88R11055 LRM-F
By: Springer S.B. No. 1724
A BILL TO BE ENTITLED
AN ACT
relating to advance directives and health care treatment decisions
made by or on behalf of patients, including a review of those
directives and decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0445 to read as follows:
Sec. 166.0445. LIMITATION ON LIABILITY FOR PERFORMING
REQUIRED MEDICAL PROCEDURE. (a) A physician or health care
professional acting under the direction of a physician is not
subject to civil liability for conducting a medical procedure
required under Section 166.046(d-1).
(b) A physician or health care professional acting under the
direction of a physician is not subject to criminal liability for
conducting a medical procedure required under Section 166.046(d-1)
unless:
(1) the physician or health care professional in
conducting the medical procedure acted with a specific intent to
cause the death of the patient and that conduct hastened the
patient's death; and
(2) the hastening of the patient's death is not
attributable to the risks associated with the medical procedure.
(c) A physician or health care professional acting under the
direction of a physician has not engaged in unprofessional conduct
by conducting a medical procedure required under Section
166.046(d-1) unless the physician or health care professional fails
to exercise reasonable medical judgment in conducting the medical
procedure. For purposes of this subsection, the standard of care
that a physician or health care professional must exercise is the
degree of care a physician or health care professional of ordinary
prudence and skill would have exercised under the same or similar
circumstances in the same or a similar community.
SECTION 2. Section 166.046, Health and Safety Code, is
amended by amending Subsections (a), (b), (c), (d), (e), and (g) and
adding Subsections (a-1), (a-2), (b-1), (b-2), and (d-1) to read as
follows:
(a) This section applies only to the treatment and care of a
qualified patient who is declared incompetent or otherwise mentally
or physically incapable of communication.
(a-1) If an attending physician refuses to honor a patient's
advance directive or a health care or treatment decision made by or
on behalf of a patient, 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-2) An ethics or medical committee that reviews a
physician's refusal to honor a patient's advance directive or
health care treatment decision under Subsection (a-1) shall
consider the patient's well-being in conducting the review. If the
review requires the committee to make a determination on whether
life-sustaining treatment requested in a patient's advance
directive or by the person responsible for the patient's health
care decisions is medically inappropriate, the committee shall
consider whether provision of the life-sustaining treatment:
(1) will prolong the natural process of dying or
hasten the patient's death;
(2) will cause harm or undesirable side effects
without a proportionate benefit to the patient;
(3) will exacerbate life-threatening medical problems
that outweigh the treatment benefits;
(4) will result in substantial irremediable physical
pain or other measurable suffering that outweigh the treatment
benefits;
(5) without regard to any judgment on the patient's
quality of life, will be medically ineffective at:
(A) improving the patient's current condition;
or
(B) reducing the patient's current medical
support level;
(6) is consistent with the prevailing standard of
care; or
(7) is contrary to the patient's clearly documented
desires.
