1-1 By: Moncrief S.B. No. 1260
1-2 (In the Senate - Filed March 11, 1999; March 11, 1999, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 15, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 15, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1260 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to certain advance directives for medical treatment;
1-11 providing administrative penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 ARTICLE 1. ADVANCE DIRECTIVES
1-14 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-15 is amended by adding a chapter heading for Chapter 166 to read as
1-16 follows:
1-17 CHAPTER 166. ADVANCE DIRECTIVES
1-18 SECTION 1.02. Subtitle H, Title 2, Health and Safety Code,
1-19 is amended by adding Subchapter A, Chapter 166, to read as follows:
1-20 SUBCHAPTER A. GENERAL PROVISIONS
1-21 Sec. 166.001. SHORT TITLE. This chapter may be cited as the
1-22 Advance Directives Act.
1-23 Sec. 166.002. DEFINITIONS. In this chapter:
1-24 (1) "Advance directive" means:
1-25 (A) a directive, as that term is defined by
1-26 Section 166.031;
1-27 (B) an out-of-hospital DNR order, as that term
1-28 is defined by Section 166.081; or
1-29 (C) a medical power of attorney under Subchapter
1-30 D.
1-31 (2) "Artificial nutrition and hydration" means the
1-32 provision of nutrients or fluids by a tube inserted in a vein,
1-33 under the skin in the subcutaneous tissues, or in the stomach
1-34 (gastrointestinal tract).
1-35 (3) "Attending physician" means a physician selected
1-36 by or assigned to a patient who has primary responsibility for a
1-37 patient's treatment and care.
1-38 (4) "Competent" means possessing the ability, based on
1-39 reasonable medical judgment, to understand and appreciate the
1-40 nature and consequences of a treatment decision, including the
1-41 significant benefits and harms of and reasonable alternatives to a
1-42 proposed treatment decision.
1-43 (5) "Declarant" means a person who has executed or
1-44 issued a directive under this chapter.
1-45 (6) "Ethics or medical committee" means a committee
1-46 established under Sections 161.031-161.033.
1-47 (7) "Incompetent" means lacking the ability, based on
1-48 reasonable medical judgment, to understand and appreciate the
1-49 nature and consequences of a treatment decision, including the
1-50 significant benefits and harms of and reasonable alternatives to a
1-51 proposed treatment decision.
1-52 (8) "Irreversible condition" means a condition,
1-53 injury, or illness:
1-54 (A) that may be treated but is never cured or
1-55 eliminated;
1-56 (B) that leaves a person unable to care for or
1-57 make decisions for the person's own self; and
1-58 (C) that, without life-sustaining treatment
1-59 provided in accordance with the prevailing standard of medical
1-60 care, is fatal.
1-61 (9) "Life-sustaining treatment" means a treatment
1-62 that, based on reasonable medical judgment, sustains the life of a
1-63 patient and without which the patient will die. The term includes
1-64 both life-sustaining medications and artificial life support, such
2-1 as mechanical breathing machines, kidney dialysis treatment, and
2-2 artificial nutrition and hydration. The term does not include the
2-3 administration of pain management medication or the performance of
2-4 a medical procedure considered to be necessary to provide comfort
2-5 care, or any other medical care provided to alleviate a patient's
2-6 pain.
2-7 (10) "Medical power of attorney" means a document
2-8 delegating to an agent authority to make health care decisions
2-9 executed or issued under Subchapter D.
2-10 (11) "Physician" means:
2-11 (A) a physician licensed by the Texas State
2-12 Board of Medical Examiners; or
2-13 (B) a properly credentialed physician who holds
2-14 a commission in the uniformed services of the United States and who
2-15 is serving on active duty in this state.
2-16 (12) "Terminal condition" means an incurable condition
2-17 caused by injury, disease, or illness that according to reasonable
2-18 medical judgment will produce death within six months, even with
2-19 the available life-sustaining treatment provided in accordance with
2-20 the prevailing standard of medical care. A patient who has been
2-21 admitted to a program under which the person receives hospice
2-22 services provided by a home and community support services agency
2-23 licensed under Chapter 142 is presumed to have a terminal condition
2-24 for purposes of this chapter.
2-25 (13) "Witness" means a person who may serve as a
2-26 witness under Section 166.003.
2-27 Sec. 166.003. WITNESSES. In any circumstance in which this
2-28 chapter requires the execution of an advance directive or the
2-29 issuance of a nonwritten advance directive to be witnessed:
2-30 (1) each witness must be a competent adult; and
2-31 (2) at least one of the witnesses must be a person who
2-32 is not:
2-33 (A) a person designated by the declarant to make
2-34 a treatment decision;
2-35 (B) a person related to the declarant by blood
2-36 or marriage;
2-37 (C) a person entitled to any part of the
2-38 declarant's estate after the declarant's death under a will or
2-39 codicil executed by the declarant or by operation of law;
2-40 (D) the attending physician;
2-41 (E) an employee of the attending physician;
2-42 (F) an employee of a health care facility in
2-43 which the declarant is a patient if the employee is providing
2-44 direct patient care to the declarant or is an officer, director,
2-45 partner, or business office employee of the health care facility or
2-46 of any parent organization of the health care facility; or
2-47 (G) a person who, at the time the written
2-48 advance directive is executed or, if the directive is a nonwritten
2-49 directive issued under this chapter, at the time the nonwritten
2-50 directive is issued, has a claim against any part of the
2-51 declarant's estate after the declarant's death.
2-52 Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE.
2-53 (a) In this section, "health care provider" means:
2-54 (1) a hospital;
2-55 (2) an institution licensed under Chapter 242,
2-56 including a skilled nursing facility;
2-57 (3) a home and community support services agency;
2-58 (4) a personal care facility; and
2-59 (5) a special care facility.
2-60 (b) A health care provider shall maintain written policies
2-61 regarding the implementation of advance directives. The policies
2-62 must include a clear and precise statement of any procedure the
2-63 health care provider is unwilling or unable to provide or withhold
2-64 in accordance with an advance directive.
2-65 (c) Except as provided by Subsection (g), the health care
2-66 provider shall provide written notice to an individual of the
2-67 written policies described by Subsection (b). The notice must be
2-68 provided at the earlier of:
2-69 (1) the time the individual is admitted to receive
3-1 services from the health care provider; or
3-2 (2) the time the health care provider begins providing
3-3 care to the individual.
3-4 (d) If, at the time notice is to be provided under
3-5 Subsection (c), the individual is incompetent or otherwise
3-6 incapacitated and unable to receive the notice required by this
3-7 section, the provider shall provide the required written notice, in
3-8 the following order of preference, to:
3-9 (1) the individual's legal guardian;
3-10 (2) a person responsible for the health care decisions
3-11 of the individual;
3-12 (3) the individual's spouse;
3-13 (4) the individual's adult child;
3-14 (5) the individual's parent; or
3-15 (6) the person admitting the individual.
3-16 (e) If Subsection (d) applies and except as provided by
3-17 Subsection (f), if a health care provider is unable, after diligent
3-18 search, to locate an individual listed by Subsection (d), the
3-19 health care provider is not required to provide the notice.
3-20 (f) If an individual who was incompetent or otherwise
3-21 incapacitated and unable to receive the notice required by this
3-22 section at the time notice was to be provided under Subsection (c)
3-23 later becomes able to receive the notice, the health care provider
3-24 shall provide the written notice at the time the individual becomes
3-25 able to receive the notice.
3-26 (g) This section does not apply to outpatient hospital
3-27 services, including emergency services.
3-28 Sec. 166.005. ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED
3-29 IN ANOTHER JURISDICTION. An advance directive or similar
3-30 instrument validly executed in another state or jurisdiction shall
3-31 be given the same effect as an advance directive validly executed
3-32 under the law of this state. This section does not authorize the
3-33 administration, withholding, or withdrawal of health care otherwise
3-34 prohibited by the laws of this state.
3-35 Sec. 166.006. EFFECT OF ADVANCE DIRECTIVE ON INSURANCE
3-36 POLICY AND PREMIUMS. (a) The fact that a person has executed or
3-37 issued an advance directive does not:
3-38 (1) restrict, inhibit, or impair in any manner the
3-39 sale, procurement, or issuance of a life insurance policy to that
3-40 person; or
3-41 (2) modify the terms of an existing life insurance
3-42 policy.
3-43 (b) Notwithstanding the terms of any life insurance policy,
3-44 the fact that life-sustaining treatment is withheld or withdrawn
3-45 from an insured qualified patient under this chapter does not
3-46 legally impair or invalidate that person's life insurance policy
3-47 and may not be a factor for the purpose of determining, under the
3-48 life insurance policy, whether benefits are payable or the cause of
3-49 death.
3-50 (c) The fact that a person has executed or issued or failed
3-51 to execute or issue an advance directive may not be considered in
3-52 any way in establishing insurance premiums.
3-53 Sec. 166.007. EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE
3-54 REQUIRED. A physician, health facility, health care provider,
3-55 insurer, or health care service plan may not require a person to
3-56 execute or issue an advance directive as a condition for obtaining
3-57 insurance for health care services or receiving health care
3-58 services.
3-59 Sec. 166.008. CONFLICT BETWEEN ADVANCE DIRECTIVES. To the
3-60 extent that a treatment decision or an advance directive validly
3-61 executed or issued under this chapter conflicts with another
3-62 treatment decision or an advance directive executed or issued under
3-63 this chapter, the treatment decision made or instrument executed
3-64 later in time controls.
3-65 Sec. 166.009. CERTAIN LIFE-SUSTAINING TREATMENT NOT
3-66 REQUIRED. This chapter may not be construed to require the
3-67 provision of life-sustaining treatment that cannot be provided to a
3-68 patient without denying the same treatment to another patient.
3-69 SECTION 1.03. Chapter 672, Health and Safety Code, is
4-1 transferred to Subtitle H, Title 2, Health and Safety Code, is
4-2 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
4-3 and is amended to read as follows:
4-4 SUBCHAPTER B. DIRECTIVE TO PHYSICIANS [CHAPTER 672. NATURAL]
4-5 [DEATH ACT]
4-6 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
4-7 the Natural Death Act.]
4-8 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
4-9 [chapter]:
4-10 (1) ["Attending physician" means the physician who has
4-11 primary responsibility for a patient's treatment and care.]
4-12 [(2) "Competent" means possessing the ability, based
4-13 on reasonable medical judgment, to understand and appreciate the
4-14 nature and consequences of a treatment decision, including the
4-15 significant benefits and harms of and reasonable alternatives to a
4-16 proposed treatment decision.]
4-17 [(3) "Declarant" means a person who has executed or
4-18 issued a directive under this chapter.]
4-19 [(4)] "Directive" means an instruction made under
4-20 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
4-21 to administer, withhold, or withdraw life-sustaining treatment
4-22 [procedures] in the event of a terminal or irreversible condition.
4-23 (2) [(5) "Incompetent" means lacking the ability,
4-24 based on reasonable medical judgment, to understand and appreciate
4-25 the nature and consequences of a treatment decision, including the
4-26 significant benefits and harms of and reasonable alternatives to a
4-27 proposed treatment decision.]
4-28 [(6) "Life-sustaining procedure" means a medical
4-29 procedure or intervention that uses mechanical or other artificial
4-30 means to sustain, restore, or supplant a vital function, and only
4-31 artificially postpones the moment of death of a patient in a
4-32 terminal condition whose death is imminent or will result within a
4-33 relatively short time without the application of the procedure.
4-34 The term does not include the administration of medication or the
4-35 performance of a medical procedure considered to be necessary to
4-36 provide comfort or care or to alleviate pain.]
4-37 [(7) "Physician" means a physician licensed by the
4-38 Texas State Board of Medical Examiners or a properly credentialed
4-39 physician who holds a commission in the uniformed services of the
4-40 United States and who is serving on active duty in this state.]
4-41 [(8)] "Qualified patient" means a patient with a
4-42 terminal or irreversible condition that has been diagnosed and
4-43 certified in writing by the attending physician [and one other
4-44 physician who have personally examined the patient].
4-45 [(9) "Terminal condition" means an incurable or
4-46 irreversible condition caused by injury, disease, or illness that
4-47 would produce death without the application of life-sustaining
4-48 procedures, according to reasonable medical judgment, and in which
4-49 the application of life-sustaining procedures serves only to
4-50 postpone the moment of the patient's death.]
4-51 Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT
4-52 ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time
4-53 execute a written directive.
4-54 (b) The declarant must sign the directive in the presence of
4-55 two witnesses, at least one of whom must be a witness who qualifies
4-56 under Section 166.003(2). The [and those] witnesses must sign the
4-57 directive.
