By Lewis of Tarrant H.B. No. 3163
77R1780 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to surrogate decision-making for an adult patient in a
1-3 hospital or nursing home.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 313.004, Health and Safety Code, is
1-6 amended by amending Subsections (a) and (d) and adding Subsections
1-7 (e) and (f) to read as follows:
1-8 (a) If an adult patient in a hospital or nursing home is
1-9 comatose, incapacitated, or otherwise mentally or physically
1-10 incapable of communication and does not have a guardian of the
1-11 person or an advance directive made under law that authorizes
1-12 another person to make medical treatment decisions on behalf of the
1-13 adult patient, an adult surrogate from the following list, in order
1-14 of priority, who has decision-making capacity, who is available
1-15 after a reasonably diligent inquiry, and who is willing to consent
1-16 to medical treatment on behalf of the patient, may consent to
1-17 medical treatment on behalf of the patient:
1-18 (1) the patient's spouse;
1-19 (2) an adult child of the patient who has the waiver
1-20 and consent of all other qualified adult children of the patient to
1-21 act as the sole decision-maker;
1-22 (3) a majority of the patient's reasonably available
1-23 adult children;
1-24 (4) the patient's parents; [or]
2-1 (5) the individual clearly identified to act for the
2-2 patient by the patient before the patient became incapacitated
2-3 or[,] the patient's nearest living relative;
2-4 (6) another adult who the attending physician
2-5 determines has had substantial past contact with the patient
2-6 sufficient to warrant standing to consent to medical treatment on
2-7 behalf of the patient;
2-8 (7) [, or] a member of the clergy who has established
2-9 a relationship with the patient; or
2-10 (8) the surrogate decision-making committee appointed
2-11 by the hospital or nursing home under Subchapter B.
2-12 (d) Notwithstanding any other provision of this chapter, a
2-13 surrogate decision-maker may not consent to:
2-14 (1) voluntary inpatient mental health services;
2-15 (2) electro-convulsive treatment; [or]
2-16 (3) experimental research;
2-17 (4) abortion;
2-18 (5) sterilization;
2-19 (6) the appointment of another surrogate
2-20 decision-maker; or
2-21 (7) acts relating to the management of patient funds.
2-22 (e) A surrogate decision-maker or surrogate decision-making
2-23 committee may consent to the release of records related to the
2-24 adult patient's condition or treatment to facilitate treatment to
2-25 which the decision-maker or committee has consented. Unless another
2-26 decision-making mechanism is provided for by law, an adult patient
2-27 or a patient's authorized surrogate decision-maker, if available,
3-1 may consent to a decision that involves risks to the patient and
3-2 other rights not specifically reserved to a surrogate
3-3 decision-maker or surrogate decision-making committee.
3-4 (f) The Texas Board of Human Services, in consultation with
3-5 the Texas Board of Health, shall adopt rules that govern the
3-6 circumstances in which a person described by Subsection (a)(6) or
3-7 (7) may act as a surrogate decision-maker. The rules must govern:
3-8 (1) the type of documentation that must be maintained
3-9 in the patient's medical record;
3-10 (2) acceptable evidence of substantial past contact or
3-11 the establishment of a relationship that warrants a person acting
3-12 as a surrogate decision-maker under Subsection (a)(6) or (7); and
3-13 (3) persons who may not act as surrogate
3-14 decision-makers under Subsection (a)(6) or (7) because of:
3-15 (A) the person's role as a provider of services
3-16 to the patient;
3-17 (B) the person's relationship with the hospital
3-18 or nursing home; or
3-19 (C) other circumstances that could result in a
3-20 conflict of interest.
3-21 SECTION 2. Section 313.007(a), Health and Safety Code, is
3-22 amended to read as follows:
3-23 (a) A surrogate decision-maker, including any member of a
3-24 surrogate decision-making committee appointed under Subchapter B,
3-25 is not subject to criminal or civil liability for consenting to
3-26 medical care under this chapter if the consent is made in good
3-27 faith.
