By: Birdwell S.B. No. 1632

A BILL TO BE ENTITLED

AN ACT

relating to certain do-not-resuscitate orders and advance directives; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 166.002, Health and Safety Code, is amended by adding Subsection (13) and renumbering the succeeding subsections accordingly:

(13) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

SECTION 2. Subchapter A, Chapter 166, Health and Safety Code, is amended by adding Section 166.012 to read as follows:

Sec. 166.012. RULES; DNR ORDERS APPLICABLE IN-HOSPITAL. The executive commissioner of the Health and Human Services Commission shall, on recommendations of the department, adopt all reasonable and necessary rules to carry out the purposes of this chapter, including rules to explicitly specify that a do-not-resuscitate order that is applicable in a hospital setting is valid only if it is issued in compliance with:

(1) the directions of the patient, if competent;

(2) the directions in an advance directive issued in accordance with Section 166.005 or 166.032;

(3) the directions of the patient's legal guardian or agent under a medical power of attorney;

(4) a treatment decision made in accordance with Section 166.039; or

(5) a reasonable medical judgment that the patient's death is imminent within minutes to hours even if cardiopulmonary resuscitation is provided.

SECTION 3. Section 166.081(6), Health and Safety Code, is amended to read as follows:

(6) "Out-of-hospital DNR order":

(A) means a legally binding out-of-hospital do-not-resuscitate order, in the form specified by the board under Section 166.083, prepared and signed in accordance with Section 166.082, 166.084, or 166.085 [by the attending physician of a person], that documents the instructions of a person or the person's legally authorized representative and directs health care professionals acting in an out-of-hospital setting not to initiate or continue the following life-sustaining treatment:

(i) cardiopulmonary resuscitation;

(ii) advanced airway management;

(iii) artificial ventilation;

(iv) defibrillation;

(v) transcutaneous cardiac pacing; and

(vi) other life-sustaining treatment specified by the board under Section 166.101(a); and

(B) does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort care or to alleviate pain or to provide fluids [water] or nutrition, including fluids or nutrition by mouth or by nasogastric tube or artificial nutrition and hydration.

SECTION 4. Section 166.092, Health and Safety Code, is amended by adding Subsections (a-1), (b-1), and (b-2) to read as follows:

(a-1) A legal guardian, a qualified relative, or the agent of the declarant having a medical power of attorney may revoke an out-of-hospital DNR order if the person has reason to believe that the order was not executed in accordance with this subchapter. The person may revoke the order by:

(1) identifying himself or herself as a legal guardian, a qualified relative, or the agent of the declarant having a medical power of attorney;

(2) orally stating that the person has reason to believe that the order was not executed in accordance with law; and

(3) destroying the order form and removing the DNR identification device, if any, or orally stating the person's intent to revoke the order.

(b-1) A revocation under Subsection (a-1) takes effect only when a person who identifies himself or herself as a legal guardian, a qualified relative, or the agent of the declarant having a medical power of attorney states in the presence of the responding health care professionals or the attending physician at the scene that the person has reason to believe that the order was not executed in accordance with law and communicates the intent to revoke the order to the responding health care professionals or the attending physician at the scene. The responding health care professionals shall record the time, date, and place of the revocation in accordance with the statewide out-of-hospital DNR protocol and rules adopted under this chapter and any applicable local out-of-hospital DNR protocol. The attending physician or the physician's designee shall record in the person's medical record the time, date, and place of the revocation and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designee shall also enter the word "VOID" on each page of the copy of the order in the person's medical record.

(b-2) If a health care professional fails to comply with a revocation under Subsection (a-1), the legal guardian, qualified relative, or agent of the declarant having a medical power of attorney may obtain an injunction to enforce the revocation.

SECTION 5. Section 166.097, Health and Safety Code, is amended by adding Subsection (c) to read as follows:

(c) Any person commits an offense if a person knowingly executes an out-of-hospital DNR order that is not in compliance with the provisions of this subchapter. An offense under this subsection is a felony of the third degree.

SECTION 6. Section 166.101(a), Health and Safety Code, is amended to read as follows:

(a) The board shall, on the recommendation of the department, adopt all reasonable and necessary rules to carry out the purposes of this subchapter, including rules:

(1) adopting a statewide out-of-hospital DNR order protocol that sets out standard procedures for the withholding of cardiopulmonary resuscitation and certain other life-sustaining treatment by health care professionals acting in out-of-hospital settings that addresses each of the methods for executing the order described in Section 166.082, subject to Sections 166.084 and 166.085;

(2) designating life-sustaining treatment that may be included in an out-of-hospital DNR order, including all procedures listed in Sections 166.081(6)(A)(i) through (v); and

(3) governing recordkeeping in circumstances in which an out-of-hospital DNR order or DNR identification device is encountered by responding health care professionals; and

(4) explicitly specifying that an out-of-hospital DNR order may be issued by a physician only in compliance with the methods for executing the order described in Section 166.082, subject to Sections 166.084 and 166.085.

SECTION 7. Not later than December 1, 2011, the executive commissioner of the Health and Human Services Commission shall adopt the rules required by Section 166.012, Health and Safety Code, as added by this Act, and Section 166.101(a), Health and Safety Code, as amended by this Act.

SECTION 8. 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, 2011.