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A BILL TO BE ENTITLED
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AN ACT
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relating to advance directives, including do-not-resuscitate |
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orders; creating a criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 166.002, Health and Safety Code, is |
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amended by amending Subdivision (1) and adding Subdivision (12-a) |
|
to read as follows: |
|
(1) "Advance directive" means: |
|
(A) a directive, as that term is defined by |
|
Section 166.031; |
|
(B) a [an out-of-hospital] DNR order, as that |
|
term is defined by Section 166.081; or |
|
(C) a medical power of attorney under Subchapter |
|
D. |
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(12-a) "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. Section 166.033, Health and Safety Code, is |
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amended to read as follows: |
|
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. A written |
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directive may be in the following form: |
|
DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES |
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Instructions for completing this document: |
|
This is an important legal document known as an Advance |
|
Directive. It is designed to help you communicate your wishes about |
|
medical treatment at some time in the future when you are unable to |
|
make your wishes known because of illness or injury. These wishes |
|
are usually based on personal values. In particular, you may want |
|
to consider what burdens or hardships of treatment you would be |
|
willing to accept for a particular amount of benefit obtained if you |
|
were seriously ill. |
|
You are encouraged to discuss your values and wishes with |
|
your family or chosen spokesperson, as well as your physician. Your |
|
physician, other health care provider, or medical institution may |
|
provide you with various resources to assist you in completing your |
|
advance directive. Brief definitions are listed below and may aid |
|
you in your discussions and advance planning. Initial the |
|
treatment choices that best reflect your personal preferences. |
|
Provide a copy of your directive to your physician, usual hospital, |
|
and family or spokesperson. Consider a periodic review of this |
|
document. By periodic review, you can best assure that the |
|
directive reflects your preferences. |
|
In addition to this advance directive, Texas law provides for |
|
two other types of directives that can be important during a serious |
|
illness. These are the Medical Power of Attorney and the |
|
[Out-of-Hospital] Do-Not-Resuscitate Order. A Do-Not-Resuscitate |
|
Order requires the consent of the patient and the signature of a |
|
physician. You may wish to discuss these with your physician, |
|
family, hospital representative, or other advisers. You may also |
|
wish to complete a directive related to the donation of organs and |
|
tissues. |
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DIRECTIVE |
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I, __________, recognize that the best health care is based |
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upon a partnership of trust and communication with my physician. My |
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physician and I will make health care decisions together as long as |
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I am of sound mind and able to make my wishes known. If there comes |
|
a time that I am unable to make medical decisions about myself |
|
because of illness or injury, I direct that the following treatment |
|
preferences be honored: |
|
If, in the judgment of my physician, I am suffering with a |
|
terminal condition from which I am expected to die within six |
|
months, even with available life-sustaining treatment provided in |
|
accordance with prevailing standards of medical care: |
|
__________ |
I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR |
|
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__________ |
I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.) |
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If, in the judgment of my physician, I am suffering with an |
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irreversible condition so that I cannot care for myself or make |
|
decisions for myself and am expected to die without life-sustaining |
|
treatment provided in accordance with prevailing standards of care: |
|
__________ |
I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR |
|
|
__________ |
I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.) |
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Additional requests: (After discussion with your physician, |
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you may wish to consider listing particular treatments in this |
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space that you do or do not want in specific circumstances, such as |
|
artificial nutrition and fluids, intravenous antibiotics, etc. Be |
|
sure to state whether you do or do not want the particular |
|
treatment.) |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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After signing this directive, if my representative or I elect |
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hospice care, I understand and agree that only those treatments |
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needed to keep me comfortable would be provided and I would not be |
|
given available life-sustaining treatments. |
|
If I do not have a Medical Power of Attorney, and I am unable |
|
to make my wishes known, I designate the following person(s) to make |
|
treatment decisions with my physician compatible with my personal |
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values: |
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|
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(If a Medical Power of Attorney has been executed, then an |
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agent already has been named and you should not list additional |
|
names in this document.) |
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If the above persons are not available, or if I have not |
|
designated a spokesperson, I understand that a spokesperson will be |
|
chosen for me following standards specified in the laws of Texas. |
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If, in the judgment of my physician, my death is imminent within |
|
minutes to hours, even with the use of all available medical |
|
treatment provided within the prevailing standard of care, I |
