by this
5-5 section, the provider shall provide the required written notice, in
5-6 the following order of preference, to:
5-7 (1) the individual's legal guardian;
5-8 (2) the individual's adult child;
5-9 (3) the individual's parent;
5-10 (4) the person admitting the individual; or
5-11 (5) another person responsible for the health care
5-12 decisions of the individual.
5-13 (d) If Subsection (c) applies and except as provided by
5-14 Subsection (e), if a health care provider is unable, after diligent
5-15 search, to locate an individual listed by Subsection (c), the
5-16 health care provider is not required to provide the required
5-17 notice.
5-18 (e) If an individual who was incompetent or otherwise
5-19 incapacitated and unable to receive the notice required by this
5-20 section at the time notice was to be provided under Subsection (b)
5-21 later becomes able to receive the notice, the health care provider
5-22 shall provide the written notice at the time the individual becomes
5-23 able to receive the notice.
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6-1 (f) In this section, health care provider means:
6-2 (1) a hospital, including a rural primary care
6-3 hospital;
6-4 (2) an institution licensed under Chapter 242,
6-5 including skilled nursing facilities;
6-6 (3) a home and community support services agency;
6-7 (4) a personal care facility; and
6-8 (5) a special care facility.
6-9 SECTION 1.03. Chapter 672, Health and Safety Code, is
6-10 transferred to Subtitle H, Title 2, Health and Safety Code, is
6-11 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
6-12 and is amended to read as follows:
6-13 SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT]
6-14 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
6-15 the Natural Death Act.]
6-16 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
6-17 [chapter]:
6-18 (1) ["Attending physician" means the physician who has
6-19 primary responsibility for a patient's treatment and care.]
6-20 [(2) "Competent" means possessing the ability, based
6-21 on reasonable medical judgment, to understand and appreciate the
6-22 nature and consequences of a treatment decision, including the
6-23 significant benefits and harms of and reasonable alternatives to a
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7-1 proposed treatment decision.]
7-2 [(3) "Declarant" means a person who has executed or
7-3 issued a directive under this chapter.]
7-4 [(4)] "Directive" means an instruction made under
7-5 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
7-6 to withhold or withdraw life-sustaining procedures in the event of
7-7 a terminal condition.
7-8 (2) [(5) "Incompetent" means lacking the ability,
7-9 based on reasonable medical judgment, to understand and appreciate
7-10 the nature and consequences of a treatment decision, including the
7-11 significant benefits and harms of and reasonable alternatives to a
7-12 proposed treatment decision.]
7-13 [(6) "Life-sustaining procedure" means a medical
7-14 procedure or intervention that uses mechanical or other artificial
7-15 means to sustain, restore, or supplant a vital function, and only
7-16 artificially postpones the moment of death of a patient in a
7-17 terminal condition whose death is imminent or will result within a
7-18 relatively short time without the application of the procedure.
7-19 The term does not include the administration of medication or the
7-20 performance of a medical procedure considered to be necessary to
7-21 provide comfort or care or to alleviate pain.]
7-22 [(7) "Physician" means a physician licensed by the
7-23 Texas State Board of Medical Examiners or a properly credentialed
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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;]
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9-1 [(4) an employee of the attending physician;]
9-2 [(5) an employee of a health care facility in which
9-3 the declarant is a patient if the employee is providing direct
9-4 patient care to the declarant or is directly involved in the
9-5 financial affairs of the facility;]
9-6 [(6) a patient in a health care facility in which the
9-7 declarant is a patient; or]
9-8 [(7) a person who, at the time the directive is
9-9 executed, has a claim against any part of the declarant's estate
9-10 after the declarant's death.]
9-11 [(d)] A declarant may include in a directive directions
9-12 other than those provided by Section 166.033 [672.004] and may
9-13 designate in a directive a person to make a treatment decision for
9-14 the declarant in the event the declarant becomes comatose,
9-15 incompetent, or otherwise mentally or physically incapable of
9-16 communication.
9-17 (d) [(e)] A declarant shall notify the attending physician
9-18 of the existence of a written directive. If the declarant is
9-19 comatose, incompetent, or otherwise mentally or physically
9-20 incapable of communication, another person may notify the attending
9-21 physician of the existence of the written directive. The attending
9-22 physician shall make the directive a part of the declarant's
9-23 medical record.
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10-1 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
10-2 written directive may be in the following form:
10-3 "DIRECTIVE
10-4 TO PHYSICIANS
10-5 "Directive made this __________ day of __________ (month,
10-6 year).
10-7 "I ________________________, being of sound mind, wilfully
10-8 and voluntarily make known my desire that my life shall not be
10-9 artificially prolonged under the circumstances set forth in this
10-10 directive.
10-11 "1. If at any time I should have an incurable or
10-12 irreversible condition caused by injury, disease, or illness
10-13 certified to be a terminal condition by two physicians, and if the
10-14 application of life-sustaining procedures would serve only to
10-15 artificially postpone the moment of my death, and if my attending
10-16 physician determines that my death is imminent or will result
10-17 within a relatively short time without the application of
10-18 life-sustaining procedures, I direct that those procedures be
10-19 withheld or withdrawn, and that I be permitted to die naturally.
10-20 "2. In the absence of my ability to give directions
10-21 regarding the use of those life-sustaining procedures, it is my
10-22 intention that this directive be honored by my family and
10-23 physicians as the final expression of my legal right to refuse
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11-1 medical or surgical treatment and accept the consequences from that
11-2 refusal.
11-3 "3. If I have been diagnosed as pregnant and that diagnosis
11-4 is known to my physician, this directive has no effect during my
11-5 pregnancy.
11-6 "4. This directive is in effect until it is revoked.
11-7 "5. I understand the full import of this directive and I am
11-8 emotionally and mentally competent to make this directive.
11-9 "6. I understand that I may revoke this directive at any
11-10 time.
11-11 "Signed ______________________________
11-12 (City, County, and State of Residence)
11-13 I am not related to the declarant by blood or marriage. I
11-14 would not be entitled to any portion of the declarant's estate on
11-15 the declarant's death. I am not the attending physician of the
11-16 declarant or an employee of the attending physician. I am not a
11-17 patient in the health care facility in which the declarant is a
11-18 patient. I have no claim against any portion of the declarant's
11-19 estate on the declarant's death. Furthermore, if I am an employee
11-20 of a health care facility in which the declarant is a patient, I am
11-21 not involved in providing direct patient care to the declarant and
11-22 am not an officer, director, partner, or business office employee
11-23 of the health care facility or of any parent organization of
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12-1 the health care [directly involved in the financial affairs of the
12-2 health] facility.
12-3 "Witness_______________________________
12-4 "Witness______________________________"
12-5 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
12-6 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
12-7 patient who is an adult may issue a directive by a nonwritten means
12-8 of communication.
12-9 (b) A declarant must issue the nonwritten directive in the
12-10 presence of the attending physician and two witnesses. [The
12-11 witnesses must possess the same qualifications as are required by
12-12 Section 672.003(c).]
12-13 (c) The physician shall make the fact of the existence of
12-14 the directive a part of the declarant's medical record and the
12-15 witnesses shall sign the entry in the medical record.
12-16 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
12-17 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
12-18 execute a directive on behalf of a qualified patient who is younger
12-19 than 18 years of age:
12-20 (1) the patient's spouse, if the spouse is an adult;
12-21 (2) the patient's parents; or
12-22 (3) the patient's legal guardian.
12-23 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
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13-1 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
13-2 under Section 166.033 or 166.035 is effective without regard to
13-3 whether the document has been notarized.
13-4 (b) A physician, health care facility, or health care
13-5 professional may not require that:
13-6 (1) a directive be notarized; or
13-7 (2) a person use a form provided by the physician,
13-8 health care facility, or health care professional.
13-9 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
13-10 The desire of a competent qualified patient, including a competent
13-11 qualified patient younger than 18 years of age, supersedes the
13-12 effect of a directive.
13-13 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
13-14 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
13-15 applies when an adult qualified patient has executed or issued a
13-16 directive and is comatose, incompetent, or otherwise mentally or
13-17 physically incapable of communication.
13-18 (b) If the adult qualified patient has designated a person
13-19 to make a treatment decision as authorized by Section 166.032(c)
13-20 [672.003(d)], the attending physician and the designated person may
13-21 make a treatment decision to withhold or withdraw life-sustaining
13-22 procedures from the patient.
13-23 (c) If the adult qualified patient has not designated a
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14-1 person to make a treatment decision, the attending physician shall
14-2 comply with the directive unless the physician believes that the
14-3 directive does not reflect the patient's present desire.
14-4 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
14-5 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
14-6 COMMUNICATION. (a) If an adult qualified patient has not executed
14-7 or issued a directive and is comatose, incompetent, or otherwise
14-8 mentally or physically incapable of communication, the attending
14-9 physician and the patient's legal guardian or an agent under a
14-10 durable power of attorney for health care may make a treatment
14-11 decision that may include a decision to withhold or withdraw
14-12 life-sustaining procedures from the patient.
14-13 (b) If the patient does not have a legal guardian or an
14-14 agent under a durable power of attorney for health care, the
14-15 attending physician and one person from one [at least two persons,
14-16 if available,] of the following categories, in the following
14-17 priority, may make a treatment decision that may include a decision
14-18 to withhold or withdraw life-sustaining procedures:
14-19 (1) the patient's spouse;
14-20 (2) [a majority of] the patient's reasonably available
14-21 adult children;
14-22 (3) the patient's parents; or
14-23 (4) the patient's nearest living relative.
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15-1 (c) A treatment decision made under Subsection (a) or (b)
15-2 must be based on knowledge of what the patient would desire, if
15-3 known.
15-4 (d) A treatment decision made under Subsection (b) must be
15-5 made in the presence of at least two witnesses who possess the same
15-6 qualifications and are subject to the same restrictions as provided
15-7 [as are required] by Section 166.003 [672.003(c)].
15-8 (e) The fact that an adult qualified patient has not
15-9 executed or issued a directive does not create a presumption that
15-10 the patient does not want a treatment decision to be made to
15-11 withhold or withdraw life-sustaining procedures.
15-12 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
15-13 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
15-14 physician who has been notified of the existence of a directive
15-15 shall provide for the declarant's certification as a qualified
15-16 patient on diagnosis of a terminal condition.
15-17 (b) Before withholding or withdrawing life-sustaining
15-18 procedures from a qualified patient under this subchapter
15-19 [chapter], the attending physician must:
15-20 (1) determine that the patient's death is imminent or
15-21 will result within a relatively short time without application of
15-22 those procedures;
15-23 (2) note that determination in the patient's medical
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16-1 record; and
16-2 (3) determine that the steps proposed to be taken are
16-3 in accord with this subchapter [chapter] and the patient's existing
16-4 desires.
16-5 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
16-6 is effective until it is revoked as prescribed by Section 166.042
16-7 [672.012].
16-8 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
16-9 declarant may revoke a directive at any time without regard to the
16-10 declarant's mental state or competency. A directive may be revoked
16-11 by:
16-12 (1) the declarant or someone in the declarant's
16-13 presence and at the declarant's direction canceling, defacing,
16-14 obliterating, burning, tearing, or otherwise destroying the
16-15 directive;
16-16 (2) the declarant signing and dating a written
16-17 revocation that expresses the declarant's intent to revoke the
16-18 directive; or
16-19 (3) the declarant orally stating the declarant's
16-20 intent to revoke the directive.
16-21 (b) A written revocation executed as prescribed by
16-22 Subsection (a)(2) takes effect only when the declarant or a person
16-23 acting on behalf of the declarant notifies the attending physician
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17-1 of its existence or mails the revocation to the attending
17-2 physician. The attending physician or the physician's designee
17-3 shall record in the patient's medical record the time and date when
17-4 the physician received notice of the written revocation and shall
17-5 enter the word "VOID" on each page of the copy of the directive in
17-6 the patient's medical record.
17-7 (c) An oral revocation issued as prescribed by Subsection
17-8 (a)(3) takes effect only when the declarant or a person acting on
17-9 behalf of the declarant notifies the attending physician of the
17-10 revocation. The attending physician or the physician's designee
17-11 shall record in the patient's medical record the time, date, and
17-12 place of the revocation, and, if different, the time, date, and
17-13 place that the physician received notice of the revocation. The
17-14 attending physician or the physician's designees shall also enter
17-15 the word "VOID" on each page of the copy of the directive in the
17-16 patient's medical record.
17-17 (d) Except as otherwise provided by this subchapter
17-18 [chapter], a person is not civilly or criminally liable for failure
17-19 to act on a revocation made under this section unless the person
17-20 has actual knowledge of the revocation.
17-21 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
17-22 declarant may at any time reexecute a directive in accordance with
17-23 the procedures prescribed by Section 166.032 [672.003], including
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18-1 reexecution after the declarant is diagnosed as having a terminal
18-2 condition.
18-3 Sec. 166.044 [672.014]. EFFECT OF DIRECTIVE ON INSURANCE
18-4 POLICY AND PREMIUMS. (a) The fact that a person has executed or
18-5 issued a directive under this subchapter [chapter] does not:
18-6 (1) restrict, inhibit, or impair in any manner the
18-7 sale, procurement, or issuance of a life insurance policy to that
18-8 person; or
18-9 (2) modify the terms of an existing life insurance
18-10 policy.
18-11 (b) Notwithstanding the terms of any life insurance policy,
18-12 the fact that life-sustaining procedures are withheld or withdrawn
18-13 from an insured qualified patient under this subchapter [chapter]
18-14 does not legally impair or invalidate that person's life insurance
18-15 policy.
18-16 (c) A physician, health facility, health provider, insurer,
18-17 or health care service plan may not require a person to execute or
18-18 issue a directive as a condition for obtaining insurance for health
18-19 care services or receiving health care services.
18-20 (d) The fact that a person has executed or issued or failed
18-21 to execute or issue a directive under this subchapter [chapter] may
18-22 not be considered in any way in establishing insurance premiums.
18-23 Sec. 166.045 [672.015]. LIMITATION OF LIABILITY FOR
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19-1 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
19-2 physician or health facility that, in good faith, causes
19-3 life-sustaining procedures to be withheld or withdrawn from a
19-4 qualified patient in accordance with this subchapter [chapter] is
19-5 not civilly liable for that action [unless negligent].
19-6 (b) A health professional, acting under the direction of a
19-7 physician, who participates, in good faith, in withholding or
19-8 withdrawing life-sustaining procedures from a qualified patient in
19-9 accordance with this subchapter [chapter] is not civilly liable for
19-10 that action [unless negligent].
19-11 (c) A physician, or a health professional acting under the
19-12 direction of a physician, who participates, in good faith, in
19-13 withholding or withdrawing life-sustaining procedures from a
19-14 qualified patient in accordance with this subchapter [chapter] is
19-15 not criminally liable or guilty of unprofessional conduct as a
19-16 result of that action [unless negligent].
19-17 Sec. 166.046 [672.016]. LIMITATION OF LIABILITY FOR FAILURE
19-18 TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility,
19-19 or health care professional who has no knowledge of a directive is
19-20 not civilly or criminally liable for failing to act in accordance
19-21 with the directive.
19-22 (b) A physician, or a health professional acting under the
19-23 direction of a physician, is not civilly or criminally liable for
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20-1 failing to effectuate a qualified patient's directive.
20-2 (c) If an attending physician refuses to comply with a
20-3 directive or treatment decision, the physician shall make a
20-4 reasonable effort to transfer the patient to another physician.
20-5 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
20-6 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
20-7 offense under Section 22.08, Penal Code, by withholding or
20-8 withdrawing life-sustaining procedures from a qualified patient in
20-9 accordance with this subchapter [chapter].
20-10 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
20-11 (a) A person commits an offense if the person intentionally
20-12 conceals, cancels, defaces, obliterates, or damages another
20-13 person's directive without that person's consent. An offense under
20-14 this subsection is a Class A misdemeanor.
20-15 (b) A person is subject to prosecution for criminal homicide
20-16 under Chapter 19, Penal Code, if the person, with the intent to
20-17 cause life-sustaining procedures to be withheld or withdrawn from
20-18 another person contrary to the other person's desires, falsifies or
20-19 forges a directive or intentionally conceals or withholds personal
20-20 knowledge of a revocation and thereby directly causes
20-21 life-sustaining procedures to be withheld or withdrawn from the
20-22 other person with the result that the other person's death is
20-23 hastened.
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21-1 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
21-2 withdraw or withhold life-sustaining procedures under this
21-3 subchapter [chapter] from a pregnant patient.
21-4 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
21-5 subchapter [chapter] does not condone, authorize, or approve mercy
21-6 killing or permit an affirmative or deliberate act or omission to
21-7 end life except to permit the natural process of dying as provided
21-8 by this subchapter [chapter].
21-9 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
21-10 AFFECTED. This subchapter [chapter] does not impair or supersede
21-11 any legal right or responsibility a person may have to effect the
21-12 withholding or withdrawal of life-sustaining procedures in a lawful
21-13 manner.
21-14 SECTION 1.04. Chapter 674, Health and Safety Code, is
21-15 transferred to Subtitle H, Title 2, Health and Safety Code, is
21-16 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
21-17 and is amended to read as follows:
21-18 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
21-19 DO-NOT-RESUSCITATE ORDERS
21-20 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
21-21 [chapter]:
21-22 (1) ["Attending physician" means the physician who has
21-23 primary responsibility for a person's treatment and care.]
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22-1 [(2) "Board" means the Texas Board of Health.]
22-2 [(3)] "Cardiopulmonary resuscitation" includes a
22-3 component of cardiopulmonary resuscitation.
22-4 (2) [(4) "Competent" means possessing the ability,
22-5 based on reasonable medical judgment, to understand and appreciate
22-6 the nature and consequences of a treatment decision, including the
22-7 significant benefits and harms of, and reasonable alternatives to,
22-8 a proposed treatment decision.]
22-9 [(5) "Declarant" means a person who has executed or
22-10 issued an out-of-hospital do-not-resuscitate order under this
22-11 chapter.]
22-12 [(6) "Department" means the Texas Department of
22-13 Health.]
22-14 [(7)] "DNR identification device" means an
22-15 identification device specified by the board under Section 166.103
22-16 [674.023] that is worn for the purpose of identifying a person who
22-17 has executed or issued an out-of-hospital DNR order or on whose
22-18 behalf an out-of-hospital DNR order has been executed or issued
22-19 under this subchapter [chapter].
22-20 (3) [(8) "Durable power of attorney for health care"
22-21 means a document delegating to an agent the authority to make
22-22 health care decisions for a person in accordance with Chapter 135,
22-23 Civil Practice and Remedies Code.]