4-1 SECTION 3. Chapter 313, Health and Safety Code, is amended
4-2 by adding Subchapter B to read as follows:
4-3 SUBCHAPTER B. SURROGATE DECISION-MAKING COMMITTEES
4-4 Sec. 313.051. COMPOSITION OF SURROGATE DECISION-MAKING
4-5 COMMITTEE. (a) The Texas Board of Human Services, in consultation
4-6 with the Texas Board of Health, shall establish and maintain a list
4-7 of persons who are qualified to:
4-8 (1) serve on a surrogate decision-making committee
4-9 appointed by a hospital or nursing home under this subchapter; and
4-10 (2) serve as the presiding officer of a committee.
4-11 (b) A surrogate decision-making committee must be composed
4-12 of at least three but not more than five members. The committee may
4-13 act only on the consensus of all members.
4-14 (c) A person is not eligible to serve on a surrogate
4-15 decision-making committee if the person:
4-16 (1) is an employee of the hospital or nursing home in
4-17 which the patient is receiving services;
4-18 (2) provides services under contract to the hospital
4-19 or nursing home;
4-20 (3) manages or exercises supervisory authority over:
4-21 (A) the hospital or nursing home or the
4-22 employees of the hospital or nursing home; or
4-23 (B) another person that manages or exercises
4-24 control over the hospital or nursing home;
4-25 (4) has a financial interest in:
4-26 (A) the hospital or nursing home; or
4-27 (B) another person that has a financial interest
5-1 in the hospital or nursing home; or
5-2 (5) is related to the patient.
5-3 (d) The list of qualified persons from which committee
5-4 members are drawn must include:
5-5 (1) health care professionals licensed or registered
5-6 in this state who have specialized training in medicine,
5-7 psychopharmacology, nursing, or psychology;
5-8 (2) persons who have been nursing home residents or
5-9 hospital patients or the parents, siblings, spouses, or children of
5-10 nursing home residents or hospital patients;
5-11 (3) attorneys licensed in this state who have
5-12 knowledge of legal issues relevant to nursing home residents or
5-13 hospital patients;
5-14 (4) members of private organizations that advocate on
5-15 behalf of nursing home residents or hospital patients; and
5-16 (5) persons with demonstrated expertise or interest in
5-17 the care and treatment of nursing home residents or hospital
5-18 patients.
5-19 (e) At least one member of any surrogate decision-making
5-20 committee must be a person described by Subsection (d)(1) or (5).
5-21 (f) A member of a surrogate decision-making committee shall
5-22 participate in education and training as required by rules adopted
5-23 under Section 313.062.
5-24 Sec. 313.052. APPOINTMENT OF SURROGATE DECISION-MAKING
5-25 COMMITTEE; APPLICATION. (a) A hospital or nursing home shall
5-26 appoint a surrogate decision-making committee if the hospital or
5-27 nursing home determines that:
6-1 (1) a major medical treatment decision must be made
6-2 for an adult patient;
6-3 (2) the adult patient is comatose, incapacitated, or
6-4 otherwise mentally or physically incapable of communication;
6-5 (3) the adult patient does not have a guardian of the
6-6 person or an advance directive made under law that authorizes
6-7 another person to make medical treatment decisions on behalf of the
6-8 adult patient; and
6-9 (4) a surrogate decision-maker listed by Sections
6-10 313.004(a)(1)-(7) who is willing or available to make the medical
6-11 treatment decision on behalf of the adult patient does not exist.
6-12 (b) On appointment of a surrogate decision-making committee,
6-13 the hospital or nursing home shall file an application for a
6-14 medical treatment decision with the committee. At the time the
6-15 application is filed with the committee, the applicant shall submit
6-16 a copy of the application to:
6-17 (1) the Texas Department of Health, if the applicant
6-18 is a hospital; or
6-19 (2) the Texas Department of Human Services, if the
6-20 applicant is a nursing home.
6-21 (c) The application must be in the form prescribed by the
6-22 Texas Board of Human Services in consultation with the Texas Board
6-23 of Health, must be signed by an administrator of the hospital or
6-24 nursing home, as appropriate, and must:
6-25 (1) state that the conditions described by Subsections
6-26 (a)(1)-(3) exist with respect to an adult patient;
6-27 (2) describe the condition proposed to be treated;
7-1 (3) describe the proposed treatment, including the
7-2 risks and benefits to the patient of the proposed treatment;
7-3 (4) state the applicant's opinion on whether the
7-4 proposed treatment promotes the patient's best interests and the
7-5 grounds for that opinion;
7-6 (5) state the patient's opinion about the proposed
7-7 treatment, if known; and
7-8 (6) include any other information necessary to
7-9 determine the patient's best interests regarding the proposed
7-10 treatment.
