84R11966 AJZ-F
By: Klick H.B. No. 2949
A BILL TO BE ENTITLED
AN ACT
relating to advance directives, including do-not-resuscitate
orders; creating a criminal offense.
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 (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.
(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
amended to read as follows:
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. A written
directive may be in the following form:
DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES
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.
DIRECTIVE
I, __________, recognize that the best health care is based
upon a partnership of trust and communication with my physician. My
physician and I will make health care decisions together as long as
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 __________ 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 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 terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.) __________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
__________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
If, in the judgment of my physician, I am suffering with an
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 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 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.) __________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
__________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
Additional requests: (After discussion with your physician,
you may wish to consider listing particular treatments in this
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.)
________________________________________________________________ ________________________________________________________________
________________________________________________________________
________________________________________________________________ ________________________________________________________________
________________________________________________________________
________________________________________________________________ ________________________________________________________________
________________________________________________________________
After signing this directive, if my representative or I elect
hospice care, I understand and agree that only those treatments
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
values:
1. __________ 1. __________
1. __________
2. __________ 2. __________
2. __________
(If a Medical Power of Attorney has been executed, then an
agent already has been named and you should not list additional
names in this document.)
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.
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.
No other person may do so.
Signed__________ Date__________ City, County, State of
Residence __________
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.
Witness 1 __________ Witness 2 __________
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.
"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
BY HEALTH CARE PERSONNEL OTHER THAN] EMERGENCY MEDICAL SERVICES
PERSONNEL RESPONDING TO CALL. [(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:
(1) shall honor only a properly executed or issued
[out-of-hospital] DNR order or prescribed DNR identification
device in accordance with this subchapter; and
(2) have no duty to review, examine, interpret, or
honor a person's other written directive, including a written
directive in the form prescribed by Section 166.033.
SECTION 12. Subchapter C, Chapter 166, Health and Safety
Code, is amended by adding Section 166.103 to read as follows:
Sec. 166.103. APPLICABILITY OF SUBCHAPTER. This subchapter
applies to facilities licensed under Chapter 142.
SECTION 13. Not later than December 1, 2015, the executive
commissioner of the Health and Human Services Commission shall
adopt the rules required by Section 166.101(a), Health and Safety
Code, as amended by this Act.
SECTION 14. (a) Except as provided by Subsection (b) of
this section, the changes in law made by this Act apply to a
do-not-resuscitate order on or after the effective date of this
Act, regardless of whether the order was issued before, on, or after
the effective date of this Act.
(b) Section 166.083, Health and Safety Code, as amended by
this Act, and Section 166.0855, Health and Safety Code, as added by
this Act, apply only to a do-not-resuscitate order that is issued on
or after the effective date of this Act.
SECTION 15. This Act takes effect September 1, 2015.
__________ 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 terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE 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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