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23-1 [(9)] "Emergency medical services" has the meaning
23-2 assigned by Section 773.003.
23-3 (4) [(10)] "Emergency medical services personnel" has
23-4 the meaning assigned by Section 773.003.
23-5 (5) [(11)] "Health care professionals" means
23-6 physicians, nurses, and emergency medical services personnel and,
23-7 unless the context requires otherwise, includes hospital emergency
23-8 personnel.
23-9 (6) [(12) "Incompetent" means lacking the ability,
23-10 based on reasonable medical judgment, to understand and appreciate
23-11 the nature and consequences of a treatment decision, including the
23-12 significant benefits and harms of, and reasonable alternatives to,
23-13 a proposed treatment decision.]
23-14 [(13) "Life-sustaining procedure" means a medical
23-15 procedure, treatment, or intervention that uses mechanical or other
23-16 artificial means to sustain, restore, or supplant a spontaneous
23-17 vital function and, when applied to a person in a terminal
23-18 condition, serves only to prolong the process of dying. The term
23-19 does not include the administration of medication or the
23-20 performance of a medical procedure considered to be necessary to
23-21 provide comfort or care or to alleviate pain or the provision of
23-22 water or nutrition.]
23-23 [(14)] "Out-of-hospital DNR order":
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24-1 (A) means a legally binding out-of-hospital
24-2 do-not-resuscitate order, in the form specified by the board under
24-3 Section 166.083 [674.003], prepared and signed by the attending
24-4 physician of a person who has been diagnosed as having a terminal
24-5 condition, that documents the instructions of a person or the
24-6 person's legally authorized representative and directs health care
24-7 professionals acting in an out-of-hospital setting not to initiate
24-8 or continue the following life-sustaining procedures:
24-9 (i) cardiopulmonary resuscitation;
24-10 (ii) endotracheal intubation or other
24-11 means of advanced airway management;
24-12 (iii) artificial ventilation;
24-13 (iv) defibrillation;
24-14 (v) transcutaneous cardiac pacing;
24-15 (vi) the administration of cardiac
24-16 resuscitation medications; and
24-17 (vii) other life-sustaining procedures
24-18 specified by the board under Section 166.103(a) [674.023(a)]; and
24-19 (B) does not include authorization to withhold
24-20 medical interventions or therapies considered necessary to provide
24-21 comfort or care or to alleviate pain or to provide water or
24-22 nutrition.
24-23 (7) [(15)] "Out-of-hospital setting" means any setting
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25-1 outside of a licensed acute care hospital in which health care
25-2 professionals are called for assistance, including long-term care
25-3 facilities, in-patient hospice facilities, private homes, and
25-4 vehicles during transport.
25-5 (8) [(16) "Physician" means a physician licensed by
25-6 the Texas State Board of Medical Examiners or a properly
25-7 credentialed physician who holds a commission in the uniformed
25-8 services of the United States and who is serving on active duty in
25-9 this state.]
25-10 [(17)] "Proxy" means a person designated and
25-11 authorized by a directive executed or issued in accordance with
25-12 Subchapter B [Chapter 672] to make a treatment decision for another
25-13 person in the event the other person becomes comatose, incompetent,
25-14 or otherwise mentally or physically incapable of communication.
25-15 (9) [(18)] "Qualified relatives" means those persons
25-16 authorized to execute or issue an out-of-hospital DNR order on
25-17 behalf of a person who is comatose, incompetent, or otherwise
25-18 mentally or physically incapable of communication under Section
25-19 166.088 [674.008].
25-20 (10) [(19)] "Statewide out-of-hospital DNR protocol"
25-21 means a set of statewide standardized procedures adopted by the
25-22 board under Section 166.103 [674.023] for withholding
25-23 cardiopulmonary resuscitation and certain other life-sustaining
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26-1 procedures by health care professionals acting in out-of-hospital
26-2 settings.
26-3 [(20) "Terminal condition" means an incurable or
26-4 irreversible condition caused by injury, disease, or illness that
26-5 would produce death without the application of life-sustaining
26-6 procedures, according to reasonable medical judgment, and in which
26-7 the application of life-sustaining procedures serves only to
26-8 postpone the moment of the person's death.]
26-9 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
26-10 TO PHYSICIANS. (a) A competent person who has been diagnosed by a
26-11 physician as having a terminal condition may at any time execute a
26-12 written out-of-hospital DNR order directing health care
26-13 professionals acting in an out-of-hospital setting to withhold
26-14 cardiopulmonary resuscitation and certain other life-sustaining
26-15 procedures designated by the board.
26-16 (b) The declarant must sign the out-of-hospital DNR order in
26-17 the presence of two witnesses, and those witnesses must sign the
26-18 order. The attending physician of the declarant must sign the
26-19 order and shall make the fact of the existence of the order and the
26-20 reasons for execution of the order a part of the declarant's
26-21 medical record.
26-22 (c) [A witness must have the same qualifications as those
26-23 provided by Section 672.003(c).]
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27-1 [(d)] If the person is incompetent but previously executed
27-2 or issued a directive to physicians in accordance with Subchapter B
27-3 [Chapter 672], the physician may rely on the directive as the
27-4 person's instructions to issue an out-of-hospital DNR order and
27-5 shall place a copy of the directive in the person's medical record.
27-6 The physician shall sign the order in lieu of the person signing
27-7 under Subsection (b).
27-8 (d) [(e)] If the person is incompetent but previously
27-9 executed or issued a directive to physicians in accordance with
27-10 Subchapter B [Chapter 672] designating a proxy, the proxy may make
27-11 any decisions required of the designating person as to an
27-12 out-of-hospital DNR order and shall sign the order in lieu of the
27-13 person signing under Subsection (b).
27-14 (e) [(f)] If the person is now incompetent but previously
27-15 executed or issued a durable power of attorney for health care [in
27-16 accordance with Chapter 135, Civil Practice and Remedies Code],
27-17 designating an agent, the agent may make any decisions required of
27-18 the designating person as to an out-of-hospital DNR order and shall
27-19 sign the order in lieu of the person signing under Subsection (b).
27-20 (f) [(g)] The board, on the recommendation of the
27-21 department, shall by rule adopt procedures for the disposition and
27-22 maintenance of records of an original out-of-hospital DNR order and
27-23 any copies of the order.
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28-1 (g) [(h)] An out-of-hospital DNR order is effective on its
28-2 execution.
28-3 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
28-4 (a) A written out-of-hospital DNR order shall be in the standard
28-5 form specified by board rule as recommended by the department.
28-6 (b) The standard form of an out-of-hospital DNR order
28-7 specified by the board must, at a minimum, contain the following:
28-8 (1) a distinctive single-page format that readily
28-9 identifies the document as an out-of-hospital DNR order;
28-10 (2) a title that readily identifies the document as an
28-11 out-of-hospital DNR order;
28-12 (3) the printed or typed name of the person;
28-13 (4) a statement that the physician signing the
28-14 document is the attending physician of the person, that the
28-15 physician has diagnosed the person as having a terminal condition,
28-16 and that the physician is directing health care professionals
28-17 acting in out-of-hospital settings not to initiate or continue
28-18 certain life-sustaining procedures on behalf of the person, and a
28-19 listing of those procedures not to be initiated or continued;
28-20 (5) a statement that the person understands that the
28-21 person may revoke the out-of-hospital DNR order at any time by
28-22 destroying the order and removing the DNR identification device, if
28-23 any, or by communicating to health care professionals at the scene
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29-1 the person's desire to revoke the out-of-hospital DNR order;
29-2 (6) places for the printed names and signatures of the
29-3 witnesses and attending physician of the person and the medical
29-4 license number of the attending physician;
29-5 (7) a separate section for execution of the document
29-6 by the legal guardian of the person, the person's proxy, an agent
29-7 of the person having a durable power of attorney for health care,
29-8 or the attending physician attesting to the issuance of an
29-9 out-of-hospital DNR order by nonwritten means of communication or
29-10 acting in accordance with a previously executed or previously
29-11 issued directive to physicians under Section 166.082(c)
29-12 [674.002(d)] that includes the following:
29-13 (A) a statement that the legal guardian, the
29-14 proxy, the agent, the person by nonwritten means of communication,
29-15 or the physician directs that the listed life-sustaining procedures
29-16 should not be initiated or continued in behalf of the person; and
29-17 (B) places for the printed names and signatures
29-18 of the witnesses and, as applicable, the legal guardian, proxy,
29-19 agent, or physician;
29-20 (8) a separate section for execution of the document
29-21 by at least two qualified relatives of the person when the person
29-22 does not have a legal guardian, proxy, or agent having a durable
29-23 power of attorney for health care and is comatose, incompetent, or
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30-1 otherwise mentally or physically incapable of communication,
30-2 including:
30-3 (A) a statement that the relatives of the person
30-4 are qualified to make a treatment decision to withhold
30-5 cardiopulmonary resuscitation and certain other designated
30-6 life-sustaining procedures under Section 166.088 [674.008] and,
30-7 based on the known desires of the person or a determination of the
30-8 best interest of the person, direct that the listed life-sustaining
30-9 procedures should not be initiated or continued in behalf of the
30-10 person; and
30-11 (B) places for the printed names and signatures
30-12 of the witnesses and qualified relatives of the person;
30-13 (9) a place for entry of the date of execution of the
30-14 document;
30-15 (10) a statement that the document is in effect on the
30-16 date of its execution and remains in effect until the death of the
30-17 person or until the document is revoked;
30-18 (11) a statement that the document must accompany the
30-19 person during transport;
30-20 (12) a statement regarding the proper disposition of
30-21 the document or copies of the document, as the board determines
30-22 appropriate; and
30-23 (13) a statement at the bottom of the document, with
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31-1 places for the signature of each person executing the document,
31-2 that the document has been properly completed.
31-3 (c) The board may, by rule and as recommended by the
31-4 department, modify the standard form of the out-of-hospital DNR
31-5 order described by Subsection (b) in order to accomplish the
31-6 purposes of this subchapter [chapter].
31-7 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
31-8 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
31-9 an adult may issue an out-of-hospital DNR order by nonwritten
31-10 communication.
31-11 (b) A declarant must issue the nonwritten out-of-hospital
31-12 DNR order in the presence of the attending physician and two
31-13 witnesses. [The witnesses must possess the same qualifications as
31-14 those provided by Section 672.003(c).]
31-15 (c) The attending physician and witnesses shall sign the
31-16 out-of-hospital DNR order in the [that] place of the document
31-17 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
31-18 physician shall sign the document in the place required by Section
31-19 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
31-20 of the existence of the out-of-hospital DNR order a part of the
31-21 declarant's medical record and the witnesses shall sign that entry
31-22 in the medical record.
31-23 (d) An out-of-hospital DNR order issued in the manner
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32-1 provided by this section is valid and shall be honored by
32-2 responding health care professionals as if executed in the manner
32-3 provided by Section 166.082 [674.002].
32-4 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
32-5 ORDER ON BEHALF OF A MINOR. The following persons may execute an
32-6 out-of-hospital DNR order on behalf of a minor:
32-7 (1) the minor's parents;
32-8 (2) the minor's legal guardian; or
32-9 (3) the minor's managing conservator.
32-10 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
32-11 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
32-12 including a competent minor, supersedes the effect of an
32-13 out-of-hospital DNR order executed or issued by or on behalf of the
32-14 person when the desire is communicated to responding health care
32-15 professionals as provided by this subchapter [chapter].
32-16 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
32-17 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
32-18 applies when a person 18 years of age or older has executed or
32-19 issued an out-of-hospital DNR order and subsequently becomes
32-20 comatose, incompetent, or otherwise mentally or physically
32-21 incapable of communication.
32-22 (b) If the adult person has designated a person to make a
32-23 treatment decision as authorized by Section 166.032(c)
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33-1 [672.003(d)], the attending physician and the designated person
33-2 shall comply with the out-of-hospital DNR order.
33-3 (c) If the adult person has not designated a person to make
33-4 a treatment decision as authorized by Section 166.032(c)
33-5 [672.003(d)], the attending physician shall comply with the
33-6 out-of-hospital DNR order unless the physician believes that the
33-7 order does not reflect the person's present desire.
33-8 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
33-9 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
33-10 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
33-11 executed or issued an out-of-hospital DNR order and is comatose,
33-12 incompetent, or otherwise mentally or physically incapable of
33-13 communication, the attending physician and the person's legal
33-14 guardian, proxy, or agent having a durable power of attorney for
33-15 health care may execute an out-of-hospital DNR order on behalf of
33-16 the person.
33-17 (b) If the person does not have a legal guardian, proxy, or
33-18 agent, the attending physician and at least two qualified relatives
33-19 may execute an out-of-hospital DNR order in the same manner as a
33-20 treatment decision made under Section 166.039(b) [672.009(b)].
33-21 (c) A decision to execute an out-of-hospital DNR order made
33-22 under Subsection (a) or (b) must be based on knowledge of what the
33-23 person would desire, if known.
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34-1 (d) An out-of-hospital DNR order executed under Subsection
34-2 (b) must be made in the presence of at least two witnesses [who
34-3 possess the same qualifications that are required by Section
34-4 672.003(c)].
34-5 (e) The fact that an adult person has not executed or issued
34-6 an out-of-hospital DNR order does not create a presumption that the
34-7 person does not want a treatment decision made to withhold
34-8 cardiopulmonary resuscitation and certain other designated
34-9 life-sustaining procedures designated by the board.
34-10 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
34-11 ORDER. (a) When responding to a call for assistance, health care
34-12 professionals shall honor an out-of-hospital DNR order in
34-13 accordance with the statewide out-of-hospital DNR protocol and,
34-14 where applicable, locally adopted out-of-hospital DNR protocols not
34-15 in conflict with the statewide protocol if:
34-16 (1) the responding health care professionals discover
34-17 an executed or issued out-of-hospital DNR order form on their
34-18 arrival at the scene; and
34-19 (2) the responding health care professionals comply
34-20 with this section.
34-21 (b) If the person is wearing a DNR identification device,
34-22 the responding health care professionals must comply with Section
34-23 166.090 [674.010].
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35-1 (c) The responding health care professionals must establish
35-2 the identity of the person as the person who executed or issued the
35-3 out-of-hospital DNR order or for whom the out-of-hospital DNR order
35-4 was executed or issued.
35-5 (d) The responding health care professionals must determine
35-6 that the out-of-hospital DNR order form appears to be valid in that
35-7 it includes:
35-8 (1) written responses in the places designated on the
35-9 form for the names, signatures, and other information required of
35-10 persons executing or issuing, or witnessing the execution or
35-11 issuance of, the order;
35-12 (2) a date in the place designated on the form for the
35-13 date the order was executed or issued; and
35-14 (3) the signature of the declarant or persons
35-15 executing or issuing the order and the attending physician in the
35-16 appropriate places designated on the form for indicating that the
35-17 order form has been properly completed.
35-18 (e) If the conditions prescribed by Subsections (a) through
35-19 (d) are not determined to apply by the responding health care
35-20 professionals at the scene, the out-of-hospital DNR order may not
35-21 be honored and life-sustaining procedures otherwise required by law
35-22 or local emergency medical services protocols shall be initiated or
35-23 continued. Health care professionals acting in out-of-hospital
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36-1 settings are not required to accept or interpret an out-of-hospital
36-2 DNR order that does not meet the requirements of this subchapter
36-3 [chapter].
36-4 (f) The out-of-hospital DNR order form, when available, must
36-5 accompany the person during transport.
36-6 (g) A record shall be made and maintained of the
36-7 circumstances of each emergency medical services response in which
36-8 an out-of-hospital DNR order or DNR identification device is
36-9 encountered, in accordance with the statewide out-of-hospital DNR
36-10 protocol and any applicable local out-of-hospital DNR protocol not
36-11 in conflict with the statewide protocol.
36-12 (h) An out-of-hospital DNR order executed or issued and
36-13 documented or evidenced in the manner prescribed by this subchapter
36-14 [chapter] is valid and shall be honored by responding health care
36-15 professionals unless the person or persons found at the scene:
36-16 (1) identify themselves as the declarant or as the
36-17 attending physician, legal guardian, qualified relative, or agent
36-18 of the person having a durable power of attorney for health care
36-19 who executed or issued the out-of-hospital DNR order on behalf of
36-20 the person; and
36-21 (2) request that cardiopulmonary resuscitation or
36-22 certain other life-sustaining procedures designated by the board be
36-23 initiated or continued.
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37-1 (i) If the policies of a health care facility preclude
37-2 compliance with the out-of-hospital DNR order of a person or an
37-3 out-of-hospital DNR order issued by an attending physician on
37-4 behalf of a person who is admitted to or a resident of the
37-5 facility, or if the facility is unwilling to accept DNR
37-6 identification devices as evidence of the existence of an
37-7 out-of-hospital DNR order, that facility shall take all reasonable
37-8 steps to notify the person or, if the person is incompetent, the
37-9 person's guardian or the person or persons having authority to make
37-10 health care treatment decisions on behalf of the person, of the
37-11 facility's policy and shall take all reasonable steps to effect the
37-12 transfer of the person to the person's home or to a facility where
37-13 the provisions of this subchapter [chapter] can be carried out.
37-14 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
37-15 person who has a valid out-of-hospital DNR order under this
37-16 subchapter [chapter] may wear a DNR identification device around
37-17 the neck or on the wrist as prescribed by board rule adopted under
37-18 Section 166.103 [674.023].
37-19 (b) The presence of a DNR identification device on the body
37-20 of a person is conclusive evidence that the person has executed or
37-21 issued a valid out-of-hospital DNR order or has a valid
37-22 out-of-hospital DNR order executed or issued on the person's
37-23 behalf. Responding health care professionals shall honor the DNR
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38-1 identification device as if a valid out-of-hospital DNR order form
38-2 executed or issued by the person were found in the possession of
38-3 the person.
38-4 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
38-5 ORDER. An out-of-hospital DNR order is effective until it is
38-6 revoked as prescribed by Section 166.092 [674.012].
