84R11643 AJZ-F
By: Hancock S.B. No. 1163
A BILL TO BE ENTITLED
AN ACT
relating to advance directives and health care and treatment
decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 166.002, Health and Safety Code, is
amended by adding Subdivision (16) to read as follows:
(16) "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. Sections 166.045(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) If an attending physician refuses to comply with a
directive or treatment decision for a reason permitted by Section
166.046(a-1) and not prohibited by Section 166.0455 and does not
wish to follow the procedure established under Section 166.046,
life-sustaining treatment shall be provided to the patient, but
only until a reasonable opportunity has been afforded for the
transfer of the patient to another physician or health care
facility willing to comply with the directive or treatment
decision.
(d) A physician, health professional acting under the
direction of a physician, or health care facility is not civilly or
criminally liable or subject to review or disciplinary action by
the person's appropriate licensing board if the person has complied
with the procedures and limitations outlined in Sections 166.0455
and [Section] 166.046.
SECTION 3. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0455 to read as follows:
Sec. 166.0455. LIMITATION ON REFUSAL TO EFFECTUATE CERTAIN
ADVANCE DIRECTIVES OR TREATMENT DECISIONS. A physician or other
health care professional, a health care facility, or an ethics or
medical committee shall not override or refuse to honor and comply
with a patient's advance directive or a health care or treatment
decision made by or on behalf of a patient that directs the
provision of life-sustaining treatment and shall not consider
life-sustaining treatment to be inappropriate treatment under
Section 166.046 based on:
(1) the lesser value the physician or professional,
facility, or committee places on sustaining the life of an elderly,
disabled, or terminally ill patient compared to the value of
sustaining the life of a patient who is younger, not disabled, or
not terminally ill; or
(2) a disagreement between the physician or
professional, facility, or committee and the patient, or the person
authorized to make a treatment decision for the patient under
Section 166.039, over the greater weight the patient or person
places on sustaining the patient's life than the risk of
disability.
SECTION 4. Section 166.046, Health and Safety Code, is
amended by amending Subsections (a) and (g) and adding Subsections
(a-1) and (c-1) to read as follows:
(a) If an attending physician refuses to honor or comply
with a patient's advance directive or a health care or treatment
decision made by or on behalf of a patient for a reason permitted by
Subsection (a-1) and not prohibited by Section 166.0455, the
physician's refusal shall be reviewed by an ethics or medical
committee. The attending physician may not be a member of that
committee. The patient shall be given life-sustaining treatment
during the review. A person may not coerce or attempt to coerce a
physician not to comply with a patient's advance directive or a
health care or treatment decision made by or on behalf of a patient
by threatening or implementing adverse employment decisions or
professional discipline.
(a-1) The ethics or medical committee reviewing the
physician's refusal under Subsection (a) shall not consider
life-sustaining treatment inappropriate unless, based on
reasonable medical judgment, the life-sustaining treatment
requested by or on behalf of the patient is:
(1) futile because the treatment is physiologically
ineffective in achieving the specific intended benefit to the
patient as intended by or on behalf of the patient; or
(2) medically inappropriate because providing the
treatment to the patient would clearly create a substantially
greater risk of causing or hastening the death of the patient than
would withholding or withdrawing the treatment.
(c-1) The ethics or medical committee shall not approve
withdrawing or withholding life-sustaining treatment if the ethics
or medical committee determines during the review described by
Subsection (a) that the physician refused to honor a patient's
advance directive or a health care or treatment decision made by or
on behalf of the patient for a reason prohibited by Section
166.0455.
(g) At the request of the patient or the person responsible
for the health care decisions of the patient, the appropriate
[district or county] court shall extend the time period provided
under Subsection (e) [only] if the court finds, by a preponderance
of the evidence, that there is a reasonable expectation that a
physician or health care facility that will honor the patient's
directive will be found if the time extension is granted.
SECTION 5. 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:
(1) a request for extension of time to effect a patient
transfer for relief under Section 166.046(g); or
(2) an allegation that a physician or other health
care professional, health care facility, or ethics or medical
committee is violating or threatening to violate this chapter.
(b) The person filing a motion under Subsection (a) shall
immediately serve a copy of the motion on the defendant.
(c) 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.
(d) The time for the hearing and the date by which the court
must rule on the motion under Subsection (c) may be extended, for
good cause shown, by the court.
(e) Any party may appeal the decision of the court under
Subsection (c) 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.