(b) The [patient or the] person responsible for the
patient's health care decisions [of the individual] who has made
the decision regarding the directive or treatment decision or, for
a patient for whom a review is conducted under Subsection (a-1) and
who did not designate a person to make health care or treatment
decisions or who does not have a legal guardian or agent under a
medical power of attorney, a person in the priority order described
by Section 166.039(b):
(1) must [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 in writing [of the committee
review process] not less than seven calendar days [48 hours] before
the meeting called to discuss the patient's directive, unless the
time period is waived by written mutual agreement, of:
(A) the ethics or medical committee review
process and any other related policies and procedures adopted by
the health care facility, including any attendance and
confidentiality policy described by Subsection (b-1);
(B) the rights described in Subdivisions
(3)(A)-(D);
(C) the date, time, and location of the meeting;
(D) the name, title, and work contact information
of the facility's personnel who, in the event of a disagreement
described by Subsection (d-1), will be responsible for overseeing
the transfer of the patient to another physician or facility that is
willing to comply with the directive; and
(E) the factors the committee is required to
consider under Subsection (a-2);
(2) [(3)] at the time of being [so] informed under
Subdivision (1), 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 department under Section 166.053; and
(3) [(4)] is entitled to:
(A) attend and participate in the meeting;
(B) receive before or during the meeting a
written statement of the full name and title of each committee
member who will participate in the meeting;
(C) subject to Subsection (b-2):
(i) be accompanied at the meeting by up to
10 individuals selected by the patient or surrogate, including
legal counsel, physicians, health care professionals, or patient
advocates; and
(ii) have an opportunity during the meeting
to either directly or through another individual:
(a) explain the justification for the
health care or treatment request made by or on behalf of the
patient;
(b) respond to information relating
to the patient that is submitted or presented during the meeting;
and
(c) state any concerns the patient or
surrogate has regarding compliance with this section or Section
166.0465;
(D) receive a written notice [explanation] of:
(i) the decision reached during the review
process;
(ii) an explanation of the decision,
including, if applicable, the committee's reasoning for affirming
that life-sustaining treatment requested in the patient's advance
directive or by the person responsible for the patient's health
care decisions is medically inappropriate;
(iii) a statement that the committee has
complied with Subsection (a-2) and Section 166.0465; and
(iv) a list of the health care facilities
contacted before the meeting as part of the transfer efforts made
under Subsection (d) and, for each facility on the list that denied
the request to transfer the patient, any reason provided by the
facility for denying the request;
(E) [(C)] receive a copy of the portion of the
patient's medical record related to the treatment received by the
patient in the facility for the lesser of:
(i) the period of the patient's current
admission to the facility; or
(ii) the preceding 30 calendar days; and
(F) [(D)] receive a copy of all of the patient's
reasonably available diagnostic results and reports related to the
medical record provided under Paragraph (E) [(C)].
(b-1) A health care facility may adopt and implement a
written attendance and confidentiality policy for meetings held
under this section that is reasonable and necessary to:
(1) facilitate information sharing and discussion of
the patient's medical status and treatment requirements; and
(2) preserve the effectiveness of the meeting.
(b-2) Notwithstanding Subsection (b)(3), the following
individuals may not participate in the deliberations of an ethics
or medical committee under this section:
(1) the physicians or health care professionals
providing treatment and care to the patient; or
(2) the patient, the person entitled to written notice
of the meeting under Subsection (b)(1), or any person attending
under Subsection (b)(3)(C).
(c) The written notices [explanation] required by
Subsections (b)(3)(D)(i) and (ii) [Subsection (b)(4)(B)] must be
included in the patient's medical record.
(d) After written notice is provided under Subsection
(b)(1), [If] the patient's attending physician [, the patient, or
the person responsible for the health care decisions of the
individual does not agree with the decision reached during the
review process under Subsection (b), the physician] shall make a
reasonable effort to transfer the patient to a physician who is
willing to comply with the directive. If the patient is a patient
in a health care facility, the facility's personnel shall assist
the physician in arranging the patient's transfer to:
(1) another physician;
(2) an alternative care setting within that facility;
or
(3) another facility.
(d-1) In this subsection, "medical procedure" means only a
tracheostomy or a percutaneous endoscopic gastrostomy. If the
person responsible for a patient's health care decisions does not
agree with the decision reached during the review process under
Subsection (b), the attending physician or another physician
responsible for the care of the patient shall perform on the patient
each medical procedure that satisfies the following conditions:
(1) in the physician's judgment, the medical procedure
is reasonable and necessary to help effect the patient's transfer
under Subsection (d);
(2) based on the physician's discussion with the
facility, performing the medical procedure will increase the
likelihood of effecting the patient's transfer under Subsection (d)
to a health care facility that is willing to consider accepting or
able to accept the patient;
(3) in the physician's medical judgment, performing
the medical procedure is:
(A) within the prevailing standard of medical
care; and
(B) not medically contraindicated or medically
inappropriate under the circumstances;
(4) the physician has the training and experience to
perform the medical procedure;
(5) if the patient is receiving care in a health care
facility, the physician has been granted privileges by the facility
that authorize the physician to perform the medical procedure at
the facility;
(6) the health care facility at which the medical
procedure will be performed has the resources for the performance
of the procedure; and
(7) the person responsible for the health care
decisions of the patient provides consent on behalf of the patient
for the medical procedure.