4-58 (c) [A witness may not be:]
4-59 [(1) a person designated by the declarant to make a
4-60 treatment decision;]
4-61 [(2) a person related to the declarant by blood or
4-62 marriage;]
4-63 [(3) a person entitled to any part of the declarant's
4-64 estate after the declarant's death under a will or codicil executed
4-65 by the declarant or by operation of law;]
4-66 [(4) the attending physician;]
4-67 [(5) an employee of the attending physician;]
4-68 [(6) an employee of a health care facility in which
4-69 the declarant is a patient if the employee is providing direct
5-1 patient care to the declarant or is an officer, director, partner,
5-2 or business office employee of the health care facility or of any
5-3 parent organization of the health care facility; or]
5-4 [(7) a person who, at the time the written directive
5-5 is executed or if the directive is a nonwritten directive issued
5-6 under Section 672.005, at the time the nonwritten directive is
5-7 issued, has a claim against any part of the declarant's estate
5-8 after the declarant's death.]
5-9 [(d)] A declarant may include in a directive directions
5-10 other than those provided by Section 166.033 [672.004] and may
5-11 designate in a directive a person to make a treatment decision for
5-12 the declarant in the event the declarant becomes [comatose,]
5-13 incompetent[,] or otherwise mentally or physically incapable of
5-14 communication.
5-15 (d) [(e)] A declarant shall notify the attending physician
5-16 of the existence of a written directive. If the declarant is
5-17 [comatose,] incompetent[,] or otherwise mentally or physically
5-18 incapable of communication, another person may notify the attending
5-19 physician of the existence of the written directive. The attending
5-20 physician shall make the directive a part of the declarant's
5-21 medical record.
5-22 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
5-23 written directive may be in the following form:
5-24 DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES
5-25 Instructions for completing this document:
5-26 This is an important legal document known as an Advance
5-27 Directive. It is designed to help you communicate your wishes
5-28 about medical treatment at some time in the future when you are
5-29 unable to make your wishes known because of illness or injury.
5-30 These wishes are usually based on personal values. In particular,
5-31 you may want to consider what burdens or hardships of treatment you
5-32 would be willing to accept for a particular amount of benefit
5-33 obtained if you were seriously ill.
5-34 You are encouraged to discuss your values and wishes with
5-35 your family or chosen spokesperson, as well as your physician.
5-36 Your physician, other health care provider, or medical institution
5-37 may provide you with various resources to assist you in completing
5-38 your advance directive. Brief definitions are listed below and may
5-39 aid you in your discussions and advance planning. Initial the
5-40 treatment choices that best reflect your personal preferences.
5-41 Provide a copy of your directive to your physician, usual hospital,
5-42 and family or spokesperson. Consider a periodic review of this
5-43 document. By periodic review, you can best assure that the
5-44 directive reflects your preferences.
5-45 In addition to this advance directive, Texas law provides for
5-46 two other types of directives that can be important during a
5-47 serious illness. These are the Medical Power of Attorney and the
5-48 Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss
5-49 these with your physician, family, hospital representative, or
5-50 other advisers. You may also wish to complete a directive related
5-51 to the donation of organs and tissues.
5-52 DIRECTIVE
5-53 I, ______________, recognize that the best health care is
5-54 based upon a partnership of trust and communication with my
5-55 physician. My physician and I will make health care decisions
5-56 together as long as I am of sound mind and able to make my wishes
5-57 known. If there comes a time that I am unable to make medical
5-58 decisions about myself because of illness or injury, I direct that
5-59 the following treatment preferences be honored:
5-60 If, in the judgment of my physician, I am suffering with a
5-61 terminal condition from which I am expected to die within six
5-62 months, even with available life-sustaining treatment provided in
5-63 accordance with prevailing standards of medical care:
5-64 ____ I request that all treatments other than those needed to keep
5-65 me comfortable be discontinued or withheld and my physician
5-66 allow me to die as gently as possible; OR
5-67 ____ I request that I be kept alive in this terminal condition
5-68 using available life-sustaining treatment. (THIS SELECTION
5-69 DOES NOT APPLY TO HOSPICE CARE.)
6-1 If, in the judgment of my physician, I am suffering with an
6-2 irreversible condition so that I cannot care for myself or make
6-3 decisions for myself and am expected to die without life-sustaining
6-4 treatment provided in accordance with prevailing standards of care:
6-5 ____ I request that all treatments other than those needed to keep
6-6 me comfortable be discontinued or withheld and my physician
6-7 allow me to die as gently as possible; OR
6-8 ____ I request that I be kept alive in this irreversible condition
6-9 using available life-sustaining treatment. (THIS SELECTION
6-10 DOES NOT APPLY TO HOSPICE CARE.)
6-11 Additional requests: (After discussion with your physician,
6-12 you may wish to consider listing particular treatments in this
6-13 space that you do or do not want in specific circumstances, such as
6-14 artificial nutrition and fluids, intravenous antibiotics, etc. Be
6-15 sure to state whether you do or do not want the particular
6-16 treatment.)
6-17 ___________________________________________________________________
6-18 ___________________________________________________________________
6-19 ___________________________________________________________________
6-20 After signing this directive, if my representative or I elect
6-21 hospice care, I understand and agree that only those treatments
6-22 needed to keep me comfortable would be provided and I would not be
6-23 given available life-sustaining treatments.
6-24 If I do not have a Medical Power of Attorney, and I am unable
6-25 to make my wishes known, I designate the following person(s) to
6-26 make treatment decisions with my physician compatible with my
6-27 personal values:
6-28 1._____________________
6-29 2._____________________
6-30 (If a Medical Power of Attorney has been executed, then an agent
6-31 already has been named and you should not list additional names in
6-32 this document.)
6-33 If the above persons are not available, or if I have not
6-34 designated a spokesperson, I understand that a spokesperson will be
6-35 chosen for me following standards specified in the laws of Texas.
6-36 If, in the judgment of my physician, my death is imminent within
6-37 minutes to hours, even with the use of all available medical
6-38 treatment provided within the prevailing standard of care, I
6-39 acknowledge that all treatments may be withheld or removed except
6-40 those needed to maintain my comfort. I understand that under Texas
6-41 law this directive has no effect if I have been diagnosed as
6-42 pregnant. This directive will remain in effect until I revoke it.
6-43 No other person may do so.
6-44 Signed__________________________________ Date______________________
6-45 City, County, State of Residence __________________________________
6-46 Two competent adult witnesses must sign below, acknowledging
6-47 the signature of the declarant. The witness designated as Witness
6-48 1 may not be a person designated to make a treatment decision for
6-49 the patient and may not be related to the patient by blood or
6-50 marriage. This witness may not be entitled to any part of the
6-51 estate and may not have a claim against the estate of the patient.
6-52 This witness may not be the attending physician or an employee of
6-53 the attending physician. If this witness is an employee of a
6-54 health care facility in which the patient is being cared for, this
6-55 witness may not be involved in providing direct patient care to the
6-56 patient. This witness may not be an officer, director, partner, or
6-57 business office employee of a health care facility in which the
6-58 patient is being cared for or of any parent organization of the
6-59 health care facility.
6-60 Witness 1________________________Witness 2_________________________
6-61 Definitions:
6-62 "Artificial nutrition and hydration" means the provision of
6-63 nutrients or fluids by a tube inserted in a vein, under the skin in
6-64 the subcutaneous tissues, or in the stomach (gastrointestinal
6-65 tract).
6-66 "Irreversible condition" means a condition, injury, or
6-67 illness:
6-68 (1) that may be treated, but is never cured or
6-69 eliminated;
7-1 (2) that leaves a person unable to care for or make
7-2 decisions for the person's own self; and
7-3 (3) that, without life-sustaining treatment provided
7-4 in accordance with the prevailing standard of medical care, is
7-5 fatal.
7-6 Explanation: Many serious illnesses such as cancer, failure
7-7 of major organs (kidney, heart, liver, or lung), and serious brain
7-8 disease such as Alzheimer's dementia may be considered irreversible
7-9 early on. There is no cure, but the patient may be kept alive for
7-10 prolonged periods of time if the patient receives life-sustaining
7-11 treatments. Late in the course of the same illness, the disease
7-12 may be considered terminal when, even with treatment, the patient
7-13 is expected to die. You may wish to consider which burdens of
7-14 treatment you would be willing to accept in an effort to achieve a
7-15 particular outcome. This is a very personal decision that you may
7-16 wish to discuss with your physician, family, or other important
7-17 persons in your life.
7-18 "Life-sustaining treatment" means a treatment that, based on
7-19 reasonable medical judgment, sustains the life of a patient and
7-20 without which the patient will die. The term includes both
7-21 life-sustaining medications and artificial life support such as
7-22 mechanical breathing machines, kidney dialysis treatment, and
7-23 artificial hydration and nutrition. The term does not include the
7-24 administration of pain management medication, the performance of a
7-25 medical procedure necessary to provide comfort care, or any other
7-26 medical care provided to alleviate a patient's pain.
7-27 "Terminal condition" means an incurable condition caused by
7-28 injury, disease, or illness that according to reasonable medical
7-29 judgment will produce death within six months, even with available
7-30 life-sustaining treatment provided in accordance with the
7-31 prevailing standard of medical care.
7-32 Explanation: Many serious illnesses may be considered
7-33 irreversible early in the course of the illness, but they may not
7-34 be considered terminal until the disease is fairly advanced. In
7-35 thinking about terminal illness and its treatment, you again may
7-36 wish to consider the relative benefits and burdens of treatment and
7-37 discuss your wishes with your physician, family, or other important
7-38 persons in your life.
7-39 ["DIRECTIVE TO PHYSICIANS]
7-40 ["Directive made this __________ day of __________ (month,
7-41 year).]
7-42 ["I ________________________, being of sound mind, wilfully
7-43 and voluntarily make known my desire that my life shall not be
7-44 artificially prolonged under the circumstances set forth in this
7-45 directive.]
7-46 ["1. If at any time I should have an incurable or
7-47 irreversible condition caused by injury, disease, or illness
7-48 certified to be a terminal condition by two physicians, and if the
7-49 application of life-sustaining procedures would serve only to
7-50 artificially postpone the moment of my death, and if my attending
7-51 physician determines that my death is imminent or will result
7-52 within a relatively short time without the application of
7-53 life-sustaining procedures, I direct that those procedures be
7-54 withheld or withdrawn, and that I be permitted to die
7-55 naturally.]
7-56 ["2. In the absence of my ability to give directions
7-57 regarding the use of those life-sustaining procedures, it is my
7-58 intention that this directive be honored by my family and
7-59 physicians as the final expression of my legal right to refuse
7-60 medical or surgical treatment and accept the consequences from that
7-61 refusal.]
7-62 ["3. If I have been diagnosed as pregnant and that diagnosis
7-63 is known to my physician, this directive has no effect during my
7-64 pregnancy.]
7-65 ["4. This directive is in effect until it is revoked.]
7-66 ["5. I understand the full import of this directive and I am
7-67 emotionally and mentally competent to make this directive.]
7-68 ["6. I understand that I may revoke this directive at any
7-69 time.]
8-1 ["Signed _____________________________]
8-2 [(City, County, and State of Residence)]
8-3 [I am not a person designated by the declarant to make a
8-4 treatment decision. I am not related to the declarant by blood or
8-5 marriage. I would not be entitled to any portion of the
8-6 declarant's estate on the declarant's death. I am not the
8-7 attending physician of the declarant or an employee of the
8-8 attending physician. I have no claim against any portion of the
8-9 declarant's estate on the declarant's death. Furthermore, if I am
8-10 an employee of a health care facility in which the declarant is a
8-11 patient, I am not involved in providing direct patient care to the
8-12 declarant and am not an officer, director, partner, or business
8-13 office employee of the health care facility or of any parent
8-14 organization of the health care facility.]
8-15 ["Witness________________________________]
8-16 ["Witness_______________________________"]
8-17 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
8-18 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
8-19 patient who is an adult may issue a directive by a nonwritten means
8-20 of communication.
8-21 (b) A declarant must issue the nonwritten directive in the
8-22 presence of the attending physician and two witnesses, at least one
8-23 of whom must be a witness who qualifies under Section 166.003(2).
8-24 [The witnesses must possess the same qualifications as are required
8-25 by Section 672.003(c).]
8-26 (c) The physician shall make the fact of the existence of
8-27 the directive a part of the declarant's medical record, and the
8-28 names of the witnesses shall be entered [sign the entry] in the
8-29 medical record.
8-30 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
8-31 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
8-32 execute a directive on behalf of a qualified patient who is younger
8-33 than 18 years of age:
8-34 (1) the patient's spouse, if the spouse is an adult;
8-35 (2) the patient's parents; or
8-36 (3) the patient's legal guardian.
8-37 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
8-38 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
8-39 under Section 166.033 or 166.035 is effective without regard to
8-40 whether the document has been notarized.
8-41 (b) A physician, health care facility, or health care
8-42 professional may not require that:
8-43 (1) a directive be notarized; or
8-44 (2) a person use a form provided by the physician,
8-45 health care facility, or health care professional.
8-46 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
8-47 The desire of a competent qualified patient, including a competent
8-48 qualified patient younger than 18 years of age, supersedes the
8-49 effect of a directive.
8-50 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
8-51 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
8-52 applies when an adult qualified patient has executed or issued a
8-53 directive and is [comatose,] incompetent[,] or otherwise mentally
8-54 or physically incapable of communication.
