By: Nelson S.B. No. 1320
(In the Senate - Filed March 12, 2003; March 19, 2003, read
first time and referred to Committee on Health and Human Services;
April 29, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 0; April 29, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1320 By: Nelson
A BILL TO BE ENTITLED
AN ACT
relating to certain advance directives for medical treatment and
medical treatment decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 166.002, Health and Safety Code, is
amended by amending Subdivision (7) and adding Subdivision (15) to
read as follows:
(7) "Health care or treatment decision" means consent,
refusal to consent, or withdrawal of consent to health care,
treatment, service, or a procedure to maintain, diagnose, or treat
an individual's physical or mental condition, including such a
decision on behalf of a minor.
(15) "Cardiopulmonary resuscitation" means any
medical intervention used to restore circulatory or respiratory
function that has ceased.
SECTION 2. Subchapter A, Chapter 166, Health and Safety
Code, is amended by adding Section 166.010 to read as follows:
Sec. 166.010. APPLICABILITY OF FEDERAL LAW RELATING TO
CHILD ABUSE AND NEGLECT. This chapter is subject to applicable
federal law and regulations relating to child abuse and neglect to
the extent applicable to the state based on its receipt of federal
funds.
SECTION 3. Section 166.044, Health and Safety Code, is
amended by adding Subsection (e) to read as follows:
(e) A physician, nurse, or other person acting under the
direction of a physician who participates in the withholding or
withdrawal of cardiopulmonary resuscitation from a patient who, in
reasonable medical judgment, has a terminal or irreversible
condition is not civilly or criminally liable for failure to
provide resuscitation if, in reasonable medical judgment, in the
event of cardiopulmonary arrest, the patient's death would occur
within minutes to hours regardless of the provision of
resuscitation. Nothing in this section may be construed to limit
the authority of a physician, nurse, or other person to comply with
an otherwise valid and applicable patient's directive to physicians
or out-of-hospital do-not-resuscitate order, or the decision of a
competent patient or the person responsible for the health care
decisions of the patient, that authorizes a do-not-resuscitate
order under other circumstances.
SECTION 4. The heading to Section 166.046, Health and
Safety Code, is amended to read as follows:
Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR
TREATMENT DECISION.
SECTION 5. Section 166.046, Health and Safety Code, is
amended by amending Subsections (a), (b), and (e) and adding
Subsection (e-1) to read as follows:
(a) If an attending physician refuses to honor a patient's
advance directive or a health care or treatment decision made by or
on behalf of a patient [under Section 166.039], the physician's
refusal shall be reviewed by an ethics or medical committee. The
attending physician may not be a member of that committee. The
patient shall be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health
care decisions of the individual who has made the decision
regarding the directive or treatment decision:
(1) shall be informed of the committee review process
not less than 48 hours before the meeting called to discuss the
patient's directive, unless the time period is waived by mutual
agreement; [and]
(2) at the time of being so informed, shall be
provided:
(A) a copy of the appropriate statement set forth
in Section 166.052; and
(B) a copy of the registry list of health care
providers and referral groups that have volunteered their readiness
to consider accepting transfer or to assist in locating a provider
willing to accept transfer that is posted on the website maintained
by the Texas Health Care Information Council under Section 166.053;
and
(3) is entitled to:
(A) attend the meeting; and
(B) receive a written explanation of the decision
reached during the review process.
(e) If the patient or the person responsible for the health
care decisions of the patient is requesting life-sustaining
treatment that the attending physician has decided and the review
process has affirmed [have decided] is inappropriate treatment, the
patient shall be given available life-sustaining treatment pending
transfer under Subsection (d). The patient is responsible for any
costs incurred in transferring the patient to another facility.
The physician and the health care facility are not obligated to
provide life-sustaining treatment after the 10th day after the
written decision required under Subsection (b) is provided to the
patient or the person responsible for the health care decisions of
the patient unless ordered to do so under Subsection (g).
(e-1) If during a previous admission to a facility a
patient's attending physician and the review process under
Subsection (b) have determined that life-sustaining treatment is
inappropriate, and the patient is readmitted to the same facility
within six months from the date of the decision reached during the
review process conducted upon the previous admission, Subsections
(b)-(e) need not be followed if the patient's attending physician
and a consulting physician who is a member of the ethics or medical
committee of the facility document on the patient's readmission
that the patient's condition either has not improved or has
deteriorated since the review process was conducted.
SECTION 6. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Sections 166.052 and 166.053 to read as
follows:
Sec. 166.052. STATEMENTS EXPLAINING PATIENT'S RIGHT TO
TRANSFER. (a) In cases in which the attending physician refuses
to honor an advance directive or treatment decision requesting the
provision of life-sustaining treatment, the statement required by
Section 166.046(b)(2)(A) shall be in substantially the following
form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Against Life-Sustaining Treatment That You
Wish To Continue
You have been given this information because you have
requested life-sustaining treatment,* which the attending
physician believes is not appropriate. This information is being
provided to help you understand state law, your rights, and the
resources available to you in such circumstances. It outlines the
process for resolving disagreements about treatment among
patients, families, and physicians. It is based upon Section
166.046 of the Texas Advance Directives Act, codified in Chapter
166 of the Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for life-sustaining treatment because of
the physician's judgment that the treatment would be inappropriate,
he or she will request that the case be reviewed by an ethics or
medical committee. Life-sustaining treatment will be provided
through the review.
You will receive notification of this review at least 48
hours before a meeting of the committee related to your case. You
are entitled to attend the meeting. With your agreement, the
meeting may be held sooner than 48 hours, if possible.
If you wish, you are entitled to receive a written
explanation of the decision reached during the review process.