(e) If the patient's advance directive [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 ethics or medical committee has affirmed is
medically inappropriate treatment, the patient shall be given
available life-sustaining treatment pending transfer under
Subsection (d). This subsection does not authorize withholding or
withdrawing pain management medication, medical procedures
necessary to provide comfort, or any other health care provided to
alleviate a patient's pain. The patient is responsible for any
costs incurred in transferring the patient to another
facility. The attending physician, any other physician
responsible for the care of the patient, and the health care
facility are not obligated to provide life-sustaining treatment
after the 21st business [10th] day after both the written decision
and the patient's medical record required under Subsection (b) are
provided to [the patient or] the person responsible for the health
care decisions of the patient unless ordered to extend the time [do
so] under Subsection (g), except that artificially administered
nutrition and hydration must be provided unless, based on
reasonable medical judgment, providing artificially administered
nutrition and hydration would:
(1) hasten the patient's death;
(2) be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment;
(3) result in substantial irremediable physical pain
not outweighed by the benefit of the provision of the treatment;
(4) be medically ineffective in prolonging life; or
(5) be contrary to the patient's or surrogate's
clearly documented desire not to receive artificially administered
nutrition or hydration.
(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 3. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0465 to read as follows:
Sec. 166.0465. ETHICS OR MEDICAL COMMITTEE DECISION RELATED
TO PATIENT DISABILITY. (a) In this section, "disability" has the
meaning assigned by the Americans with Disabilities Act of 1990 (42
U.S.C. Section 12101 et seq.).
(b) During the review process under Section 166.046(b), the
ethics or medical committee may not consider a patient's disability
that existed before the patient's current admission unless the
disability is relevant in determining whether life-sustaining
treatment is medically appropriate.
SECTION 4. 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 health care or treatment decision
requesting the provision of life-sustaining treatment, the
statement required by Section 166.046(b)(2)(A) [166.046(b)(3)(A)]
shall be in substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Against Certain Life-Sustaining Treatment
That You Wish To Continue
You have been given this information because you have
requested life-sustaining treatment* for yourself as the patient or
on behalf of the patient, as applicable, which the attending
physician believes is not medically 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, 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 medically
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 seven
calendar days [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 seven calendar days
[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 medically 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,
licensed physicians, health care facilities, 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 Department of State Health
Services. You may wish to contact providers, facilities, 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 the patient can be transferred to a willing
provider for up to 21 business [10] days from the time you were
given both the committee's written decision that life-sustaining
treatment is not appropriate and the patient's medical record. The
patient will continue to be given after that [the 10-day] period
treatment to enhance pain management and reduce suffering,
including artificially administered nutrition and hydration,
unless, based on reasonable medical judgment, providing
artificially administered nutrition and hydration would hasten the
patient's death, be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment, result in substantial irremediable physical pain not
outweighed by the benefit of the provision of the treatment, be
medically ineffective in prolonging life, or be contrary to the
patient's or surrogate's clearly documented desires.
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 21 business [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 that [the 10-day] period if the court finds that there is a
reasonable expectation that you may find a physician or health care
facility willing to provide life-sustaining treatment if the
extension is granted. Patient medical records will be provided to
the patient or surrogate in accordance with Section 241.154, Texas
Health and Safety Code.
*"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
artificially administered 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)(2)(A) [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* for yourself as the patient or on behalf of the patient,
as applicable, and the attending physician disagrees with and
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, 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 seven
calendar days [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 seven calendar days
[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,
licensed physicians, health care facilities, 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 Department of State Health
Services. You may wish to contact providers, facilities, or
referral groups on the list or others of your choice to get help in
arranging a transfer.
