89R2091 JDK-D
By: Middleton S.B. No. 754
A BILL TO BE ENTITLED
AN ACT
relating to informed consent requirements before the provision of
health care services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) this state is responsible for ensuring individuals
lawfully residing in this state have the right to provide or
withhold consent for any health care service;
(2) the decision in Canterbury v. Spence, 464 F.2d 772
(D.C. Cir. 1972), establishing the concept of informed consent, has
become a bedrock principle of the laws of this country and of each
state;
(3) the American Medical Association's Code of Medical
Ethics Opinion 2.1.1 recognizes an individual's right to be fully
informed of a recommended health care service allowing the
individual to make an informed decision regarding the individual's
course of treatment, including whether to obtain or decline a
particular health care service;
(4) under 42 C.F.R. Section 482.13, a hospital is
required as a condition of participation in Medicare to establish a
process for obtaining the informed consent of a patient before
providing a health care service to the patient and to ensure "[t]he
patient or his or her representative (as allowed under State law)
has the right to make informed decisions regarding his or her care";
(5) the United States Supreme Court, in Jacobson v.
Massachusetts, 197 U.S. 11 (1905), upheld mandatory vaccination
policies imposed by state and local governments to combat smallpox,
and in PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980),
acknowledged a state may provide "individual liberties more
expansive than those conferred by the Federal Constitution";
(6) any attempt to compel or coerce an individual
lawfully residing in this state into obtaining a health care
service contrary to the individual's preference is inconsistent
with the principles of informed consent; and
(7) Chapter 174, Health and Safety Code, as added by
this Act, prohibits any person from compelling or coercing an
individual lawfully residing in this state into obtaining a health
care service, including the administration of vaccines.
SECTION 2. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 174 to read as follows:
CHAPTER 174. INFORMED CONSENT REQUIREMENTS FOR
HEALTH CARE SERVICES
Sec. 174.001. DEFINITIONS. In this chapter:
(1) "Health care facility" means a facility licensed,
certified, or otherwise authorized to provide health care services
in the ordinary course of business.
(2) "Health care practitioner" means an individual who
holds a license, certificate, or other authorization to engage in a
health care profession in this state.
(3) "Health care service" means a service a health
care practitioner or health care facility provides to an individual
to diagnose, prevent, treat, alleviate, cure, or heal a human
health condition, illness, injury, or disease. The term includes
the administration of a vaccine.
Sec. 174.002. EFFECT ON OTHER LAW. (a) To the extent of a
conflict between this chapter and other law, this chapter controls.
(b) The requirements provided by this chapter are in
addition to another applicable requirement for a health care
service provided by other law.
Sec. 174.003. PROHIBITED COERCION TO OBTAIN HEALTH CARE
SERVICE. A health care practitioner or another person may not
coerce or compel an individual lawfully residing in this state into
obtaining a health care service contrary to the individual's
preference.
Sec. 174.004. REQUIRED INFORMED CONSENT. (a) Except as
otherwise provided by other law, a health care practitioner may not
provide to an individual lawfully residing in this state a health
care service unless the practitioner obtains the informed consent
of the individual or a person authorized to consent on behalf of the
individual, including:
(1) a guardian in accordance with Chapter 1151,
Estates Code;
(2) an individual authorized to provide consent under
Section 32.001, Family Code;
(3) a parent in accordance with the rights and duties
described by Section 151.001, Family Code; and
(4) an agent under a medical power of attorney in
accordance with Chapter 166.
(b) For purposes of this section:
(1) an individual lacks the capacity to provide
informed consent for a health care service if the individual has
been coerced or compelled into obtaining the service; and
(2) a health care practitioner who advises or
recommends a health care service is not considered to have coerced
or compelled the individual into obtaining the service based solely
on that advice or recommendation.
Sec. 174.005. PROHIBITED ADVERSE ACTION. A person may not
take an adverse action or impose any penalty against an individual
lawfully residing in this state for the individual's refusal or
failure to obtain a health care service, including a refusal or
failure to receive immunization in accordance with state law.
Sec. 174.006. EXEMPTION FROM HEALTH CARE SERVICE
REQUIREMENTS FOR CERTAIN INDIVIDUALS IN HEALTH CARE FACILITIES. An
individual who is employed by, providing services in, or receiving
training in a health care facility that requires the individual to
obtain a health care service is exempt from the required service if
the individual requests orally or in writing an exemption based on:
(1) a sincerely held religious belief, observance, or
practice that is incompatible with the administration of the
service; or
(2) a recognized medical condition for which the
service is contraindicated.
Sec. 174.007. INJUNCTION. (a) The attorney general may
bring an action for injunctive relief against a person to prevent
the person from violating this chapter. In an order issuing an
injunction under this section, a court may include reasonable
requirements to prevent further violations of this chapter.
(b) The attorney general may recover court costs,
reasonable attorney's fees, investigation costs, witness fees, and
deposition expenses incurred in bringing an action under Subsection
(a).
Sec. 174.008. CIVIL LIABILITY. (a) A health care
practitioner who violates this chapter is liable to the individual
who is the subject of the violation for damages in an amount of not
less than $5,000.
(b) The prevailing party in an action brought under this
section may recover reasonable expenses incurred as a result of the
action, including court costs, reasonable attorney's fees,
investigation costs, witness fees, and deposition expenses.
(c) A health care practitioner may assert as an affirmative
defense to an action brought under Subsection (a) that the
individual who is the subject of the violation on which the action
is based or a person legally authorized to consent on behalf of the
individual stated to the practitioner before the health care
service was administered that informed consent was voluntarily
provided.
SECTION 3. Chapter 174, Health and Safety Code, as added by
this Act, applies only to a health care service provided on or after
the effective date of this Act.
SECTION 4. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared severable.
SECTION 5. 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, 2025.