8-55 (b) If the adult qualified patient has designated a person
8-56 to make a treatment decision as authorized by Section 166.032(c)
8-57 [672.003(d)], the attending physician and the designated person may
8-58 make a treatment decision in accordance with the declarant's
8-59 directions [to withhold or withdraw life-sustaining procedures from
8-60 the patient].
8-61 (c) If the adult qualified patient has not designated a
8-62 person to make a treatment decision, the attending physician shall
8-63 comply with the directive unless the physician believes that the
8-64 directive does not reflect the patient's present desire.
8-65 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
8-66 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
8-67 COMMUNICATION. (a) If an adult qualified patient has not executed
8-68 or issued a directive and is [comatose,] incompetent[,] or
8-69 otherwise mentally or physically incapable of communication, the
9-1 attending physician and the patient's legal guardian or an agent
9-2 under a medical power of attorney may make a treatment decision
9-3 that may include a decision to withhold or withdraw life-sustaining
9-4 treatment [procedures] from the patient.
9-5 (b) If the patient does not have a legal guardian or an
9-6 agent under a medical power of attorney, the attending physician
9-7 and one person, if available, from one [at least two persons, if
9-8 available,] of the following categories, in the following priority,
9-9 may make a treatment decision that may include a decision to
9-10 withhold or withdraw life-sustaining treatment [procedures]:
9-11 (1) the patient's spouse;
9-12 (2) [a majority of] the patient's reasonably available
9-13 adult children;
9-14 (3) the patient's parents; or
9-15 (4) the patient's nearest living relative.
9-16 (c) A treatment decision made under Subsection (a) or (b)
9-17 must be based on knowledge of what the patient would desire, if
9-18 known.
9-19 (d) A treatment decision made under Subsection (b) must be
9-20 documented in the patient's medical record and signed by the
9-21 attending physician.
9-22 (e) If the patient does not have a legal guardian and a
9-23 person listed in Subsection (b) is not available, a treatment
9-24 decision made under Subsection (b) must be concurred in [witnessed]
9-25 by another physician who is not involved in the treatment of the
9-26 patient or who is a representative of an ethics or medical
9-27 committee of the health care facility in which the person is a
9-28 patient.
9-29 (f) The fact that an adult qualified patient has not
9-30 executed or issued a directive does not create a presumption that
9-31 the patient does not want a treatment decision to be made to
9-32 withhold or withdraw life-sustaining treatment [procedures].
9-33 (g) A person listed in Subsection (b) who wishes to
9-34 challenge a treatment decision made under this section must apply
9-35 for temporary guardianship under Section 875, Texas Probate Code.
9-36 The court may waive applicable fees in that proceeding.
9-37 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
9-38 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
9-39 physician who has been notified of the existence of a directive
9-40 shall provide for the declarant's certification as a qualified
9-41 patient on diagnosis of a terminal or irreversible condition.
9-42 (b) Before withholding or withdrawing life-sustaining
9-43 treatment [procedures] from a qualified patient under this
9-44 subchapter [chapter], the attending physician must[:]
9-45 [(1) determine that the patient's death is imminent or
9-46 will result within a relatively short time without application of
9-47 those procedures;]
9-48 [(2) note that determination in the patient's medical
9-49 record; and]
9-50 [(3)] determine that the steps proposed to be taken
9-51 are in accord with this subchapter [chapter] and the patient's
9-52 existing desires.
9-53 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
9-54 is effective until it is revoked as prescribed by Section 166.042
9-55 [672.012].
9-56 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
9-57 declarant may revoke a directive at any time without regard to the
9-58 declarant's mental state or competency. A directive may be revoked
9-59 by:
9-60 (1) the declarant or someone in the declarant's
9-61 presence and at the declarant's direction canceling, defacing,
9-62 obliterating, burning, tearing, or otherwise destroying the
9-63 directive;
9-64 (2) the declarant signing and dating a written
9-65 revocation that expresses the declarant's intent to revoke the
9-66 directive; or
9-67 (3) the declarant orally stating the declarant's
9-68 intent to revoke the directive.
9-69 (b) A written revocation executed as prescribed by
10-1 Subsection (a)(2) takes effect only when the declarant or a person
10-2 acting on behalf of the declarant notifies the attending physician
10-3 of its existence or mails the revocation to the attending
10-4 physician. The attending physician or the physician's designee
10-5 shall record in the patient's medical record the time and date when
10-6 the physician received notice of the written revocation and shall
10-7 enter the word "VOID" on each page of the copy of the directive in
10-8 the patient's medical record.
10-9 (c) An oral revocation issued as prescribed by Subsection
10-10 (a)(3) takes effect only when the declarant or a person acting on
10-11 behalf of the declarant notifies the attending physician of the
10-12 revocation. The attending physician or the physician's designee
10-13 shall record in the patient's medical record the time, date, and
10-14 place of the revocation, and, if different, the time, date, and
10-15 place that the physician received notice of the revocation. The
10-16 attending physician or the physician's designees shall also enter
10-17 the word "VOID" on each page of the copy of the directive in the
10-18 patient's medical record.
10-19 (d) Except as otherwise provided by this subchapter
10-20 [chapter], a person is not civilly or criminally liable for failure
10-21 to act on a revocation made under this section unless the person
10-22 has actual knowledge of the revocation.
10-23 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
10-24 declarant may at any time reexecute a directive in accordance with
10-25 the procedures prescribed by Section 166.032 [672.003], including
10-26 reexecution after the declarant is diagnosed as having a terminal
10-27 or irreversible condition.
10-28 [Sec. 672.014. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND
10-29 PREMIUMS. (a) The fact that a person has executed or issued a
10-30 directive under this chapter does not:]
10-31 [(1) restrict, inhibit, or impair in any manner the
10-32 sale, procurement, or issuance of a life insurance policy to that
10-33 person; or]
10-34 [(2) modify the terms of an existing life insurance
10-35 policy.]
10-36 [(b) Notwithstanding the terms of any life insurance policy,
10-37 the fact that life-sustaining procedures are withheld or withdrawn
10-38 from an insured qualified patient under this chapter does not
10-39 legally impair or invalidate that person's life insurance policy.]
10-40 [(c) A physician, health facility, health provider, insurer,
10-41 or health care service plan may not require a person to execute or
10-42 issue a directive as a condition for obtaining insurance for health
10-43 care services or receiving health care services.]
10-44 [(d) The fact that a person has executed or issued or failed
10-45 to execute or issue a directive under this chapter may not be
10-46 considered in any way in establishing insurance premiums.]
10-47 Sec. 166.044 [672.015]. LIMITATION OF LIABILITY FOR
10-48 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
10-49 physician or health care facility that causes life-sustaining
10-50 treatment [procedures] to be withheld or withdrawn from a qualified
10-51 patient in accordance with this subchapter [chapter] is not civilly
10-52 liable for that action unless the physician or health care facility
10-53 fails to exercise reasonable care when applying the patient's
10-54 advance directive [negligent].
10-55 (b) A health professional, acting under the direction of a
10-56 physician, who participates in withholding or withdrawing
10-57 life-sustaining treatment [procedures] from a qualified patient in
10-58 accordance with this subchapter [chapter] is not civilly liable for
10-59 that action unless the health professional fails to exercise
10-60 reasonable care when applying the patient's advance directive
10-61 [negligent].
10-62 (c) A physician, or a health professional acting under the
10-63 direction of a physician, who participates in withholding or
10-64 withdrawing life-sustaining treatment [procedures] from a qualified
10-65 patient in accordance with this subchapter [chapter] is not
10-66 criminally liable or guilty of unprofessional conduct as a result
10-67 of that action unless the physician or health professional fails to
10-68 exercise reasonable care when applying the patient's advance
10-69 directive [negligent].
11-1 (d) The standard of care that a physician, health care
11-2 facility, or health care professional shall exercise under this
11-3 section is that degree of care that a physician, health care
11-4 facility, or health care professional, as applicable, of ordinary
11-5 prudence and skill would have exercised under the same or similar
11-6 circumstances in the same or a similar community.
11-7 Sec. 166.045 [672.016]. [LIMITATION OF] LIABILITY FOR
11-8 FAILURE TO EFFECTUATE DIRECTIVE. (a) A physician, health care
11-9 facility, or health care professional who has no knowledge of a
11-10 directive is not civilly or criminally liable for failing to act in
11-11 accordance with the directive.
11-12 (b) A physician, or a health professional acting under the
11-13 direction of a physician, is subject to review and disciplinary
11-14 action by the appropriate licensing board [not civilly or
11-15 criminally liable] for failing to effectuate a qualified patient's
11-16 directive in violation of this subchapter or other laws of this
11-17 state. This subsection does not limit remedies available under
11-18 other laws of this state.
11-19 (c) If an attending physician refuses to comply with a
11-20 directive or treatment decision and does not wish to follow the
11-21 procedure established under Section 166.046, life-sustaining
11-22 treatment shall be provided to the patient, but only until a
11-23 reasonable opportunity has been afforded for the [physician shall
11-24 make a reasonable effort to] transfer of the patient to another
11-25 physician or health care facility willing to comply with the
11-26 directive or treatment decision.
11-27 (d) A physician, health professional acting under the
11-28 direction of a physician, or health care facility is not civilly or
11-29 criminally liable or subject to review or disciplinary action by
11-30 the person's appropriate licensing board if the person has complied
11-31 with the procedures outlined in Section 166.046.
11-32 Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE.
11-33 (a) If an attending physician refuses to honor a patient's advance
11-34 directive or a treatment decision under Section 166.039, the
11-35 physician's refusal shall be reviewed by an ethics or medical
11-36 committee. The attending physician may not be a member of that
11-37 committee. The patient shall be given life-sustaining treatment
11-38 during the review.
11-39 (b) The patient or the person responsible for the health
11-40 care decisions of the individual who has made the decision
11-41 regarding the directive or treatment decision:
11-42 (1) shall be informed of the committee review process
11-43 not less than 48 hours before the meeting called to discuss the
11-44 patient's directive, unless the time period is waived by mutual
11-45 agreement; and
11-46 (2) is entitled to:
11-47 (A) attend the meeting; and
11-48 (B) receive a written explanation of the
11-49 decision reached during the review process.
11-50 (c) The written explanation required by Subsection (b)(2)(B)
11-51 must be included in the patient's medical record.
11-52 (d) If the attending physician, the patient, or the person
11-53 responsible for the health care decisions of the individual does
11-54 not agree with the decision reached during the review process under
11-55 Subsection (b), the physician shall make a reasonable effort to
11-56 transfer the patient to a physician who is willing to comply with
11-57 the directive. If the patient is a patient in a health care
11-58 facility, the facility's personnel shall assist the physician in
11-59 arranging the patient's transfer to:
11-60 (1) another physician;
11-61 (2) an alternative care setting within that facility;
11-62 or
11-63 (3) another facility.
11-64 (e) If the patient is requesting life-sustaining treatment
11-65 that the attending physician and the review process have decided is
11-66 inappropriate treatment, the patient shall be given available
11-67 life-sustaining treatment pending transfer under Subsection (d).
11-68 The patient is responsible for any costs incurred in transferring
11-69 the patient to another facility. The physician and the health care
12-1 facility are not obligated to provide life-sustaining treatment
12-2 after the 10th day after the written decision required under
12-3 Subsection (b) is provided to the patient or the person responsible
12-4 for the health care decisions of the patient unless ordered to do
12-5 so under Subsection (g).
12-6 (f) Life-sustaining treatment under this section may not be
12-7 entered in the patient's medical record as medically unnecessary
12-8 treatment until the time period provided under Subsection (e) has
12-9 expired.
12-10 (g) At the request of the patient or the person responsible
12-11 for the health care decisions of the patient, the appropriate
12-12 district or county court shall extend the time period provided
12-13 under Subsection (e) only if the court finds, by a preponderance of
12-14 the evidence, that there is a reasonable expectation that a
12-15 physician or health care facility that will honor the patient's
12-16 directive will be found if the time extension is granted.
12-17 (h) This section may not be construed to impose an
12-18 obligation on a facility or a home and community support services
12-19 agency licensed under Chapter 142 or similar organization that is
12-20 beyond the scope of the services or resources of the facility or
12-21 agency. This section does not apply to hospice services provided
12-22 by a home and community support services agency licensed under
12-23 Chapter 142.
12-24 Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT
12-25 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
12-26 offense under Section 22.08, Penal Code, by withholding or
12-27 withdrawing life-sustaining treatment [procedures] from a qualified
12-28 patient in accordance with this subchapter [chapter].
12-29 Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION.
12-30 (a) A person commits an offense if the person intentionally
12-31 conceals, cancels, defaces, obliterates, or damages another
12-32 person's directive without that person's consent. An offense under
12-33 this subsection is a Class A misdemeanor.
12-34 (b) A person is subject to prosecution for criminal homicide
12-35 under Chapter 19, Penal Code, if the person, with the intent to
12-36 cause life-sustaining treatment [procedures] to be withheld or
12-37 withdrawn from another person contrary to the other person's
12-38 desires, falsifies or forges a directive or intentionally conceals
12-39 or withholds personal knowledge of a revocation and thereby
12-40 directly causes life-sustaining treatment [procedures] to be
12-41 withheld or withdrawn from the other person with the result that
12-42 the other person's death is hastened.