38-7 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
38-8 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
38-9 any time without regard to the declarant's mental state or
38-10 competency. An order may be revoked by:
38-11 (1) the declarant or someone in the declarant's
38-12 presence and at the declarant's direction destroying the order form
38-13 and removing the DNR identification device, if any;
38-14 (2) a person who identifies himself or herself as the
38-15 legal guardian, as a qualified relative, or as the agent of the
38-16 declarant having a durable power of attorney for health care who
38-17 executed the out-of-hospital DNR order or another person in the
38-18 person's presence and at the person's direction destroying the
38-19 order form and removing the DNR identification device, if any;
38-20 (3) the declarant communicating the declarant's intent
38-21 to revoke the order; or
38-22 (4) a person who identifies himself or herself as the
38-23 legal guardian, a qualified relative, or the agent of the declarant
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39-1 having a durable power of attorney for health care who executed the
39-2 out-of-hospital DNR order orally stating the person's intent to
39-3 revoke the order.
39-4 (b) An oral revocation under Subsection (a)(3) or (a)(4)
39-5 takes effect only when the declarant or a person who identifies
39-6 himself or herself as the legal guardian, a qualified relative, or
39-7 the agent of the declarant having a durable power of attorney for
39-8 health care who executed the out-of-hospital DNR order communicates
39-9 the intent to revoke the order to the responding health care
39-10 professionals or the attending physician at the scene. The
39-11 responding health care professionals shall record the time, date,
39-12 and place of the revocation in accordance with the statewide
39-13 out-of-hospital DNR protocol and rules adopted by the board and any
39-14 applicable local out-of-hospital DNR protocol. The attending
39-15 physician or the physician's designee shall record in the person's
39-16 medical record the time, date, and place of the revocation and, if
39-17 different, the time, date, and place that the physician received
39-18 notice of the revocation. The attending physician or the
39-19 physician's designee shall also enter the word "VOID" on each page
39-20 of the copy of the order in the person's medical record.
39-21 (c) Except as otherwise provided by this subchapter
39-22 [chapter], a person is not civilly or criminally liable for failure
39-23 to act on a revocation made under this section unless the person
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40-1 has actual knowledge of the revocation.
40-2 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
40-3 ORDER. A declarant may at any time reexecute or reissue an
40-4 out-of-hospital DNR order in accordance with the procedures
40-5 prescribed by Section 166.082 [674.002], including reexecution or
40-6 reissuance after the declarant is diagnosed as having a terminal
40-7 condition.
40-8 Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW
40-9 [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE. To the extent
40-10 that an out-of-hospital DNR order conflicts with a directive or
40-11 treatment decision executed or issued under Subchapter B [Chapter
40-12 672] or a durable power of attorney for health care [executed or
40-13 issued in accordance with Chapter 135, Civil Practice and Remedies
40-14 Code], the instrument executed later in time controls.
40-15 Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER
40-16 ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
40-17 executed or issued an out-of-hospital DNR order under this
40-18 subchapter [chapter] does not:
40-19 (1) restrict, inhibit, or impair in any manner the
40-20 sale, procurement, or issuance of a life insurance policy to that
40-21 person; or
40-22 (2) modify the terms of an existing life insurance
40-23 policy.
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41-1 (b) Notwithstanding the terms of any life insurance policy,
41-2 the fact that cardiopulmonary resuscitation or certain other
41-3 life-sustaining procedures designated by the board are withheld
41-4 from an insured person under this subchapter [chapter] does not
41-5 legally impair or invalidate that person's life insurance policy
41-6 and may not be a factor for the purpose of determining the
41-7 payability of benefits or the cause of death under the life
41-8 insurance policy.
41-9 (c) A physician, health facility, health care provider,
41-10 insurer, or health care service plan may not require a person to
41-11 execute or issue an out-of-hospital DNR order as a condition for
41-12 obtaining insurance for health care services or receiving health
41-13 care services.
41-14 (d) The fact that a person has executed or issued or failed
41-15 to execute or issue an out-of-hospital DNR order under this
41-16 subchapter [chapter] may not be considered in any way in
41-17 establishing insurance premiums.
41-18 Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR
41-19 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
41-20 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
41-21 health care facility or entity that in good faith causes
41-22 cardiopulmonary resuscitation or certain other life-sustaining
41-23 procedures designated by the board to be withheld from a person in
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42-1 accordance with this subchapter [chapter] is not civilly liable for
42-2 that action.
42-3 (b) A health care professional or health care facility or
42-4 entity that in good faith participates in withholding
42-5 cardiopulmonary resuscitation or certain other life-sustaining
42-6 procedures designated by the board from a person in accordance with
42-7 this subchapter [chapter] is not civilly liable for that action.
42-8 (c) A health care professional or health care facility or
42-9 entity that in good faith participates in withholding
42-10 cardiopulmonary resuscitation or certain other life-sustaining
42-11 procedures designated by the board from a person in accordance with
42-12 this subchapter [chapter] is not criminally liable or guilty of
42-13 unprofessional conduct as a result of that action.
42-14 (d) A health care professional or health care facility or
42-15 entity that in good faith causes or participates in withholding
42-16 cardiopulmonary resuscitation or certain other life-sustaining
42-17 procedures designated by the board from a person in accordance with
42-18 this subchapter [chapter] and rules adopted under this subchapter
42-19 [chapter] is not in violation of any other licensing or regulatory
42-20 laws or rules of this state and is not subject to any disciplinary
42-21 action or sanction by any licensing or regulatory agency of this
42-22 state as a result of that action.
42-23 Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
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43-1 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
43-2 professional or health care facility or entity that has no actual
43-3 knowledge of an out-of-hospital DNR order is not civilly or
43-4 criminally liable for failing to act in accordance with the order.
43-5 (b) A health care professional or health care facility or
43-6 entity is not civilly or criminally liable for failing to
43-7 effectuate an out-of-hospital DNR order.
43-8 (c) If an attending physician refuses to execute or comply
43-9 with an out-of-hospital DNR order, the physician shall inform the
43-10 person, the legal guardian or qualified relatives of the person, or
43-11 the agent of the person having a durable power of attorney for
43-12 health care and, if the person or another authorized to act on
43-13 behalf of the person so directs, shall make a reasonable effort to
43-14 transfer the person to another physician who is willing to execute
43-15 or comply with an out-of-hospital DNR order.
43-16 Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
43-17 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
43-18 commit an offense under Section 22.08, Penal Code, by withholding
43-19 cardiopulmonary resuscitation or certain other life-sustaining
43-20 procedures designated by the board from a person in accordance with
43-21 this subchapter [chapter].
43-22 Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION.
43-23 (a) A person commits an offense if the person intentionally
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44-1 conceals, cancels, defaces, obliterates, or damages another
44-2 person's out-of-hospital DNR order or DNR identification device
44-3 without that person's consent or the consent of the person or
44-4 persons authorized to execute or issue an out-of-hospital DNR order
44-5 on behalf of the person under this subchapter [chapter]. An
44-6 offense under this subsection is a Class A misdemeanor.
44-7 (b) A person is subject to prosecution for criminal homicide
44-8 under Chapter 19, Penal Code, if the person, with the intent to
44-9 cause cardiopulmonary resuscitation or certain other
44-10 life-sustaining procedures designated by the board to be withheld
44-11 from another person contrary to the other person's desires,
44-12 falsifies or forges an out-of-hospital DNR order or intentionally
44-13 conceals or withholds personal knowledge of a revocation and
44-14 thereby directly causes cardiopulmonary resuscitation and certain
44-15 other life-sustaining procedures designated by the board to be
44-16 withheld from the other person with the result that the other
44-17 person's death is hastened.
44-18 Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not
44-19 withhold cardiopulmonary resuscitation or certain other
44-20 life-sustaining procedures designated by the board under this
44-21 subchapter [chapter] from a person known by the responding health
44-22 care professionals to be pregnant.
44-23 Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This
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45-1 subchapter [chapter] does not condone, authorize, or approve mercy
45-2 killing or permit an affirmative or deliberate act or omission to
45-3 end life except to permit the natural process of dying as provided
45-4 by this subchapter [chapter].
45-5 Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
45-6 AFFECTED. This subchapter [chapter] does not impair or supersede
45-7 any legal right or responsibility a person may have under a
45-8 constitution, other statute, regulation, or court decision to
45-9 effect the withholding of cardiopulmonary resuscitation or certain
45-10 other life-sustaining procedures designated by the board.
45-11 Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
45-12 (a) The board shall, on the recommendation of the department,
45-13 adopt all reasonable and necessary rules to carry out the purposes
45-14 of this subchapter [chapter], including rules:
45-15 (1) adopting a statewide out-of-hospital DNR order
45-16 protocol that sets out standard procedures for the withholding of
45-17 cardiopulmonary resuscitation and certain other life-sustaining
45-18 procedures by health care professionals acting in out-of-hospital
45-19 settings;
45-20 (2) designating life-sustaining procedures that may be
45-21 included in an out-of-hospital DNR order, including all procedures
45-22 listed in Sections 166.081(6)(A)(i) through (vi) [Section
45-23 674.001(14)(A)(i) through (vi)]; and
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46-1 (3) governing recordkeeping in circumstances in which
46-2 an out-of-hospital DNR order or DNR identification device is
46-3 encountered by responding health care professionals.
46-4 (b) The rules adopted by the board under Subsection (a) are
46-5 not effective until approved by the Texas State Board of Medical
46-6 Examiners.
46-7 (c) Local emergency medical services authorities may adopt
46-8 local out-of-hospital DNR order protocols if the local protocols do
46-9 not conflict with the statewide out-of-hospital DNR order protocol
46-10 adopted by the board.
46-11 (d) The board by rule shall specify a distinctive standard
46-12 design for a necklace and a bracelet DNR identification device that
46-13 signifies, when worn by a person, that the possessor has executed
46-14 or issued a valid out-of-hospital DNR order under this subchapter
46-15 [chapter] or is a person for whom a valid out-of-hospital DNR order
46-16 has been executed or issued.
46-17 (e) The department shall report to the board from time to
46-18 time regarding issues identified in emergency medical services
46-19 responses in which an out-of-hospital DNR order or DNR
46-20 identification device is encountered. The report may contain
46-21 recommendations to the board for necessary modifications to the
46-22 form of the standard out-of-hospital DNR order or the designated
46-23 life-sustaining procedures listed in the standard out-of-hospital
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47-1 DNR order, the statewide out-of-hospital DNR order protocol, or the
47-2 DNR identification devices.
47-3 Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR
47-4 ORDER EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR
47-5 order executed, issued, or authorized in another state or a
47-6 territory or possession of the United States in compliance with the
47-7 law of that jurisdiction is effective for purposes of this
47-8 subchapter [chapter].
47-9 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
47-10 is transferred to Subtitle H, Title 2, Health and Safety Code, is
47-11 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
47-12 and is amended to read as follows:
47-13 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
47-14 HEALTH CARE
47-15 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
47-16 [chapter]:
47-17 (1) "Adult" means a person 18 years of age or older or
47-18 a person under 18 years of age who has had the disabilities of
47-19 minority removed.
47-20 (2) "Agent" means an adult to whom authority to make
47-21 health care decisions is delegated under a durable power of
47-22 attorney for health care.
47-23 (3) ["Attending physician" means the physician,
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48-1 selected by or assigned to a patient, who has primary
48-2 responsibility for the treatment and care of the patient.]
48-3 [(4) "Capacity to make health care decisions" means
48-4 the ability to understand and appreciate the nature and
48-5 consequences of a health care decision, including the significant
48-6 benefits and harms of and reasonable alternatives to any proposed
48-7 health care.]
48-8 [(5) "Durable power of attorney for health care" means
48-9 a document delegating to an agent the authority to make health care
48-10 decisions as provided by this chapter.]
48-11 [(6) "Health care decision" means consent, refusal to
48-12 consent, or withdrawal of consent to health care, treatment,
48-13 service, or procedure to maintain, diagnose, or treat an
48-14 individual's physical or mental condition.]
48-15 [(7)] "Health care provider" means an individual or
48-16 facility licensed, certified, or otherwise authorized to administer
48-17 health care, for profit or otherwise, in the ordinary course of
48-18 business or professional practice and includes a physician.
48-19 (4) [(8) "Physician" means:]
48-20 [(A) a physician licensed by the Texas State
48-21 Board of Medical Examiners; or]
48-22 [(B) a physician with proper credentials who
48-23 holds a commission in a branch of the armed services of the United
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49-1 States and who is serving on active duty in this state.]
49-2 [(9)] "Principal" means an adult who has executed a
49-3 durable power of attorney for health care.
49-4 (5) [(10)] "Residential care provider" means an
49-5 individual or facility licensed, certified, or otherwise authorized
49-6 to operate, for profit or otherwise, a residential care home.
49-7 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
49-8 (a) Subject to this subchapter [chapter] or any express limitation
49-9 on the authority of the agent contained in the durable power of
49-10 attorney for health care, the agent may make any health care
49-11 decision on the principal's behalf that the principal could make if
49-12 the principal were competent [but for the principal's lack of
49-13 capacity to make health care decisions].
49-14 (b) An agent may exercise authority only if the principal's
49-15 attending physician certifies in writing and files the
49-16 certification in the principal's medical record that, based on the
49-17 attending physician's reasonable medical judgment, the principal is
49-18 incompetent [lacks capacity to make health care decisions].
49-19 (c) Notwithstanding any other provisions of this subchapter
49-20 [chapter], treatment may not be given to or withheld from the
49-21 principal if the principal objects regardless of whether, at the
49-22 time of the objection:
49-23 (1) a durable power of attorney for health care is in
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50-1 effect; or
50-2 (2) the principal is competent [has the capacity to
50-3 make health care decisions].
50-4 (d) The principal's attending physician shall make
50-5 reasonable efforts to inform the principal of any proposed
50-6 treatment or of any proposal to withdraw or withhold treatment
50-7 before implementing an agent's directive.
50-8 (e) After consultation with the attending physician and
50-9 other health care providers, the agent shall make a health care
50-10 decision:
50-11 (1) according to the agent's knowledge of the
50-12 principal's wishes, including the principal's religious and moral
50-13 beliefs; or
50-14 (2) if the agent does not know the principal's wishes,
50-15 according to the agent's assessment of the principal's best
50-16 interests.
50-17 (f) Notwithstanding any other provision of this subchapter
50-18 [chapter], an agent may not consent to:
50-19 (1) voluntary inpatient mental health services;
50-20 (2) convulsive treatment;
50-21 (3) psychosurgery;
50-22 (4) abortion; or
50-23 (5) neglect of the principal through the omission of
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51-1 care primarily intended to provide for the comfort of the
51-2 principal.
51-3 (g) The power of attorney is effective indefinitely on
51-4 execution as provided by this subchapter [chapter] and delivery of
51-5 the document to the agent, unless it is revoked as provided by this
51-6 subchapter [chapter] or the principal becomes competent [regains
51-7 the capacity to make health care decisions]. If the durable power
51-8 of attorney includes an expiration date and on that date the
51-9 principal becomes incompetent [lacks the capacity to make health
51-10 care decisions], the power of attorney continues to be effective
51-11 until the principal becomes competent [regains the capacity to make
51-12 health care decisions] unless it is revoked as provided by this
51-13 subchapter [chapter].
51-14 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
51-15 AUTHORITY OF AGENT. A person may not exercise the authority of an
51-16 agent while the person serves as:
51-17 (1) the principal's health care provider;
51-18 (2) an employee of the principal's health care
51-19 provider unless the person is a relative of the principal;
51-20 (3) the principal's residential care provider; or
51-21 (4) an employee of the principal's residential care
51-22 provider unless the person is a relative of the principal.
51-23 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
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52-1 durable power of attorney for health care must be signed by the
52-2 principal in the presence of at least two [or more] subscribing
52-3 witnesses.
52-4 (b) A witness must possess the qualifications and be subject
52-5 to the restrictions provided by Section 166.003. In addition, a
52-6 witness may not, at the time of execution, be[:]
52-7 [(1)] the agent[;]
52-8 [(2) the principal's health or residential care
52-9 provider or the provider's employee;]
52-10 [(3) the principal's spouse or heir;]
52-11 [(4) a person entitled to any part of the estate of
52-12 the principal on the death of the principal under a will or deed in
52-13 existence or by operation of law; or]
52-14 [(5) any other person who has any claim against the
52-15 estate] of the principal.
52-16 (c) The witnesses shall affirm that, at the time the durable
52-17 power of attorney for health care was signed, the principal:
52-18 (1) appeared to be competent [of sound mind to make a
52-19 health care decision];
52-20 (2) stated in the witness's presence that the
52-21 principal was aware of the nature of the durable power of attorney
52-22 for health care and that the principal was signing the document
52-23 voluntarily and free from any duress; and
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53-1 (3) requested that the witness serve as a witness to
53-2 the principal's execution of the document.
53-3 (d) If the principal is physically unable to sign, another
53-4 person may sign the durable power of attorney for health care with
53-5 the principal's name in the principal's presence and at the
53-6 principal's express direction.
53-7 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
53-8 attorney for health care is revoked by:
53-9 (1) oral or written notification at any time by the
53-10 principal to the agent or a licensed or certified health or
53-11 residential care provider or by any other act evidencing a specific
53-12 intent to revoke the power, without regard to whether the principal
53-13 is competent or the principal's mental state[, competency, or
53-14 capacity to make health care decisions];
53-15 (2) execution by the principal of a subsequent durable
53-16 power of attorney for health care; or
53-17 (3) the divorce of the principal and spouse, if the
53-18 spouse is the principal's agent.
53-19 (b) A principal's licensed or certified health or
53-20 residential care provider who is informed of or provided with a
53-21 revocation of a durable power of attorney for health care shall
53-22 immediately record the revocation in the principal's medical record
53-23 and give notice of the revocation to the agent and any known health
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54-1 and residential care providers currently responsible for the
54-2 principal's care.
54-3 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
54-4 motion filed in connection with a petition for appointment of a
54-5 guardian or, if a guardian has been appointed, on petition of the
54-6 guardian, a probate court shall determine whether to suspend or
54-7 revoke the authority of the agent.
54-8 (b) The court shall consider the preferences of the
54-9 principal as expressed in the durable power of attorney for health
54-10 care.
54-11 (c) During the pendency of the court's determination under
54-12 Subsection (a), the guardian has the sole authority to make any
54-13 health care decisions unless the court orders otherwise. If a
54-14 guardian has not been appointed, the agent has the authority to
54-15 make any health care decisions unless the court orders otherwise.
54-16 (d) A person, including any attending physician or health or
54-17 residential care provider, who does not have actual knowledge of
54-18 the appointment of a guardian or an order of the court granting
54-19 authority to someone other than the agent to make health care
54-20 decisions is not subject to criminal or civil liability and has not
54-21 engaged in unprofessional conduct for implementing an agent's
54-22 health care decision.