|
acknowledge that all treatments may be withheld or removed except |
|
those needed to maintain my comfort. I understand that under Texas |
|
law this directive has no effect if I have been diagnosed as |
|
pregnant. This directive will remain in effect until I revoke it. |
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No other person may do so. |
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Signed__________ Date__________ City, County, State of |
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Residence __________ |
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Two competent adult witnesses must sign below, acknowledging |
|
the signature of the declarant. The witness designated as Witness 1 |
|
may not be a person designated to make a treatment decision for the |
|
patient and may not be related to the patient by blood or marriage. |
|
This witness may not be entitled to any part of the estate and may |
|
not have a claim against the estate of the patient. This witness |
|
may not be the attending physician or an employee of the attending |
|
physician. If this witness is an employee of a health care facility |
|
in which the patient is being cared for, this witness may not be |
|
involved in providing direct patient care to the patient. This |
|
witness may not be an officer, director, partner, or business |
|
office employee of a health care facility in which the patient is |
|
being cared for or of any parent organization of the health care |
|
facility. |
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Witness 1 __________ Witness 2 __________ |
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Definitions: |
|
"Artificial nutrition and hydration" means the provision of |
|
nutrients or fluids by a tube inserted in a vein, under the skin in |
|
the subcutaneous tissues, or in the stomach (gastrointestinal |
|
tract). |
|
"Irreversible condition" means a condition, injury, or |
|
illness: |
|
(1) that may be treated, but is never cured or |
|
eliminated; |
|
(2) that leaves a person unable to care for or make |
|
decisions for the person's own self; and |
|
(3) that, without life-sustaining treatment provided |
|
in accordance with the prevailing standard of medical care, is |
|
fatal. |
|
Explanation: Many serious illnesses such as cancer, failure |
|
of major organs (kidney, heart, liver, or lung), and serious brain |
|
disease such as Alzheimer's dementia may be considered irreversible |
|
early on. There is no cure, but the patient may be kept alive for |
|
prolonged periods of time if the patient receives life-sustaining |
|
treatments. Late in the course of the same illness, the disease may |
|
be considered terminal when, even with treatment, the patient is |
|
expected to die. You may wish to consider which burdens of |
|
treatment you would be willing to accept in an effort to achieve a |
|
particular outcome. This is a very personal decision that you may |
|
wish to discuss with your physician, family, or other important |
|
persons in your life. |
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"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 hydration and nutrition. The term does not include the |
|
administration of pain management medication, the performance of a |
|
medical procedure necessary to provide comfort care, or any other |
|
medical care provided to alleviate a patient's pain. |
|
"Terminal condition" means an incurable condition caused by |
|
injury, disease, or illness that according to reasonable medical |
|
judgment will produce death within six months, even with available |
|
life-sustaining treatment provided in accordance with the |
|
prevailing standard of medical care. |
|
Explanation: Many serious illnesses may be considered |
|
irreversible early in the course of the illness, but they may not be |
|
considered terminal until the disease is fairly advanced. In |
|
thinking about terminal illness and its treatment, you again may |
|
wish to consider the relative benefits and burdens of treatment and |
|
discuss your wishes with your physician, family, or other important |
|
persons in your life. |
|
SECTION 3. Section 166.039, Health and Safety Code, is |
|
amended by amending Subsections (b), (e), and (g) and adding |
|
Subsections (e-1), (e-2), and (e-3) to read as follows: |
|
(b) If the patient does not have a legal guardian, [or] an |
|
agent under a medical power of attorney, or an advance directive, |
|
the attending physician and one person[, if available,] from one of |
|
the following categories, in the following priority, may make a |
|
treatment decision that may include a decision to withhold or |
|
withdraw life-sustaining treatment: |
|
(1) the patient's spouse; |
|
(2) the patient's reasonably available adult children; |
|
(3) the patient's parents; or |
|
(4) the patient's nearest living relative. |
|
(e) If the patient does not have a legal guardian and a |
|
person listed in Subsection (b) is not available, in order for a |
|
treatment decision under Subsection (b) to be made, the health care |
|
facility must file an application for temporary guardianship under |
|
Chapter 1251, Estates Code, for the appointment of a person who is |
|
not involved in the treatment of the patient or associated with or |
|
employed by the health care facility to serve as a temporary |
|
guardian for the patient for the limited purpose of making a |
|
treatment decision [made] under Subsection (b) [must be concurred
|
|
in by another physician who is not involved in the treatment of the
|
|
patient or who is a representative of an ethics or medical committee
|
|
of the health care facility in which the person is a patient]. |
|
(e-1) The term of a temporary guardian appointed under a |
|
temporary guardianship created pursuant to Subsection (e) expires |
|
on the date a court enters an order finding that the patient's legal |
|
guardian or a person listed in Subsection (b) is available to make a |
|
treatment decision under this section. When the patient's legal |
|
guardian or a person listed in Subsection (b) becomes available, |
|
that person may make a treatment decision according to Subsection |
|
(b). |
|
(e-2) If a person listed in Subsection (b) is not |
|
immediately available to make a treatment decision under this |
|
section, the attending physician or the attending physician's |
|
designee shall notify each person listed in Subsection (b) of the |
|
need for a qualified person to make a treatment decision under this |
|
section by: |
|
(1) personally delivering notice to the person; or |
|
(2) providing written notice sent by certified mail, |
|
restricted delivery, return receipt requested, to the last known |
|
address of the person. |
|
(e-3) A person is considered not available for the purposes |
|
of Subsection (e) if 48 hours have elapsed since personal notice was |
|