*"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
artificially administered 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 5. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.054 to read as follows:
Sec. 166.054. REPORTING REQUIREMENTS REGARDING ETHICS OR
MEDICAL COMMITTEE PROCESSES. (a) Not later than the 180th day
after the date written notice is provided under Section
166.046(b)(1), a health care facility shall prepare and submit to
the department a report that contains information on:
(1) the number of days that elapsed from the patient's
admission to the facility to the date notice was provided under
Section 166.046(b)(1);
(2) whether the ethics or medical committee met to
review the case under Section 166.046 and, if the committee did
meet, the number of days that elapsed from the date notice was
provided under Section 166.046(b)(1) to the date the meeting was
held;
(3) whether the patient was:
(A) transferred to a physician within the same
facility who was willing to comply with the patient's advance
directive or a health care or treatment decision made by or on
behalf of a patient;
(B) transferred to a different facility; or
(C) discharged from the facility to a private
residence or other setting that is not a health care facility;
(4) whether the patient died while receiving
life-sustaining treatment;
(5) whether life-sustaining treatment was withheld or
withdrawn from the patient after expiration of the time described
by Section 166.046(e);
(6) the age group of the patient selected from the
following categories:
(A) 17 years of age or younger;
(B) 18 years of age or older and younger than 66
years of age; or
(C) 66 years of age or older;
(7) the health insurance coverage status of the
patient selected from the following categories:
(A) private health insurance coverage;
(B) public health plan coverage; or
(C) uninsured;
(8) the patient's sex; and
(9) the patient's race.
(b) The department shall ensure information provided in
each report submitted by a health care facility under Subsection
(a) is kept confidential and not disclosed in any manner, except as
provided by this section.
(c) Not later than April 1 of each year, the department
shall prepare and publish on the department's Internet website a
report that contains:
(1) aggregate information compiled from the reports
submitted to the department under Subsection (a) during the
preceding year on:
(A) the total number of written notices provided
under Section 166.046(b)(1);
(B) the average number of days described by
Subsection (a)(1);
(C) the total number of meetings held by ethics
or medical committees to review cases under Section 166.046;
(D) the average number of days described by
Subsection (a)(2);
(E) the total number of patients described by
Subsections (a)(3)(A), (B), and (C);
(F) the total number of patients described by
Subsection (a)(4); and
(G) the total number of patients for whom
life-sustaining treatment was withheld or withdrawn after
expiration of the time described by Section 166.046(e); and
(2) if the total number of reports submitted under
Subsection (a) for the preceding year is 10 or more, aggregate
information compiled from those reports on the total number of
patients categorized by:
(A) sex;
(B) race;
(C) age group, based on the categories described
by Subsection (a)(6); and
(D) health insurance coverage status, based on
the categories described by Subsection (a)(7).
(d) If the department receives fewer than 10 reports under
Subsection (a) for inclusion in an annual report required under
Subsection (c), the department shall include in the next annual
report prepared after the department receives 10 or more reports
the aggregate information for all years for which the information
was not included in a preceding annual report. The department shall
include in the next annual report a statement that identifies each
year during which an underlying report was submitted to the
department under Subsection (a).
(e) The annual report required by Subsection (c) or (d) may
not include any information that could be used alone or in
combination with other reasonably available information to
identify any individual, entity, or facility.
(f) The executive commissioner shall adopt rules to:
(1) establish a standard form for the reporting
requirements of this section; and
(2) protect and aggregate any information the
department receives under this section.
(g) Information submitted to the department under this
section:
(1) is not admissible in a civil or criminal
proceeding in which a physician, health care professional acting
under the direction of a physician, or health care facility is a
defendant;
(2) may not be used in relation to any disciplinary
action by a licensing or regulatory agency with oversight over a
physician, health care professional acting under the direction of a
physician, or health care facility; and
(3) is not public information or subject to disclosure
under Chapter 552, Government Code.
SECTION 6. Section 166.202(a), Health and Safety Code, is
amended to read as follows:
(a) This subchapter applies to a DNR order issued for a
patient admitted to [in] a health care facility or hospital.