54-23 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
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55-1 Subject to any limitations in the durable power of attorney for
55-2 health care, an agent may, for the purpose of making a health care
55-3 decision:
55-4 (1) request, review, and receive any information, oral
55-5 or written, regarding the principal's physical or mental health,
55-6 including medical and hospital records;
55-7 (2) execute a release or other document required to
55-8 obtain the information; and
55-9 (3) consent to the disclosure of the information.
55-10 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
55-11 PROVIDER. (a) A principal's health or residential care provider
55-12 and an employee of the provider who knows of the existence of the
55-13 principal's durable power of attorney for health care shall follow
55-14 a directive of the principal's agent to the extent it is consistent
55-15 with the desires of the principal, this subchapter [chapter], and
55-16 the durable power of attorney for health care.
55-17 (b) The attending physician does not have a duty to verify
55-18 that the agent's directive is consistent with the principal's
55-19 wishes or religious or moral beliefs.
55-20 (c) A principal's health or residential care provider who
55-21 finds it impossible to follow a directive by the agent because of a
55-22 conflict with this subchapter [chapter] or the durable power of
55-23 attorney for health care shall inform the agent as soon as is
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56-1 reasonably possible. The agent may select another attending
56-2 physician.
56-3 (d) This subchapter [chapter] may not be construed to
56-4 require a health or residential care provider who is not a
56-5 physician to act in a manner contrary to a physician's order.
56-6 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
56-7 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
56-8 residential care provider, health care service plan, insurer
56-9 issuing disability insurance, self-insured employee benefit plan,
56-10 or nonprofit hospital service plan may not:
56-11 (1) charge a person a different rate solely because
56-12 the person has executed a durable power of attorney for health
56-13 care;
56-14 (2) require a person to execute a durable power of
56-15 attorney for health care before:
56-16 (A) admitting the person to a hospital, nursing
56-17 home, or residential care home;
56-18 (B) insuring the person; or
56-19 (C) allowing the person to receive health or
56-20 residential care; or
56-21 (3) refuse health or residential care to a person
56-22 solely because the person has executed a durable power of attorney
56-23 for health care.
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57-1 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
57-2 agent is not subject to criminal or civil liability for a health
57-3 care decision if the decision is made in good faith under the terms
57-4 of the durable power of attorney for health care and the provisions
57-5 of this subchapter [chapter].
57-6 (b) An attending physician, health or residential care
57-7 provider, or a person acting as an agent for or under the
57-8 physician's or provider's control is not subject to criminal or
57-9 civil liability and has not engaged in unprofessional conduct for
57-10 an act or omission if the act or omission:
57-11 (1) is done in good faith under the terms of the
57-12 durable power of attorney for health care, the directives of the
57-13 agent, and the provisions of this subchapter [chapter]; and
57-14 (2) does not constitute a failure to exercise due care
57-15 in the provision of health care services.
57-16 (c) An attending physician, health or residential care
57-17 provider, or person acting as an agent for or under the physician's
57-18 or provider's control has not engaged in unprofessional conduct
57-19 for:
57-20 (1) failure to act as required by the directive of an
57-21 agent or a durable power of attorney for health care if the
57-22 physician, provider, or person was not provided with a copy of the
57-23 durable power of attorney for health care or had no knowledge of a
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58-1 directive; or
58-2 (2) acting as required by an agent's directive if the
58-3 durable power of attorney for health care has expired or been
58-4 revoked but the physician, provider, or person does not have
58-5 knowledge of the expiration or revocation.
58-6 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
58-7 Liability for the cost of health care provided as a result of the
58-8 agent's decision is the same as if the health care were provided as
58-9 a result of the principal's decision.
58-10 Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the
58-11 extent that a durable power of attorney for health care conflicts
58-12 with a directive or treatment decision executed under Subchapter B
58-13 [the Natural Death Act (Chapter 672, Health and Safety Code)], the
58-14 instrument executed later in time controls. A physician who
58-15 withholds or withdraws life-sustaining procedures from a principal
58-16 with a terminal condition as required by an agent's directive is
58-17 not required to comply with Subchapter B [the Natural Death Act].
58-18 Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF
58-19 ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This subchapter
58-20 [chapter] does not limit the enforceability of a durable power of
58-21 attorney for health care or similar instrument executed in another
58-22 state or jurisdiction if the instrument complies with the law of
58-23 the state or jurisdiction.
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59-1 Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable
59-2 power of attorney for health care is not effective unless the
59-3 principal, before executing the durable power of attorney for
59-4 health care, signs a statement that the principal has received a
59-5 disclosure statement and has read and understood its contents.
59-6 Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The
59-7 disclosure statement must be in substantially the following form:
59-8 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
59-9 HEALTH CARE
59-10 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING
59-11 THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
59-12 Except to the extent you state otherwise, this
59-13 document gives the person you name as your agent the
59-14 authority to make any and all health care decisions for
59-15 you in accordance with your wishes, including your
59-16 religious and moral beliefs, when you are no longer
59-17 capable of making them yourself. Because "health care"
59-18 means any treatment, service, or procedure to maintain,
59-19 diagnose, or treat your physical or mental condition,
59-20 your agent has the power to make a broad range of
59-21 health care decisions for you. Your agent may consent,
59-22 refuse to consent, or withdraw consent to medical
59-23 treatment and may make decisions about withdrawing or
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60-1 withholding life-sustaining treatment. Your agent may
60-2 not consent to voluntary inpatient mental health
60-3 services, convulsive treatment, psychosurgery, or
60-4 abortion. A physician must comply with your agent's
60-5 instructions or allow you to be transferred to another
60-6 physician.
60-7 Your agent's authority begins when your doctor
60-8 certifies that you lack the capacity to make health
60-9 care decisions.
60-10 Your agent is obligated to follow your
60-11 instructions when making decisions on your behalf.
60-12 Unless you state otherwise, your agent has the same
60-13 authority to make decisions about your health care as
60-14 you would have had.
60-15 It is important that you discuss this document
60-16 with your physician or other health care provider
60-17 before you sign it to make sure that you understand the
60-18 nature and range of decisions that may be made on your
60-19 behalf. If you do not have a physician, you should
60-20 talk with someone else who is knowledgeable about these
60-21 issues and can answer your questions. You do not need
60-22 a lawyer's assistance to complete this document, but if
60-23 there is anything in this document that you do not
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61-1 understand, you should ask a lawyer to explain it to
61-2 you.
61-3 The person you appoint as agent should be someone
61-4 you know and trust. The person must be 18 years of age
61-5 or older or a person under 18 years of age who has had
61-6 the disabilities of minority removed. If you appoint
61-7 your health or residential care provider (e.g., your
61-8 physician or an employee of a home health agency,
61-9 hospital, nursing home, or residential care home, other
61-10 than a relative), that person has to choose between
61-11 acting as your agent or as your health or residential
61-12 care provider; the law does not permit a person to do
61-13 both at the same time.
61-14 You should inform the person you appoint that you
61-15 want the person to be your health care agent. You
61-16 should discuss this document with your agent and your
61-17 physician and give each a signed copy. You should
61-18 indicate on the document itself the people and
61-19 institutions who have signed copies. Your agent is not
61-20 liable for health care decisions made in good faith on
61-21 your behalf.
61-22 Even after you have signed this document, you
61-23 have the right to make health care decisions for
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62-1 yourself as long as you are able to do so and treatment
62-2 cannot be given to you or stopped over your objection.
62-3 You have the right to revoke the authority granted to
62-4 your agent by informing your agent or your health or
62-5 residential care provider orally or in writing or by
62-6 your execution of a subsequent durable power of
62-7 attorney for health care. Unless you state otherwise,
62-8 your appointment of a spouse dissolves on divorce.
62-9 This document may not be changed or modified. If
62-10 you want to make changes in the document, you must make
62-11 an entirely new one.
62-12 You may wish to designate an alternate agent in
62-13 the event that your agent is unwilling, unable, or
62-14 ineligible to act as your agent. Any alternate agent
62-15 you designate has the same authority to make health
62-16 care decisions for you.
62-17 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED
62-18 IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.
62-19 THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
62-20 (1) the person you have designated as your
62-21 agent;
62-22 (2) a person related to you by blood or
62-23 marriage [your health or residential care provider or
62
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63-1 an employee of your health or residential care
63-2 provider];
63-3 (3) a person entitled to any part of your
63-4 estate after your death under a will or codicil
63-5 executed by you or by operation of law [your spouse];
63-6 (4) your attending physician [lawful heirs
63-7 or beneficiaries named in your will or a deed]; [or]
63-8 (5) an employee of the attending
63-9 physician;
63-10 (6) an employee of a health care facility
63-11 in which you are a patient if the employee is providing
63-12 direct patient care to you or is an officer, director,
63-13 partner, or business office employee of the health care
63-14 facility or of any parent organization of the health
63-15 care facility;
63-16 (7) a patient in a health care facility in
63-17 which you are a patient; or
63-18 (8) a person who, at the time this power
63-19 of attorney is executed, has a claim against any part
63-20 of your estate after your death [creditors or persons
63-21 who have a claim against you].
63-22 Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
63-23 The durable power of attorney for health care must be in
63
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64-1 substantially the following form:
64-2 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
64-3 DESIGNATION OF HEALTH CARE AGENT.
64-4 I,_____________________________(insert your name)
64-5 appoint:
64-6 Name:____________________________________________
64-7 Address:_________________________________________
64-8 Phone________________________________
64-9 as my agent to make any and all health care decisions
64-10 for me, except to the extent I state otherwise in this
64-11 document. This durable power of attorney for health
64-12 care takes effect if I become unable to make my own
64-13 health care decisions and this fact is certified in
64-14 writing by my physician.
64-15 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY
64-16 AGENT ARE AS FOLLOWS:___________________________
64-17 _______________________________________________________
64-18 DESIGNATION OF ALTERNATE AGENT.
64-19 (You are not required to designate an alternate
64-20 agent but you may do so. An alternate agent may make
64-21 the same health care decisions as the designated agent
64-22 if the designated agent is unable or unwilling to act
64-23 as your agent. If the agent designated is your spouse,
64
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65-1 the designation is automatically revoked by law if your
65-2 marriage is dissolved.)
65-3 If the person designated as my agent is unable or
65-4 unwilling to make health care decisions for me, I
65-5 designate the following persons to serve as my agent to
65-6 make health care decisions for me as authorized by this
65-7 document, who serve in the following order:
65-8 A. First Alternate Agent
65-9 Name:________________________________________
65-10 Address:_____________________________________
65-11 Phone____________________________
65-12 B. Second Alternate Agent
65-13 Name:________________________________________
65-14 Address:_____________________________________
65-15 Phone____________________________
65-16 The original of this document is kept
65-17 at_____________________________________________________
65-18 _______________________________________________________
65-19 _______________________________________________________
65-20 The following individuals or institutions have signed
65-21 copies:
65
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66-1 Name:____________________________________________
66-2 Address:_________________________________________
66-3 _________________________________________________
66-4 Name:____________________________________________
66-5 Address:_________________________________________
66-6 _________________________________________________
66-7 DURATION.
66-8 I understand that this power of attorney exists
66-9 indefinitely from the date I execute this document
66-10 unless I establish a shorter time or revoke the power
66-11 of attorney. If I am unable to make health care
66-12 decisions for myself when this power of attorney
66-13 expires, the authority I have granted my agent
66-14 continues to exist until the time I become able to make
66-15 health care decisions for myself.
66-16 (IF APPLICABLE) This power of attorney ends on
66-17 the following date:________________
66-18 PRIOR DESIGNATIONS REVOKED.
66-19 I revoke any prior durable power of attorney for
66-20 health care.
66-21 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
66-22 I have been provided with a disclosure statement
66-23 explaining the effect of this document. I have read
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67-1 and understand that information contained in the
67-2 disclosure statement.
67-3 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
67-4 I sign my name to this durable power of attorney for
67-5 health care on _____ day of ______________ 19 _________
67-6 at_________________________________________________
67-7 (City and State)
67-8 ___________________________________________________
67-9 (Signature)
67-10 ___________________________________________________
67-11 (Print Name)
67-12 STATEMENT OF WITNESSES.
67-13 I declare under penalty of perjury that the
67-14 principal has identified himself or herself to me, that
67-15 the principal signed or acknowledged this durable power
67-16 of attorney in my presence, that I believe the
67-17 principal to be of sound mind, that the principal has
67-18 affirmed that the principal is aware of the nature of
67-19 the document and is signing it voluntarily and free
67-20 from duress, that the principal requested that I serve
67-21 as witness to the principal's execution of this
67-22 document, that I am not the person appointed as agent
67-23 by this document, and that I am not related to the
67
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68-1 principal by blood or marriage, I would not be entitled
68-2 to any portion of the principal's estate on the
68-3 principal's death, I am not the attending physician of
68-4 the principal or an employee of the attending
68-5 physician, I am not a patient in the health care
68-6 facility in which the principal is a patient, and I
68-7 have no claim against any portion of the principal's
68-8 estate on the principal's death. Furthermore, if I am
68-9 an employee of a health care facility in which the
68-10 principal is a patient, I am not involved in providing
68-11 direct patient care to the principal and am not an
68-12 officer, director, partner, or business office
68-13 employee of the health care facility or of any
68-14 parent organization of the health care facility [a
68-15 provider of health or residential care, an employee of
68-16 a provider of health or residential care, the operator
68-17 of a community care facility, or an employee of an
68-18 operator of a health care facility.]
68-19 [I declare that I am not related to the principal
68-20 by blood, marriage, or adoption and that to the best of
68-21 my knowledge I am not entitled to any part of the
68-22 estate of the principal on the death of the principal
68-23 under a will or by operation of law].
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69-1 Witness Signature:_______________
69-2 Print Name:_____________________Date:____________
69-3 Address:_______________________________________________
69-4 Witness Signature:_______________
69-5 Print Name:_____________________Date:____________
69-6 Address:_______________________________________________
69-7 Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is
69-8 a near relative of the principal or a responsible adult who is
69-9 directly interested in the principal, including a guardian, social
69-10 worker, physician, or clergyman, may bring an action in district
69-11 court to request that the durable power of attorney for health care
69-12 be revoked because the principal, at the time the durable power of
69-13 attorney for health care was signed:
69-14 (1) was not competent [of sound mind to make a health
69-15 care decision]; or
69-16 (2) was under duress, fraud, or undue influence.
69-17 (b) The action may be brought in the county of the
69-18 principal's residence or the residence of the person bringing the
69-19 action.
69-20 (c) During the pendency of the action, the authority of the
69-21 agent to make health care decisions continues in effect unless the
69-22 district court orders otherwise.
69-23 Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
69
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70-1 AFFECTED. This subchapter [chapter] does not limit or impair any
70-2 legal right or responsibility that any person, including a
70-3 physician or health or residential care provider, may have to make
70-4 or implement health care decisions on behalf of a person.
70-5 ARTICLE 2. CONFORMING AMENDMENTS
70-6 SECTION 2.01. Subsection (a), Section 313.003, Health and
70-7 Safety Code, is amended to read as follows:
70-8 (a) This chapter does not apply to:
70-9 (1) a decision to withhold or withdraw life-sustaining
70-10 treatment from qualified terminal patients under Subchapter B,
70-11 Chapter 166 [the terms of Chapter 672];
70-12 (2) a health care decision made under a durable power
70-13 of attorney for health care under Subchapter D, Chapter 166
70-14 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
70-15 XII, Texas Probate Code;
70-16 (3) consent to medical treatment of minors under
70-17 Chapter 32 [35], Family Code;
70-18 (4) consent for emergency care under Chapter 773;
70-19 (5) hospital patient transfers under Chapter 241; or
70-20 (6) a patient's legal guardian who has the authority
70-21 to make a decision regarding the patient's medical treatment.
70-22 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
70-23 Code, is amended by adding Section 142.0145 to read as follows:
70
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71-1 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
71-2 DIRECTIVES. (a) The department shall assess an administrative
71-3 penalty against a home and community support services agency that
71-4 violates Section 166.004.
71-5 (b) A penalty assessed under this section shall be $500.
71-6 (c) The penalty shall be assessed in accordance with
71-7 department rules. The rules must provide for notice and an
71-8 opportunity for a hearing.
71-9 SECTION 2.03. Subsections (a) and (c), Section 241.059,
71-10 Health and Safety Code, are amended to read as follows:
71-11 (a) The commissioner of health may assess an administrative
71-12 penalty against a hospital that violates this chapter, a rule
71-13 adopted pursuant to this chapter, a special license provision, an
71-14 order or emergency order issued by the commissioner or the
71-15 commissioner's designee, or another enforcement procedure permitted
71-16 under this chapter. The commissioner shall assess an
71-17 administrative penalty against a hospital that violates Section
71-18 166.004.
71-19 (c) The penalty may not exceed $1,000 for each violation,
71-20 except that the penalty for a violation of Section 166.004 shall be
71-21 $500. Each day of a continuing violation, other than a violation
71-22 of Section 166.004, may be considered a separate violation.
71-23 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
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72-1 Code, is amended by adding Section 242.071 to read as follows:
72-2 Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE
72-3 DIRECTIVES. The commissioner shall assess an administrative
72-4 penalty under this subchapter against an institution that violates
72-5 Section 166.004. Notwithstanding Sections 242.066(b) and (c), a
72-6 penalty assessed in accordance with this section shall be $500 and
72-7 a separate penalty may not be assessed for a separate day of a
72-8 continuing violation.
72-9 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
72-10 Code, is amended by adding Section 247.0455 to read as follows:
72-11 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
72-12 DIRECTIVES. (a) The department shall assess an administrative
72-13 penalty against a personal care facility that violates Section
72-14 166.004.
72-15 (b) A penalty assessed under this section shall be $500.
72-16 (c) The penalty shall be assessed in accordance with
72-17 department rules. The rules must provide for notice and an
72-18 opportunity for a hearing.
72-19 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
72-20 Code, is amended by adding Section 248.0545 to read as follows:
72-21 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
72-22 DIRECTIVES. (a) The department shall assess an administrative
72-23 penalty against a special care facility that violates Section
72
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73-1 166.004.
73-2 (b) A penalty assessed under this section shall be $500.
73-3 (c) The penalty shall be assessed in accordance with
73-4 department rules. The rules must provide for notice and an
73-5 opportunity for a hearing.
73-6 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
73-7 SECTION 3.01. This Act takes effect January 1, 1998.
73-8 SECTION 3.02. The change in law made by this Act does not
73-9 affect the validity of a document executed under Chapter 672 or
73-10 674, Health and Safety Code, or Chapter 135, Civil Practice and
73-11 Remedies Code, before the effective date of this Act. A document
73-12 executed before the effective date of this Act is governed by the
73-13 law in effect on the date the document was executed, and that law
73-14 continues in effect for that purpose.