provided under Subsection (e-2)(1), or 72 hours have elapsed since |
|
the return receipt for the written notice was received under |
|
Subsection (e-2)(2), and the person who was notified remains |
|
unavailable to make a treatment decision under this section. |
|
(g) A person listed in Subsection (b) who wishes to |
|
challenge a treatment decision made under this section may [must] |
|
apply for temporary guardianship under Chapter 1251, Estates |
|
[Section 875, Texas Probate] Code. The court may waive applicable |
|
fees in that proceeding. |
|
SECTION 4. Subchapter B, Chapter 166, Health and Safety |
|
Code, is amended by adding Section 166.054 to read as follows: |
|
Sec. 166.054. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies to facilities licensed under Chapter 142. |
|
SECTION 5. The heading to Subchapter C, Chapter 166, Health |
|
and Safety Code, is amended to read as follows: |
|
SUBCHAPTER C. [OUT-OF-HOSPITAL] DO-NOT-RESUSCITATE ORDERS |
|
SECTION 6. Sections 166.081(2), (6), (9), and (10), Health |
|
and Safety Code, are amended to read as follows: |
|
(2) "DNR identification device" means an |
|
identification device specified by department rule [the board] |
|
under Section 166.101 that is worn for the purpose of identifying a |
|
person who has executed or issued a [an out-of-hospital] DNR order |
|
or on whose behalf a [an out-of-hospital] DNR order has been |
|
executed or issued under this subchapter. |
|
(6) "[Out-of-hospital] DNR order": |
|
(A) means a legally binding [out-of-hospital] |
|
do-not-resuscitate order, in the form specified by department rule |
|
[the board] under Section 166.083, prepared and signed in |
|
accordance with Section 166.082, 166.084, 166.085, or 166.0855 [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 to withhold or |
|
withdraw one or more of [acting in an out-of-hospital setting not to
|
|
initiate or continue] the following treatments [life-sustaining
|
|
treatment]: |
|
(i) cardiopulmonary resuscitation; |
|
(ii) [advanced airway management;
|
|
[(iii) artificial ventilation;
|
|
[(iv)] defibrillation; and |
|
(iii) [(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 or |
|
withdraw: |
|
(i) medical interventions or therapies |
|
[considered] necessary to provide comfort care or to alleviate |
|
pain; or |
|
(ii) fluids [to provide water] or |
|
nutrition, including fluids or nutrition by mouth or by nasogastric |
|
tube or artificial nutrition and hydration. |
|
(9) "Qualified relatives" means those persons |
|
authorized to execute or issue a [an out-of-hospital] DNR order on |
|
behalf of a person who is incompetent or otherwise mentally or |
|
physically incapable of communication under Section 166.088. |
|
(10) "Statewide [out-of-hospital] DNR protocol" means |
|
a set of statewide standardized procedures adopted by the executive |
|
commissioner [board] under Section 166.101(a) for withholding or |
|
withdrawing cardiopulmonary resuscitation and certain other |
|
treatments listed in Subdivision (6) [life-sustaining treatment] |
|
by health care professionals [acting in out-of-hospital settings]. |
|
SECTION 7. Sections 166.082, 166.083, 166.084, and 166.085, |
|
Health and Safety Code, are amended to read as follows: |
|
Sec. 166.082. [OUT-OF-HOSPITAL] DNR ORDER; DIRECTIVE TO |
|
PHYSICIANS. (a) A competent person may at any time execute a |
|
written [out-of-hospital] DNR order directing health care |
|
professionals [acting in an out-of-hospital setting] to withhold |
|
cardiopulmonary resuscitation and certain other treatments listed |
|
in Section 166.081(6) [life-sustaining treatment designated by the
|
|
board]. |
|
(b) Except as provided by this subsection, the declarant |
|
must sign the [out-of-hospital] DNR order in the presence of two |
|
witnesses who qualify under Section 166.003, at least one of whom |
|
must be a witness who qualifies under Section 166.003(2). The |
|
witnesses must sign the order. The attending physician of the |
|
declarant must sign the order and shall make the fact of the |
|
existence of the order and the reasons for execution of the order a |
|
part of the declarant's medical record. The declarant, in lieu of |
|
signing in the presence of witnesses, may sign the |
|
[out-of-hospital] DNR order and have the signature acknowledged |
|
before a notary public. |
|
(c) If the person is incompetent but previously executed or |
|
issued a directive to physicians in accordance with Subchapter B, |
|
the physician may rely on the directive as the person's |
|
instructions to issue a [an out-of-hospital] DNR order and shall |
|
place a copy of the directive in the person's medical record. The |
|
physician shall sign the order in lieu of the person signing under |
|
Subsection (b) and may use a digital or electronic signature |
|
authorized under Section 166.011. |
|
(d) If the person is incompetent but previously executed or |
|
issued a directive to physicians in accordance with Subchapter B |
|
designating a proxy, the proxy may make any decisions required of |
|
the designating person as to a [an out-of-hospital] DNR order and |
|
shall sign the order in lieu of the person signing under Subsection |
|
(b). |
|
(e) If the person is now incompetent but previously executed |
|
or issued a medical power of attorney designating an agent, the |
|
agent may make any decisions required of the designating person as |
|
to a [an out-of-hospital] DNR order and shall sign the order in lieu |
|
of the person signing under Subsection (b). |
|
(f) The executive commissioner [board], on the |
|
recommendation of the department, shall by rule adopt procedures |
|
for the disposition and maintenance of records of an original |
|
[out-of-hospital] DNR order and any copies of the order. |
|
(g) A [An out-of-hospital] DNR order is effective on its |
|
execution. |
|
Sec. 166.083. FORM OF [OUT-OF-HOSPITAL] DNR ORDER. (a) A |
|
written [out-of-hospital] DNR order shall be in the standard form |
|
that complies with this subchapter specified by department [board] |
|
rule as recommended by the department. |
|
(b) The standard form of a [an out-of-hospital] DNR order |
|
specified by department rule [the board] must, at a minimum, |
|
contain the following: |
|
(1) a distinctive single-page format that readily |
|
identifies the document as a [an out-of-hospital] DNR order; |
|
(2) a title that readily identifies the document as a |
|
[an out-of-hospital] DNR order; |
|
(3) the printed or typed name of the person; |
|
(4) a statement that the physician signing the |
|
document is the attending physician of the person and that the |
|
physician is directing health care professionals to withhold or |
|
withdraw [acting in out-of-hospital settings, including a hospital
|
|
emergency department, not to initiate or continue] certain |
|
treatments listed in Section 166.081(6) [life-sustaining
|
|