7-11 Sec. 313.053. NOTICE OF REVIEW OF APPLICATION. (a) On
7-12 receipt of an application under Section 313.052, the surrogate
7-13 decision-making committee, with the assistance of the hospital or
7-14 nursing home, shall schedule a review of the application.
7-15 (b) The hospital or nursing home shall provide notice of the
7-16 review of the application to:
7-17 (1) the adult patient who is the subject of the
7-18 application, if possible;
7-19 (2) any person who is known to be actively involved or
7-20 to have a demonstrated interest in the care and welfare of the
7-21 adult patient, including an actively involved parent, spouse, or
7-22 adult child of the patient; and
7-23 (3) any other person required to be notified under
7-24 rules adopted under Section 313.062.
7-25 (c) The notice must include:
7-26 (1) the date, place, and time of the review;
7-27 (2) a copy of the application; and
8-1 (3) a statement of the committee's procedures for
8-2 consideration of the application, including a statement of the
8-3 procedures relating to the opportunity to be heard or present
8-4 evidence or to appeal the committee's decision.
8-5 Sec. 313.054. PRELIMINARY REVIEW OF APPLICATION. (a)
8-6 Before the date scheduled for review of an application under this
8-7 subchapter, the presiding officer of the surrogate decision-making
8-8 committee shall review the application to determine whether
8-9 additional information may be necessary to assist the committee in
8-10 determining the adult patient's best interests under the
8-11 circumstances.
8-12 (b) A committee member may consult with a person who may be
8-13 able to assist in the determination of the best interest of the
8-14 adult patient or to obtain information about the personal opinions,
8-15 beliefs, and values of the patient.
8-16 (c) A committee that does not include as a member an
8-17 individual described by Section 313.051(d)(1) shall consult with a
8-18 health care professional licensed or registered in this state to
8-19 assist the committee in determining the best interests of the adult
8-20 patient if the medical treatment decision that is subject to the
8-21 review is related to the provision of psychoactive medication.
8-22 Sec. 313.055. REVIEW OF APPLICATION. (a) A surrogate
8-23 decision-making committee shall review an application under this
8-24 subchapter at the time, place, and date stated in the notice
8-25 provided under Section 313.053.
8-26 (b) A person who is required to be notified under Section
8-27 313.053 is entitled to be present during the proceedings of the
9-1 surrogate decision-making committee and to present evidence
9-2 personally or through a representative.
9-3 (c) The surrogate decision-making committee may take
9-4 testimony or review evidence from any person who may be able to
9-5 assist the committee in determining the best interest of the adult
9-6 patient.
9-7 (d) Formal rules of evidence do not apply to proceedings of
9-8 a surrogate decision-making committee.
9-9 (e) If practicable, the surrogate decision-making committee
9-10 shall interview and observe the adult patient before making a
9-11 determination of the patient's best interest. If the adult patient
9-12 is not interviewed or observed, the reason the patient is not
9-13 interviewed or observed must be documented in the committee's
9-14 records.
9-15 (f) At any time before the surrogate decision-making
9-16 committee makes a determination of the adult patient's best
9-17 interest, the presiding officer of the committee may suspend the
9-18 review of the application, for a period not to exceed five days, if
9-19 a person applies for appointment as the patient's guardian of the
9-20 person in accordance with the Texas Probate Code.
9-21 Sec. 313.056. DETERMINATION OF BEST INTEREST; CONSENT TO
9-22 TREATMENT. (a) A surrogate decision-making committee shall
9-23 determine, based on clear and convincing evidence, whether the
9-24 proposed treatment promotes the adult patient's best interest.
9-25 (b) In making a determination under Subsection (a), the
9-26 surrogate decision-making committee shall fully consider the
9-27 preference of the adult patient, as articulated by the patient at
10-1 any time.
10-2 (c) The surrogate decision-making committee shall consent or
10-3 decline to consent to the treatment on the adult patient's behalf,
10-4 according to the best interest of the patient as determined by the
10-5 committee.
10-6 (d) The surrogate decision-making committee shall determine
10-7 the date on which the consent becomes effective and the date on
10-8 which the consent expires.