73-15 SECTION 3.03. (a) The change in law made by this Act
73-16 applies only to the punishment for an offense committed on or after
73-17 the effective date of this Act. For purposes of this section, an
73-18 offense is committed before the effective date of this Act if any
73-19 element of the offense occurs before the effective date.
73-20 (b) An offense committed before the effective date of this
73-21 Act is covered by the law in effect when the offense was committed,
73-22 and the former law is continued in effect for that purpose.
73-23 SECTION 3.04. The importance of this legislation and the
73
S.B. No. 414
74-1 crowded condition of the calendars in both houses create an
74-2 emergency and an imperative public necessity that the
74-3 constitutional rule requiring bills to be read on three several
74-4 days in each house be suspended, and this rule is hereby suspended.
74-5 COMMITTEE AMENDMENT NO. 1
74-6 Amend S.B. No. 414 as follows:
74-7 (1) In Section 166.002(1), Health and Safety Code, as added
74-8 by SECTION 1.02 of the bill, strike "or" (page 1, line 17,
74-9 Engrossed version).
74-10 (2) In Section 166.002(1), Health and Safety Code, as added
74-11 by SECTION 1.02 of the bill, strike the period (page 1, line 19,
74-12 Engrossed version), and insert "; or".
74-13 (3) In Section 166.002(1), Health and Safety Code, as added
74-14 by SECTION 1.02 of the bill, after Paragraph (B) (page 1, between
74-15 lines 19 and 20, Engrossed version), insert the following:
74-16 (C) a durable power of attorney for health care.
74-17 (4) In Section 166.002(5), Health and Safety Code, as added
74-18 by SECTION 1.02 of the bill, strike "a durable power of attorney
74-19 for health care" (page 2, line 8, Engrossed version), and
74-20 substitute "a document delegating to an agent authority to make
74-21 health care decisions".
74-22 (5) In Section 166.003, Health and Safety Code, as added by
74-23 SECTION 1.02 of the bill, strike Subdivision (5) (page 4, lines
74
S.B. No. 414
75-1 1-2, Engrossed version), and substitute the following:
75-2 (5) a person or agent designated by the declarant to
75-3 make a treatment decision;
75-4 (6) In Section 166.004(b), Health and Safety Code, as added
75-5 by SECTION 1.02 of the bill, strike "The health" (page 4, line 21,
75-6 Engrossed version), and substitute "Except as provided by
75-7 Subsection (g), the health".
75-8 (7) In Section 166.004(c), Health and Safety Code, as added
75-9 by SECTION 1.02 of the bill, after Subdivision (1) (page 5, between
75-10 lines 8 and 9, Engrossed version), insert the following:
75-11 (2) the individual's spouse;
75-12 (8) In Section 166.004(c), Health and Safety Code, as added
75-13 by SECTION 1.02 of the bill, strike "(2)" (page 5, line 9,
75-14 Engrossed version), and substitute "(3)".
75-15 (9) In Section 166.004(c), Health and Safety Code, as added
75-16 by SECTION 1.02 of the bill, strike "(3)" (page 5, line 10,
75-17 Engrossed version), and substitute "(4)".
75-18 (10) In Section 166.004(c), Health and Safety Code, as added
75-19 by SECTION 1.02 of the bill, strike "(4)" (page 5, line 11,
75-20 Engrossed version), and substitute "(5)".
75-21 (11) In Section 166.004(c), Health and Safety Code, as added
75-22 by SECTION 1.02 of the bill, strike "(5)" (page 5, line 12,
75-23 Engrossed version), and substitute "(6)".
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S.B. No. 414
76-1 (12) In Section 166.004, Health and Safety Code, as added by
76-2 SECTION 1.02 of the bill, after Subsection (f) (page 6, between
76-3 lines 7 and 8, Engrossed version), insert the following:
76-4 (g) This section does not apply to outpatient hospital
76-5 services, including emergency services.
76-6 (13) In Section 166.033, Health and Safety Code, as
76-7 redesignated and amended by SECTION 1.03 of the bill, strike "I am
76-8 not a patient in the health care facility in which the declarant is
76-9 a patient." (page 11, lines 6-8, Engrossed version), and substitute
76-10 "[I am not a patient in the health care facility in which the
76-11 declarant is a patient.]"
76-12 (14) In Section 166.039, Health and Safety Code, as
76-13 redesignated and amended by SECTION 1.03 of the bill, strike
76-14 Subsections (d) and (e) (page 14, lines 11-18, Engrossed version),
76-15 and substitute the following:
76-16 (d) A treatment decision made under Subsection (b) must be
76-17 documented in the patient's medical record and signed by the
76-18 attending physician [made in the presence of at least two witnesses
76-19 who possess the same qualifications as are required by Section
76-20 672.003(c)].
76-21 (e) If the patient does not have a legal guardian and a
76-22 person listed in Subsection (b) is not available, a treatment
76-23 decision made under Subsection (b) must be witnessed by another
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77-1 physician who is not involved in the treatment of the patient.
77-2 (f) [(e)] The fact that an adult qualified patient has not
77-3 executed or issued a directive does not create a presumption that
77-4 the patient does not want a treatment decision to be made to
77-5 withhold or withdraw life-sustaining procedures.
77-6 (15) In Section 166.154(c), Health and Safety Code, as
77-7 redesignated and amended by SECTION 1.05 of the bill, strike
77-8 "appeared to be competent [of sound mind to make a health care
77-9 decision];" (page 49, lines 1-2, Engrossed version), and substitute
77-10 "[appeared to be of sound mind to make a health care decision;]".
77-11 (16) In Section 166.154(c), Health and Safety Code, as
77-12 redesignated and amended by SECTION 1.05 of the bill, strike "(2)"
77-13 (page 49, line 3, Engrossed version), and substitute "[(2)]".
77-14 (17) In Section 166.154(c), Health and Safety Code, as
77-15 redesignated and amended by SECTION 1.05 of the bill, strike "(3)"
77-16 (page 49, line 7, Engrossed version), and substitute "(2) [(3)]".
77-17 (18) In Section 166.165, Health and Safety Code, as
77-18 redesignated and amended by SECTION 1.05 of the bill, after the
77-19 semicolon following Subdivision (6) (Page 59, line 1, Engrossed
77-20 version), insert "or".
77-21 (19) In Section 166.165, Health and Safety Code, as
77-22 redesignated and amended by SECTION 1.05 of the bill, strike
77-23 Subdivision (7) (page 59, lines 2-3, Engrossed version).
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S.B. No. 414
78-1 (20) In Section 166.165, Health and Safety Code, as
78-2 redesignated and amended by SECTION 1.05 of the bill, renumber
78-3 Subdivision (8) as Subdivision (7) (page 59, line 4, Engrossed
78-4 version).
78-5 (21) In Section 166.166, Health and Safety Code, as
78-6 redesignated and amended by SECTION 1.05 of the bill, strike "that
78-7 I believe the principal to be of sound mind," (page 62, lines
78-8 17-18, Engrossed version), and substitute "[that I believe the
78-9 principal to be of sound mind,]".
78-10 (22) In Section 166.166, Health and Safety Code, as
78-11 redesignated and amended by SECTION 1.05 of the bill, strike "I am
78-12 not a patient in the health care facility in which the principal is
78-13 a patient," (page 63, lines 4-5, Engrossed version).
78-14 75R14631 MCK-D Berlanga
78
< By: Moncrief S.B. No. 414 A BILL TO BE ENTITLED AN ACT 1-1 relating to certain advance directives for medical treatment; 1-2 providing administrative penalties. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 ARTICLE 1. ADVANCE DIRECTIVES 1-5 SECTION 1.01. Subtitle H, Title 2, Health and Safety enefits and harms of and reasonable alternatives to a 2-3 proposed treatment decision. 2-4 (4) "Declarant" means a person who has executed or 2-5 issued a directive under this chapter. ( 2-6 (5) "Durable power of attorney for health care" means 2-7 a durable power of attorney for health care executed or issued 2-8 under Subchapter D. ( 2-9 (6) "Incompetent" means lacking the ability, based on 2-10 rea
17-17 (c) If an attending physician refuses to comply with a
17-18 directive or treatment decision, the physician shall make a
17-19 reasonable effort to transfer the patient to another physician.
17-20 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
17-21 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
17-22 offense under Section 22.08, Penal Code, by withholding or
17-23 withdrawing life-sustaining procedures from a qualified patient in
17-24 accordance with this subchapter [chapter].
17-25 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
17-26 (a) A person commits an offense if the person intentionally
17-27 conceals, cancels, defaces, obliterates, or damages another
18-1 person's directive without that person's consent. An offense under
18-2 this subsection is a Class A misdemeanor.
18-3 (b) A person is subject to prosecution for criminal homicide
18-4 under Chapter 19, Penal Code, if the person, with the intent to
18-5 cause life-sustaining procedures to be withheld or withdrawn from
18-6 another person contrary to the other person's desires, falsifies or
18-7 forges a directive or intentionally conceals or withholds personal
18-8 knowledge of a revocation and thereby directly causes
18-9 life-sustaining procedures to be withheld or withdrawn from the
18-10 other person with the result that the other person's death is
18-11 hastened.
18-12 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
18-13 withdraw or withhold life-sustaining procedures under this
18-14 subchapter [chapter] from a pregnant patient.
18-15 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
18-16 subchapter [chapter] does not condone, authorize, or approve mercy
18-17 killing or permit an affirmative or deliberate act or omission to
18-18 end life except to permit the natural process of dying as provided
18-19 by this subchapter [chapter].
18-20 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
18-21 AFFECTED. This subchapter [chapter] does not impair or supersede
18-22 any legal right or responsibility a person may have to effect the
18-23 withholding or withdrawal of life-sustaining procedures in a lawful
18-24 manner.
18-25 SECTION 1.04. Chapter 674, Health and Safety Code, is
18-26 transferred to Subtitle H, Title 2, Health and Safety Code, is
18-27 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
19-1 and is amended to read as follows:
19-2 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
19-3 DO-NOT-RESUSCITATE ORDERS
19-4 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
19-5 [chapter]:
19-6 (1) ["Attending physician" means the physician who has
19-7 primary responsibility for a person's treatment and care.]
19-8 [(2) "Board" means the Texas Board of Health.]
19-9 [(3)] "Cardiopulmonary resuscitation" includes a
19-10 component of cardiopulmonary resuscitation.
19-11 (2) [(4) "Competent" means possessing the ability,
19-12 based on reasonable medical judgment, to understand and appreciate
19-13 the nature and consequences of a treatment decision, including the
19-14 significant benefits and harms of, and reasonable alternatives to,
19-15 a proposed treatment decision.]
19-16 [(5) "Declarant" means a person who has executed or
19-17 issued an out-of-hospital do-not-resuscitate order under this
19-18 chapter.]
19-19 [(6) "Department" means the Texas Department of
19-20 Health.]
19-21 [(7)] "DNR identification device" means an
19-22 identification device specified by the board under Section 166.103
19-23 [674.023] that is worn for the purpose of identifying a person who
19-24 has executed or issued an out-of-hospital DNR order or on whose
19-25 behalf an out-of-hospital DNR order has been executed or issued
19-26 under this subchapter [chapter].
19-27 (3) [(8) "Durable power of attorney for health care"
20-1 means a document delegating to an agent the authority to make
20-2 health care decisions for a person in accordance with Chapter 135,
20-3 Civil Practice and Remedies Code.]
20-4 [(9)] "Emergency medical services" has the meaning
20-5 assigned by Section 773.003.
20-6 (4) [(10)] "Emergency medical services personnel" has
20-7 the meaning assigned by Section 773.003.
20-8 (5) [(11)] "Health care professionals" means
20-9 physicians, nurses, and emergency medical services personnel and,
20-10 unless the context requires otherwise, includes hospital emergency
20-11 personnel.
20-12 (6) [(12) "Incompetent" means lacking the ability,
20-13 based on reasonable medical judgment, to understand and appreciate
20-14 the nature and consequences of a treatment decision, including the
20-15 significant benefits and harms of, and reasonable alternatives to,
20-16 a proposed treatment decision.]
20-17 [(13) "Life-sustaining procedure" means a medical
20-18 procedure, treatment, or intervention that uses mechanical or other
20-19 artificial means to sustain, restore, or supplant a spontaneous
20-20 vital function and, when applied to a person in a terminal
20-21 condition, serves only to prolong the process of dying. The term
20-22 does not include the administration of medication or the
20-23 performance of a medical procedure considered to be necessary to
20-24 provide comfort or care or to alleviate pain or the provision of
20-25 water or nutrition.]
20-26 [(14)] "Out-of-hospital DNR order":
20-27 (A) means a legally binding out-of-hospital
21-1 do-not-resuscitate order, in the form specified by the board under
21-2 Section 166.083 [674.003], prepared and signed by the attending
21-3 physician of a person who has been diagnosed as having a terminal
21-4 condition, that documents the instructions of a person or the
21-5 person's legally authorized representative and directs health care
21-6 professionals acting in an out-of-hospital setting not to initiate
21-7 or continue the following life-sustaining procedures:
21-8 (i) cardiopulmonary resuscitation;
21-9 (ii) endotracheal intubation or other
21-10 means of advanced airway management;
21-11 (iii) artificial ventilation;
21-12 (iv) defibrillation;
21-13 (v) transcutaneous cardiac pacing;
21-14 (vi) the administration of cardiac
21-15 resuscitation medications; and
21-16 (vii) other life-sustaining procedures
21-17 specified by the board under Section 166.103(a) [674.023(a)]; and
21-18 (B) does not include authorization to withhold
21-19 medical interventions or therapies considered necessary to provide
21-20 comfort or care or to alleviate pain or to provide water or
21-21 nutrition.
21-22 (7) [(15)] "Out-of-hospital setting" means any setting
21-23 outside of a licensed acute care hospital in which health care
21-24 professionals are called for assistance, including long-term care
21-25 facilities, in-patient hospice facilities, private homes, and
21-26 vehicles during transport.
21-27 (8) [(16) "Physician" means a physician licensed by
22-1 the Texas State Board of Medical Examiners or a properly
22-2 credentialed physician who holds a commission in the uniformed
22-3 services of the United States and who is serving on active duty in
22-4 this state.]
22-5 [(17)] "Proxy" means a person designated and
22-6 authorized by a directive executed or issued in accordance with
22-7 Subchapter B [Chapter 672] to make a treatment decision for another
22-8 person in the event the other person becomes comatose, incompetent,
22-9 or otherwise mentally or physically incapable of communication.
22-10 (9) [(18)] "Qualified relatives" means those persons
22-11 authorized to execute or issue an out-of-hospital DNR order on
22-12 behalf of a person who is comatose, incompetent, or otherwise
22-13 mentally or physically incapable of communication under Section
22-14 166.088 [674.008].
22-15 (10) [(19)] "Statewide out-of-hospital DNR protocol"
22-16 means a set of statewide standardized procedures adopted by the
22-17 board under Section 166.103 [674.023] for withholding
22-18 cardiopulmonary resuscitation and certain other life-sustaining
22-19 procedures by health care professionals acting in out-of-hospital
22-20 settings.
22-21 [(20) "Terminal condition" means an incurable or
22-22 irreversible condition caused by injury, disease, or illness that
22-23 would produce death without the application of life-sustaining
22-24 procedures, according to reasonable medical judgment, and in which
22-25 the application of life-sustaining procedures serves only to
22-26 postpone the moment of the person's death.]
22-27 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
23-1 TO PHYSICIANS. (a) A competent person who has been diagnosed by a
23-2 physician as having a terminal condition may at any time execute a
23-3 written out-of-hospital DNR order directing health care
23-4 professionals acting in an out-of-hospital setting to withhold
23-5 cardiopulmonary resuscitation and certain other life-sustaining
23-6 procedures designated by the board.
23-7 (b) The declarant must sign the out-of-hospital DNR order in
23-8 the presence of two witnesses, and those witnesses must sign the
23-9 order. The attending physician of the declarant must sign the
23-10 order and shall make the fact of the existence of the order and the
23-11 reasons for execution of the order a part of the declarant's
23-12 medical record.
23-13 (c) [A witness must have the same qualifications as those
23-14 provided by Section 672.003(c).]
23-15 [(d)] If the person is incompetent but previously executed
23-16 or issued a directive to physicians in accordance with Subchapter B
23-17 [Chapter 672], the physician may rely on the directive as the
23-18 person's instructions to issue an out-of-hospital DNR order and
23-19 shall place a copy of the directive in the person's medical record.
23-20 The physician shall sign the order in lieu of the person signing
23-21 under Subsection (b).
23-22 (d) [(e)] If the person is incompetent but previously
23-23 executed or issued a directive to physicians in accordance with
23-24 Subchapter B [Chapter 672] designating a proxy, the proxy may make
23-25 any decisions required of the designating person as to an
23-26 out-of-hospital DNR order and shall sign the order in lieu of the
23-27 person signing under Subsection (b).
24-1 (e) [(f)] If the person is now incompetent but previously
24-2 executed or issued a durable power of attorney for health care [in
24-3 accordance with Chapter 135, Civil Practice and Remedies Code],
24-4 designating an agent, the agent may make any decisions required of
24-5 the designating person as to an out-of-hospital DNR order and shall
24-6 sign the order in lieu of the person signing under Subsection (b).
24-7 (f) [(g)] The board, on the recommendation of the
24-8 department, shall by rule adopt procedures for the disposition and
24-9 maintenance of records of an original out-of-hospital DNR order and
24-10 any copies of the order.
24-11 (g) [(h)] An out-of-hospital DNR order is effective on its
24-12 execution.
24-13 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
24-14 (a) A written out-of-hospital DNR order shall be in the standard
24-15 form specified by board rule as recommended by the department.
