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A BILL TO BE ENTITLED
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AN ACT
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relating to advance directives or health care or treatment |
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decisions made by or on behalf of patients. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 166.039, Health and Safety Code, is |
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amended by amending Subsection (g) and adding Subsection (h) to |
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read as follows: |
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(g) A person listed in Subsection (b) who wishes to |
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challenge a treatment decision made under this section must apply |
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for temporary guardianship under Section 875, Texas Probate Code, |
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and allege that the treatment decision: |
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(1) violates the patient's directions provided in an |
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advance directive or as otherwise known; |
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(2) if the patient's directions are unknown, is |
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inconsistent with the patient's known values; or |
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(3) if the matter cannot be determined using a |
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standard described by Subdivision (1) or (2), is clearly |
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inconsistent with the patient's best interests, beginning with a |
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presumption for life. |
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(h) A physician, medical or ethics committee, or health care |
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facility treating a patient may participate as a party in the |
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guardianship proceedings described by Subsection (g). The court |
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may waive applicable fees in that proceeding. |
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SECTION 2. Section 166.045(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) If an attending physician refuses to comply with a |
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directive or treatment decision requesting the provision of |
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life-sustaining treatment to a patient and either the attending |
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physician does not wish to follow the procedure established under |
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Section 166.046 or the procedure is not applicable, life-sustaining |
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treatment shall be provided to the patient[, but only] until [a
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reasonable opportunity has been afforded for the transfer of] the |
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patient is transferred to another physician or health care facility |
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willing to comply with the directive or treatment decision. |
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SECTION 3. Sections 166.046(b) and (e), Health and Safety |
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Code, are amended to read as follows: |
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(b) The patient or the person responsible for the health |
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care decisions of the individual who has made the decision |
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regarding the directive or treatment decision: |
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(1) may be given a written description of the ethics or |
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medical committee review process and any other policies and |
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procedures related to this section adopted by the health care |
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facility; |
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(2) shall be informed of the committee review process |
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not less than 48 hours before the meeting called to discuss the |
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patient's directive, unless the time period is waived by mutual |
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agreement; |
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(3) at the time of being so informed, shall be |
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provided: |
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(A) a copy of the appropriate statement set forth |
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in Section 166.052; and |
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(B) a copy of the registry list of health care |
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providers and referral groups that have volunteered their readiness |
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to consider accepting transfer or to assist in locating a provider |
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willing to accept transfer that is posted on the website maintained |
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by the Texas Health Care Information Council under Section 166.053; |
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and |
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(4) is entitled to: |
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(A) attend the meeting and be represented by |
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legal counsel at the meeting; and |
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(B) receive a written explanation of the decision |
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reached during the review process. |
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(e) If the patient or the person responsible for the health |
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care decisions of the patient is requesting life-sustaining |
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treatment that the attending physician has decided and the review |
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process has affirmed is inappropriate treatment, the patient shall |
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be given available life-sustaining treatment pending transfer |
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under Subsection (d). The patient is responsible for any costs |
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incurred in transferring the patient to another facility. [The
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physician and the health care facility are not obligated to provide
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life-sustaining treatment after the 10th day after the written
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decision required under Subsection (b) is provided to the patient
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or the person responsible for the health care decisions of the
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patient unless ordered to do so under Subsection (g).] |
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SECTION 4. Subchapter B, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.0465 to read as follows: |
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Sec. 166.0465. COURT PROCEEDINGS; APPEAL; FILING FEE AND |
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COURT COSTS. (a) A patient, the person responsible for the |
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patient's health care decisions, or the person who has made the |
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decision regarding the advance directive or treatment decision may |
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file a motion for injunctive relief in any county court at law, |
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court having probate jurisdiction, or district court, including a |
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family district court, based on an allegation that a physician, |
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ethics or medical committee, or health care facility is violating |
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or is threatening to violate the patient's rights under this |
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chapter and shall immediately serve a copy of the motion on the |
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defendant. |
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(b) The court shall promptly set a time for a hearing on a |
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motion filed under Subsection (a) and shall keep a record of all |
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testimony and other oral proceedings in the action. The court shall |
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rule on the motion and issue written findings of fact and |
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conclusions of law not later than the fifth business day after the |
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date the motion is filed with the court. The time for the hearing |
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and the date by which the court must rule on the motion may be |
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extended by stipulation of the parties, with the approval of the |
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court. |
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(c) Any party may appeal the decision of the court under |
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Subsection (b) to the court of appeals having jurisdiction over |
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civil matters in the county in which the motion was filed by filing |
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a notice of appeal with the clerk of the court that ruled on the |
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motion not later than the first business day after the date the |
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decision of the court was issued. |
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(d) On receipt of a notice of appeal under Subsection (c), |
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the clerk of the court that ruled on the motion shall deliver a copy |
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of the notice of appeal and record on appeal to the clerk of the |
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court of appeals. On receipt of the notice and record, the clerk of |
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the court of appeals shall place the appeal on the docket of the |
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court, and the court of appeals shall promptly issue an expedited |
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briefing schedule and set a time for a hearing. |
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(e) The court of appeals shall rule on an appeal under |
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Subsection (d) not later than the fifth business day after the date |
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the notice of appeal is filed with the court that ruled on the |