treatment] on behalf of the person, and a listing of those |
|
procedures the patient has decided should be withheld or withdrawn |
|
[not to be initiated or continued]; |
|
(5) a statement that the person understands that the |
|
person may revoke the [out-of-hospital] DNR order at any time by |
|
destroying the order and removing the DNR identification device, if |
|
any, or by communicating to health care professionals [at the
|
|
scene] the person's desire to revoke the [out-of-hospital] DNR |
|
order; |
|
(6) places for the printed names and signatures of the |
|
witnesses or the notary public's acknowledgment and for the printed |
|
name and signature of the attending physician of the person and the |
|
medical license number of the attending physician; |
|
(7) a separate section for execution of the document |
|
by the legal guardian of the person, the person's proxy, an agent of |
|
the person having a medical power of attorney, or the attending |
|
physician attesting to the issuance of a [an out-of-hospital] DNR |
|
order by nonwritten means of communication or acting in accordance |
|
with a previously executed or previously issued directive to |
|
physicians under Section 166.082(c) that includes the following: |
|
(A) a statement that the legal guardian, the |
|
proxy, the agent, or the person by nonwritten means of |
|
communication[, or the physician] directs that one or more of the |
|
treatments listed in Section 166.081(6) [each listed
|
|
life-sustaining treatment] should [not] be withheld or withdrawn on |
|
[initiated or continued in] behalf of the person; and |
|
(B) places for the printed names and signatures |
|
of the witnesses and, as applicable, the legal guardian, proxy, or |
|
agent[, or physician]; |
|
(8) a separate section for execution of the document |
|
by at least one qualified relative of the person when the person |
|
does not have a legal guardian, proxy, or agent having a medical |
|
power of attorney and is incompetent or otherwise mentally or |
|
physically incapable of communication, including: |
|
(A) a statement that the relative of the person |
|
is qualified to make a treatment decision under Section 166.088 to |
|
withhold or withdraw cardiopulmonary resuscitation and certain |
|
other designated treatments listed in Section 166.081(6) |
|
[life-sustaining treatment under Section 166.088] and, based on the |
|
known desires of the person or a determination of the best interest |
|
of the person, directs that one or more of the treatments listed in |
|
Section 166.081(6) [each listed life-sustaining treatment] should |
|
[not] be withheld or withdrawn on [initiated or continued in] |
|
behalf of the person; and |
|
(B) places for the printed names and signatures |
|
of the witnesses and qualified relative of the person; |
|
(9) a place for entry of the date of execution of the |
|
document; |
|
(10) a statement that the document is in effect on the |
|
date of its execution and remains in effect until the death of the |
|
person or until the document is revoked; |
|
(11) a statement that the document must accompany the |
|
person during transport; |
|
(12) a statement regarding the proper disposition of |
|
the document or copies of the document, as the executive |
|
commissioner [board] determines appropriate; and |
|
(13) a statement at the bottom of the document, with |
|
places for the signature of each person executing the document, |
|
that the document has been properly completed. |
|
(b-1) Except as provided by Subsection (b-2), a written DNR |
|
order may be executed based on the oral instructions of a person, |
|
provided the order complies with Section 166.0855. |
|
(b-2) A DNR order by a physician must be in writing and |
|
comply with the requirements of Section 166.0855. |
|
(c) The executive commissioner [board] may, by rule and as |
|
recommended by the department, modify the standard form of the |
|
[out-of-hospital] DNR order described by Subsection (b) in order to |
|
accomplish the provisions and purposes of this subchapter. |
|
(d) A photocopy or other complete facsimile of the original |
|
written [out-of-hospital] DNR order executed under this subchapter |
|
may be used for any purpose for which the original written order may |
|
be used under this subchapter. |
|
Sec. 166.084. ISSUANCE OF [OUT-OF-HOSPITAL] DNR ORDER BY |
|
NONWRITTEN COMMUNICATION. (a) A competent person who is an adult |
|
may issue a [an out-of-hospital] DNR order by nonwritten |
|
communication. |
|
(b) A declarant must issue the nonwritten [out-of-hospital] |
|
DNR order in the presence of the attending physician and two |
|
witnesses who qualify under Section 166.003, at least one of whom |
|
must be a witness who qualifies under Section 166.003(2). |
|
(c) The attending physician and witnesses shall sign the |
|
[out-of-hospital] DNR order in the place of the document provided |
|
by Section 166.083(b)(7) and the attending physician shall sign the |
|
document in the place required by Section 166.083(b)(13). The |
|
physician shall make the fact of the existence of the |
|
[out-of-hospital] DNR order a part of the patient's [declarant's] |
|
medical record and the names of the witnesses shall be entered in |
|
the medical record. |
|
(d) A [An out-of-hospital] DNR order issued in the manner |
|
provided by this section is valid and shall be honored by responding |
|
health care professionals as if executed in the manner provided by |
|
Section 166.082. |
|
Sec. 166.085. EXECUTION OF [OUT-OF-HOSPITAL] DNR ORDER ON |
|
BEHALF OF [OR A] MINOR. (a) The following persons may execute a [an
|
|
out-of-hospital] DNR order on behalf of a minor: |
|
(1) the minor's parents; |
|
(2) the minor's legal guardian; or |
|
(3) the minor's managing conservator. |
|
(b) A person listed under Subsection (a) may not execute a |
|
[an out-of-hospital] DNR order unless the minor has been diagnosed |
|
by a physician as suffering from a terminal or irreversible |
|
condition. |
|
SECTION 8. Subchapter C, Chapter 166, Health and Safety |
|
Code, is amended by adding Section 166.0855 to read as follows: |
|
Sec. 166.0855. DNR ORDERS APPLICABLE. A DNR order is valid |
|
only if it is issued in compliance with: |
|
(1) the directions of the patient, if competent, given |
|
orally or otherwise in the presence of a person authorized to make a |
|
treatment decision under Section 166.039; |
|
(2) the directions in an advance directive enforceable |
|
in accordance with Section 166.005 or executed in accordance with |
|
Section 166.032, 166.034, or 166.035; |
|
(3) the directions of the patient's legal guardian or |
|
agent under a medical power of attorney acting in compliance with |
|
Subchapter D; |
|
(4) a treatment decision made in accordance with |
|
Section 166.039; or |
|
(5) the reasonable medical judgment of the patient's |
|
attending physician that the patient's death is imminent within 24 |