24-16 (b) The standard form of an out-of-hospital DNR order
24-17 specified by the board must, at a minimum, contain the following:
24-18 (1) a distinctive single-page format that readily
24-19 identifies the document as an out-of-hospital DNR order;
24-20 (2) a title that readily identifies the document as an
24-21 out-of-hospital DNR order;
24-22 (3) the printed or typed name of the person;
24-23 (4) a statement that the physician signing the
24-24 document is the attending physician of the person, that the
24-25 physician has diagnosed the person as having a terminal condition,
24-26 and that the physician is directing health care professionals
24-27 acting in out-of-hospital settings not to initiate or continue
25-1 certain life-sustaining procedures on behalf of the person, and a
25-2 listing of those procedures not to be initiated or continued;
25-3 (5) a statement that the person understands that the
25-4 person may revoke the out-of-hospital DNR order at any time by
25-5 destroying the order and removing the DNR identification device, if
25-6 any, or by communicating to health care professionals at the scene
25-7 the person's desire to revoke the out-of-hospital DNR order;
25-8 (6) places for the printed names and signatures of the
25-9 witnesses and attending physician of the person and the medical
25-10 license number of the attending physician;
25-11 (7) a separate section for execution of the document
25-12 by the legal guardian of the person, the person's proxy, an agent
25-13 of the person having a durable power of attorney for health care,
25-14 or the attending physician attesting to the issuance of an
25-15 out-of-hospital DNR order by nonwritten means of communication or
25-16 acting in accordance with a previously executed or previously
25-17 issued directive to physicians under Section 166.082(c)
25-18 [674.002(d)] that includes the following:
25-19 (A) a statement that the legal guardian, the
25-20 proxy, the agent, the person by nonwritten means of communication,
25-21 or the physician directs that the listed life-sustaining procedures
25-22 should not be initiated or continued in behalf of the person; and
25-23 (B) places for the printed names and signatures
25-24 of the witnesses and, as applicable, the legal guardian, proxy,
25-25 agent, or physician;
25-26 (8) a separate section for execution of the document
25-27 by at least two qualified relatives of the person when the person
26-1 does not have a legal guardian, proxy, or agent having a durable
26-2 power of attorney for health care and is comatose, incompetent, or
26-3 otherwise mentally or physically incapable of communication,
26-4 including:
26-5 (A) a statement that the relatives of the person
26-6 are qualified to make a treatment decision to withhold
26-7 cardiopulmonary resuscitation and certain other designated
26-8 life-sustaining procedures under Section 166.088 [674.008] and,
26-9 based on the known desires of the person or a determination of the
26-10 best interest of the person, direct that the listed life-sustaining
26-11 procedures should not be initiated or continued in behalf of the
26-12 person; and
26-13 (B) places for the printed names and signatures
26-14 of the witnesses and qualified relatives of the person;
26-15 (9) a place for entry of the date of execution of the
26-16 document;
26-17 (10) a statement that the document is in effect on the
26-18 date of its execution and remains in effect until the death of the
26-19 person or until the document is revoked;
26-20 (11) a statement that the document must accompany the
26-21 person during transport;
26-22 (12) a statement regarding the proper disposition of
26-23 the document or copies of the document, as the board determines
26-24 appropriate; and
26-25 (13) a statement at the bottom of the document, with
26-26 places for the signature of each person executing the document,
26-27 that the document has been properly completed.
27-1 (c) The board may, by rule and as recommended by the
27-2 department, modify the standard form of the out-of-hospital DNR
27-3 order described by Subsection (b) in order to accomplish the
27-4 purposes of this subchapter [chapter].
27-5 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
27-6 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
27-7 an adult may issue an out-of-hospital DNR order by nonwritten
27-8 communication.
27-9 (b) A declarant must issue the nonwritten out-of-hospital
27-10 DNR order in the presence of the attending physician and two
27-11 witnesses. [The witnesses must possess the same qualifications as
27-12 those provided by Section 672.003(c).]
27-13 (c) The attending physician and witnesses shall sign the
27-14 out-of-hospital DNR order in the [that] place of the document
27-15 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
27-16 physician shall sign the document in the place required by Section
27-17 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
27-18 of the existence of the out-of-hospital DNR order a part of the
27-19 declarant's medical record and the witnesses shall sign that entry
27-20 in the medical record.
27-21 (d) An out-of-hospital DNR order issued in the manner
27-22 provided by this section is valid and shall be honored by
27-23 responding health care professionals as if executed in the manner
27-24 provided by Section 166.082 [674.002].
27-25 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
27-26 ORDER ON BEHALF OF A MINOR. The following persons may execute an
27-27 out-of-hospital DNR order on behalf of a minor:
28-1 (1) the minor's parents;
28-2 (2) the minor's legal guardian; or
28-3 (3) the minor's managing conservator.
28-4 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
28-5 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
28-6 including a competent minor, supersedes the effect of an
28-7 out-of-hospital DNR order executed or issued by or on behalf of the
28-8 person when the desire is communicated to responding health care
28-9 professionals as provided by this subchapter [chapter].
28-10 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
28-11 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
28-12 applies when a person 18 years of age or older has executed or
28-13 issued an out-of-hospital DNR order and subsequently becomes
28-14 comatose, incompetent, or otherwise mentally or physically
28-15 incapable of communication.
28-16 (b) If the adult person has designated a person to make a
28-17 treatment decision as authorized by Section 166.032(c)
28-18 [672.003(d)], the attending physician and the designated person
28-19 shall comply with the out-of-hospital DNR order.
28-20 (c) If the adult person has not designated a person to make
28-21 a treatment decision as authorized by Section 166.032(c)
28-22 [672.003(d)], the attending physician shall comply with the
28-23 out-of-hospital DNR order unless the physician believes that the
28-24 order does not reflect the person's present desire.
28-25 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
28-26 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
28-27 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
29-1 executed or issued an out-of-hospital DNR order and is comatose,
29-2 incompetent, or otherwise mentally or physically incapable of
29-3 communication, the attending physician and the person's legal
29-4 guardian, proxy, or agent having a durable power of attorney for
29-5 health care may execute an out-of-hospital DNR order on behalf of
29-6 the person.
29-7 (b) If the person does not have a legal guardian, proxy, or
29-8 agent, the attending physician and at least two qualified relatives
29-9 may execute an out-of-hospital DNR order in the same manner as a
29-10 treatment decision made under Section 166.039(b) [672.009(b)].
29-11 (c) A decision to execute an out-of-hospital DNR order made
29-12 under Subsection (a) or (b) must be based on knowledge of what the
29-13 person would desire, if known.
29-14 (d) An out-of-hospital DNR order executed under Subsection
29-15 (b) must be made in the presence of at least two witnesses [who
29-16 possess the same qualifications that are required by Section
29-17 672.003(c)].
29-18 (e) The fact that an adult person has not executed or issued
29-19 an out-of-hospital DNR order does not create a presumption that the
29-20 person does not want a treatment decision made to withhold
29-21 cardiopulmonary resuscitation and certain other designated
29-22 life-sustaining procedures designated by the board.
29-23 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
29-24 ORDER. (a) When responding to a call for assistance, health care
29-25 professionals shall honor an out-of-hospital DNR order in
29-26 accordance with the statewide out-of-hospital DNR protocol and,
29-27 where applicable, locally adopted out-of-hospital DNR protocols not
30-1 in conflict with the statewide protocol if:
30-2 (1) the responding health care professionals discover
30-3 an executed or issued out-of-hospital DNR order form on their
30-4 arrival at the scene; and
30-5 (2) the responding health care professionals comply
30-6 with this section.
30-7 (b) If the person is wearing a DNR identification device,
30-8 the responding health care professionals must comply with Section
30-9 166.090 [674.010].
30-10 (c) The responding health care professionals must establish
30-11 the identity of the person as the person who executed or issued the
30-12 out-of-hospital DNR order or for whom the out-of-hospital DNR order
30-13 was executed or issued.
30-14 (d) The responding health care professionals must determine
30-15 that the out-of-hospital DNR order form appears to be valid in that
30-16 it includes:
30-17 (1) written responses in the places designated on the
30-18 form for the names, signatures, and other information required of
30-19 persons executing or issuing, or witnessing the execution or
30-20 issuance of, the order;
30-21 (2) a date in the place designated on the form for the
30-22 date the order was executed or issued; and
30-23 (3) the signature of the declarant or persons
30-24 executing or issuing the order and the attending physician in the
30-25 appropriate places designated on the form for indicating that the
30-26 order form has been properly completed.
30-27 (e) If the conditions prescribed by Subsections (a) through
31-1 (d) are not determined to apply by the responding health care
31-2 professionals at the scene, the out-of-hospital DNR order may not
31-3 be honored and life-sustaining procedures otherwise required by law
31-4 or local emergency medical services protocols shall be initiated or
31-5 continued. Health care professionals acting in out-of-hospital
31-6 settings are not required to accept or interpret an out-of-hospital
31-7 DNR order that does not meet the requirements of this subchapter
31-8 [chapter].
31-9 (f) The out-of-hospital DNR order form, when available, must
31-10 accompany the person during transport.
31-11 (g) A record shall be made and maintained of the
31-12 circumstances of each emergency medical services response in which
31-13 an out-of-hospital DNR order or DNR identification device is
31-14 encountered, in accordance with the statewide out-of-hospital DNR
31-15 protocol and any applicable local out-of-hospital DNR protocol not
31-16 in conflict with the statewide protocol.
31-17 (h) An out-of-hospital DNR order executed or issued and
31-18 documented or evidenced in the manner prescribed by this subchapter
31-19 [chapter] is valid and shall be honored by responding health care
31-20 professionals unless the person or persons found at the scene:
31-21 (1) identify themselves as the declarant or as the
31-22 attending physician, legal guardian, qualified relative, or agent
31-23 of the person having a durable power of attorney for health care
31-24 who executed or issued the out-of-hospital DNR order on behalf of
31-25 the person; and
31-26 (2) request that cardiopulmonary resuscitation or
31-27 certain other life-sustaining procedures designated by the board be
32-1 initiated or continued.
32-2 (i) If the policies of a health care facility preclude
32-3 compliance with the out-of-hospital DNR order of a person or an
32-4 out-of-hospital DNR order issued by an attending physician on
32-5 behalf of a person who is admitted to or a resident of the
32-6 facility, or if the facility is unwilling to accept DNR
32-7 identification devices as evidence of the existence of an
32-8 out-of-hospital DNR order, that facility shall take all reasonable
32-9 steps to notify the person or, if the person is incompetent, the
32-10 person's guardian or the person or persons having authority to make
32-11 health care treatment decisions on behalf of the person, of the
32-12 facility's policy and shall take all reasonable steps to effect the
32-13 transfer of the person to the person's home or to a facility where
32-14 the provisions of this subchapter [chapter] can be carried out.
32-15 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
32-16 person who has a valid out-of-hospital DNR order under this
32-17 subchapter [chapter] may wear a DNR identification device around
32-18 the neck or on the wrist as prescribed by board rule adopted under
32-19 Section 166.103 [674.023].
32-20 (b) The presence of a DNR identification device on the body
32-21 of a person is conclusive evidence that the person has executed or
32-22 issued a valid out-of-hospital DNR order or has a valid
32-23 out-of-hospital DNR order executed or issued on the person's
32-24 behalf. Responding health care professionals shall honor the DNR
32-25 identification device as if a valid out-of-hospital DNR order form
32-26 executed or issued by the person were found in the possession of
32-27 the person.
33-1 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
33-2 ORDER. An out-of-hospital DNR order is effective until it is
33-3 revoked as prescribed by Section 166.092 [674.012].
33-4 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
33-5 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
33-6 any time without regard to the declarant's mental state or
33-7 competency. An order may be revoked by:
33-8 (1) the declarant or someone in the declarant's
33-9 presence and at the declarant's direction destroying the order form
33-10 and removing the DNR identification device, if any;
33-11 (2) a person who identifies himself or herself as the
33-12 legal guardian, as a qualified relative, or as the agent of the
33-13 declarant having a durable power of attorney for health care who
33-14 executed the out-of-hospital DNR order or another person in the
33-15 person's presence and at the person's direction destroying the
33-16 order form and removing the DNR identification device, if any;
33-17 (3) the declarant communicating the declarant's intent
33-18 to revoke the order; or
33-19 (4) a person who identifies himself or herself as the
33-20 legal guardian, a qualified relative, or the agent of the declarant
33-21 having a durable power of attorney for health care who executed the
33-22 out-of-hospital DNR order orally stating the person's intent to
33-23 revoke the order.
33-24 (b) An oral revocation under Subsection (a)(3) or (a)(4)
33-25 takes effect only when the declarant or a person who identifies
33-26 himself or herself as the legal guardian, a qualified relative, or
33-27 the agent of the declarant having a durable power of attorney for
34-1 health care who executed the out-of-hospital DNR order communicates
34-2 the intent to revoke the order to the responding health care
34-3 professionals or the attending physician at the scene. The
34-4 responding health care professionals shall record the time, date,
34-5 and place of the revocation in accordance with the statewide
34-6 out-of-hospital DNR protocol and rules adopted by the board and any
34-7 applicable local out-of-hospital DNR protocol. The attending
34-8 physician or the physician's designee shall record in the person's
34-9 medical record the time, date, and place of the revocation and, if
34-10 different, the time, date, and place that the physician received
34-11 notice of the revocation. The attending physician or the
34-12 physician's designee shall also enter the word "VOID" on each page
34-13 of the copy of the order in the person's medical record.
34-14 (c) Except as otherwise provided by this subchapter
34-15 [chapter], a person is not civilly or criminally liable for failure
34-16 to act on a revocation made under this section unless the person
34-17 has actual knowledge of the revocation.
34-18 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
34-19 ORDER. A declarant may at any time reexecute or reissue an
34-20 out-of-hospital DNR order in accordance with the procedures
34-21 prescribed by Section 166.082 [674.002], including reexecution or
34-22 reissuance after the declarant is diagnosed as having a terminal
34-23 condition.
34-24 Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW
34-25 [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE. To the extent
34-26 that an out-of-hospital DNR order conflicts with a directive or
34-27 treatment decision executed or issued under Subchapter B [Chapter
35-1 672] or a durable power of attorney for health care [executed or
35-2 issued in accordance with Chapter 135, Civil Practice and Remedies
35-3 Code], the instrument executed later in time controls.
35-4 Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER
35-5 ON INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
35-6 executed or issued an out-of-hospital DNR order under this
35-7 subchapter [chapter] does not:
35-8 (1) restrict, inhibit, or impair in any manner the
35-9 sale, procurement, or issuance of a life insurance policy to that
35-10 person; or
35-11 (2) modify the terms of an existing life insurance
35-12 policy.
35-13 (b) Notwithstanding the terms of any life insurance policy,
35-14 the fact that cardiopulmonary resuscitation or certain other
35-15 life-sustaining procedures designated by the board are withheld
35-16 from an insured person under this subchapter [chapter] does not
35-17 legally impair or invalidate that person's life insurance policy
35-18 and may not be a factor for the purpose of determining the
35-19 payability of benefits or the cause of death under the life
35-20 insurance policy.
35-21 (c) A physician, health facility, health care provider,
35-22 insurer, or health care service plan may not require a person to
35-23 execute or issue an out-of-hospital DNR order as a condition for
35-24 obtaining insurance for health care services or receiving health
35-25 care services.
35-26 (d) The fact that a person has executed or issued or failed
35-27 to execute or issue an out-of-hospital DNR order under this
36-1 subchapter [chapter] may not be considered in any way in
36-2 establishing insurance premiums.
36-3 Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR
36-4 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
36-5 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
36-6 health care facility or entity that in good faith causes
36-7 cardiopulmonary resuscitation or certain other life-sustaining
36-8 procedures designated by the board to be withheld from a person in
36-9 accordance with this subchapter [chapter] is not civilly liable for
36-10 that action.
36-11 (b) A health care professional or health care facility or
36-12 entity that in good faith participates in withholding
36-13 cardiopulmonary resuscitation or certain other life-sustaining
36-14 procedures designated by the board from a person in accordance with
36-15 this subchapter [chapter] is not civilly liable for that action.
36-16 (c) A health care professional or health care facility or
36-17 entity that in good faith participates in withholding
36-18 cardiopulmonary resuscitation or certain other life-sustaining
36-19 procedures designated by the board from a person in accordance with
36-20 this subchapter [chapter] is not criminally liable or guilty of
36-21 unprofessional conduct as a result of that action.
36-22 (d) A health care professional or health care facility or
36-23 entity that in good faith causes or participates in withholding
36-24 cardiopulmonary resuscitation or certain other life-sustaining
36-25 procedures designated by the board from a person in accordance with
36-26 this subchapter [chapter] and rules adopted under this subchapter
36-27 [chapter] is not in violation of any other licensing or regulatory
37-1 laws or rules of this state and is not subject to any disciplinary
37-2 action or sanction by any licensing or regulatory agency of this
37-3 state as a result of that action.
37-4 Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
37-5 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
37-6 professional or health care facility or entity that has no actual
37-7 knowledge of an out-of-hospital DNR order is not civilly or
37-8 criminally liable for failing to act in accordance with the order.
37-9 (b) A health care professional or health care facility or
37-10 entity is not civilly or criminally liable for failing to
37-11 effectuate an out-of-hospital DNR order.
37-12 (c) If an attending physician refuses to execute or comply
37-13 with an out-of-hospital DNR order, the physician shall inform the
37-14 person, the legal guardian or qualified relatives of the person, or
37-15 the agent of the person having a durable power of attorney for
37-16 health care and, if the person or another authorized to act on
37-17 behalf of the person so directs, shall make a reasonable effort to
37-18 transfer the person to another physician who is willing to execute
37-19 or comply with an out-of-hospital DNR order.
37-20 Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
37-21 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
37-22 commit an offense under Section 22.08, Penal Code, by withholding
37-23 cardiopulmonary resuscitation or certain other life-sustaining
37-24 procedures designated by the board from a person in accordance with
37-25 this subchapter [chapter].
37-26 Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION.
37-27 (a) A person commits an offense if the person intentionally
38-1 conceals, cancels, defaces, obliterates, or damages another
38-2 person's out-of-hospital DNR order or DNR identification device
38-3 without that person's consent or the consent of the person or
38-4 persons authorized to execute or issue an out-of-hospital DNR order
38-5 on behalf of the person under this subchapter [chapter]. An
38-6 offense under this subsection is a Class A misdemeanor.
38-7 (b) A person is subject to prosecution for criminal homicide
38-8 under Chapter 19, Penal Code, if the person, with the intent to
38-9 cause cardiopulmonary resuscitation or certain other
38-10 life-sustaining procedures designated by the board to be withheld
38-11 from another person contrary to the other person's desires,
38-12 falsifies or forges an out-of-hospital DNR order or intentionally
38-13 conceals or withholds personal knowledge of a revocation and
38-14 thereby directly causes cardiopulmonary resuscitation and certain
38-15 other life-sustaining procedures designated by the board to be
38-16 withheld from the other person with the result that the other
38-17 person's death is hastened.
38-18 Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not
38-19 withhold cardiopulmonary resuscitation or certain other
38-20 life-sustaining procedures designated by the board under this
38-21 subchapter [chapter] from a person known by the responding health
38-22 care professionals to be pregnant.