12-43 Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not
12-44 withdraw or withhold life-sustaining treatment [procedures] under
12-45 this subchapter [chapter] from a pregnant patient.
12-46 Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This
12-47 subchapter [chapter] does not condone, authorize, or approve mercy
12-48 killing or permit an affirmative or deliberate act or omission to
12-49 end life except to permit the natural process of dying as provided
12-50 by this subchapter [chapter].
12-51 Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
12-52 AFFECTED. This subchapter [chapter] does not impair or supersede
12-53 any legal right or responsibility a person may have to effect the
12-54 withholding or withdrawal of life-sustaining treatment [procedures]
12-55 in a lawful manner, provided that if an attending physician or
12-56 health care facility is unwilling to honor a patient's advance
12-57 directive or a treatment decision to provide life-sustaining
12-58 treatment, life-sustaining treatment is required to be provided the
12-59 patient, but only until a reasonable opportunity has been afforded
12-60 for transfer of the patient to another physician or health care
12-61 facility willing to comply with the advance directive or treatment
12-62 decision.
12-63 SECTION 1.04. Chapter 674, Health and Safety Code, is
12-64 transferred to Subtitle H, Title 2, Health and Safety Code, is
12-65 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
12-66 and is amended to read as follows:
13-1 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
13-2 DO-NOT-RESUSCITATE ORDERS
13-3 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
13-4 [chapter]:
13-5 (1) ["Attending physician" means the physician who has
13-6 primary responsibility for a person's treatment and care.]
13-7 [(2) "Board" means the Texas Board of Health.]
13-8 [(3)] "Cardiopulmonary resuscitation" means any
13-9 medical intervention used to restore circulatory or respiratory
13-10 function that has ceased [includes a component of cardiopulmonary
13-11 resuscitation].
13-12 (2) [(4) "Competent" means possessing the ability,
13-13 based on reasonable medical judgment, to understand and appreciate
13-14 the nature and consequences of a treatment decision, including the
13-15 significant benefits and harms of, and reasonable alternatives to,
13-16 a proposed treatment decision.]
13-17 [(5) "Declarant" means a person who has executed or
13-18 issued an out-of-hospital do-not-resuscitate order under this
13-19 chapter.]
13-20 [(6) "Department" means the Texas Department of
13-21 Health.]
13-22 [(7)] "DNR identification device" means an
13-23 identification device specified by the board under Section 166.101
13-24 [674.023] that is worn for the purpose of identifying a person who
13-25 has executed or issued an out-of-hospital DNR order or on whose
13-26 behalf an out-of-hospital DNR order has been executed or issued
13-27 under this subchapter [chapter].
13-28 (3) [(8) "Durable power of attorney for health care"
13-29 means a document delegating to an agent the authority to make
13-30 health care decisions for a person in accordance with Chapter 135,
13-31 Civil Practice and Remedies Code.]
13-32 [(9)] "Emergency medical services" has the meaning
13-33 assigned by Section 773.003.
13-34 (4) [(10)] "Emergency medical services personnel" has
13-35 the meaning assigned by Section 773.003.
13-36 (5) [(11)] "Health care professionals" means
13-37 physicians, nurses, and emergency medical services personnel and,
13-38 unless the context requires otherwise, includes hospital emergency
13-39 personnel.
13-40 (6) [(12) "Incompetent" means lacking the ability,
13-41 based on reasonable medical judgment, to understand and appreciate
13-42 the nature and consequences of a treatment decision, including the
13-43 significant benefits and harms of, and reasonable alternatives to,
13-44 a proposed treatment decision.]
13-45 [(13) "Life-sustaining procedure" means a medical
13-46 procedure, treatment, or intervention that uses mechanical or other
13-47 artificial means to sustain, restore, or supplant a spontaneous
13-48 vital function and, when applied to a person in a terminal
13-49 condition, serves only to prolong the process of dying. The term
13-50 does not include the administration of medication or the
13-51 performance of a medical procedure considered to be necessary to
13-52 provide comfort or care or to alleviate pain or the provision of
13-53 water or nutrition.]
13-54 [(14)] "Out-of-hospital DNR order":
13-55 (A) means a legally binding out-of-hospital
13-56 do-not-resuscitate order, in the form specified by the board under
13-57 Section 166.083 [674.003], prepared and signed by the attending
13-58 physician of a person [who has been diagnosed as having a terminal
13-59 condition], that documents the instructions of a person or the
13-60 person's legally authorized representative and directs health care
13-61 professionals acting in an out-of-hospital setting not to initiate
13-62 or continue the following life-sustaining treatment [procedures]:
13-63 (i) cardiopulmonary resuscitation;
13-64 (ii) [endotracheal intubation or other
13-65 means of] advanced airway management;
13-66 (iii) artificial ventilation;
13-67 (iv) defibrillation;
13-68 (v) transcutaneous cardiac pacing; and
13-69 (vi) [the administration of cardiac
14-1 resuscitation medications; and]
14-2 [(vii)] other life-sustaining treatment
14-3 [procedures] specified by the board under Section 166.101(a)
14-4 [674.023(a)]; and
14-5 (B) does not include authorization to withhold
14-6 medical interventions or therapies considered necessary to provide
14-7 comfort [or] care or to alleviate pain or to provide water or
14-8 nutrition.
14-9 (7) [(15)] "Out-of-hospital setting" means a location
14-10 [any setting outside of a licensed acute care hospital] in which
14-11 health care professionals are called for assistance, including
14-12 long-term care facilities, in-patient hospice facilities, private
14-13 homes, hospital outpatient or emergency departments, physician's
14-14 offices, and vehicles during transport.
14-15 (8) [(16) "Physician" means a physician licensed by
14-16 the Texas State Board of Medical Examiners or a properly
14-17 credentialed physician who holds a commission in the uniformed
14-18 services of the United States and who is serving on active duty in
14-19 this state.]
14-20 [(17)] "Proxy" means a person designated and
14-21 authorized by a directive executed or issued in accordance with
14-22 Subchapter B [Chapter 672] to make a treatment decision for another
14-23 person in the event the other person becomes [comatose,]
14-24 incompetent[,] or otherwise mentally or physically incapable of
14-25 communication.
14-26 (9) [(18)] "Qualified relatives" means those persons
14-27 authorized to execute or issue an out-of-hospital DNR order on
14-28 behalf of a person who is [comatose,] incompetent[,] or otherwise
14-29 mentally or physically incapable of communication under Section
14-30 166.088 [674.008].
14-31 (10) [(19)] "Statewide out-of-hospital DNR protocol"
14-32 means a set of statewide standardized procedures adopted by the
14-33 board under Section 166.101(a) [674.023] for withholding
14-34 cardiopulmonary resuscitation and certain other life-sustaining
14-35 treatment [procedures] by health care professionals acting in
14-36 out-of-hospital settings.
14-37 [(20) "Terminal condition" means an incurable or
14-38 irreversible condition caused by injury, disease, or illness that
14-39 would produce death without the application of life-sustaining
14-40 procedures, according to reasonable medical judgment, and in which
14-41 the application of life-sustaining procedures serves only to
14-42 postpone the moment of the person's death.]
14-43 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
14-44 TO PHYSICIANS. (a) A competent person [who has been diagnosed by
14-45 a physician as having a terminal condition] may at any time execute
14-46 a written out-of-hospital DNR order directing health care
14-47 professionals acting in an out-of-hospital setting to withhold
14-48 cardiopulmonary resuscitation and certain other life-sustaining
14-49 treatment [procedures] designated by the board.
14-50 (b) The declarant must sign the out-of-hospital DNR order in
14-51 the presence of two witnesses, at least one of whom must be a
14-52 witness who qualifies under Section 166.003(2). The [and those]
14-53 witnesses must sign the order. The attending physician of the
14-54 declarant must sign the order and shall make the fact of the
14-55 existence of the order and the reasons for execution of the order a
14-56 part of the declarant's medical record.
14-57 (c) [A witness must have the same qualifications as those
14-58 provided by Section 672.003(c).]
14-59 [(d)] If the person is incompetent but previously executed
14-60 or issued a directive to physicians in accordance with Subchapter B
14-61 [Chapter 672], the physician may rely on the directive as the
14-62 person's instructions to issue an out-of-hospital DNR order and
14-63 shall place a copy of the directive in the person's medical record.
14-64 The physician shall sign the order in lieu of the person signing
14-65 under Subsection (b).
14-66 (d) [(e)] If the person is incompetent but previously
14-67 executed or issued a directive to physicians in accordance with
14-68 Subchapter B [Chapter 672] designating a proxy, the proxy may make
14-69 any decisions required of the designating person as to an
15-1 out-of-hospital DNR order and shall sign the order in lieu of the
15-2 person signing under Subsection (b).
15-3 (e) [(f)] If the person is now incompetent but previously
15-4 executed or issued a medical [durable] power of attorney [for
15-5 health care in accordance with Chapter 135, Civil Practice and
15-6 Remedies Code,] designating an agent, the agent may make any
15-7 decisions required of the designating person as to an
15-8 out-of-hospital DNR order and shall sign the order in lieu of the
15-9 person signing under Subsection (b).
15-10 (f) [(g)] The board, on the recommendation of the
15-11 department, shall by rule adopt procedures for the disposition and
15-12 maintenance of records of an original out-of-hospital DNR order and
15-13 any copies of the order.
15-14 (g) [(h)] An out-of-hospital DNR order is effective on its
15-15 execution.
15-16 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
15-17 (a) A written out-of-hospital DNR order shall be in the standard
15-18 form specified by board rule as recommended by the department.
15-19 (b) The standard form of an out-of-hospital DNR order
15-20 specified by the board must, at a minimum, contain the following:
15-21 (1) a distinctive single-page format that readily
15-22 identifies the document as an out-of-hospital DNR order;
15-23 (2) a title that readily identifies the document as an
15-24 out-of-hospital DNR order;
15-25 (3) the printed or typed name of the person;
15-26 (4) a statement that the physician signing the
15-27 document is the attending physician of the person[, that the
15-28 physician has diagnosed the person as having a terminal condition,]
15-29 and that the physician is directing health care professionals
15-30 acting in out-of-hospital settings, including a hospital emergency
15-31 department, not to initiate or continue certain life-sustaining
15-32 treatment [procedures] on behalf of the person, and a listing of
15-33 those procedures not to be initiated or continued;
15-34 (5) a statement that the person understands that the
15-35 person may revoke the out-of-hospital DNR order at any time by
15-36 destroying the order and removing the DNR identification device, if
15-37 any, or by communicating to health care professionals at the scene
15-38 the person's desire to revoke the out-of-hospital DNR order;
15-39 (6) places for the printed names and signatures of the
15-40 witnesses and attending physician of the person and the medical
15-41 license number of the attending physician;
15-42 (7) a separate section for execution of the document
15-43 by the legal guardian of the person, the person's proxy, an agent
15-44 of the person having a medical [durable] power of attorney [for
15-45 health care], or the attending physician attesting to the issuance
15-46 of an out-of-hospital DNR order by nonwritten means of
15-47 communication or acting in accordance with a previously executed or
15-48 previously issued directive to physicians under Section 166.082(c)
15-49 [674.002(d)] that includes the following:
15-50 (A) a statement that the legal guardian, the
15-51 proxy, the agent, the person by nonwritten means of communication,
15-52 or the physician directs that each [the] listed life-sustaining
15-53 treatment [procedures] should not be initiated or continued in
15-54 behalf of the person; and
15-55 (B) places for the printed names and signatures
15-56 of the witnesses and, as applicable, the legal guardian, proxy,
15-57 agent, or physician;
15-58 (8) a separate section for execution of the document
15-59 by at least one [two] qualified relative [relatives] of the person
15-60 when the person does not have a legal guardian, proxy, or agent
15-61 having a medical [durable] power of attorney [for health care] and
15-62 is [comatose,] incompetent[,] or otherwise mentally or physically
15-63 incapable of communication, including:
15-64 (A) a statement that the relative [relatives] of
15-65 the person is [are] qualified to make a treatment decision to
15-66 withhold cardiopulmonary resuscitation and certain other designated
15-67 life-sustaining treatment [procedures] under Section 166.088
15-68 [674.008] and, based on the known desires of the person or a
15-69 determination of the best interest of the person, directs [direct]
16-1 that each [the] listed life-sustaining treatment [procedures]
16-2 should not be initiated or continued in behalf of the person; and
16-3 (B) places for the printed names and signatures
16-4 of the witnesses and qualified relative [relatives] of the person;
16-5 (9) a place for entry of the date of execution of the
16-6 document;
16-7 (10) a statement that the document is in effect on the
16-8 date of its execution and remains in effect until the death of the
16-9 person or until the document is revoked;
16-10 (11) a statement that the document must accompany the
16-11 person during transport;
16-12 (12) a statement regarding the proper disposition of
16-13 the document or copies of the document, as the board determines
16-14 appropriate; and
16-15 (13) a statement at the bottom of the document, with
16-16 places for the signature of each person executing the document,
16-17 that the document has been properly completed.