|
hours even if cardiopulmonary resuscitation is provided. |
|
SECTION 9. Sections 166.086, 166.087, 166.088, 166.089, |
|
166.090, 166.091, 166.092, 166.093, 166.094, 166.095, 166.096, and |
|
166.097, Health and Safety Code, are amended to read as follows: |
|
Sec. 166.086. DESIRE OF PERSON SUPERSEDES |
|
[OUT-OF-HOSPITAL] DNR ORDER. The desire of a competent person, |
|
including a competent minor, supersedes the effect of a [an
|
|
out-of-hospital] DNR order executed or issued by or on behalf of the |
|
person when the desire is communicated to responding health care |
|
professionals as provided by this subchapter. |
|
Sec. 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR |
|
INCAPABLE OF COMMUNICATION. (a) This section applies when a person |
|
18 years of age or older has executed or issued a [an
|
|
out-of-hospital] DNR order and subsequently becomes incompetent or |
|
otherwise mentally or physically incapable of communication. |
|
(b) If the adult person has designated a person to make a |
|
treatment decision as authorized by Section 166.032(c), the |
|
attending physician and the designated person shall comply with the |
|
[out-of-hospital] DNR order. |
|
(c) If the adult person has not designated a person to make a |
|
treatment decision as authorized by Section 166.032(c), the |
|
attending physician shall comply with the [out-of-hospital] DNR |
|
order unless the physician believes that the order does not reflect |
|
the person's present desire. |
|
Sec. 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR |
|
ISSUED [OUT-OF-HOSPITAL] DNR ORDER AND IS INCOMPETENT OR INCAPABLE |
|
OF COMMUNICATION. (a) If an adult person has not executed or |
|
issued a [an out-of-hospital] DNR order and is incompetent or |
|
otherwise mentally or physically incapable of communication, the |
|
attending physician and the person's legal guardian, proxy, or |
|
agent having a medical power of attorney may execute a [an
|
|
out-of-hospital] DNR order on behalf of the person. |
|
(b) If the person does not have a legal guardian, proxy, or |
|
agent under a medical power of attorney, the attending physician |
|
and at least one qualified relative from a category listed by |
|
Section 166.039(b), subject to the priority established under that |
|
subsection, may execute a [an out-of-hospital] DNR order in the |
|
same manner as a treatment decision made under Section 166.039(b). |
|
(c) A decision to execute a [an out-of-hospital] DNR order |
|
made under Subsection (a) or (b) must be based on knowledge of what |
|
the person would desire, if known. |
|
(d) A [An out-of-hospital] DNR order executed under |
|
Subsection (b) must be made in the presence of at least two |
|
witnesses who qualify under Section 166.003, at least one of whom |
|
must be a witness who qualifies under Section 166.003(2). |
|
(e) The fact that an adult person has not executed or issued |
|
a [an out-of-hospital] DNR order does not create a presumption that |
|
the person does not want a treatment decision made to withhold or |
|
withdraw cardiopulmonary resuscitation and certain other |
|
designated treatments listed in Section 166.081(6) |
|
[life-sustaining treatment designated by the board]. |
|
(f) If there is not a qualified relative available to act |
|
for the person under Subsection (b), in order for a decision to be |
|
made to execute a DNR order under Subsection (a) or (b), the health |
|
care facility must file an application for temporary guardianship |
|
under Chapter 1251, Estates Code, for the appointment of a person |
|
who is not involved in the treatment of the patient or associated |
|
with or employed by the health care facility to serve as a temporary |
|
guardian for the patient for the limited purpose of making a |
|
decision about a [an out-of-hospital] DNR order [must be concurred
|
|
in by another physician who is not involved in the treatment of the
|
|
patient or who is a representative of the ethics or medical
|
|
committee of the health care facility in which the person is a
|
|
patient]. |
|
(f-1) The term of a temporary guardian appointed under a |
|
temporary guardianship created pursuant to Subsection (f) expires |
|
on the date a court enters an order finding that a qualified |
|
relative is available to make a decision about a DNR order. When the |
|
patient's legal guardian or a person listed in Subsection (b) |
|
becomes available, that person may make a treatment decision |
|
according to Subsection (a) or (b). |
|
(f-2) If a qualified relative is not immediately available |
|
to make a treatment decision under Subsection (b), the attending |
|
physician or the attending physician's designee shall notify each |
|
qualified relative of the need for a qualified relative to make a |
|
treatment decision under this section by: |
|
(1) personally delivering notice to the person; or |
|
(2) providing written notice sent by certified mail, |
|
restricted delivery, return receipt requested, to the last known |
|
address of the person. |
|
(f-3) A qualified relative is considered not available for |
|
the purposes of Subsection (f) only if 48 hours have elapsed since |
|
personal notice was provided under Subsection (f-2)(1), or 72 hours |
|
have elapsed since the return receipt for the written notice was |
|
received under Subsection (f-2)(2), and the qualified relative who |
|
was notified remains unavailable to make a treatment decision under |
|
this section. |
|
(g) A person listed in Section 166.039(b) who wishes to |
|
challenge a decision made under this section must apply for |
|
temporary guardianship under Chapter 1251, Estates [Section 875,
|
|
Texas Probate] Code. The court may waive applicable fees in that |
|
proceeding. |
|
Sec. 166.089. COMPLIANCE WITH [OUT-OF-HOSPITAL] DNR ORDER. |
|
(a) When responding to a call for assistance in an out-of-hospital |
|
setting, health care professionals shall honor a [an
|
|
out-of-hospital] DNR order in accordance with the statewide |
|
[out-of-hospital] DNR protocol and, where applicable, locally |
|
adopted [out-of-hospital] DNR protocols not in conflict with the |
|
statewide protocol if: |
|
(1) the responding health care professionals discover |
|
an executed or issued [out-of-hospital] DNR order form on their |
|
arrival at the scene; and |
|
(2) the responding health care professionals comply |
|
with this section. |
|
(b) If the person is wearing a DNR identification device, |
|
the responding health care professionals must comply with Section |
|
166.090. |
|
(c) The responding health care professionals must establish |
|
the identity of the person as the person who executed or issued the |
|
[out-of-hospital] DNR order or for whom the [out-of-hospital] DNR |
|
order was executed or issued. |
|
(d) The responding health care professionals must determine |
|
that the [out-of-hospital] DNR order form appears to be valid in |