38-23 Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This
38-24 subchapter [chapter] does not condone, authorize, or approve mercy
38-25 killing or permit an affirmative or deliberate act or omission to
38-26 end life except to permit the natural process of dying as provided
38-27 by this subchapter [chapter].
39-1 Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
39-2 AFFECTED. This subchapter [chapter] does not impair or supersede
39-3 any legal right or responsibility a person may have under a
39-4 constitution, other statute, regulation, or court decision to
39-5 effect the withholding of cardiopulmonary resuscitation or certain
39-6 other life-sustaining procedures designated by the board.
39-7 Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
39-8 (a) The board shall, on the recommendation of the department,
39-9 adopt all reasonable and necessary rules to carry out the purposes
39-10 of this subchapter [chapter], including rules:
39-11 (1) adopting a statewide out-of-hospital DNR order
39-12 protocol that sets out standard procedures for the withholding of
39-13 cardiopulmonary resuscitation and certain other life-sustaining
39-14 procedures by health care professionals acting in out-of-hospital
39-15 settings;
39-16 (2) designating life-sustaining procedures that may be
39-17 included in an out-of-hospital DNR order, including all procedures
39-18 listed in Sections 166.081(6)(A)(i) through (vi) [Section
39-19 674.001(14)(A)(i) through (vi)]; and
39-20 (3) governing recordkeeping in circumstances in which
39-21 an out-of-hospital DNR order or DNR identification device is
39-22 encountered by responding health care professionals.
39-23 (b) The rules adopted by the board under Subsection (a) are
39-24 not effective until approved by the Texas State Board of Medical
39-25 Examiners.
39-26 (c) Local emergency medical services authorities may adopt
39-27 local out-of-hospital DNR order protocols if the local protocols do
40-1 not conflict with the statewide out-of-hospital DNR order protocol
40-2 adopted by the board.
40-3 (d) The board by rule shall specify a distinctive standard
40-4 design for a necklace and a bracelet DNR identification device that
40-5 signifies, when worn by a person, that the possessor has executed
40-6 or issued a valid out-of-hospital DNR order under this subchapter
40-7 [chapter] or is a person for whom a valid out-of-hospital DNR order
40-8 has been executed or issued.
40-9 (e) The department shall report to the board from time to
40-10 time regarding issues identified in emergency medical services
40-11 responses in which an out-of-hospital DNR order or DNR
40-12 identification device is encountered. The report may contain
40-13 recommendations to the board for necessary modifications to the
40-14 form of the standard out-of-hospital DNR order or the designated
40-15 life-sustaining procedures listed in the standard out-of-hospital
40-16 DNR order, the statewide out-of-hospital DNR order protocol, or the
40-17 DNR identification devices.
40-18 Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR
40-19 ORDER EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR
40-20 order executed, issued, or authorized in another state or a
40-21 territory or possession of the United States in compliance with the
40-22 law of that jurisdiction is effective for purposes of this
40-23 subchapter [chapter].
40-24 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
40-25 is transferred to Subtitle H, Title 2, Health and Safety Code, is
40-26 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
40-27 and is amended to read as follows:
41-1 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
41-2 HEALTH CARE
41-3 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
41-4 [chapter]:
41-5 (1) "Adult" means a person 18 years of age or older or
41-6 a person under 18 years of age who has had the disabilities of
41-7 minority removed.
41-8 (2) "Agent" means an adult to whom authority to make
41-9 health care decisions is delegated under a durable power of
41-10 attorney for health care.
41-11 (3) ["Attending physician" means the physician,
41-12 selected by or assigned to a patient, who has primary
41-13 responsibility for the treatment and care of the patient.]
41-14 [(4) "Capacity to make health care decisions" means
41-15 the ability to understand and appreciate the nature and
41-16 consequences of a health care decision, including the significant
41-17 benefits and harms of and reasonable alternatives to any proposed
41-18 health care.]
41-19 [(5) "Durable power of attorney for health care" means
41-20 a document delegating to an agent the authority to make health care
41-21 decisions as provided by this chapter.]
41-22 [(6) "Health care decision" means consent, refusal to
41-23 consent, or withdrawal of consent to health care, treatment,
41-24 service, or procedure to maintain, diagnose, or treat an
41-25 individual's physical or mental condition.]
41-26 [(7)] "Health care provider" means an individual or
41-27 facility licensed, certified, or otherwise authorized to administer
42-1 health care, for profit or otherwise, in the ordinary course of
42-2 business or professional practice and includes a physician.
42-3 (4) [(8) "Physician" means:]
42-4 [(A) a physician licensed by the Texas State
42-5 Board of Medical Examiners; or]
42-6 [(B) a physician with proper credentials who
42-7 holds a commission in a branch of the armed services of the United
42-8 States and who is serving on active duty in this state.]
42-9 [(9)] "Principal" means an adult who has executed a
42-10 durable power of attorney for health care.
42-11 (5) [(10)] "Residential care provider" means an
42-12 individual or facility licensed, certified, or otherwise authorized
42-13 to operate, for profit or otherwise, a residential care home.
42-14 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
42-15 (a) Subject to this subchapter [chapter] or any express limitation
42-16 on the authority of the agent contained in the durable power of
42-17 attorney for health care, the agent may make any health care
42-18 decision on the principal's behalf that the principal could make if
42-19 the principal were competent [but for the principal's lack of
42-20 capacity to make health care decisions].
42-21 (b) An agent may exercise authority only if the principal's
42-22 attending physician certifies in writing and files the
42-23 certification in the principal's medical record that, based on the
42-24 attending physician's reasonable medical judgment, the principal is
42-25 incompetent [lacks capacity to make health care decisions].
42-26 (c) Notwithstanding any other provisions of this subchapter
42-27 [chapter], treatment may not be given to or withheld from the
43-1 principal if the principal objects regardless of whether, at the
43-2 time of the objection:
43-3 (1) a durable power of attorney for health care is in
43-4 effect; or
43-5 (2) the principal is competent [has the capacity to
43-6 make health care decisions].
43-7 (d) The principal's attending physician shall make
43-8 reasonable efforts to inform the principal of any proposed
43-9 treatment or of any proposal to withdraw or withhold treatment
43-10 before implementing an agent's directive.
43-11 (e) After consultation with the attending physician and
43-12 other health care providers, the agent shall make a health care
43-13 decision:
43-14 (1) according to the agent's knowledge of the
43-15 principal's wishes, including the principal's religious and moral
43-16 beliefs; or
43-17 (2) if the agent does not know the principal's wishes,
43-18 according to the agent's assessment of the principal's best
43-19 interests.
43-20 (f) Notwithstanding any other provision of this subchapter
43-21 [chapter], an agent may not consent to:
43-22 (1) voluntary inpatient mental health services;
43-23 (2) convulsive treatment;
43-24 (3) psychosurgery;
43-25 (4) abortion; or
43-26 (5) neglect of the principal through the omission of
43-27 care primarily intended to provide for the comfort of the
44-1 principal.
44-2 (g) The power of attorney is effective indefinitely on
44-3 execution as provided by this subchapter [chapter] and delivery of
44-4 the document to the agent, unless it is revoked as provided by this
44-5 subchapter [chapter] or the principal becomes competent [regains
44-6 the capacity to make health care decisions]. If the durable power
44-7 of attorney includes an expiration date and on that date the
44-8 principal becomes incompetent [lacks the capacity to make health
44-9 care decisions], the power of attorney continues to be effective
44-10 until the principal becomes competent [regains the capacity to make
44-11 health care decisions] unless it is revoked as provided by this
44-12 subchapter [chapter].
44-13 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
44-14 AUTHORITY OF AGENT. A person may not exercise the authority of an
44-15 agent while the person serves as:
44-16 (1) the principal's health care provider;
44-17 (2) an employee of the principal's health care
44-18 provider unless the person is a relative of the principal;
44-19 (3) the principal's residential care provider; or
44-20 (4) an employee of the principal's residential care
44-21 provider unless the person is a relative of the principal.
44-22 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
44-23 durable power of attorney for health care must be signed by the
44-24 principal in the presence of at least two [or more] subscribing
44-25 witnesses.
44-26 (b) A witness must possess the qualifications and be subject
44-27 to the restrictions provided by Section 166.003. In addition, a
45-1 witness may not, at the time of execution, be[:]
45-2 [(1)] the agent[;]
45-3 [(2) the principal's health or residential care
45-4 provider or the provider's employee;]
45-5 [(3) the principal's spouse or heir;]
45-6 [(4) a person entitled to any part of the estate of
45-7 the principal on the death of the principal under a will or deed in
45-8 existence or by operation of law; or]
45-9 [(5) any other person who has any claim against the
45-10 estate] of the principal.
45-11 (c) The witnesses shall affirm that, at the time the durable
45-12 power of attorney for health care was signed, the principal:
45-13 (1) appeared to be competent [of sound mind to make a
45-14 health care decision];
45-15 (2) stated in the witness's presence that the
45-16 principal was aware of the nature of the durable power of attorney
45-17 for health care and that the principal was signing the document
45-18 voluntarily and free from any duress; and
45-19 (3) requested that the witness serve as a witness to
45-20 the principal's execution of the document.
45-21 (d) If the principal is physically unable to sign, another
45-22 person may sign the durable power of attorney for health care with
45-23 the principal's name in the principal's presence and at the
45-24 principal's express direction.
45-25 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
45-26 attorney for health care is revoked by:
45-27 (1) oral or written notification at any time by the
46-1 principal to the agent or a licensed or certified health or
46-2 residential care provider or by any other act evidencing a specific
46-3 intent to revoke the power, without regard to whether the principal
46-4 is competent or the principal's mental state[, competency, or
46-5 capacity to make health care decisions];
46-6 (2) execution by the principal of a subsequent durable
46-7 power of attorney for health care; or
46-8 (3) the divorce of the principal and spouse, if the
46-9 spouse is the principal's agent.
46-10 (b) A principal's licensed or certified health or
46-11 residential care provider who is informed of or provided with a
46-12 revocation of a durable power of attorney for health care shall
46-13 immediately record the revocation in the principal's medical record
46-14 and give notice of the revocation to the agent and any known health
46-15 and residential care providers currently responsible for the
46-16 principal's care.
46-17 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
46-18 motion filed in connection with a petition for appointment of a
46-19 guardian or, if a guardian has been appointed, on petition of the
46-20 guardian, a probate court shall determine whether to suspend or
46-21 revoke the authority of the agent.
46-22 (b) The court shall consider the preferences of the
46-23 principal as expressed in the durable power of attorney for health
46-24 care.
46-25 (c) During the pendency of the court's determination under
46-26 Subsection (a), the guardian has the sole authority to make any
46-27 health care decisions unless the court orders otherwise. If a
47-1 guardian has not been appointed, the agent has the authority to
47-2 make any health care decisions unless the court orders otherwise.
47-3 (d) A person, including any attending physician or health or
47-4 residential care provider, who does not have actual knowledge of
47-5 the appointment of a guardian or an order of the court granting
47-6 authority to someone other than the agent to make health care
47-7 decisions is not subject to criminal or civil liability and has not
47-8 engaged in unprofessional conduct for implementing an agent's
47-9 health care decision.
47-10 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
47-11 Subject to any limitations in the durable power of attorney for
47-12 health care, an agent may, for the purpose of making a health care
47-13 decision:
47-14 (1) request, review, and receive any information, oral
47-15 or written, regarding the principal's physical or mental health,
47-16 including medical and hospital records;
47-17 (2) execute a release or other document required to
47-18 obtain the information; and
47-19 (3) consent to the disclosure of the information.
47-20 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
47-21 PROVIDER. (a) A principal's health or residential care provider
47-22 and an employee of the provider who knows of the existence of the
47-23 principal's durable power of attorney for health care shall follow
47-24 a directive of the principal's agent to the extent it is consistent
47-25 with the desires of the principal, this subchapter [chapter], and
47-26 the durable power of attorney for health care.
47-27 (b) The attending physician does not have a duty to verify
48-1 that the agent's directive is consistent with the principal's
48-2 wishes or religious or moral beliefs.
48-3 (c) A principal's health or residential care provider who
48-4 finds it impossible to follow a directive by the agent because of a
48-5 conflict with this subchapter [chapter] or the durable power of
48-6 attorney for health care shall inform the agent as soon as is
48-7 reasonably possible. The agent may select another attending
48-8 physician.
48-9 (d) This subchapter [chapter] may not be construed to
48-10 require a health or residential care provider who is not a
48-11 physician to act in a manner contrary to a physician's order.
48-12 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
48-13 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
48-14 residential care provider, health care service plan, insurer
48-15 issuing disability insurance, self-insured employee benefit plan,
48-16 or nonprofit hospital service plan may not:
48-17 (1) charge a person a different rate solely because
48-18 the person has executed a durable power of attorney for health
48-19 care;
48-20 (2) require a person to execute a durable power of
48-21 attorney for health care before:
48-22 (A) admitting the person to a hospital, nursing
48-23 home, or residential care home;
48-24 (B) insuring the person; or
48-25 (C) allowing the person to receive health or
48-26 residential care; or
48-27 (3) refuse health or residential care to a person
49-1 solely because the person has executed a durable power of attorney
49-2 for health care.
49-3 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
49-4 agent is not subject to criminal or civil liability for a health
49-5 care decision if the decision is made in good faith under the terms
49-6 of the durable power of attorney for health care and the provisions
49-7 of this subchapter [chapter].
49-8 (b) An attending physician, health or residential care
49-9 provider, or a person acting as an agent for or under the
49-10 physician's or provider's control is not subject to criminal or
49-11 civil liability and has not engaged in unprofessional conduct for
49-12 an act or omission if the act or omission:
49-13 (1) is done in good faith under the terms of the
49-14 durable power of attorney for health care, the directives of the
49-15 agent, and the provisions of this subchapter [chapter]; and
49-16 (2) does not constitute a failure to exercise due care
49-17 in the provision of health care services.
49-18 (c) An attending physician, health or residential care
49-19 provider, or person acting as an agent for or under the physician's
49-20 or provider's control has not engaged in unprofessional conduct
49-21 for:
49-22 (1) failure to act as required by the directive of an
49-23 agent or a durable power of attorney for health care if the
49-24 physician, provider, or person was not provided with a copy of the
49-25 durable power of attorney for health care or had no knowledge of a
49-26 directive; or
49-27 (2) acting as required by an agent's directive if the
50-1 durable power of attorney for health care has expired or been
50-2 revoked but the physician, provider, or person does not have
50-3 knowledge of the expiration or revocation.
50-4 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
50-5 Liability for the cost of health care provided as a result of the
50-6 agent's decision is the same as if the health care were provided as
50-7 a result of the principal's decision.
50-8 Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the
50-9 extent that a durable power of attorney for health care conflicts
50-10 with a directive or treatment decision executed under Subchapter B
50-11 [the Natural Death Act (Chapter 672, Health and Safety Code)], the
50-12 instrument executed later in time controls. A physician who
50-13 withholds or withdraws life-sustaining procedures from a principal
50-14 with a terminal condition as required by an agent's directive is
50-15 not required to comply with Subchapter B [the Natural Death Act].
50-16 Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF
50-17 ATTORNEY EXECUTED IN ANOTHER JURISDICTION. This subchapter
50-18 [chapter] does not limit the enforceability of a durable power of
50-19 attorney for health care or similar instrument executed in another
50-20 state or jurisdiction if the instrument complies with the law of
50-21 the state or jurisdiction.
50-22 Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable
50-23 power of attorney for health care is not effective unless the
50-24 principal, before executing the durable power of attorney for
50-25 health care, signs a statement that the principal has received a
50-26 disclosure statement and has read and understood its contents.
50-27 Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The
51-1 disclosure statement must be in substantially the following form:
51-2 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
51-3 HEALTH CARE
51-4 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING
51-5 THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
51-6 Except to the extent you state otherwise, this
51-7 document gives the person you name as your agent the
51-8 authority to make any and all health care decisions for
51-9 you in accordance with your wishes, including your
51-10 religious and moral beliefs, when you are no longer
51-11 capable of making them yourself. Because "health care"
51-12 means any treatment, service, or procedure to maintain,
51-13 diagnose, or treat your physical or mental condition,
51-14 your agent has the power to make a broad range of
51-15 health care decisions for you. Your agent may consent,
51-16 refuse to consent, or withdraw consent to medical
51-17 treatment and may make decisions about withdrawing or
51-18 withholding life-sustaining treatment. Your agent may
51-19 not consent to voluntary inpatient mental health
51-20 services, convulsive treatment, psychosurgery, or
51-21 abortion. A physician must comply with your agent's
51-22 instructions or allow you to be transferred to another
51-23 physician.
51-24 Your agent's authority begins when your doctor
51-25 certifies that you lack the capacity to make health
51-26 care decisions.
51-27 Your agent is obligated to follow your
52-1 instructions when making decisions on your behalf.
52-2 Unless you state otherwise, your agent has the same
52-3 authority to make decisions about your health care as
52-4 you would have had.
52-5 It is important that you discuss this document
52-6 with your physician or other health care provider
52-7 before you sign it to make sure that you understand the
52-8 nature and range of decisions that may be made on your
52-9 behalf. If you do not have a physician, you should
52-10 talk with someone else who is knowledgeable about these
52-11 issues and can answer your questions. You do not need
52-12 a lawyer's assistance to complete this document, but if
52-13 there is anything in this document that you do not
52-14 understand, you should ask a lawyer to explain it to
52-15 you.
52-16 The person you appoint as agent should be someone
52-17 you know and trust. The person must be 18 years of age
52-18 or older or a person under 18 years of age who has had
52-19 the disabilities of minority removed. If you appoint
52-20 your health or residential care provider (e.g., your
52-21 physician or an employee of a home health agency,
52-22 hospital, nursing home, or residential care home, other
52-23 than a relative), that person has to choose between
52-24 acting as your agent or as your health or residential
52-25 care provider; the law does not permit a person to do
52-26 both at the same time.
52-27 You should inform the person you appoint that you
53-1 want the person to be your health care agent. You
53-2 should discuss this document with your agent and your
53-3 physician and give each a signed copy. You should
53-4 indicate on the document itself the people and
53-5 institutions who have signed copies. Your agent is not
53-6 liable for health care decisions made in good faith on
53-7 your behalf.
53-8 Even after you have signed this document, you
53-9 have the right to make health care decisions for
53-10 yourself as long as you are able to do so and treatment
53-11 cannot be given to you or stopped over your objection.