(f) On receipt of a notice of appeal under Subsection (e),
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.
(g) The court of appeals shall rule on an appeal under
Subsection (f) not later than the fifth business day after the date
the notice of appeal is filed with the court that ruled on the
motion.
(h) The times for the filing of briefs, the hearing, and the
date by which the court of appeals must rule on the appeal under
Subsection (g) may be extended, for good cause shown, by the court
of appeals.
(i) Any party may file a petition for review of the decision
of the court of appeals under Subsection (g) 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, 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, the court shall exercise the
court's sound discretion in determining how expeditiously to hear
and decide the case.
(j) 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 must be provided
through midnight of the day by which a notice of appeal must be
filed unless the court directs that the life-sustaining treatment
be provided for a longer period. If a notice of appeal under
Subsection (e) is filed, life-sustaining treatment must 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 the life-sustaining treatment be provided for a longer period.
If a petition for review to the supreme court is filed under
Subsection (i), life-sustaining treatment must 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 the life-sustaining treatment be
provided for a longer period.
(k) A filing fee or court cost may not be assessed for any
proceeding in a trial or appellate court under this section.
SECTION 6. 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 and comply with a patient's advance directive or
a treatment decision to provide life-sustaining treatment for a
reason permitted by Section 166.046(a-1) and not prohibited by
Section 166.0455, life-sustaining treatment is required to be
provided the patient, 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 7. 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. With your agreement, the
meeting may be held sooner than 48 hours, if possible.
A physician or other health care professional, a health care
facility, or an ethics or medical committee may not deny a patient
life-sustaining treatment based on:
1. the lesser value the physician or professional,
facility, or committee places on sustaining the life of an elderly,
disabled, or terminally ill patient compared to the value of
sustaining the life of a patient who is younger, not disabled, or
not terminally ill; or
2. a disagreement between the physician or professional,
facility, or committee and the patient, or the person authorized to
make a treatment decision for the patient under Section 166.039,
over the greater weight the patient or person places on sustaining
the patient's life than the risk of disability.
Life-sustaining treatment may be denied if the treatment is:
1. futile because the treatment is physiologically
ineffective in achieving the specific intended benefit to the
patient as intended by or on behalf of the patient; or
2. medically inappropriate because providing the treatment
to the patient would clearly create a substantially greater risk of
causing or hastening the death of the patient than would
withholding or withdrawing it.
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. 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 ruled otherwise [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.
7. The law gives you the right to seek a court order to
require a physician or other health care professional, health care
facility, or ethics or medical committee to comply with your rights
under the Texas Advance Directives Act if the physician or
professional, facility, or committee 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.
(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. 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 or other health care professional, health care
facility, or ethics or medical committee to comply with your rights
under the Texas Advance Directives Act if the physician, facility,
or committee 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 8. Section 166.158(c), Health and Safety Code, is
amended to read as follows:
(c) A principal's health or residential care provider who
finds it impossible to follow a directive by the agent because of a
conflict with this subchapter or the medical power of attorney
shall inform the agent as soon as is reasonably possible. The agent
may select another attending physician. The procedures and
limitations established under Sections 166.045, 166.0455, and
166.046 apply if the agent's directive concerns providing,
withholding, or withdrawing life-sustaining treatment.
SECTION 9. Section 166.166, Health and Safety Code, is
amended to read as follows:
Sec. 166.166. OTHER RIGHTS OR RESPONSIBILITIES NOT
AFFECTED. This subchapter does not limit or impair any legal right
or responsibility that any person, including a physician or health
or residential care provider, may have to make or implement health
care decisions on behalf of a person, provided that if an attending
physician or health care facility is unwilling to honor and comply
with a patient's advance directive or a treatment decision to
provide life-sustaining treatment for a reason permitted by Section
166.046(a-1) and not prohibited by Section 166.0455,
life-sustaining treatment is required to be provided the patient,
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 10. Not later than December 1, 2015, the Supreme
Court of Texas shall issue the rules and prescribe the forms
necessary for the process established by Section 166.0465, Health
and Safety Code, as added by this Act. The rules shall prescribe
the method of service of the application under Section 166.0465,
Health and Safety Code, and may require filing and service of
notices, petitions, and briefs electronically to the extent the
Supreme Court of Texas considers appropriate.
SECTION 11. The changes in law made by this Act apply only
to a health care or treatment decision made on or after the
effective date of this Act.
SECTION 12. 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, 2015.