|
that it includes: |
|
(1) written responses in the places designated on the |
|
form for the names, signatures, and other information required of |
|
persons executing or issuing, or witnessing or acknowledging as |
|
applicable, the execution or issuance of, the order; |
|
(2) a date in the place designated on the form for the |
|
date the order was executed or issued; and |
|
(3) the signature or digital or electronic signature |
|
of the declarant or persons executing or issuing the order and the |
|
attending physician in the appropriate places designated on the |
|
form for indicating that the order form has been properly |
|
completed. |
|
(e) If the conditions prescribed by Subsections (a) through |
|
(d) are not determined to apply by the responding health care |
|
professionals at the scene, the [out-of-hospital] DNR order may not |
|
be honored and life-sustaining procedures otherwise required by law |
|
or local emergency medical services protocols shall be initiated or |
|
continued. Health care professionals acting in out-of-hospital |
|
settings are not required to accept or interpret a [an
|
|
out-of-hospital] DNR order that does not meet the requirements of |
|
this subchapter. |
|
(f) The [out-of-hospital] DNR order form or a copy of the |
|
form, when available, must accompany the person during transport. |
|
(g) A record shall be made and maintained of the |
|
circumstances of each emergency medical services response in which |
|
a [an out-of-hospital] DNR order or DNR identification device is |
|
encountered, in accordance with the statewide [out-of-hospital] |
|
DNR protocol and any applicable local [out-of-hospital] DNR |
|
protocol not in conflict with the statewide protocol. |
|
(h) A [An out-of-hospital] DNR order executed or issued and |
|
documented or evidenced in the manner prescribed by this subchapter |
|
is valid and shall be honored by responding health care |
|
professionals in an out-of-hospital setting unless the person or |
|
persons found at the scene: |
|
(1) identify themselves as the declarant or as the |
|
attending physician, legal guardian, qualified relative, or agent |
|
of the person having a medical power of attorney who executed or |
|
issued the [out-of-hospital] DNR order on behalf of the person; and |
|
(2) request that cardiopulmonary resuscitation or |
|
certain other treatments listed in Section 166.081(6) |
|
[life-sustaining treatment designated by the board] be initiated or |
|
continued. |
|
(i) If the policies of a health care facility preclude |
|
compliance with the [out-of-hospital] DNR order of a person or a [an
|
|
out-of-hospital] DNR order issued by an attending physician on |
|
behalf of a person who is admitted to or a resident of the facility, |
|
or if the facility is unwilling to accept DNR identification |
|
devices as evidence of the existence of a [an out-of-hospital] DNR |
|
order, that facility shall take all reasonable steps to notify the |
|
person or, if the person is incompetent, the person's guardian or |
|
the person or persons having authority to make health care |
|
treatment decisions on behalf of the person, of the facility's |
|
policy and shall take all reasonable steps to effect the transfer of |
|
the person to the person's home or to a facility where the |
|
provisions of this subchapter can be carried out. |
|
Sec. 166.090. DNR IDENTIFICATION DEVICE. (a) A person who |
|
has a valid [out-of-hospital] DNR order under this subchapter and |
|
has chosen to have all treatments listed in Section 166.081(6) |
|
withheld or withdrawn may wear a DNR identification device around |
|
the neck or on the wrist as prescribed by department [board] rule |
|
adopted under Section 166.101. |
|
(b) The presence of a DNR identification device on the body |
|
of a person is conclusive evidence that the person has executed or |
|
issued a valid [out-of-hospital] DNR order or has a valid |
|
[out-of-hospital] DNR order executed or issued on the person's |
|
behalf. Responding health care professionals shall honor the DNR |
|
identification device as if a valid [out-of-hospital] DNR order |
|
form executed or issued by the person, which indicated the choice |
|
for all treatments listed in Section 166.081(6) to be withheld or |
|
withdrawn, were found in the possession of the person. |
|
Sec. 166.091. DURATION OF [OUT-OF-HOSPITAL] DNR ORDER. A |
|
[An out-of-hospital] DNR order is effective until it is revoked as |
|
prescribed by Section 166.092. |
|
Sec. 166.092. REVOCATION OF [OUT-OF-HOSPITAL] DNR ORDER. |
|
(a) A patient or other declarant, without regard to the patient's |
|
or other declarant's mental state or competency, or another person |
|
authorized to make a treatment decision in Section 166.039 may |
|
revoke a [an out-of-hospital] DNR order at any time [without regard
|
|
to the declarant's mental state or competency]. An order may be |
|
revoked by[:
|
|
[(1)
the declarant or someone in the declarant's
|
|
presence and at the declarant's direction destroying the order form
|
|
and removing the DNR identification device, if any;
|
|
[(2)
a person who identifies himself or herself as the
|
|
legal guardian, as a qualified relative, or as the agent of the
|
|
declarant having a medical power of attorney who executed the
|
|
out-of-hospital DNR order or another person in the person's
|
|
presence and at the person's direction destroying the order form
|
|
and removing the DNR identification device, if any;
|
|
[(3)] the patient or other declarant, or a person who |
|
identifies himself or herself as the legal guardian, a qualified |
|
relative, or the agent of the patient having a medical power of |
|
attorney, communicating orally or in another manner the person's |
|
[declarant's] intent to revoke the order[; or
|
|
[(4)
a person who identifies himself or herself as the
|
|
legal guardian, a qualified relative, or the agent of the declarant
|
|
having a medical power of attorney who executed the out-of-hospital
|
|
DNR order orally stating the person's intent to revoke the order]. |
|
(b) A [An oral] revocation of a DNR order under Subsection |
|
(a) [(a)(3) or (a)(4)] takes effect only when the patient or other |
|
declarant or a person who identifies himself or herself as the legal |
|
guardian, a qualified relative, or the agent of the patient |
|
[declarant] having a medical power of attorney [who executed the
|
|
out-of-hospital DNR order] 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 by the executive commissioner [board] 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 and enter |
|
and note the revocation in all relevant electronic medical records |
|
of the patient. |
|
(c) Except as otherwise provided by this subchapter, a |
|
person is not civilly or criminally liable for failure to act on a |
|
revocation made under this section unless the person has actual |
