81R11609 YDB-F
By: Hughes H.B. No. 3325
A BILL TO BE ENTITLED
AN ACT
relating to advance directives or health care or treatment
decisions made by or on behalf of patients.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 166.039, Health and Safety Code, is
amended by amending Subsection (g) and adding Subsection (h) to
read as follows:
(g) A person listed in Subsection (b) who wishes to
challenge a treatment decision made under this section must apply
for temporary guardianship under Section 875, Texas Probate Code,
and allege that the treatment decision:
(1) violates the patient's directions provided in an
advance directive or as otherwise known;
(2) if the patient's directions are unknown, is
inconsistent with the patient's known values; or
(3) if the matter cannot be determined using a
standard described by Subdivision (1) or (2), is clearly
inconsistent with the patient's best interests, beginning with a
presumption for life.
(h) A physician, medical or ethics committee, or health care
facility treating a patient may participate as a party in the
guardianship proceedings described by Subsection (g). The court
may waive applicable fees in that proceeding.
SECTION 2. Section 166.045(c), Health and Safety Code, is
amended to read as follows:
(c) If an attending physician refuses to comply with a
directive or treatment decision requesting the provision of
life-sustaining treatment to a patient and either the attending
physician does not wish to follow the procedure established under
Section 166.046 or the procedure is not applicable, life-sustaining
treatment shall be provided to the patient[, but only] until [a
reasonable opportunity has been afforded for the transfer of] the
patient is transferred to another physician or health care facility
willing to comply with the directive or treatment decision.
SECTION 3. Sections 166.046(b) and (e), Health and Safety
Code, are amended to read as follows:
(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) may be given a written description of the ethics or
medical committee review process and any other policies and
procedures related to this section adopted by the health care
facility;
(2) 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;
(3) 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
(4) is entitled to:
(A) attend the meeting and be represented by
legal counsel at 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 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).]
SECTION 4. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0465 to read as follows:
Sec. 166.0465. COURT PROCEEDINGS; APPEAL; FILING FEE AND
COURT COSTS. (a) A patient, the person responsible for the
patient's health care decisions, or the person who has made the
decision regarding the advance directive or treatment decision may
file a motion for injunctive relief in any county court at law,
court having probate jurisdiction, or district court, including a
family district court, based on an allegation that a physician,
ethics or medical committee, or health care facility is violating
or is threatening to violate the patient's rights under this
chapter and shall immediately serve a copy of the motion on the
defendant.
(b) The court shall promptly set a time for a hearing on a
motion filed under Subsection (a) and shall keep a record of all
testimony and other oral proceedings in the action. The court shall
rule on the motion and issue written findings of fact and
conclusions of law not later than the fifth business day after the
date the motion is filed with the court. The time for the hearing
and the date by which the court must rule on the motion may be
extended by stipulation of the parties, with the approval of the
court.
(c) Any party may appeal the decision of the court under
Subsection (b) to the court of appeals having jurisdiction over
civil matters in the county in which the motion was filed by filing
a notice of appeal with the clerk of the court that ruled on the
motion not later than the first business day after the date the
decision of the court was issued.
(d) On receipt of a notice of appeal under Subsection (c),
the clerk of the court that ruled on the motion shall deliver a copy
of the notice of appeal and record on appeal to the clerk of the
court of appeals. On receipt of the notice and record, the clerk of
the court of appeals shall place the appeal on the docket of the
court, and the court of appeals shall promptly issue an expedited
briefing schedule and set a time for a hearing.
(e) The court of appeals shall rule on an appeal under
Subsection (d) not later than the fifth business day after the date
the notice of appeal is filed with the court that ruled on the
motion. The times for the filing of briefs, the hearing, and the
date by which the court of appeals must rule on the appeal may be
extended by stipulation of the parties, with the approval of the
court of appeals.
(f) Any party may file a petition for review of the decision
of the court of appeals with the clerk of the supreme court not
later than the third business day after the date the decision of the
court of appeals was issued. Other parties may file responses not
later than the third business day after the date the petition for
review was filed. The supreme court shall grant, deny, refuse, or
dismiss the petition for want of jurisdiction, without regard to
whether a reply to any response has been filed, not later than the
third business day after the date the response was due. If the
supreme court grants the petition for review, it shall exercise its
sound discretion in determining how expeditiously to hear and
decide the case.
(g) If a motion is filed under Subsection (a) and the
dispute concerns whether life-sustaining treatment should be
provided to the patient, life-sustaining treatment shall be
provided through midnight of the day by which a notice of appeal
must be filed unless the court directs that it be provided for a
longer period. If a notice of appeal under Subsection (c) is filed,
life-sustaining treatment shall be provided through midnight of the
day by which a petition for review to the supreme court must be
filed, unless the court of appeals directs that it be provided for a
longer period. If a petition for review to the supreme court is
filed under Subsection (f), life-sustaining treatment shall be
provided through midnight of the day on which the supreme court
denies, refuses, or dismisses the petition or issues a ruling on the
merits, unless the supreme court directs that it be provided for a
longer period.
(h) A filing fee or court cost may not be assessed for any
proceeding in a trial or appellate court under this section.
SECTION 5. Section 166.051, Health and Safety Code, is
amended to read as follows:
Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED.
This subchapter does not impair or supersede any legal right or
responsibility a person may have to effect the withholding or
withdrawal of life-sustaining treatment in a lawful manner,
provided that if an attending physician or health care facility is
unwilling to honor a patient's advance directive or a treatment
decision to provide life-sustaining treatment, life-sustaining
treatment must [is required to] be provided to the patient in
accordance with this chapter[, but only until a reasonable
opportunity has been afforded for transfer of the patient to
another physician or health care facility willing to comply with
the advance directive or treatment decision].
SECTION 6. Sections 166.052(a) and (b), Health and Safety
Code, are amended to read as follows:
(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)(3)(A) [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,
the case will 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 and be represented by legal
counsel at the meeting. With your agreement, the meeting may be
held sooner than 48 hours, if possible.
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 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. The law gives you a right to seek a court order to require a
physician, ethics or medical committee, or health care facility to
comply with your rights under the Texas Advance Directives Act if
the physician, committee, or facility is violating or threatening
to violate a provision of that Act. You may wish to talk to legal
counsel for further information about your right to seek a court
order [If a provider cannot be found willing to give the requested
treatment within 10 days, life-sustaining treatment may be
withdrawn 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].
*"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)(3)(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, the case will 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 and be represented by legal
counsel at the meeting. With your agreement, the meeting may be
held sooner than 48 hours, if possible.
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.
3. The law gives you a right to seek a court order to require
a physician, ethics or medical committee, or health care facility
to comply with your rights under the Texas Advance Directives Act if
the physician, committee, or facility is violating or threatening
to violate a provision of that Act. You may wish to talk to legal
counsel for further information about your right to seek a court
order.
*"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.
SECTION 7. Sections 166.046(f) and (g), Health and Safety
Code, are repealed.
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, 2009.