16-18 (c) The board may, by rule and as recommended by the
16-19 department, modify the standard form of the out-of-hospital DNR
16-20 order described by Subsection (b) in order to accomplish the
16-21 purposes of this subchapter [chapter].
16-22 (d) A photocopy or other complete facsimile of the original
16-23 written out-of-hospital DNR order executed under this subchapter
16-24 may be used for any purpose for which the original written order
16-25 may be used under this subchapter.
16-26 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
16-27 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
16-28 an adult may issue an out-of-hospital DNR order by nonwritten
16-29 communication.
16-30 (b) A declarant must issue the nonwritten out-of-hospital
16-31 DNR order in the presence of the attending physician and two
16-32 witnesses, at least one of whom must be a witness who qualifies
16-33 under Section 166.003(2). [The witnesses must possess the same
16-34 qualifications as those provided by Section 672.003(c).]
16-35 (c) The attending physician and witnesses shall sign the
16-36 out-of-hospital DNR order in the [that] place of the document
16-37 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
16-38 physician shall sign the document in the place required by Section
16-39 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
16-40 of the existence of the out-of-hospital DNR order a part of the
16-41 declarant's medical record and the names of the witnesses shall be
16-42 entered [sign that entry] in the medical record.
16-43 (d) An out-of-hospital DNR order issued in the manner
16-44 provided by this section is valid and shall be honored by
16-45 responding health care professionals as if executed in the manner
16-46 provided by Section 166.082 [674.002].
16-47 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
16-48 ORDER ON BEHALF OF A MINOR. The following persons may execute an
16-49 out-of-hospital DNR order on behalf of a minor:
16-50 (1) the minor's parents;
16-51 (2) the minor's legal guardian; or
16-52 (3) the minor's managing conservator.
16-53 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
16-54 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
16-55 including a competent minor, supersedes the effect of an
16-56 out-of-hospital DNR order executed or issued by or on behalf of the
16-57 person when the desire is communicated to responding health care
16-58 professionals as provided by this subchapter [chapter].
16-59 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
16-60 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
16-61 applies when a person 18 years of age or older has executed or
16-62 issued an out-of-hospital DNR order and subsequently becomes
16-63 [comatose,] incompetent[,] or otherwise mentally or physically
16-64 incapable of communication.
16-65 (b) If the adult person has designated a person to make a
16-66 treatment decision as authorized by Section 166.032(c)
16-67 [672.003(d)], the attending physician and the designated person
16-68 shall comply with the out-of-hospital DNR order.
16-69 (c) If the adult person has not designated a person to make
17-1 a treatment decision as authorized by Section 166.032(c)
17-2 [672.003(d)], the attending physician shall comply with the
17-3 out-of-hospital DNR order unless the physician believes that the
17-4 order does not reflect the person's present desire.
17-5 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
17-6 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
17-7 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
17-8 executed or issued an out-of-hospital DNR order and is [comatose,]
17-9 incompetent[,] or otherwise mentally or physically incapable of
17-10 communication, the attending physician and the person's legal
17-11 guardian, proxy, or agent having a medical [durable] power of
17-12 attorney [for health care] may execute an out-of-hospital DNR order
17-13 on behalf of the person.
17-14 (b) If the person does not have a legal guardian, proxy, or
17-15 agent under a medical power of attorney, the attending physician
17-16 and at least one [two] qualified relative from a category listed by
17-17 Section 166.039(b), subject to the priority established under that
17-18 subsection, [relatives] may execute an out-of-hospital DNR order in
17-19 the same manner as a treatment decision made under Section
17-20 166.039(b) [672.009(b)].
17-21 (c) A decision to execute an out-of-hospital DNR order made
17-22 under Subsection (a) or (b) must be based on knowledge of what the
17-23 person would desire, if known.
17-24 (d) An out-of-hospital DNR order executed under Subsection
17-25 (b) must be made in the presence of at least two witnesses, at
17-26 least one of whom must be a witness who qualifies under Section
17-27 166.003(2) [who possess the same qualifications that are required
17-28 by Section 672.003(c)].
17-29 (e) The fact that an adult person has not executed or issued
17-30 an out-of-hospital DNR order does not create a presumption that the
17-31 person does not want a treatment decision made to withhold
17-32 cardiopulmonary resuscitation and certain other designated
17-33 life-sustaining treatment [procedures] designated by the board.
17-34 (f) If there is not a qualified relative available to act
17-35 for the person under Subsection (b), an out-of-hospital DNR order
17-36 must be concurred in by another physician who is not involved in
17-37 the treatment of the patient or who is a representative of the
17-38 ethics or medical committee of the health care facility in which
17-39 the person is a patient.
17-40 (g) A person listed in Section 166.039(b) who wishes to
17-41 challenge a decision made under this section must apply for
17-42 temporary guardianship under Section 875, Texas Probate Code. The
17-43 court may waive applicable fees in that proceeding.
17-44 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
17-45 ORDER. (a) When responding to a call for assistance, health care
17-46 professionals shall honor an out-of-hospital DNR order in
17-47 accordance with the statewide out-of-hospital DNR protocol and,
17-48 where applicable, locally adopted out-of-hospital DNR protocols not
17-49 in conflict with the statewide protocol if:
17-50 (1) the responding health care professionals discover
17-51 an executed or issued out-of-hospital DNR order form on their
17-52 arrival at the scene; and
17-53 (2) the responding health care professionals comply
17-54 with this section.
17-55 (b) If the person is wearing a DNR identification device,
17-56 the responding health care professionals must comply with Section
17-57 166.090 [674.010].
17-58 (c) The responding health care professionals must establish
17-59 the identity of the person as the person who executed or issued the
17-60 out-of-hospital DNR order or for whom the out-of-hospital DNR order
17-61 was executed or issued.
17-62 (d) The responding health care professionals must determine
17-63 that the out-of-hospital DNR order form appears to be valid in that
17-64 it includes:
17-65 (1) written responses in the places designated on the
17-66 form for the names, signatures, and other information required of
17-67 persons executing or issuing, or witnessing the execution or
17-68 issuance of, the order;
17-69 (2) a date in the place designated on the form for the
18-1 date the order was executed or issued; and
18-2 (3) the signature of the declarant or persons
18-3 executing or issuing the order and the attending physician in the
18-4 appropriate places designated on the form for indicating that the
18-5 order form has been properly completed.
18-6 (e) If the conditions prescribed by Subsections (a) through
18-7 (d) are not determined to apply by the responding health care
18-8 professionals at the scene, the out-of-hospital DNR order may not
18-9 be honored and life-sustaining procedures otherwise required by law
18-10 or local emergency medical services protocols shall be initiated or
18-11 continued. Health care professionals acting in out-of-hospital
18-12 settings are not required to accept or interpret an out-of-hospital
18-13 DNR order that does not meet the requirements of this subchapter
18-14 [chapter].
18-15 (f) The out-of-hospital DNR order form or a copy of the
18-16 form, when available, must accompany the person during transport.
18-17 (g) A record shall be made and maintained of the
18-18 circumstances of each emergency medical services response in which
18-19 an out-of-hospital DNR order or DNR identification device is
18-20 encountered, in accordance with the statewide out-of-hospital DNR
18-21 protocol and any applicable local out-of-hospital DNR protocol not
18-22 in conflict with the statewide protocol.
18-23 (h) An out-of-hospital DNR order executed or issued and
18-24 documented or evidenced in the manner prescribed by this subchapter
18-25 [chapter] is valid and shall be honored by responding health care
18-26 professionals unless the person or persons found at the scene:
18-27 (1) identify themselves as the declarant or as the
18-28 attending physician, legal guardian, qualified relative, or agent
18-29 of the person having a medical [durable] power of attorney [for
18-30 health care] who executed or issued the out-of-hospital DNR order
18-31 on behalf of the person; and
18-32 (2) request that cardiopulmonary resuscitation or
18-33 certain other life-sustaining treatment [procedures] designated by
18-34 the board be initiated or continued.
18-35 (i) If the policies of a health care facility preclude
18-36 compliance with the out-of-hospital DNR order of a person or an
18-37 out-of-hospital DNR order issued by an attending physician on
18-38 behalf of a person who is admitted to or a resident of the
18-39 facility, or if the facility is unwilling to accept DNR
18-40 identification devices as evidence of the existence of an
18-41 out-of-hospital DNR order, that facility shall take all reasonable
18-42 steps to notify the person or, if the person is incompetent, the
18-43 person's guardian or the person or persons having authority to make
18-44 health care treatment decisions on behalf of the person, of the
18-45 facility's policy and shall take all reasonable steps to effect the
18-46 transfer of the person to the person's home or to a facility where
18-47 the provisions of this subchapter [chapter] can be carried out.
18-48 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
18-49 person who has a valid out-of-hospital DNR order under this
18-50 subchapter [chapter] may wear a DNR identification device around
18-51 the neck or on the wrist as prescribed by board rule adopted under
18-52 Section 166.101 [674.023].
18-53 (b) The presence of a DNR identification device on the body
18-54 of a person is conclusive evidence that the person has executed or
18-55 issued a valid out-of-hospital DNR order or has a valid
18-56 out-of-hospital DNR order executed or issued on the person's
18-57 behalf. Responding health care professionals shall honor the DNR
18-58 identification device as if a valid out-of-hospital DNR order form
18-59 executed or issued by the person were found in the possession of
18-60 the person.
18-61 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
18-62 ORDER. An out-of-hospital DNR order is effective until it is
18-63 revoked as prescribed by Section 166.092 [674.012].
18-64 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
18-65 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
18-66 any time without regard to the declarant's mental state or
18-67 competency. An order may be revoked by:
18-68 (1) the declarant or someone in the declarant's
18-69 presence and at the declarant's direction destroying the order form
19-1 and removing the DNR identification device, if any;
19-2 (2) a person who identifies himself or herself as the
19-3 legal guardian, as a qualified relative, or as the agent of the
19-4 declarant having a medical [durable] power of attorney [for health
19-5 care] who executed the out-of-hospital DNR order or another person
19-6 in the person's presence and at the person's direction destroying
19-7 the order form and removing the DNR identification device, if any;
19-8 (3) the declarant communicating the declarant's intent
19-9 to revoke the order; or
19-10 (4) a person who identifies himself or herself as the
19-11 legal guardian, a qualified relative, or the agent of the declarant
19-12 having a medical [durable] power of attorney [for health care] who
19-13 executed the out-of-hospital DNR order orally stating the person's
19-14 intent to revoke the order.
19-15 (b) An oral revocation under Subsection (a)(3) or (a)(4)
19-16 takes effect only when the declarant or a person who identifies
19-17 himself or herself as the legal guardian, a qualified relative, or
19-18 the agent of the declarant having a medical [durable] power of
19-19 attorney [for health care] who executed the out-of-hospital DNR
19-20 order communicates the intent to revoke the order to the responding
19-21 health care professionals or the attending physician at the scene.
19-22 The responding health care professionals shall record the time,
19-23 date, and place of the revocation in accordance with the statewide
19-24 out-of-hospital DNR protocol and rules adopted by the board and any
19-25 applicable local out-of-hospital DNR protocol. The attending
19-26 physician or the physician's designee shall record in the person's
19-27 medical record the time, date, and place of the revocation and, if
19-28 different, the time, date, and place that the physician received
19-29 notice of the revocation. The attending physician or the
19-30 physician's designee shall also enter the word "VOID" on each page
19-31 of the copy of the order in the person's medical record.
19-32 (c) Except as otherwise provided by this subchapter
19-33 [chapter], a person is not civilly or criminally liable for failure
19-34 to act on a revocation made under this section unless the person
19-35 has actual knowledge of the revocation.
19-36 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
19-37 ORDER. A declarant may at any time reexecute or reissue an
19-38 out-of-hospital DNR order in accordance with the procedures
19-39 prescribed by Section 166.082 [674.002], including reexecution or
19-40 reissuance after the declarant is diagnosed as having a terminal or
19-41 irreversible condition.
19-42 [Sec. 674.014. CONFLICT WITH NATURAL DEATH ACT OR DURABLE
19-43 POWER OF ATTORNEY FOR HEALTH CARE. To the extent that an
19-44 out-of-hospital DNR order conflicts with a directive or treatment
19-45 decision executed or issued under Chapter 672 or a durable power of
19-46 attorney for health care executed or issued in accordance with
19-47 Chapter 135, Civil Practice and Remedies Code, the instrument
19-48 executed later in time controls.]
19-49 [Sec. 674.015. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON
19-50 INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
19-51 executed or issued an out-of-hospital DNR order under this chapter
19-52 does not:]
19-53 [(1) restrict, inhibit, or impair in any manner the
19-54 sale, procurement, or issuance of a life insurance policy to that
19-55 person; or]
19-56 [(2) modify the terms of an existing life insurance
19-57 policy.]