|
knowledge of the revocation. |
|
(d) If a licensed health care professional does not comply |
|
with a revocation under Subsection (a), the patient or other |
|
declarant, the legal guardian, a qualified relative, or an agent of |
|
the patient having medical power of attorney may bring an action to |
|
obtain an injunction to enforce the revocation from a court of |
|
competent jurisdiction. |
|
(e) A person who seeks an injunction under Subsection (d) |
|
must: |
|
(1) prove that the person is authorized to make a |
|
treatment decision on behalf of the patient under Section 166.039; |
|
and |
|
(2) express a desire to revoke the DNR order. |
|
(f) A court considering a request for an injunction under |
|
Subsection (d) may not require a person seeking an injunction under |
|
Subsection (d) to: |
|
(1) pay the attorney's fees of an opposing party; |
|
(2) provide expert testimony in support of the |
|
injunction; or |
|
(3) establish irreparable harm. |
|
Sec. 166.093. REEXECUTION OF [OUT-OF-HOSPITAL] DNR ORDER. |
|
A declarant may at any time reexecute or reissue a [an
|
|
out-of-hospital] DNR order in accordance with the procedures |
|
prescribed by Section 166.082, including reexecution or reissuance |
|
after the declarant is diagnosed as having a terminal or |
|
irreversible condition. |
|
Sec. 166.094. LIMITATION ON LIABILITY FOR WITHHOLDING OR |
|
WITHDRAWING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER |
|
[LIFE-SUSTAINING] PROCEDURES. (a) A health care professional or |
|
health care facility or entity that in good faith causes |
|
cardiopulmonary resuscitation or certain other treatments listed |
|
in Section 166.081(6) [life-sustaining treatment designated by the
|
|
board] to be withheld or withdrawn from a person in accordance with |
|
this subchapter is not civilly liable for that action. |
|
(b) A health care professional or health care facility or |
|
entity that in good faith participates in withholding or |
|
withdrawing cardiopulmonary resuscitation or certain other |
|
treatments listed in Section 166.081(6) [life-sustaining treatment
|
|
designated by the board] from a person in accordance with this |
|
subchapter is not civilly liable for that action. |
|
(c) A health care professional or health care facility or |
|
entity that in good faith participates in withholding or |
|
withdrawing cardiopulmonary resuscitation or certain other |
|
treatments listed in Section 166.081(6) [life-sustaining treatment
|
|
designated by the board] from a person in accordance with this |
|
subchapter is not criminally liable or guilty of unprofessional |
|
conduct as a result of that action. |
|
(d) A health care professional or health care facility or |
|
entity that in good faith causes or participates in withholding or |
|
withdrawing cardiopulmonary resuscitation or certain other |
|
treatments listed in Section 166.081(6) [life-sustaining treatment
|
|
designated by the board] from a person in accordance with this |
|
subchapter and rules adopted under this subchapter is not in |
|
violation of any other licensing or regulatory laws or rules of this |
|
state and is not subject to any disciplinary action or sanction by |
|
any licensing or regulatory agency of this state as a result of that |
|
action. |
|
Sec. 166.095. LIMITATION ON LIABILITY FOR FAILURE TO |
|
EFFECTUATE [OUT-OF-HOSPITAL] DNR ORDER. (a) A health care |
|
professional or health care facility or entity that has no actual |
|
knowledge of a [an out-of-hospital] DNR order is not civilly or |
|
criminally liable for failing to act in accordance with the order. |
|
(b) A health care professional or health care facility or |
|
entity is not subject to review and disciplinary action by the |
|
appropriate licensing board for failing to effectuate a [an
|
|
out-of-hospital] DNR order if the decision was made in good faith. |
|
This subsection does not limit remedies available under other laws |
|
of this state. |
|
(c) If an attending physician refuses to execute or comply |
|
with a [an out-of-hospital] DNR order, the physician shall inform |
|
the person, the legal guardian or qualified relatives of the |
|
person, or the agent of the person having a medical power of |
|
attorney and, if the person or another authorized to act on behalf |
|
of the person so directs, shall make a reasonable effort to transfer |
|
the person to another physician who is willing to execute or comply |
|
with a [an out-of-hospital] DNR order. |
|
Sec. 166.096. HONORING [OUT-OF-HOSPITAL] DNR ORDER DOES NOT |
|
CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an |
|
offense under Section 22.08, Penal Code, by withholding |
|
cardiopulmonary resuscitation or certain other treatments listed |
|
in Section 166.081(6) [life-sustaining treatment designated by the
|
|
board] from a person in accordance with this subchapter. |
|
Sec. 166.097. CRIMINAL PENALTY; PROSECUTION. (a) A person |
|
commits an offense if the person intentionally conceals, cancels, |
|
defaces, obliterates, or damages another person's |
|
[out-of-hospital] DNR order or DNR identification device without |
|
that person's consent or the consent of the person or persons |
|
authorized to execute or issue a [an out-of-hospital] DNR order on |
|
behalf of the person under this subchapter. An offense under this |
|
subsection is a Class A misdemeanor. |
|
(b) A person is subject to prosecution for criminal homicide |
|
under Chapter 19, Penal Code, if the person, with the intent to |
|
cause cardiopulmonary resuscitation or certain other treatments |
|
listed in Section 166.081(6) [life-sustaining treatment designated
|
|
by the board] to be withheld or withdrawn from another person |
|
contrary to the other person's desires, falsifies or forges a [an
|
|
out-of-hospital] DNR order or intentionally conceals or withholds |
|
personal knowledge of a revocation and thereby directly causes |
|
cardiopulmonary resuscitation and certain other treatments listed |
|
in Section 166.081(6) [life-sustaining treatment designated by the
|
|
board] to be withheld or withdrawn from the other person with the |
|
result that the other person's death is hastened. |
|
(c) A health care professional commits an offense if the |
|
person knowingly executes a 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 10. Subchapter C, Chapter 166, Health and Safety |
|
Code, is amended by adding Section 166.0975 to read as follows: |
|
Sec. 166.0975. DISCIPLINARY ACTION. The Texas Medical |
|
Board shall take disciplinary action under Chapter 164, Occupations |
|
Code, against a person who violates this chapter. |
|
SECTION 11. Sections 166.098, 166.100, 166.101, and |
|
166.102, Health and Safety Code, are amended to read as follows: |
|
Sec. 166.098. PREGNANT PERSONS. A person may not withhold |
|
or withdraw cardiopulmonary resuscitation or certain treatments |
|