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motion. The times for the filing of briefs, the hearing, and the |
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date by which the court of appeals must rule on the appeal may be |
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extended by stipulation of the parties, with the approval of the |
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court of appeals. |
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(f) Any party may file a petition for review of the decision |
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of the court of appeals with the clerk of the supreme court not |
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later than the third business day after the date the decision of the |
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court of appeals was issued. Other parties may file responses not |
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later than the third business day after the date the petition for |
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review was filed. The supreme court shall grant, deny, refuse, or |
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dismiss the petition for want of jurisdiction, without regard to |
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whether a reply to any response has been filed, not later than the |
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third business day after the date the response was due. If the |
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supreme court grants the petition for review, it shall exercise its |
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sound discretion in determining how expeditiously to hear and |
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decide the case. |
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(g) If a motion is filed under Subsection (a) and the |
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dispute concerns whether life-sustaining treatment should be |
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provided to the patient, life-sustaining treatment shall be |
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provided through midnight of the day by which a notice of appeal |
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must be filed unless the court directs that it be provided for a |
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longer period. If a notice of appeal under Subsection (c) is filed, |
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life-sustaining treatment shall be provided through midnight of the |
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day by which a petition for review to the supreme court must be |
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filed, unless the court of appeals directs that it be provided for a |
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longer period. If a petition for review to the supreme court is |
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filed under Subsection (f), life-sustaining treatment shall be |
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provided through midnight of the day on which the supreme court |
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denies, refuses, or dismisses the petition or issues a ruling on the |
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merits, unless the supreme court directs that it be provided for a |
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longer period. |
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(h) A filing fee or court cost may not be assessed for any |
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proceeding in a trial or appellate court under this section. |
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SECTION 5. Section 166.051, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. |
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This subchapter does not impair or supersede any legal right or |
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responsibility a person may have to effect the withholding or |
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withdrawal of life-sustaining treatment in a lawful manner, |
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provided that if an attending physician or health care facility is |
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unwilling to honor a patient's advance directive or a treatment |
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decision to provide life-sustaining treatment, life-sustaining |
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treatment must [is required to] be provided to the patient in |
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accordance with this chapter[, but only until a reasonable
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opportunity has been afforded for transfer of the patient to
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another physician or health care facility willing to comply with
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the advance directive or treatment decision]. |
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SECTION 6. Sections 166.052(a) and (b), Health and Safety |
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Code, are amended to read as follows: |
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(a) In cases in which the attending physician refuses to |
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honor an advance directive or treatment decision requesting the |
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provision of life-sustaining treatment, the statement required by |
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Section 166.046(b)(3)(A) [166.046(b)(2)(A)] shall be in |
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substantially the following form: |
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When There Is A Disagreement About Medical Treatment: The |
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Physician Recommends Against Life-Sustaining Treatment That You |
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Wish To Continue |
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You have been given this information because you have |
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requested life-sustaining treatment,* which the attending |
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physician believes is not appropriate. This information is being |
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provided to help you understand state law, your rights, and the |
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resources available to you in such circumstances. It outlines the |
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process for resolving disagreements about treatment among |
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patients, families, and physicians. It is based upon Section |
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166.046 of the Texas Advance Directives Act, codified in Chapter |
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166, [of the Texas] Health and Safety Code. |
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When an attending physician refuses to comply with an advance |
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directive or other request for life-sustaining treatment because of |
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the physician's judgment that the treatment would be inappropriate, |
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the case will be reviewed by an ethics or medical committee. |
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Life-sustaining treatment will be provided through the review. |
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You will receive notification of this review at least 48 |
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hours before a meeting of the committee related to your case. You |
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are entitled to attend the meeting and be represented by legal |
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counsel at the meeting. With your agreement, the meeting may be |
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held sooner than 48 hours, if possible. |
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You are entitled to receive a written explanation of the |
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decision reached during the review process. |
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If after this review process both the attending physician and |
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the ethics or medical committee conclude that life-sustaining |
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treatment is inappropriate and yet you continue to request such |
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treatment, then the following procedure will occur: |
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1. The physician, with the help of the health care facility, |
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will assist you in trying to find a physician and facility willing |
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to provide the requested treatment. |
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2. You are being given a list of health care providers and |
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referral groups that have volunteered their readiness to consider |
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accepting transfer, or to assist in locating a provider willing to |
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accept transfer, maintained by the Texas Health Care Information |
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Council. You may wish to contact providers or referral groups on |
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the list or others of your choice to get help in arranging a |
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transfer. |
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3. The patient will [continue to] be given life-sustaining |
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treatment until he or she can be transferred to a willing provider |
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[for up to 10 days from the time you were given the committee's
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written decision that life-sustaining treatment is not
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appropriate]. |
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4. If a transfer can be arranged, the patient will be |
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responsible for the costs of the transfer. |
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5. The law gives you a right to seek a court order to require a |
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physician, ethics or medical committee, or health care facility to |
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comply with your rights under the Texas Advance Directives Act if |
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the physician, committee, or facility is violating or threatening |
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to violate a provision of that Act. You may wish to talk to legal |
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counsel for further information about your right to seek a court |
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order [If a provider cannot be found willing to give the requested
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treatment within 10 days, life-sustaining treatment may be
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withdrawn unless a court of law has granted an extension.