53-12 You have the right to revoke the authority granted to
53-13 your agent by informing your agent or your health or
53-14 residential care provider orally or in writing or by
53-15 your execution of a subsequent durable power of
53-16 attorney for health care. Unless you state otherwise,
53-17 your appointment of a spouse dissolves on divorce.
53-18 This document may not be changed or modified. If
53-19 you want to make changes in the document, you must make
53-20 an entirely new one.
53-21 You may wish to designate an alternate agent in
53-22 the event that your agent is unwilling, unable, or
53-23 ineligible to act as your agent. Any alternate agent
53-24 you designate has the same authority to make health
53-25 care decisions for you.
53-26 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED
53-27 IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.
54-1 THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
54-2 (1) the person you have designated as your
54-3 agent;
54-4 (2) a person related to you by blood or
54-5 marriage [your health or residential care provider or
54-6 an employee of your health or residential care
54-7 provider];
54-8 (3) a person entitled to any part of your
54-9 estate after your death under a will or codicil
54-10 executed by you or by operation of law [your spouse];
54-11 (4) your attending physician [lawful heirs
54-12 or beneficiaries named in your will or a deed]; [or]
54-13 (5) an employee of the attending
54-14 physician;
54-15 (6) an employee of a health care facility
54-16 in which you are a patient if the employee is providing
54-17 direct patient care to you or is an officer, director,
54-18 partner, or business office employee of the health care
54-19 facility or of any parent organization of the health
54-20 care facility;
54-21 (7) a patient in a health care facility in
54-22 which you are a patient; or
54-23 (8) a person who, at the time this power
54-24 of attorney is executed, has a claim against any part
54-25 of your estate after your death [creditors or persons
54-26 who have a claim against you].
54-27 Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
55-1 The durable power of attorney for health care must be in
55-2 substantially the following form:
55-3 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
55-4 DESIGNATION OF HEALTH CARE AGENT.
55-5 I,_____________________________(insert your name)
55-6 appoint:
55-7 Name:____________________________________________
55-8 Address:_________________________________________
55-9 Phone________________________________
55-10 as my agent to make any and all health care decisions
55-11 for me, except to the extent I state otherwise in this
55-12 document. This durable power of attorney for health
55-13 care takes effect if I become unable to make my own
55-14 health care decisions and this fact is certified in
55-15 writing by my physician.
55-16 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY
55-17 AGENT ARE AS FOLLOWS:___________________________
55-18 _______________________________________________________
55-19 DESIGNATION OF ALTERNATE AGENT.
55-20 (You are not required to designate an alternate
55-21 agent but you may do so. An alternate agent may make
55-22 the same health care decisions as the designated agent
55-23 if the designated agent is unable or unwilling to act
55-24 as your agent. If the agent designated is your spouse,
55-25 the designation is automatically revoked by law if your
55-26 marriage is dissolved.)
55-27 If the person designated as my agent is unable or
56-1 unwilling to make health care decisions for me, I
56-2 designate the following persons to serve as my agent to
56-3 make health care decisions for me as authorized by this
56-4 document, who serve in the following order:
56-5 A. First Alternate Agent
56-6 Name:________________________________________
56-7 Address:_____________________________________
56-8 Phone____________________________
56-9 B. Second Alternate Agent
56-10 Name:________________________________________
56-11 Address:_____________________________________
56-12 Phone____________________________
56-13 The original of this document is kept
56-14 at_____________________________________________________
56-15 _______________________________________________________
56-16 _______________________________________________________
56-17 The following individuals or institutions have signed
56-18 copies:
56-19 Name:____________________________________________
56-20 Address:_________________________________________
56-21 _________________________________________________
56-22 Name:____________________________________________
56-23 Address:_________________________________________
56-24 _________________________________________________
56-25 DURATION.
56-26 I understand that this power of attorney exists
56-27 indefinitely from the date I execute this document
57-1 unless I establish a shorter time or revoke the power
57-2 of attorney. If I am unable to make health care
57-3 decisions for myself when this power of attorney
57-4 expires, the authority I have granted my agent
57-5 continues to exist until the time I become able to make
57-6 health care decisions for myself.
57-7 (IF APPLICABLE) This power of attorney ends on
57-8 the following date:________________
57-9 PRIOR DESIGNATIONS REVOKED.
57-10 I revoke any prior durable power of attorney for
57-11 health care.
57-12 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
57-13 I have been provided with a disclosure statement
57-14 explaining the effect of this document. I have read
57-15 and understand that information contained in the
57-16 disclosure statement.
57-17 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
57-18 I sign my name to this durable power of attorney for
57-19 health care on _____ day of ______________ 19 _________
57-20 at_________________________________________________
57-21 (City and State)
57-22 ___________________________________________________
57-23 (Signature)
57-24 ___________________________________________________
57-25 (Print Name)
57-26 STATEMENT OF WITNESSES.
57-27 I declare under penalty of perjury that the
58-1 principal has identified himself or herself to me, that
58-2 the principal signed or acknowledged this durable power
58-3 of attorney in my presence, that I believe the
58-4 principal to be of sound mind, that the principal has
58-5 affirmed that the principal is aware of the nature of
58-6 the document and is signing it voluntarily and free
58-7 from duress, that the principal requested that I serve
58-8 as witness to the principal's execution of this
58-9 document, that I am not the person appointed as agent
58-10 by this document, and that I am not related to the
58-11 principal by blood or marriage, I would not be entitled
58-12 to any portion of the principal's estate on the
58-13 principal's death, I am not the attending physician of
58-14 the principal or an employee of the attending
58-15 physician, I am not a patient in the health care
58-16 facility in which the principal is a patient, and I
58-17 have no claim against any portion of the principal's
58-18 estate on the principal's death. Furthermore, if I am
58-19 an employee of a health care facility in which the
58-20 principal is a patient, I am not involved in providing
58-21 direct patient care to the principal and am not an
58-22 officer, director, partner, or business office
58-23 employee of the health care facility or of any
58-24 parent organization of the health care facility [a
58-25 provider of health or residential care, an employee of
58-26 a provider of health or residential care, the operator
58-27 of a community care facility, or an employee of an
59-1 operator of a health care facility.]
59-2 [I declare that I am not related to the principal
59-3 by blood, marriage, or adoption and that to the best of
59-4 my knowledge I am not entitled to any part of the
59-5 estate of the principal on the death of the principal
59-6 under a will or by operation of law].
59-7 Witness Signature:_______________
59-8 Print Name:_____________________Date:____________
59-9 Address:_______________________________________________
59-10 Witness Signature:_______________
59-11 Print Name:_____________________Date:____________
59-12 Address:_______________________________________________
59-13 Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is
59-14 a near relative of the principal or a responsible adult who is
59-15 directly interested in the principal, including a guardian, social
59-16 worker, physician, or clergyman, may bring an action in district
59-17 court to request that the durable power of attorney for health care
59-18 be revoked because the principal, at the time the durable power of
59-19 attorney for health care was signed:
59-20 (1) was not competent [of sound mind to make a health
59-21 care decision]; or
59-22 (2) was under duress, fraud, or undue influence.
59-23 (b) The action may be brought in the county of the
59-24 principal's residence or the residence of the person bringing the
59-25 action.
59-26 (c) During the pendency of the action, the authority of the
59-27 agent to make health care decisions continues in effect unless the
60-1 district court orders otherwise.
60-2 Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
60-3 AFFECTED. This subchapter [chapter] does not limit or impair any
60-4 legal right or responsibility that any person, including a
60-5 physician or health or residential care provider, may have to make
60-6 or implement health care decisions on behalf of a person.
60-7 ARTICLE 2. CONFORMING AMENDMENTS
60-8 SECTION 2.01. Subsection (a), Section 313.003, Health and
60-9 Safety Code, is amended to read as follows:
60-10 (a) This chapter does not apply to:
60-11 (1) a decision to withhold or withdraw life-sustaining
60-12 treatment from qualified terminal patients under Subchapter B,
60-13 Chapter 166 [the terms of Chapter 672];
60-14 (2) a health care decision made under a durable power
60-15 of attorney for health care under Subchapter D, Chapter 166
60-16 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
60-17 XII, Texas Probate Code;
60-18 (3) consent to medical treatment of minors under
60-19 Chapter 32 [35], Family Code;
60-20 (4) consent for emergency care under Chapter 773;
60-21 (5) hospital patient transfers under Chapter 241; or
60-22 (6) a patient's legal guardian who has the authority
60-23 to make a decision regarding the patient's medical treatment.
60-24 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
60-25 Code, is amended by adding Section 142.0145 to read as follows:
60-26 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
60-27 DIRECTIVES. (a) The department shall assess an administrative
61-1 penalty against a home and community support services agency that
61-2 violates Section 166.004.
61-3 (b) A penalty assessed under this section shall be $500.
61-4 (c) The penalty shall be assessed in accordance with
61-5 department rules. The rules must provide for notice and an
61-6 opportunity for a hearing.
61-7 SECTION 2.03. Subsections (a) and (c), Section 241.059,
61-8 Health and Safety Code, are amended to read as follows:
61-9 (a) The commissioner of health may assess an administrative
61-10 penalty against a hospital that violates this chapter, a rule
61-11 adopted pursuant to this chapter, a special license provision, an
61-12 order or emergency order issued by the commissioner or the
61-13 commissioner's designee, or another enforcement procedure permitted
61-14 under this chapter. The commissioner shall assess an
61-15 administrative penalty against a hospital that violates Section
61-16 166.004.
61-17 (c) The penalty may not exceed $1,000 for each violation,
61-18 except that the penalty for a violation of Section 166.004 shall be
61-19 $500. Each day of a continuing violation, other than a violation
61-20 of Section 166.004, may be considered a separate violation.
61-21 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
61-22 Code, is amended by adding Section 242.071 to read as follows:
61-23 Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE
61-24 DIRECTIVES. The commissioner shall assess an administrative
61-25 penalty under this subchapter against an institution that violates
61-26 Section 166.004. Notwithstanding Sections 242.066(b) and (c), a
61-27 penalty assessed in accordance with this section shall be $500 and
62-1 a separate penalty may not be assessed for a separate day of a
62-2 continuing violation.
62-3 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
62-4 Code, is amended by adding Section 247.0455 to read as follows:
62-5 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
62-6 DIRECTIVES. (a) The department shall assess an administrative
62-7 penalty against a personal care facility that violates Section
62-8 166.004.
62-9 (b) A penalty assessed under this section shall be $500.
62-10 (c) The penalty shall be assessed in accordance with
62-11 department rules. The rules must provide for notice and an
62-12 opportunity for a hearing.
62-13 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
62-14 Code, is amended by adding Section 248.0545 to read as follows:
62-15 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
62-16 DIRECTIVES. (a) The department shall assess an administrative
62-17 penalty against a special care facility that violates Section
62-18 166.004.
62-19 (b) A penalty assessed under this section shall be $500.
62-20 (c) The penalty shall be assessed in accordance with
62-21 department rules. The rules must provide for notice and an
62-22 opportunity for a hearing.
62-23 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
62-24 SECTION 3.01. This Act takes effect January 1, 1998.
62-25 SECTION 3.02. The change in law made by this Act does not
62-26 affect the validity of a document executed under Chapter 672 or
62-27 674, Health and Safety Code, or Chapter 135, Civil Practice and
63-1 Remedies Code, before the effective date of this Act. A document
63-2 executed before the effective date of this Act is governed by the
63-3 law in effect on the date the document was executed, and that law
63-4 continues in effect for that purpose.
63-5 SECTION 3.03. (a) The change in law made by this Act
63-6 applies only to the punishment for an offense committed on or after
63-7 the effective date of this Act. For purposes of this section, an
63-8 offense is committed before the effective date of this Act if any
63-9 element of the offense occurs before the effective date.
63-10 (b) An offense committed before the effective date of this
63-11 Act is covered by the law in effect when the offense was committed,
63-12 and the former law is continued in effect for that purpose.
63-13 SECTION 3.04. The importance of this legislation and the
63-14 crowded condition of the calendars in both houses create an
63-15 emergency and an imperative public necessity that the
63-16 constitutional rule requiring bills to be read on three several
63-17 days in each house be suspended, and this rule is hereby suspended.
63-18 COMMITTEE AMENDMENT NO. 1
63-19 Amend S.B. No. 414 as follows:
63-20 (1) In Section 166.002(1), Health and Safety Code, as added
63-21 by SECTION 1.02 of the bill, strike "or" (page 1, line 17,
63-22 Engrossed version).
63-23 (2) In Section 166.002(1), Health and Safety Code, as added
63-24 by SECTION 1.02 of the bill, strike the period (page 1, line 19,
63-25 Engrossed version), and insert "; or".
63-26 (3) In Section 166.002(1), Health and Safety Code, as added
63-27 by SECTION 1.02 of the bill, after Paragraph (B) (page 1, between
64-1 lines 19 and 20, Engrossed version), insert the following:
64-2 (C) a durable power of attorney for health care.
64-3 (4) In Section 166.002(5), Health and Safety Code, as added
64-4 by SECTION 1.02 of the bill, strike "a durable power of attorney
64-5 for health care" (page 2, line 8, Engrossed version), and
64-6 substitute "a document delegating to an agent authority to make
64-7 health care decisions".
64-8 (5) In Section 166.003, Health and Safety Code, as added by
64-9 SECTION 1.02 of the bill, strike Subdivision (5) (page 4, lines
64-10 1-2, Engrossed version), and substitute the following:
64-11 (5) a person or agent designated by the declarant to
64-12 make a treatment decision;
64-13 (6) In Section 166.004(b), Health and Safety Code, as added
64-14 by SECTION 1.02 of the bill, strike "The health" (page 4, line 21,
64-15 Engrossed version), and substitute "Except as provided by
64-16 Subsection (g), the health".
64-17 (7) In Section 166.004(c), Health and Safety Code, as added
64-18 by SECTION 1.02 of the bill, after Subdivision (1) (page 5, between
64-19 lines 8 and 9, Engrossed version), insert the following:
64-20 (2) the individual's spouse;
64-21 (8) In Section 166.004(c), Health and Safety Code, as added
64-22 by SECTION 1.02 of the bill, strike "(2)" (page 5, line 9,
64-23 Engrossed version), and substitute "(3)".
64-24 (9) In Section 166.004(c), Health and Safety Code, as added
64-25 by SECTION 1.02 of the bill, strike "(3)" (page 5, line 10,
64-26 Engrossed version), and substitute "(4)".
64-27 (10) In Section 166.004(c), Health and Safety Code, as added
65-1 by SECTION 1.02 of the bill, strike "(4)" (page 5, line 11,
65-2 Engrossed version), and substitute "(5)".
65-3 (11) In Section 166.004(c), Health and Safety Code, as added
65-4 by SECTION 1.02 of the bill, strike "(5)" (page 5, line 12,
65-5 Engrossed version), and substitute "(6)".
65-6 (12) In Section 166.004, Health and Safety Code, as added by
65-7 SECTION 1.02 of the bill, after Subsection (f) (page 6, between
65-8 lines 7 and 8, Engrossed version), insert the following:
65-9 (g) This section does not apply to outpatient hospital
65-10 services, including emergency services.
65-11 (13) In Section 166.033, Health and Safety Code, as
65-12 redesignated and amended by SECTION 1.03 of the bill, strike "I am
65-13 not a patient in the health care facility in which the declarant is
65-14 a patient." (page 11, lines 6-8, Engrossed version), and substitute
65-15 "[I am not a patient in the health care facility in which the
65-16 declarant is a patient.]"
65-17 (14) In Section 166.039, Health and Safety Code, as
65-18 redesignated and amended by SECTION 1.03 of the bill, strike
65-19 Subsections (d) and (e) (page 14, lines 11-18, Engrossed version),
65-20 and substitute the following:
65-21 (d) A treatment decision made under Subsection (b) must be
65-22 documented in the patient's medical record and signed by the
65-23 attending physician [made in the presence of at least two witnesses
65-24 who possess the same qualifications as are required by Section
65-25 672.003(c)].
65-26 (e) If the patient does not have a legal guardian and a
65-27 person listed in Subsection (b) is not available, a treatment
66-1 decision made under Subsection (b) must be witnessed by another
66-2 physician who is not involved in the treatment of the patient.
66-3 (f) [(e)] The fact that an adult qualified patient has not
66-4 executed or issued a directive does not create a presumption that
66-5 the patient does not want a treatment decision to be made to
66-6 withhold or withdraw life-sustaining procedures.
66-7 (15) In Section 166.154(c), Health and Safety Code, as
66-8 redesignated and amended by SECTION 1.05 of the bill, strike
66-9 "appeared to be competent [of sound mind to make a health care
66-10 decision];" (page 49, lines 1-2, Engrossed version), and substitute
66-11 "[appeared to be of sound mind to make a health care decision;]".
66-12 (16) In Section 166.154(c), Health and Safety Code, as
66-13 redesignated and amended by SECTION 1.05 of the bill, strike "(2)"
66-14 (page 49, line 3, Engrossed version), and substitute "[(2)]".
66-15 (17) In Section 166.154(c), Health and Safety Code, as
66-16 redesignated and amended by SECTION 1.05 of the bill, strike "(3)"
66-17 (page 49, line 7, Engrossed version), and substitute "(2) [(3)]".
66-18 (18) In Section 166.165, Health and Safety Code, as
66-19 redesignated and amended by SECTION 1.05 of the bill, after the
66-20 semicolon following Subdivision (6) (Page 59, line 1, Engrossed
66-21 version), insert "or".
66-22 (19) In Section 166.165, Health and Safety Code, as
66-23 redesignated and amended by SECTION 1.05 of the bill, strike
66-24 Subdivision (7) (page 59, lines 2-3, Engrossed version).
66-25 (20) In Section 166.165, Health and Safety Code, as
66-26 redesignated and amended by SECTION 1.05 of the bill, renumber
66-27 Subdivision (8) as Subdivision (7) (page 59, line 4, Engrossed
67-1 version).
67-2 (21) In Section 166.166, Health and Safety Code, as
67-3 redesignated and amended by SECTION 1.05 of the bill, strike "that
67-4 I believe the principal to be of sound mind," (page 62, lines
67-5 17-18, Engrossed version), and substitute "[that I believe the
67-6 principal to be of sound mind,]".
67-7 (22) In Section 166.166, Health and Safety Code, as
67-8 redesignated and amended by SECTION 1.05 of the bill, strike "I am
67-9 not a patient in the health care facility in which the principal is
67-10 a patient," (page 63, lines 4-5, Engrossed version).
67-11 75R14631 MCK-D Berlanga