19-58 [(b) Notwithstanding the terms of any life insurance policy,
19-59 the fact that cardiopulmonary resuscitation or certain other
19-60 life-sustaining procedures designated by the board are withheld
19-61 from an insured person under this chapter does not legally impair
19-62 or invalidate that person's life insurance policy and may not be a
19-63 factor for the purpose of determining the payability of benefits or
19-64 the cause of death under the life insurance policy.]
19-65 [(c) A physician, health facility, health care provider,
19-66 insurer, or health care service plan may not require a person to
19-67 execute or issue an out-of-hospital DNR order as a condition for
19-68 obtaining insurance for health care services or receiving health
19-69 care services.]
20-1 [(d) The fact that a person has executed or issued or failed
20-2 to execute or issue an out-of-hospital DNR order under this chapter
20-3 may not be considered in any way in establishing insurance
20-4 premiums.]
20-5 Sec. 166.094 [674.016]. LIMITATION ON LIABILITY FOR
20-6 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
20-7 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
20-8 health care facility or entity that in good faith causes
20-9 cardiopulmonary resuscitation or certain other life-sustaining
20-10 treatment [procedures] designated by the board to be withheld from
20-11 a person in accordance with this subchapter [chapter] is not
20-12 civilly liable for that action.
20-13 (b) A health care professional or health care facility or
20-14 entity that in good faith participates in withholding
20-15 cardiopulmonary resuscitation or certain other life-sustaining
20-16 treatment [procedures] designated by the board from a person in
20-17 accordance with this subchapter [chapter] is not civilly liable for
20-18 that action.
20-19 (c) A health care professional or health care facility or
20-20 entity that in good faith participates in withholding
20-21 cardiopulmonary resuscitation or certain other life-sustaining
20-22 treatment [procedures] designated by the board from a person in
20-23 accordance with this subchapter [chapter] is not criminally liable
20-24 or guilty of unprofessional conduct as a result of that action.
20-25 (d) A health care professional or health care facility or
20-26 entity that in good faith causes or participates in withholding
20-27 cardiopulmonary resuscitation or certain other life-sustaining
20-28 treatment [procedures] designated by the board from a person in
20-29 accordance with this subchapter [chapter] and rules adopted under
20-30 this subchapter [chapter] is not in violation of any other
20-31 licensing or regulatory laws or rules of this state and is not
20-32 subject to any disciplinary action or sanction by any licensing or
20-33 regulatory agency of this state as a result of that action.
20-34 Sec. 166.095 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
20-35 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
20-36 professional or health care facility or entity that has no actual
20-37 knowledge of an out-of-hospital DNR order is not civilly or
20-38 criminally liable for failing to act in accordance with the order.
20-39 (b) A health care professional or health care facility or
20-40 entity is subject to review and disciplinary action by the
20-41 appropriate licensing board [not civilly or criminally liable] for
20-42 failing to effectuate an out-of-hospital DNR order. This
20-43 subsection does not limit remedies available under other laws of
20-44 this state.
20-45 (c) If an attending physician refuses to execute or comply
20-46 with an out-of-hospital DNR order, the physician shall inform the
20-47 person, the legal guardian or qualified relatives of the person, or
20-48 the agent of the person having a medical [durable] power of
20-49 attorney [for health care] and, if the person or another authorized
20-50 to act on behalf of the person so directs, shall make a reasonable
20-51 effort to transfer the person to another physician who is willing
20-52 to execute or comply with an out-of-hospital DNR order.
20-53 Sec. 166.096 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
20-54 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
20-55 commit an offense under Section 22.08, Penal Code, by withholding
20-56 cardiopulmonary resuscitation or certain other life-sustaining
20-57 treatment [procedures] designated by the board from a person in
20-58 accordance with this subchapter [chapter].
20-59 Sec. 166.097 [674.019]. CRIMINAL PENALTY; PROSECUTION.
20-60 (a) A person commits an offense if the person intentionally
20-61 conceals, cancels, defaces, obliterates, or damages another
20-62 person's out-of-hospital DNR order or DNR identification device
20-63 without that person's consent or the consent of the person or
20-64 persons authorized to execute or issue an out-of-hospital DNR order
20-65 on behalf of the person under this subchapter [chapter]. An
20-66 offense under this subsection is a Class A misdemeanor.
20-67 (b) A person is subject to prosecution for criminal homicide
20-68 under Chapter 19, Penal Code, if the person, with the intent to
20-69 cause cardiopulmonary resuscitation or certain other
21-1 life-sustaining treatment [procedures] designated by the board to
21-2 be withheld from another person contrary to the other person's
21-3 desires, falsifies or forges an out-of-hospital DNR order or
21-4 intentionally conceals or withholds personal knowledge of a
21-5 revocation and thereby directly causes cardiopulmonary
21-6 resuscitation and certain other life-sustaining treatment
21-7 [procedures] designated by the board to be withheld from the other
21-8 person with the result that the other person's death is hastened.
21-9 Sec. 166.098 [674.020]. PREGNANT PERSONS. A person may not
21-10 withhold cardiopulmonary resuscitation or certain other
21-11 life-sustaining treatment [procedures] designated by the board
21-12 under this subchapter [chapter] from a person known by the
21-13 responding health care professionals to be pregnant.
21-14 Sec. 166.099 [674.021]. MERCY KILLING NOT CONDONED. This
21-15 subchapter [chapter] does not condone, authorize, or approve mercy
21-16 killing or permit an affirmative or deliberate act or omission to
21-17 end life except to permit the natural process of dying as provided
21-18 by this subchapter [chapter].
21-19 Sec. 166.100 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
21-20 AFFECTED. This subchapter [chapter] does not impair or supersede
21-21 any legal right or responsibility a person may have under a
21-22 constitution, other statute, regulation, or court decision to
21-23 effect the withholding of cardiopulmonary resuscitation or certain
21-24 other life-sustaining treatment [procedures] designated by the
21-25 board.
21-26 Sec. 166.101 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
21-27 (a) The board shall, on the recommendation of the department,
21-28 adopt all reasonable and necessary rules to carry out the purposes
21-29 of this subchapter [chapter], including rules:
21-30 (1) adopting a statewide out-of-hospital DNR order
21-31 protocol that sets out standard procedures for the withholding of
21-32 cardiopulmonary resuscitation and certain other life-sustaining
21-33 treatment [procedures] by health care professionals acting in
21-34 out-of-hospital settings;
21-35 (2) designating life-sustaining treatment [procedures]
21-36 that may be included in an out-of-hospital DNR order, including all
21-37 procedures listed in Sections 166.081(6)(A)(i) through (v) [Section
21-38 674.001(14)(A)(i) through (vi)]; and
21-39 (3) governing recordkeeping in circumstances in which
21-40 an out-of-hospital DNR order or DNR identification device is
21-41 encountered by responding health care professionals.
21-42 (b) The rules adopted by the board under Subsection (a) are
21-43 not effective until approved by the Texas State Board of Medical
21-44 Examiners.
21-45 (c) Local emergency medical services authorities may adopt
21-46 local out-of-hospital DNR order protocols if the local protocols do
21-47 not conflict with the statewide out-of-hospital DNR order protocol
21-48 adopted by the board.
21-49 (d) The board by rule shall specify a distinctive standard
21-50 design for a necklace and a bracelet DNR identification device that
21-51 signifies, when worn by a person, that the possessor has executed
21-52 or issued a valid out-of-hospital DNR order under this subchapter
21-53 [chapter] or is a person for whom a valid out-of-hospital DNR order
21-54 has been executed or issued.
21-55 (e) The department shall report to the board from time to
21-56 time regarding issues identified in emergency medical services
21-57 responses in which an out-of-hospital DNR order or DNR
21-58 identification device is encountered. The report may contain
21-59 recommendations to the board for necessary modifications to the
21-60 form of the standard out-of-hospital DNR order or the designated
21-61 life-sustaining treatment [procedures] listed in the standard
21-62 out-of-hospital DNR order, the statewide out-of-hospital DNR order
21-63 protocol, or the DNR identification devices.
21-64 [Sec. 674.024. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER
21-65 EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR order
21-66 executed, issued, or authorized in another state or a territory or
21-67 possession of the United States in compliance with the law of that
21-68 jurisdiction is effective for purposes of this chapter.]
21-69 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
22-1 is transferred to Subtitle H, Title 2, Health and Safety Code, is
22-2 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
22-3 and is amended to read as follows:
22-4 SUBCHAPTER D [CHAPTER 135]. MEDICAL [DURABLE]
22-5 POWER OF ATTORNEY [FOR HEALTH CARE]
22-6 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
22-7 [chapter]:
22-8 (1) "Adult" means a person 18 years of age or older or
22-9 a person under 18 years of age who has had the disabilities of
22-10 minority removed.
22-11 (2) "Agent" means an adult to whom authority to make
22-12 health care decisions is delegated under a medical [durable] power
22-13 of attorney [for health care].
22-14 (3) ["Attending physician" means the physician,
22-15 selected by or assigned to a patient, who has primary
22-16 responsibility for the treatment and care of the patient.]
22-17 [(4) "Capacity to make health care decisions" means
22-18 the ability to understand and appreciate the nature and
22-19 consequences of a health care decision, including the significant
22-20 benefits and harms of and reasonable alternatives to any proposed
22-21 health care.]
22-22 [(5) "Durable power of attorney for health care" means
22-23 a document delegating to an agent the authority to make health care
22-24 decisions as provided by this chapter.]
22-25 [(6) "Health care decision" means consent, refusal to
22-26 consent, or withdrawal of consent to health care, treatment,
22-27 service, or procedure to maintain, diagnose, or treat an
22-28 individual's physical or mental condition.]
22-29 [(7)] "Health care provider" means an individual or
22-30 facility licensed, certified, or otherwise authorized to administer
22-31 health care, for profit or otherwise, in the ordinary course of
22-32 business or professional practice and includes a physician.
22-33 (4) [(8) "Physician" means:]
22-34 [(A) a physician licensed by the Texas State
22-35 Board of Medical Examiners; or]
22-36 [(B) a physician with proper credentials who
22-37 holds a commission in a branch of the armed services of the United
22-38 States and who is serving on active duty in this state.]
22-39 [(9)] "Principal" means an adult who has executed a
22-40 medical [durable] power of attorney [for health care].
22-41 (5) [(10)] "Residential care provider" means an
22-42 individual or facility licensed, certified, or otherwise authorized
22-43 to operate, for profit or otherwise, a residential care home.
22-44 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
22-45 (a) Subject to this subchapter [chapter] or any express limitation
22-46 on the authority of the agent contained in the medical [durable]
22-47 power of attorney [for health care], the agent may make any health
22-48 care decision on the principal's behalf that the principal could
22-49 make if the principal were competent [but for the principal's lack
22-50 of capacity to make health care decisions].
22-51 (b) An agent may exercise authority only if the principal's
22-52 attending physician certifies in writing and files the
22-53 certification in the principal's medical record that, based on the
22-54 attending physician's reasonable medical judgment, the principal is
22-55 incompetent [lacks capacity to make health care decisions].
22-56 (c) Notwithstanding any other provisions of this subchapter
22-57 [chapter], treatment may not be given to or withheld from the
22-58 principal if the principal objects regardless of whether, at the
22-59 time of the objection:
22-60 (1) a medical [durable] power of attorney [for health
22-61 care] is in effect; or
22-62 (2) the principal is competent [has the capacity to
22-63 make health care decisions].
22-64 (d) The principal's attending physician shall make
22-65 reasonable efforts to inform the principal of any proposed
22-66 treatment or of any proposal to withdraw or withhold treatment
22-67 before implementing an agent's advance directive.
22-68 (e) After consultation with the attending physician and
22-69 other health care providers, the agent shall make a health care
23-1 decision:
23-2 (1) according to the agent's knowledge of the
23-3 principal's wishes, including the principal's religious and moral
23-4 beliefs; or
23-5 (2) if the agent does not know the principal's wishes,
23-6 according to the agent's assessment of the principal's best
23-7 interests.
23-8 (f) Notwithstanding any other provision of this subchapter
23-9 [chapter], an agent may not consent to:
23-10 (1) voluntary inpatient mental health services;
23-11 (2) convulsive treatment;
23-12 (3) psychosurgery;
23-13 (4) abortion; or
23-14 (5) neglect of the principal through the omission of
23-15 care primarily intended to provide for the comfort of the
23-16 principal.
23-17 (g) The power of attorney is effective indefinitely on
23-18 execution as provided by this subchapter [chapter] and delivery of
23-19 the document to the agent, unless it is revoked as provided by this
23-20 subchapter [chapter] or the principal becomes competent [regains
23-21 the capacity to make health care decisions]. If the medical
23-22 [durable] power of attorney includes an expiration date and on that
23-23 date the principal is incompetent [lacks the capacity to make
23-24 health care decisions], the power of attorney continues to be
23-25 effective until the principal becomes competent [regains the
23-26 capacity to make health care decisions] unless it is revoked as
23-27 provided by this subchapter [chapter].