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[6. You may ask the appropriate district or county court to
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extend the 10-day period if the court finds that there is a
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reasonable expectation that a physician or health care facility
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willing to provide life-sustaining treatment will be found if the
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extension is granted]. |
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*"Life-sustaining treatment" means treatment that, based on |
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reasonable medical judgment, sustains the life of a patient and |
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without which the patient will die. The term includes both |
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life-sustaining medications and artificial life support, such as |
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mechanical breathing machines, kidney dialysis treatment, and |
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artificial nutrition and hydration. The term does not include the |
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administration of pain management medication or the performance of |
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a medical procedure considered to be necessary to provide comfort |
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care, or any other medical care provided to alleviate a patient's |
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pain. |
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(b) In cases in which the attending physician refuses to |
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comply with an advance directive or treatment decision requesting |
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the withholding or withdrawal of life-sustaining treatment, the |
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statement required by Section 166.046(b)(3)(A) shall be in |
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substantially the following form: |
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When There Is A Disagreement About Medical Treatment: The |
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Physician Recommends Life-Sustaining Treatment That You Wish To |
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Stop |
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You have been given this information because you have |
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requested the withdrawal or withholding of life-sustaining |
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treatment* and the attending physician refuses to comply with that |
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request. The information is being provided to help you understand |
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state law, your rights, and the resources available to you in such |
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circumstances. It outlines the process for resolving disagreements |
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about treatment among patients, families, and physicians. It is |
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based upon Section 166.046 of the Texas Advance Directives Act, |
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codified in Chapter 166, [of the Texas] Health and Safety Code. |
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When an attending physician refuses to comply with an advance |
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directive or other request for withdrawal or withholding of |
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life-sustaining treatment for any reason, the case will be reviewed |
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by an ethics or medical committee. Life-sustaining treatment will |
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be provided through the review. |
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You will receive notification of this review at least 48 |
|
|
hours before a meeting of the committee related to your case. You |
|
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are entitled to attend the meeting and be represented by legal |
|
|
counsel at the meeting. With your agreement, the meeting may be |
|
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held sooner than 48 hours, if possible. |
|
|
You are entitled to receive a written explanation of the |
|
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decision reached during the review process. |
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If you or the attending physician do not agree with the |
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decision reached during the review process, and the attending |
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physician still refuses to comply with your request to withhold or |
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withdraw life-sustaining treatment, then the following procedure |
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will occur: |
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1. The physician, with the help of the health care facility, |
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will assist you in trying to find a physician and facility willing |
|
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to withdraw or withhold the life-sustaining treatment. |
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|
2. You are being given a list of health care providers and |
|
|
referral groups that have volunteered their readiness to consider |
|
|
accepting transfer, or to assist in locating a provider willing to |
|
|
accept transfer, maintained by the Texas Health Care Information |
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|
Council. You may wish to contact providers or referral groups on |
|
|
the list or others of your choice to get help in arranging a |
|
|
transfer. |
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3. The law gives you a right to seek a court order to require |
|
|
a physician, ethics or medical committee, or health care facility |
|
|
to comply with your rights under the Texas Advance Directives Act if |
|
|
the physician, committee, or facility is violating or threatening |
|
|
to violate a provision of that Act. You may wish to talk to legal |
|
|
counsel for further information about your right to seek a court |
|
|
order. |
|
|
*"Life-sustaining treatment" means treatment that, based on |
|
|
reasonable medical judgment, sustains the life of a patient and |
|
|
without which the patient will die. The term includes both |
|
|
life-sustaining medications and artificial life support, such as |
|
|
mechanical breathing machines, kidney dialysis treatment, and |
|
|
artificial nutrition and hydration. The term does not include the |
|
|
administration of pain management medication or the performance of |
|
|
a medical procedure considered to be necessary to provide comfort |
|
|
care, or any other medical care provided to alleviate a patient's |
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pain. |
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SECTION 7. Sections 166.046(f) and (g), Health and Safety |
|
|
Code, are repealed. |
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SECTION 8. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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|
Act takes effect September 1, 2009. |