SECTION 7. Sections 166.203(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) A DNR order issued for a patient is valid only if [the
patient's attending physician issues the order,] the order is
dated[,] and [the order]:
(1) is issued by a physician providing direct care to
the patient in compliance with:
(A) the written and dated directions of a patient
who was competent at the time the patient wrote the directions;
(B) the oral directions of a competent patient
delivered to or observed by two competent adult witnesses, at least
one of whom must be a person not listed under Section 166.003(2)(E)
or (F);
(C) the directions in an advance directive
enforceable under Section 166.005 or executed in accordance with
Section 166.032, 166.034, [or] 166.035, 166.082, 166.084, or
166.085;
(D) the directions of a patient's:
(i) legal guardian;
(ii) [or] agent under a medical power of
attorney acting in accordance with Subchapter D; or
(iii) proxy as designated and authorized by
a directive executed in accordance with Subchapter B to make a
treatment decision for the patient if the patient becomes
incompetent or otherwise mentally or physically incapable of
communication; or
(E) a treatment decision made in accordance with
Section 166.039; or
(2) is issued by the patient's attending physician
and:
(A) the order is not contrary to the directions
of a patient who was competent at the time the patient conveyed the
directions; and
(B) [,] in the reasonable medical judgment of the
patient's attending physician:
(i) [(A)] the patient's death is imminent,
regardless of the provision of cardiopulmonary resuscitation; and
(ii) [(B)] the DNR order is medically
appropriate.
(b) The DNR order takes effect at the time the order is
issued, provided the order is placed in the patient's medical
record as soon as practicable and may be issued in a format
acceptable under the policies of the health care facility or
hospital.
(c) Unless notice is provided in accordance with Section
166.204(a-1), before [Before] placing in a patient's medical record
a DNR order issued under Subsection (a)(2), a [the] physician,
physician assistant, nurse, or other person acting on behalf of a
health care facility or hospital shall:
(1) inform the patient of the order's issuance; or
(2) if the patient is incompetent, make a reasonably
diligent effort to contact or cause to be contacted and inform of
the order's issuance:
(A) the patient's known agent under a medical
power of attorney or legal guardian; or
(B) for a patient who does not have a known agent
under a medical power of attorney or legal guardian, a person
described by Section 166.039(b)(1), (2), or (3).
SECTION 8. Section 166.204, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) If a physician issues a DNR order under Section
166.203(a)(2), a physician, a physician assistant, a nurse, or
another person acting on behalf of a health care facility or
hospital shall provide notice of the order to the appropriate
persons in accordance with Subsection (a-1) or Section 166.203(c).
(a-1) If an individual arrives at a health care facility or
hospital that is treating a patient for whom a DNR order is issued
under Section 166.203(a)(2) and the individual notifies a
physician, physician assistant, or nurse providing direct care to
the patient of the individual's arrival, the physician, physician
assistant, or nurse who has actual knowledge of the order shall,
unless notice has been provided in accordance with Section
166.203(c), disclose the order to the individual, provided the
individual is:
(1) the patient's known agent under a medical power of
attorney or legal guardian; or
(2) for a patient who does not have a known agent under
a medical power of attorney or legal guardian, a person described by
Section 166.039(b)(1), (2), or (3).
SECTION 9. Sections 166.205(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) A physician providing direct care to a patient for whom
a DNR order is issued shall revoke the patient's DNR order if [the
patient or, as applicable, the patient's agent under a medical
power of attorney or the patient's legal guardian if the patient is
incompetent]:
(1) the advance directive that serves as the basis of
the DNR order is properly revoked in accordance with this
chapter; [effectively revokes an advance directive, in accordance
with Section 166.042, for which a DNR order is issued under Section
166.203(a); or]
(2) the patient expresses to any person providing
direct care to the patient a revocation of consent to or intent to
revoke a DNR order issued under Section 166.203(a); or
(3) the DNR order was issued under Section
166.203(a)(1)(D) or (E) or Section 166.203(a)(2), and the person
responsible for making health care or treatment decisions on behalf
of the patient expresses to any person providing direct care to the
patient a revocation of consent to or intent to revoke the DNR
order.
(b) A person providing direct care to a patient under the
supervision of a physician shall notify the physician of the
request to revoke a DNR order or of the revocation of an advance
directive under Subsection (a).