23-28 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
23-29 AUTHORITY OF AGENT. A person may not exercise the authority of an
23-30 agent while the person serves as:
23-31 (1) the principal's health care provider;
23-32 (2) an employee of the principal's health care
23-33 provider unless the person is a relative of the principal;
23-34 (3) the principal's residential care provider; or
23-35 (4) an employee of the principal's residential care
23-36 provider unless the person is a relative of the principal.
23-37 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
23-38 medical [durable] power of attorney [for health care] must be
23-39 signed by the principal in the presence of [at least] two [or more
23-40 subscribing] witnesses, at least one of whom must be a witness who
23-41 qualifies under Section 166.003(2). The witnesses must sign the
23-42 document.
23-43 (b) [A witness may not, at the time of execution, be:]
23-44 [(1) the agent;]
23-45 [(2) the principal's health or residential care
23-46 provider or the provider's employee;]
23-47 [(3) the principal's spouse or heir;]
23-48 [(4) a person entitled to any part of the estate of
23-49 the principal on the death of the principal under a will or deed in
23-50 existence or by operation of law; or]
23-51 [(5) any other person who has any claim against the
23-52 estate of the principal.]
23-53 [(c) The witnesses shall affirm that, at the time the
23-54 durable power of attorney for health care was signed, the
23-55 principal:]
23-56 [(1) appeared to be of sound mind to make a health
23-57 care decision;]
23-58 [(2) stated in the witness's presence that the
23-59 principal was aware of the nature of the durable power of attorney
23-60 for health care and that the principal was signing the document
23-61 voluntarily and free from any duress; and]
23-62 [(3) requested that the witness serve as a witness to
23-63 the principal's execution of the document.]
23-64 [(d)] If the principal is physically unable to sign, another
23-65 person may sign the medical [durable] power of attorney [for health
23-66 care] with the principal's name in the principal's presence and at
23-67 the principal's express direction.
23-68 Sec. 166.155 [135.005]. REVOCATION. (a) A medical
23-69 [durable] power of attorney [for health care] is revoked by:
24-1 (1) oral or written notification at any time by the
24-2 principal to the agent or a licensed or certified health or
24-3 residential care provider or by any other act evidencing a specific
24-4 intent to revoke the power, without regard to whether the principal
24-5 is competent or the principal's mental state[, competency, or
24-6 capacity to make health care decisions];
24-7 (2) execution by the principal of a subsequent medical
24-8 [durable] power of attorney [for health care]; or
24-9 (3) the divorce of the principal and spouse, if the
24-10 spouse is the principal's agent, unless the medical power of
24-11 attorney provides otherwise.
24-12 (b) A principal's licensed or certified health or
24-13 residential care provider who is informed of or provided with a
24-14 revocation of a medical [durable] power of attorney [for health
24-15 care] shall immediately record the revocation in the principal's
24-16 medical record and give notice of the revocation to the agent and
24-17 any known health and residential care providers currently
24-18 responsible for the principal's care.
24-19 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
24-20 motion filed in connection with a petition for appointment of a
24-21 guardian or, if a guardian has been appointed, on petition of the
24-22 guardian, a probate court shall determine whether to suspend or
24-23 revoke the authority of the agent.
24-24 (b) The court shall consider the preferences of the
24-25 principal as expressed in the medical [durable] power of attorney
24-26 [for health care].
24-27 (c) During the pendency of the court's determination under
24-28 Subsection (a), the guardian has the sole authority to make any
24-29 health care decisions unless the court orders otherwise. If a
24-30 guardian has not been appointed, the agent has the authority to
24-31 make any health care decisions unless the court orders otherwise.
24-32 (d) A person, including any attending physician or health or
24-33 residential care provider, who does not have actual knowledge of
24-34 the appointment of a guardian or an order of the court granting
24-35 authority to someone other than the agent to make health care
24-36 decisions is not subject to criminal or civil liability and has not
24-37 engaged in unprofessional conduct for implementing an agent's
24-38 health care decision.
24-39 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
24-40 Subject to any limitations in the medical [durable] power of
24-41 attorney [for health care], an agent may, for the purpose of making
24-42 a health care decision:
24-43 (1) request, review, and receive any information, oral
24-44 or written, regarding the principal's physical or mental health,
24-45 including medical and hospital records;
24-46 (2) execute a release or other document required to
24-47 obtain the information; and
24-48 (3) consent to the disclosure of the information.
24-49 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
24-50 PROVIDER. (a) A principal's health or residential care provider
24-51 and an employee of the provider who knows of the existence of the
24-52 principal's medical [durable] power of attorney [for health care]
24-53 shall follow a directive of the principal's agent to the extent it
24-54 is consistent with the desires of the principal, this subchapter
24-55 [chapter], and the medical [durable] power of attorney [for health
24-56 care].
24-57 (b) The attending physician does not have a duty to verify
24-58 that the agent's directive is consistent with the principal's
24-59 wishes or religious or moral beliefs.
24-60 (c) A principal's health or residential care provider who
24-61 finds it impossible to follow a directive by the agent because of a
24-62 conflict with this subchapter [chapter] or the medical [durable]
24-63 power of attorney [for health care] shall inform the agent as soon
24-64 as is reasonably possible. The agent may select another attending
24-65 physician. The procedures established under Sections 166.045 and
24-66 166.046 apply if the agent's directive concerns providing,
24-67 withholding, or withdrawing life-sustaining treatment.
24-68 (d) This subchapter [chapter] may not be construed to
24-69 require a health or residential care provider who is not a
25-1 physician to act in a manner contrary to a physician's order.
25-2 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
25-3 OF MEDICAL [DURABLE] POWER OF ATTORNEY [FOR HEALTH CARE]. A health
25-4 or residential care provider, health care service plan, insurer
25-5 issuing disability insurance, self-insured employee benefit plan,
25-6 or nonprofit hospital service plan may not:
25-7 (1) charge a person a different rate solely because
25-8 the person has executed a medical [durable] power of attorney [for
25-9 health care];
25-10 (2) require a person to execute a medical [durable]
25-11 power of attorney [for health care] before:
25-12 (A) admitting the person to a hospital, nursing
25-13 home, or residential care home;
25-14 (B) insuring the person; or
25-15 (C) allowing the person to receive health or
25-16 residential care; or
25-17 (3) refuse health or residential care to a person
25-18 solely because the person has executed a medical [durable] power of
25-19 attorney [for health care].
25-20 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
25-21 agent is not subject to criminal or civil liability for a health
25-22 care decision if the decision is made in good faith under the terms
25-23 of the medical [durable] power of attorney [for health care] and
25-24 the provisions of this subchapter [chapter].
25-25 (b) An attending physician, health or residential care
25-26 provider, or a person acting as an agent for or under the
25-27 physician's or provider's control is not subject to criminal or
25-28 civil liability and has not engaged in unprofessional conduct for
25-29 an act or omission if the act or omission:
25-30 (1) is done in good faith under the terms of the
25-31 medical [durable] power of attorney [for health care], the
25-32 directives of the agent, and the provisions of this subchapter
25-33 [chapter]; and
25-34 (2) does not constitute a failure to exercise
25-35 reasonable [due] care in the provision of health care services.
25-36 (c) The standard of care that the attending physician,
25-37 health or residential care provider, or person acting as an agent
25-38 for or under the physician's or provider's control shall exercise
25-39 under Subsection (b) is that degree of care that an attending
25-40 physician, health or residential care provider, or person acting as
25-41 an agent for or under the physician's or provider's control, as
25-42 applicable, of ordinary prudence and skill would have exercised
25-43 under the same or similar circumstances in the same or similar
25-44 community.
25-45 (d) An attending physician, health or residential care
25-46 provider, or person acting as an agent for or under the physician's
25-47 or provider's control has not engaged in unprofessional conduct
25-48 for:
25-49 (1) failure to act as required by the directive of an
25-50 agent or a medical [durable] power of attorney [for health care] if
25-51 the physician, provider, or person was not provided with a copy of
25-52 the medical [durable] power of attorney [for health care] or had no
25-53 knowledge of a directive; or
25-54 (2) acting as required by an agent's directive if the
25-55 medical [durable] power of attorney [for health care] has expired
25-56 or been revoked but the physician, provider, or person does not
25-57 have knowledge of the expiration or revocation.
25-58 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
25-59 Liability for the cost of health care provided as a result of the
25-60 agent's decision is the same as if the health care were provided as
25-61 a result of the principal's decision.
25-62 [Sec. 135.012. NATURAL DEATH ACT. To the extent that a
25-63 durable power of attorney for health care conflicts with a
25-64 directive or treatment decision executed under the Natural Death
25-65 Act (Chapter 672, Health and Safety Code), the instrument executed
25-66 later in time controls. A physician who withholds or withdraws
25-67 life-sustaining procedures from a principal with a terminal
25-68 condition as required by an agent's directive is not required to
25-69 comply with the Natural Death Act.]
26-1 [Sec. 135.013. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY
26-2 EXECUTED IN ANOTHER JURISDICTION. This chapter does not limit the
26-3 enforceability of a durable power of attorney for health care or
26-4 similar instrument executed in another state or jurisdiction if the
26-5 instrument complies with the law of the state or jurisdiction.]
26-6 Sec. 166.162 [135.014]. DISCLOSURE STATEMENT. A medical
26-7 [durable] power of attorney [for health care] is not effective
26-8 unless the principal, before executing the medical [durable] power
26-9 of attorney [for health care], signs a statement that the principal
26-10 has received a disclosure statement and has read and understood its
26-11 contents.
26-12 Sec. 166.163 [135.015]. FORM OF DISCLOSURE STATEMENT. The
26-13 disclosure statement must be in substantially the following form:
26-14 INFORMATION CONCERNING THE MEDICAL [DURABLE]
26-15 POWER OF ATTORNEY [FOR HEALTH CARE]
26-16 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT,
26-17 YOU SHOULD KNOW THESE IMPORTANT FACTS:
26-18 Except to the extent you state otherwise, this document gives
26-19 the person you name as your agent the authority to make any and all
26-20 health care decisions for you in accordance with your wishes,
26-21 including your religious and moral beliefs, when you are no longer
26-22 capable of making them yourself. Because "health care" means any
26-23 treatment, service, or procedure to maintain, diagnose, or treat
26-24 your physical or mental condition, your agent has the power to make
26-25 a broad range of health care decisions for you. Your agent may
26-26 consent, refuse to consent, or withdraw consent to medical
26-27 treatment and may make decisions about withdrawing or withholding
26-28 life-sustaining treatment. Your agent may not consent to voluntary
26-29 inpatient mental health services, convulsive treatment,
26-30 psychosurgery, or abortion. A physician must comply with your
26-31 agent's instructions or allow you to be transferred to another
26-32 physician.
26-33 Your agent's authority begins when your doctor certifies that
26-34 you lack the competence [capacity] to make health care decisions.
26-35 Your agent is obligated to follow your instructions when
26-36 making decisions on your behalf. Unless you state otherwise, your
26-37 agent has the same authority to make decisions about your health
26-38 care as you would have had.
26-39 It is important that you discuss this document with your
26-40 physician or other health care provider before you sign it to make
26-41 sure that you understand the nature and range of decisions that may
26-42 be made on your behalf. If you do not have a physician, you should
26-43 talk with someone else who is knowledgeable about these issues and
26-44 can answer your questions. You do not need a lawyer's assistance
26-45 to complete this document, but if there is anything in this
26-46 document that you do not understand, you should ask a lawyer to
26-47 explain it to you.
26-48 The person you appoint as agent should be someone you know
26-49 and trust. The person must be 18 years of age or older or a person
26-50 under 18 years of age who has had the disabilities of minority
26-51 removed. If you appoint your health or residential care provider
26-52 (e.g., your physician or an employee of a home health agency,
26-53 hospital, nursing home, or residential care home, other than a
26-54 relative), that person has to choose between acting as your agent
26-55 or as your health or residential care provider; the law does not
26-56 permit a person to do both at the same time.
26-57 You should inform the person you appoint that you want the
26-58 person to be your health care agent. You should discuss this
26-59 document with your agent and your physician and give each a signed
26-60 copy. You should indicate on the document itself the people and
26-61 institutions who have signed copies. Your agent is not liable for
26-62 health care decisions made in good faith on your behalf.
26-63 Even after you have signed this document, you have the right
26-64 to make health care decisions for yourself as long as you are able
26-65 to do so and treatment cannot be given to you or stopped over your
26-66 objection. You have the right to revoke the authority granted to
26-67 your agent by informing your agent or your health or residential
26-68 care provider orally or in writing or by your execution of a
26-69 subsequent medical [durable] power of attorney [for health care].
27-1 Unless you state otherwise, your appointment of a spouse dissolves
27-2 on divorce.
27-3 This document may not be changed or modified. If you want to
27-4 make changes in the document, you must make an entirely new one.
27-5 You may wish to designate an alternate agent in the event
27-6 that your agent is unwilling, unable, or ineligible to act as your
27-7 agent. Any alternate agent you designate has the same authority to
27-8 make health care decisions for you.