10-9 (e) If the proceedings of the surrogate decision-making
10-10 committee have been suspended under Section 313.055(f), the
10-11 committee shall also determine whether, if a person has not been
10-12 appointed as the guardian of the adult patient's person before the
10-13 sixth day after the date of the suspension, there is a medical
10-14 necessity, based on clear and convincing evidence, that the
10-15 determination to be made under Subsection (a) occur before the
10-16 guardianship proceedings are completed.
10-17 Sec. 313.057. WRITTEN OPINION; NOTICE OF DETERMINATION. (a)
10-18 A surrogate decision-making committee shall issue a written opinion
10-19 that states each of the committee's determinations and that
10-20 separately states the committee's findings of fact.
10-21 (b) The hospital or nursing home shall send a copy of the
10-22 committee's opinion to each person required to be notified under
10-23 Section 313.053. A hospital shall send a copy of the opinion to
10-24 the Texas Department of Health, and a nursing home shall send a
10-25 copy of the opinion to the Texas Department of Human Services.
10-26 Sec. 313.058. APPEAL OF DETERMINATION. (a) A person
10-27 required to be notified under Section 313.053 may appeal the
11-1 decision of a surrogate decision-making committee by filing a
11-2 petition not later than the 15th day after the effective date of
11-3 the committee's determination in the court having probate
11-4 jurisdiction in the county in which the adult patient resides.
11-5 (b) If the hearing is to be held in a court in which the
11-6 judge is not a licensed attorney, the person filing the appeal may
11-7 request that the proceeding be transferred to a court with a judge
11-8 who is licensed to practice law in this state. The judge of the
11-9 court having probate jurisdiction shall transfer the case after
11-10 receiving the request, and the court to which the case is
11-11 transferred shall hear the case as if it had been originally filed
11-12 in that court.
11-13 (c) A copy of the petition must be served on all parties of
11-14 record in the proceedings before the surrogate decision-making
11-15 committee.
11-16 (d) After considering the nature of the condition of the
11-17 adult patient, the proposed treatment, and the need for timely
11-18 medical treatment, the court may issue a temporary order
11-19 restraining the use of the proposed treatment to facilitate the
11-20 appeal. If the order is granted, the court shall expedite the
11-21 trial.
11-22 Sec. 313.059. EFFECT OF SUBCHAPTER. This subchapter does
11-23 not limit the availability under law of other means of obtaining
11-24 consent for medical treatment for an adult patient.
11-25 Sec. 313.060. CONFIDENTIAL INFORMATION. Notwithstanding any
11-26 other law of this state, a person licensed by this state to provide
11-27 services related to health care shall provide to a surrogate
12-1 decision-making committee appointed under this subchapter any
12-2 information that the committee requests that is relevant to an
12-3 adult patient's need for a proposed treatment.
12-4 Sec. 313.061. CERTAIN LAW INAPPLICABLE. A surrogate
12-5 decision-making committee is not subject to Chapter 551, 552, or
12-6 2001, Government Code.
12-7 Sec. 313.062. RULES AND PROCEDURES. The Texas Board of
12-8 Human Services, in consultation with the Texas Board of Health,
12-9 shall adopt rules governing a surrogate decision-making committee
12-10 appointed under this subchapter, including rules governing the
12-11 procedures used by a committee.
12-12 SECTION 4. Sections 313.001-313.007, Health and Safety Code,
12-13 are redesignated as Subchapter A, Chapter 313, Health and Safety
12-14 Code, and a new subchapter heading is added to read as follows:
12-15 SUBCHAPTER A. GENERAL PROVISIONS; SURROGATE DECISION-MAKERS
12-16 SECTION 5. This Act takes effect September 1, 2001, and
12-17 applies only to surrogate decision-making under Chapter 313, Health
12-18 and Safety Code, as amended by this Act, on and after January 1,
12-19 2002. Surrogate decision-making under Chapter 313, Health and
12-20 Safety Code, before January 1, 2002, is governed by the law as it
12-21 existed immediately before the effective date of this Act, and that
12-22 law is continued in effect for that purpose.
12-23 SECTION 6. The Texas Board of Human Services, in
12-24 consultation with the Texas Board of Health, shall adopt rules and
12-25 procedures as required by this Act not later than December 15,
12-26 2001.