SECTION 10. Sections 166.206(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) If a [an attending] physician, health care facility, or
hospital does not wish to execute or comply with a DNR order or the
patient's instructions concerning the provision of cardiopulmonary
resuscitation, the physician, facility, or hospital shall inform
the patient, the legal guardian or qualified relatives of the
patient, or the agent of the patient under a medical power of
attorney of the benefits and burdens of cardiopulmonary
resuscitation.
(b) If, after receiving notice under Subsection (a), the
patient or another person authorized to act on behalf of the patient
and the [attending] physician, health care facility, or hospital
remain in disagreement, the physician, facility, or hospital shall
make a reasonable effort to transfer the patient to another
physician, facility, or hospital willing to execute or comply with
a DNR order or the patient's instructions concerning the provision
of cardiopulmonary resuscitation.
SECTION 11. Section 166.209, Health and Safety Code, is
amended to read as follows:
Sec. 166.209. ENFORCEMENT. (a) Subject to Sections
166.205(d), 166.207, and 166.208 and Subsection (c), a [A]
physician, physician assistant, nurse, or other person commits an
offense if, with the specific intent to violate this subchapter,
the person:
(1) [intentionally] conceals, cancels, effectuates,
or falsifies another person's DNR order in violation of this
subchapter; or
(2) [if the person intentionally] conceals or
withholds personal knowledge of another person's revocation of a
DNR order in violation of this subchapter.
(a-1) An offense under Subsection (a) [this subsection] is a
Class A misdemeanor. This section [subsection] does not preclude
prosecution for any other applicable offense.
(b) Subject to Sections 166.205(d), 166.207, and 166.208, a
[A] physician, health care professional, health care facility,
hospital, or entity is subject to review and disciplinary action by
the appropriate licensing authority for intentionally:
(1) failing to effectuate a DNR order in violation of
this subchapter; or
(2) issuing a DNR order in violation of this
subchapter.
(c) A person does not commit an offense under Subsection (a)
if the person's act or omission was based on a reasonable belief
that the act or omission was in compliance with the wishes of the
patient or the person having authority to make health care
treatment decisions on behalf of the patient.
SECTION 12. Section 313.004, Health and Safety Code, is
amended by amending Subsections (a) and (c) and adding Subsection
(a-1) to read as follows:
(a) If an adult patient of a home and community support
services agency or in a hospital or nursing home, or an adult inmate
of a county or municipal jail, is comatose, incapacitated, or
otherwise mentally or physically incapable of communication and
does not have a legal guardian or an agent under a medical power of
attorney who is reasonably available, an adult surrogate from the
following list, in order of priority, who has decision-making
capacity, is reasonably available after a reasonably diligent
inquiry, and is willing to consent to medical treatment on behalf of
the patient may consent to medical treatment on behalf of the
patient:
(1) the patient's spouse;
(2) the patient's [an adult child of the patient who
has the waiver and consent of all other qualified] adult children
[of the patient to act as the sole decision-maker];
(3) [a majority of] the patient's parents [reasonably
available adult children]; or
(4) the patient's nearest living relative [parents; or
[(5) the individual clearly identified to act for the
patient by the patient before the patient became incapacitated, the
patient's nearest living relative, or a member of the clergy].
(a-1) If the patient does not have a legal guardian, an
agent under a medical power of attorney, or a person listed in
Subsection (a) who is reasonably available, a treatment decision
may be concurred by another physician who is not involved in the
treatment of the patient.
(c) Any medical treatment consented to under Subsection (a)
or (a-1) must be based on knowledge of what the patient would
desire, if known.
SECTION 13. Chapter 166, Health and Safety Code, as amended
by this Act, applies only to a review, consultation, disagreement,
or other action relating to a health care or treatment decision made
on or after the effective date of this Act. A review, consultation,
disagreement, or other action relating to a health care or
treatment decision made before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and the former law is continued in effect for that
purpose.
SECTION 14. Section 166.209, Health and Safety Code, as
amended by this Act, applies only to conduct that occurs on or after
the effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
SECTION 15. This Act takes effect September 1, 2023.