If after this review process both the attending physician and
the ethics or medical committee conclude that life-sustaining
treatment is inappropriate and yet you continue to request such
treatment, then the following procedure will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to provide the requested treatment.
2. You are being given a list of health care providers and
referral groups that have volunteered their readiness to consider
accepting transfer, or to assist in locating a provider willing to
accept transfer, maintained by the Texas Health Care Information
Council. You may wish to contact providers or referral groups on
the list or others of your choice to get help in arranging a
transfer.
3. The patient will continue to be given the requested
life-sustaining treatment until he or she can be transferred to a
willing provider for up to 10 days from the time you were given the
committee's written decision that life-sustaining treatment is not
appropriate.
4. If a transfer can be arranged, the patient will be
responsible for the costs of the transfer.
5. If a provider cannot be found willing to give the
requested treatment within 10 days, life-sustaining treatment may
be withdrawn on the 11th day unless a court of law has granted an
extension.
6. You may ask the appropriate district or county court to
extend the 10-day period if the court finds that there is a
reasonable expectation that a physician or health care facility
willing to provide life-sustaining treatment will be found if the
extension is granted. You will probably need a lawyer's help if you
wish to consider seeking this type of extension.
* "Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificial nutrition and hydration. The term does not include the
administration of pain management medication or the performance of
a medical procedure considered to be necessary to provide comfort
care, or any other medical care provided to alleviate a patient's
pain.
(b) In cases in which the attending physician refuses to
comply with an advance directive or treatment decision requesting
the withholding or withdrawal of life-sustaining treatment, the
statement required by Section 166.046(b)(2)(A) shall be in
substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Life-Sustaining Treatment That You Wish To
Stop
You have been given this information because you have
requested the withdrawal or withholding of life-sustaining
treatment* and the attending physician refuses to comply with that
request. The information is being provided to help you understand
state law, your rights, and the resources available to you in such
circumstances. It outlines the process for resolving disagreements
about treatment among patients, families, and physicians. It is
based upon Section 166.046 of the Texas Advance Directives Act,
codified in Chapter 166 of the Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for withdrawal or withholding of
life-sustaining treatment for any reason, he or she will request
that the case be reviewed by an ethics or medical committee.
Life-sustaining treatment will be provided through the review.
You will receive notification of this review at least 48
hours before a meeting of the committee related to your case. You
are entitled to attend the meeting. With your agreement, the
meeting may be held sooner than 48 hours, if possible.
If you wish, you are entitled to receive a written
explanation of the decision reached during the review process.
If you or the attending physician do not agree with the
decision reached during the review process, and the attending
physician still refuses to comply with your request to withhold or
withdraw life-sustaining treatment, then the following procedure
will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to withdraw or withhold the life-sustaining treatment.
2. You are being given a list of health care providers and
referral groups that have volunteered their readiness to consider
accepting transfer, or to assist in locating a provider willing to
accept transfer, maintained by the Texas Health Care Information
Council. You may wish to contact providers or referral groups on
the list or others of your choice to get help in arranging a
transfer.
* "Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificial nutrition and hydration. The term does not include the
administration of pain management medication or the performance of
a medical procedure considered to be necessary to provide comfort
care, or any other medical care provided to alleviate a patient's
pain.
(c) An attending physician or health care facility may, if
it chooses, include any additional information concerning the
physician's or facility's policy, perspective, experience, or
review procedure.
Sec. 166.053. REGISTRY TO ASSIST TRANSFERS. (a) The Texas
Health Care Information Council shall maintain a registry listing
the identity of and contact information for health care providers
and referral groups, situated inside and outside this state, that
have voluntarily notified the council they may consider accepting
or may assist in locating a provider willing to accept transfer of a
patient under Section 166.045 or 166.046.
(b) The listing of a provider or referral group in the
registry described in this section does not obligate the provider
or group to accept transfer of or provide services to any particular
patient.
(c) The Texas Health Care Information Council shall post the
current registry list on its website in a form appropriate for easy
comprehension by patients and persons responsible for the health
care decisions of patients and shall provide a clearly identifiable
link from its home page to the registry page. The list shall
separately indicate those providers and groups that have indicated
their interest in assisting the transfer of:
(1) those patients on whose behalf life-sustaining
treatment is being sought;
(2) those patients on whose behalf the withholding or
withdrawal of life-sustaining treatment is being sought; and
(3) patients described in both Subdivisions (1) and
(2).
(d) The registry list described in this section shall
include the following disclaimer:
"This registry lists providers and groups
that have indicated to the Texas Health Care
Information Council their interest in
assisting the transfer of patients in the
circumstances described, and is provided
for information purposes only. Neither the
Texas Health Care Information Council nor
the State of Texas endorses or assumes any
responsibility for any representation,
claim, or act of the listed providers or
groups."
SECTION 7. Subchapter C, Chapter 166, Health and Safety
Code, is amended by adding Section 166.102 to read as follows:
Sec. 166.102. PHYSICIAN'S DNR ORDER MAY BE HONORED BY
HEALTH CARE PERSONNEL OTHER THAN EMERGENCY MEDICAL SERVICES
PERSONNEL. (a) Except as provided by Subsection (b), a licensed
nurse or person providing health care services in an
out-of-hospital setting may honor a physician's do-not-resuscitate
order.
(b) When responding to a call for assistance, emergency
medical services personnel shall honor only a properly executed or
issued out-of-hospital DNR order or prescribed DNR identification
device in accordance with this subchapter.
SECTION 8. Subdivision (1), Section 166.081, Health and
Safety Code, is repealed.
SECTION 9. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.
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