27-9 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE
27-10 PRESENCE OF TWO COMPETENT ADULT [OR MORE QUALIFIED] WITNESSES. THE
27-11 FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
27-12 (1) the person you have designated as your agent;
27-13 (2) a person related to you by blood or marriage [your
27-14 health or residential care provider or an employee of your health
27-15 or residential care provider];
27-16 (3) a person entitled to any part of your estate after
27-17 your death under a will or codicil executed by you or by operation
27-18 of law [your spouse];
27-19 (4) your attending physician [lawful heirs or
27-20 beneficiaries named in your will or a deed]; [or]
27-21 (5) an employee of your attending physician;
27-22 (6) an employee of a health care facility in which you
27-23 are a patient if the employee is providing direct patient care to
27-24 you or is an officer, director, partner, or business office
27-25 employee of the health care facility or of any parent organization
27-26 of the health care facility; or
27-27 (7) a person who, at the time this power of attorney
27-28 is executed, has a claim against any part of your estate after your
27-29 death [creditors or persons who have a claim against you].
27-30 Sec. 166.164 [135.016]. FORM OF MEDICAL [DURABLE] POWER OF
27-31 ATTORNEY. The medical [durable] power of attorney [for health
27-32 care] must be in substantially the following form:
27-33 MEDICAL [DURABLE] POWER OF ATTORNEY [FOR HEALTH CARE]
27-34 DESIGNATION OF HEALTH CARE AGENT.
27-35 I,_______________________________(insert your name) appoint:
27-36 Name:________________________________________________________
27-37 Address:_____________________________________________________
27-38 Phone____________________________________________
27-39 as my agent to make any and all health care decisions for me,
27-40 except to the extent I state otherwise in this document. This
27-41 medical [durable] power of attorney [for health care] takes effect
27-42 if I become unable to make my own health care decisions and this
27-43 fact is certified in writing by my physician.
27-44 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS
27-45 FOLLOWS:___________________________________________________________
27-46 ___________________________________________________________________
27-47 DESIGNATION OF ALTERNATE AGENT.
27-48 (You are not required to designate an alternate agent but you
27-49 may do so. An alternate agent may make the same health care
27-50 decisions as the designated agent if the designated agent is unable
27-51 or unwilling to act as your agent. If the agent designated is your
27-52 spouse, the designation is automatically revoked by law if your
27-53 marriage is dissolved.)
27-54 If the person designated as my agent is unable or unwilling
27-55 to make health care decisions for me, I designate the following
27-56 persons to serve as my agent to make health care decisions for me
27-57 as authorized by this document, who serve in the following order:
27-58 A. First Alternate Agent
27-59 Name:_________________________________________________
27-60 Address:______________________________________________
27-61 Phone__________________________________
27-62 B. Second Alternate Agent
27-63 Name:_________________________________________________
27-64 Address:______________________________________________
27-65 Phone__________________________________
27-66 The original of this document is kept at______________
27-67 ______________________________________________________
27-68 ______________________________________________________
27-69 The following individuals or institutions have signed copies:
28-1 Name:_________________________________________________
28-2 Address:______________________________________________
28-3 ______________________________________________________
28-4 Name:_________________________________________________
28-5 Address:______________________________________________
28-6 ______________________________________________________
28-7 DURATION.
28-8 I understand that this power of attorney exists indefinitely
28-9 from the date I execute this document unless I establish a shorter
28-10 time or revoke the power of attorney. If I am unable to make
28-11 health care decisions for myself when this power of attorney
28-12 expires, the authority I have granted my agent continues to exist
28-13 until the time I become able to make health care decisions for
28-14 myself.
28-15 (IF APPLICABLE) This power of attorney ends on the following
28-16 date:_____
28-17 PRIOR DESIGNATIONS REVOKED.
28-18 I revoke any prior medical [durable] power of attorney [for
28-19 health care].
28-20 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
28-21 I have been provided with a disclosure statement explaining
28-22 the effect of this document. I have read and understand that
28-23 information contained in the disclosure statement.
28-24 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
28-25 I sign my name to this medical [durable] power of attorney
28-26 [for health care] on ___________ day of ______________(month, year)
28-27 [19] at_________________________________________________________
28-28 (City and State)
28-29 _________________________________________________________
28-30 (Signature)
28-31 _________________________________________________________
28-32 (Print Name)
28-33 STATEMENT OF FIRST WITNESS [WITNESSES].
28-34 [I declare under penalty of perjury that the principal has
28-35 identified himself or herself to me, that the principal signed or
28-36 acknowledged this durable power of attorney in my presence, that I
28-37 believe the principal to be of sound mind, that the principal has
28-38 affirmed that the principal is aware of the nature of the document
28-39 and is signing it voluntarily and free from duress, that the
28-40 principal requested that I serve as witness to the principal's
28-41 execution of this document, that] I am not the person appointed as
28-42 agent by this document.[, and that] I am not related to the
28-43 principal by blood or marriage. I would not be entitled to any
28-44 portion of the principal's estate on the principal's death. I am
28-45 not the attending physician of the principal or an employee of the
28-46 attending physician. I have no claim against any portion of the
28-47 principal's estate on the principal's death. Furthermore, if I am
28-48 an employee of a health care facility in which the principal is a
28-49 patient, I am not involved in providing direct patient care to the
28-50 principal and am not an officer, director, partner, or business
28-51 office employee of the health care facility or of any parent
28-52 organization of the health care facility [a provider of health or
28-53 residential care, an employee of a provider of health or
28-54 residential care, the operator of a community care facility, or an
28-55 employee of an operator of a health care facility.]
28-56 [I declare that I am not related to the principal by blood,
28-57 marriage, or adoption and that to the best of my knowledge I am not
28-58 entitled to any part of the estate of the principal on the death of
28-59 the principal under a will or by operation of law].
28-60 [Witness] Signature:_______________________________________________
28-61 Print Name:_____________________________Date:______________________
28-62 Address:___________________________________________________________
28-63 SIGNATURE OF SECOND WITNESS.
28-64 [Witness] Signature:_______________________________________________
28-65 Print Name:_____________________________Date:______________________
28-66 Address:___________________________________________________________
28-67 Sec. 166.165 [135.017]. CIVIL ACTION. (a) A person who is
28-68 a near relative of the principal or a responsible adult who is
28-69 directly interested in the principal, including a guardian, social
29-1 worker, physician, or clergyman, may bring an action in district
29-2 court to request that the medical [durable] power of attorney [for
29-3 health care] be revoked because the principal, at the time the
29-4 medical [durable] power of attorney [for health care] was signed:
29-5 (1) was not competent [of sound mind to make a health
29-6 care decision]; or
29-7 (2) was under duress, fraud, or undue influence.
29-8 (b) The action may be brought in the county of the
29-9 principal's residence or the residence of the person bringing the
29-10 action.
29-11 (c) During the pendency of the action, the authority of the
29-12 agent to make health care decisions continues in effect unless the
29-13 district court orders otherwise.
29-14 Sec. 166.166 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
29-15 AFFECTED. (a) This subchapter [chapter] does not limit or impair
29-16 any legal right or responsibility that any person, including a
29-17 physician or health or residential care provider, may have to make
29-18 or implement health care decisions on behalf of a person.
29-19 (b) If an attending physician or health care facility is
29-20 unwilling to honor a patient's advance directive or a treatment
29-21 decision to provide life-sustaining treatment, life-sustaining
29-22 treatment is required to be provided the patient, but only until a
29-23 reasonable opportunity has been afforded for transfer of the
29-24 patient to another physician or health care facility willing to
29-25 comply with the advance directive or treatment decision.
29-26 ARTICLE 2. CONFORMING AMENDMENTS
29-27 SECTION 2.01. Subsection (a), Section 313.003, Health and
29-28 Safety Code, is amended to read as follows:
29-29 (a) This chapter does not apply to:
29-30 (1) a decision to withhold or withdraw life-sustaining
29-31 treatment from qualified terminal or irreversible patients under
29-32 Subchapter B, Chapter 166 [the terms of Chapter 672];
29-33 (2) a health care decision made under a medical
29-34 [durable] power of attorney [for health care] under Subchapter D,
29-35 Chapter 166 [Chapter 135, Civil Practice and Remedies Code], or
29-36 under Chapter XII, Texas Probate Code;
29-37 (3) consent to medical treatment of minors under
29-38 Chapter 32 [35], Family Code;
29-39 (4) consent for emergency care under Chapter 773;
29-40 (5) hospital patient transfers under Chapter 241; or
29-41 (6) a patient's legal guardian who has the authority
29-42 to make a decision regarding the patient's medical treatment.
29-43 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
29-44 Code, is amended by adding Section 142.0145 to read as follows:
29-45 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
29-46 DIRECTIVES. (a) The department shall assess an administrative
29-47 penalty against a home and community support services agency that
29-48 violates Section 166.004.
29-49 (b) A penalty assessed under this section shall be $500.
29-50 (c) The penalty shall be assessed in accordance with
29-51 department rules. The rules must provide for notice and an
29-52 opportunity for a hearing.
29-53 SECTION 2.03. Subsections (a) and (c), Section 241.059,
29-54 Health and Safety Code, are amended to read as follows:
29-55 (a) The commissioner of health may assess an administrative
29-56 penalty against a hospital that violates this chapter, a rule
29-57 adopted pursuant to this chapter, a special license provision, an
29-58 order or emergency order issued by the commissioner or the
29-59 commissioner's designee, or another enforcement procedure permitted
29-60 under this chapter. The commissioner shall assess an
29-61 administrative penalty against a hospital that violates Section
29-62 166.004.
29-63 (c) The penalty may not exceed $1,000 for each violation,
29-64 except that the penalty for a violation of Section 166.004 shall be
29-65 $500. Each day of a continuing violation, other than a violation
29-66 of Section 166.004, may be considered a separate violation.
29-67 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
29-68 Code, is amended by adding Section 242.0663 to read as follows:
29-69 Sec. 242.0663. VIOLATION OF LAW RELATING TO ADVANCE
30-1 DIRECTIVES. (a) The department shall assess an administrative
30-2 penalty under this subchapter against an institution that violates
30-3 Section 166.004.
30-4 (b) Notwithstanding Sections 242.066(b) and (c), a penalty
30-5 assessed in accordance with this section shall be $500 and a
30-6 separate penalty may not be assessed for a separate day of a
30-7 continuing violation.
30-8 (c) Section 242.0665 does not apply to a penalty assessed in
30-9 accordance with this section.
30-10 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
30-11 Code, is amended by adding Section 247.0455 to read as follows:
30-12 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
30-13 DIRECTIVES. (a) The department shall assess an administrative
30-14 penalty against a personal care facility that violates Section
30-15 166.004.
30-16 (b) A penalty assessed under this section shall be $500.
30-17 (c) The penalty shall be assessed in accordance with
30-18 department rules. The rules must provide for notice and an
30-19 opportunity for a hearing.
30-20 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
30-21 Code, is amended by adding Section 248.0545 to read as follows:
30-22 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
30-23 DIRECTIVES. (a) The department shall assess an administrative
30-24 penalty against a special care facility that violates Section
30-25 166.004.
30-26 (b) A penalty assessed under this section shall be $500.
30-27 (c) The penalty shall be assessed in accordance with
30-28 department rules. The rules must provide for notice and an
30-29 opportunity for a hearing.
30-30 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
30-31 SECTION 3.01. This Act takes effect September 1, 1999.
30-32 SECTION 3.02. (a) The change in law made by this Act does
30-33 not affect the validity of a document executed under Chapter 672 or
30-34 674, Health and Safety Code, or Chapter 135, Civil Practice and
30-35 Remedies Code, before the effective date of this Act. A document
30-36 executed before the effective date of this Act is governed by the
30-37 law in effect on the date the document was executed, and that law
30-38 continues in effect for that purpose.
30-39 (b) A reference in a law to a durable power of attorney for
30-40 health care means a medical power of attorney, as defined by
30-41 Section 166.002, Health and Safety Code, as added by this Act.
30-42 SECTION 3.03. (a) The change in law made by this Act applies
30-43 only to the punishment for an offense committed on or after the
30-44 effective date of this Act. For purposes of this section, an
30-45 offense is committed before the effective date of this Act if any
30-46 element of the offense occurs before the effective date.
30-47 (b) An offense committed before the effective date of this
30-48 Act is covered by the law in effect when the offense was committed,
30-49 and the former law is continued in effect for that purpose.
30-50 SECTION 3.04. The change in law made by this Act to
30-51 Subsection (b), Section 166.045, and Subsection (b), Section
30-52 166.095, Health and Safety Code, as redesignated by this Act,
30-53 applies only to conduct that occurs on or after January 1, 2000.
30-54 Conduct that occurs before January 1, 2000, is governed by the law
30-55 as it existed immediately before the effective date of this Act,
30-56 and that law is continued in effect for that purpose.
30-57 SECTION 3.05. The importance of this legislation and the
30-58 crowded condition of the calendars in both houses create an
30-59 emergency and an imperative public necessity that the
30-60 constitutional rule requiring bills to be read on three several
30-61 days in each house be suspended, and this rule is hereby suspended.
30-62 * * * * *