listed in Section 166.081(6) [other life-sustaining treatment
|
|
designated by the board] under this subchapter from a person known |
|
by the responding health care professionals to be pregnant. |
|
Sec. 166.100. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. |
|
This subchapter does not impair or supersede any legal right or |
|
responsibility a patient or other person authorized to make a |
|
treatment decision under Section 166.039 may have under a |
|
constitution, other statute, regulation, or court decision to |
|
effect the withholding or withdrawing of cardiopulmonary |
|
resuscitation or certain other treatments listed in Section |
|
166.081(6) from himself or herself or the patient for whom the |
|
person has been authorized to make a treatment decision under |
|
Section 166.039 [life-sustaining treatment designated by the
|
|
board]. |
|
Sec. 166.101. DUTIES OF DEPARTMENT AND EXECUTIVE |
|
COMMISSIONER [BOARD]. (a) The executive commissioner [board] |
|
shall, on the recommendation of the department, adopt all |
|
reasonable and necessary rules to carry out the provisions and |
|
purposes of this subchapter, including rules: |
|
(1) adopting a statewide [out-of-hospital] DNR order |
|
protocol that sets out standard procedures for the withholding or |
|
withdrawing of cardiopulmonary resuscitation and certain other |
|
treatments listed in Section 166.081(6) [life-sustaining
|
|
treatment] by health care professionals that addresses each of the |
|
methods for executing the DNR order described in Section 166.082, |
|
subject to Sections 166.084, 166.085, and 166.092 [acting in
|
|
out-of-hospital settings]; |
|
(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 a [an out-of-hospital] DNR order or DNR identification device |
|
is encountered by responding health care professionals; and |
|
(3) explicitly specifying that a DNR order may be |
|
issued by a physician only in compliance with the methods for |
|
executing the DNR order described in Section 166.082, subject to |
|
Sections 166.084, 166.085, and 166.0855. |
|
(b) The rules adopted [by the board] under Subsection (a) |
|
are not effective until approved by the Texas Medical [State] Board |
|
[of Medical Examiners]. |
|
(c) Local emergency medical services authorities may adopt |
|
local [out-of-hospital] DNR order protocols if the local protocols |
|
do not conflict with the statewide [out-of-hospital] DNR order |
|
protocol adopted by the executive commissioner [board]. |
|
(d) The executive commissioner [board] by rule shall |
|
specify a distinctive standard design for a necklace and a bracelet |
|
DNR identification device that signifies, when worn by a person, |
|
that the possessor has executed or issued a valid [out-of-hospital] |
|
DNR order under this subchapter or is a person for whom a valid |
|
[out-of-hospital] DNR order has been executed or issued. |
|
(e) The department shall report to the executive |
|
commissioner [board] from time to time regarding issues identified |
|
in emergency medical services responses in which a [an
|
|
out-of-hospital] DNR order or DNR identification device is |
|
encountered. The report may contain recommendations to the |
|
executive commissioner [board] for necessary modifications to the |
|
form of the standard [out-of-hospital] DNR order or the designated |
|
[life-sustaining] procedures listed in the standard |
|
[out-of-hospital] DNR order, the statewide [out-of-hospital] DNR |
|
order protocol, or the DNR identification devices. |
|
Sec. 166.102. DUTY OF [PHYSICIAN'S DNR ORDER MAY BE HONORED
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BY HEALTH CARE PERSONNEL OTHER THAN] EMERGENCY MEDICAL SERVICES |
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PERSONNEL RESPONDING TO CALL. [(a) Except as provided by
|
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Subsection (b), a licensed nurse or person providing health care
|
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services in an out-of-hospital setting may honor a physician's
|
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do-not-resuscitate order.
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[(b)] When responding to a call for assistance, emergency |
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medical services personnel: |
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(1) shall honor only a properly executed or issued |
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[out-of-hospital] DNR order or prescribed DNR identification |
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device in accordance with this subchapter; and |
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(2) have no duty to review, examine, interpret, or |
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honor a person's other written directive, including a written |
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directive in the form prescribed by Section 166.033. |
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SECTION 12. Subchapter C, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.103 to read as follows: |
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Sec. 166.103. APPLICABILITY OF SUBCHAPTER. This subchapter |
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applies to facilities licensed under Chapter 142. |
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SECTION 13. Not later than December 1, 2015, the executive |
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commissioner of the Health and Human Services Commission shall |
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adopt the rules required by Section 166.101(a), Health and Safety |
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Code, as amended by this Act. |
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SECTION 14. (a) Except as provided by Subsection (b) of |
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this section, the changes in law made by this Act apply to a |
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do-not-resuscitate order on or after the effective date of this |
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Act, regardless of whether the order was issued before, on, or after |
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the effective date of this Act. |
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(b) Section 166.083, Health and Safety Code, as amended by |
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this Act, and Section 166.0855, Health and Safety Code, as added by |
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this Act, apply only to a do-not-resuscitate order that is issued on |
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or after the effective date of this Act. |
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SECTION 15. This Act takes effect September 1, 2015. |