Bill Text: TX SB1163 | 2015-2016 | 84th Legislature | Introduced


Bill Title: Relating to advance directives and health care and treatment decisions.

Spectrum: Partisan Bill (Republican 8-0)

Status: (Introduced - Dead) 2015-05-25 - Co-author authorized [SB1163 Detail]

Download: Texas-2015-SB1163-Introduced.html
  84R11643 AJZ-F
 
  By: Hancock S.B. No. 1163
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to advance directives and health care and treatment
  decisions.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 166.002, Health and Safety Code, is
  amended by adding Subdivision (16) to read as follows:
               (16)  "Reasonable medical judgment" means a medical
  judgment that would be made by a reasonably prudent physician,
  knowledgeable about the case and the treatment possibilities with
  respect to the medical conditions involved.
         SECTION 2.  Sections 166.045(c) and (d), Health and Safety
  Code, are amended to read as follows:
         (c)  If an attending physician refuses to comply with a
  directive or treatment decision for a reason permitted by Section
  166.046(a-1) and not prohibited by Section 166.0455 and does not
  wish to follow the procedure established under Section 166.046,
  life-sustaining treatment shall be provided to the patient, but
  only until a reasonable opportunity has been afforded for the
  transfer of the patient to another physician or health care
  facility willing to comply with the directive or treatment
  decision.
         (d)  A physician, health professional acting under the
  direction of a physician, or health care facility is not civilly or
  criminally liable or subject to review or disciplinary action by
  the person's appropriate licensing board if the person has complied
  with the procedures and limitations outlined in Sections 166.0455
  and [Section] 166.046.
         SECTION 3.  Subchapter B, Chapter 166, Health and Safety
  Code, is amended by adding Section 166.0455 to read as follows:
         Sec. 166.0455.  LIMITATION ON REFUSAL TO EFFECTUATE CERTAIN
  ADVANCE DIRECTIVES OR TREATMENT DECISIONS. A physician or other
  health care professional, a health care facility, or an ethics or
  medical committee shall not override or refuse to honor and comply
  with a patient's advance directive or a health care or treatment
  decision made by or on behalf of a patient that directs the
  provision of life-sustaining treatment and shall not consider
  life-sustaining treatment to be inappropriate treatment under
  Section 166.046 based on:
               (1)  the lesser value the physician or professional,
  facility, or committee places on sustaining the life of an elderly,
  disabled, or terminally ill patient compared to the value of
  sustaining the life of a patient who is younger, not disabled, or
  not terminally ill; or
               (2)  a disagreement between the physician or
  professional, facility, or committee and the patient, or the person
  authorized to make a treatment decision for the patient under
  Section 166.039, over the greater weight the patient or person
  places on sustaining the patient's life than the risk of
  disability.
         SECTION 4.  Section 166.046, Health and Safety Code, is
  amended by amending Subsections (a) and (g) and adding Subsections
  (a-1) and (c-1) to read as follows:
         (a)  If an attending physician refuses to honor or comply
  with a patient's advance directive or a health care or treatment
  decision made by or on behalf of a patient for a reason permitted by
  Subsection (a-1) and not prohibited by Section 166.0455, the
  physician's refusal shall be reviewed by an ethics or medical
  committee. The attending physician may not be a member of that
  committee. The patient shall be given life-sustaining treatment
  during the review. A person may not coerce or attempt to coerce a
  physician not to comply with a patient's advance directive or a
  health care or treatment decision made by or on behalf of a patient
  by threatening or implementing adverse employment decisions or
  professional discipline.
         (a-1)  The ethics or medical committee reviewing the
  physician's refusal under Subsection (a) shall not consider
  life-sustaining treatment inappropriate unless, based on
  reasonable medical judgment, the life-sustaining treatment
  requested by or on behalf of the patient is:
               (1)  futile because the treatment is physiologically
  ineffective in achieving the specific intended benefit to the
  patient as intended by or on behalf of the patient; or
               (2)  medically inappropriate because providing the
  treatment to the patient would clearly create a substantially
  greater risk of causing or hastening the death of the patient than
  would withholding or withdrawing the treatment.
         (c-1)  The ethics or medical committee shall not approve
  withdrawing or withholding life-sustaining treatment if the ethics
  or medical committee determines during the review described by
  Subsection (a) that the physician refused to honor a patient's
  advance directive or a health care or treatment decision made by or
  on behalf of the patient for a reason prohibited by Section
  166.0455.
         (g)  At the request of the patient or the person responsible
  for the health care decisions of the patient, the appropriate
  [district or county] court shall extend the time period provided
  under Subsection (e) [only] if the court finds, by a preponderance
  of the evidence, that there is a reasonable expectation that a
  physician or health care facility that will honor the patient's
  directive will be found if the time extension is granted.
         SECTION 5.  Subchapter B, Chapter 166, Health and Safety
  Code, is amended by adding Section 166.0465 to read as follows:
         Sec. 166.0465.  COURT PROCEEDINGS; APPEAL; FILING FEE AND
  COURT COSTS. (a) A patient, the person responsible for the
  patient's health care decisions, or the person who has made the
  decision regarding the advance directive or treatment decision may
  file a motion for injunctive relief in any county court at law,
  court having probate jurisdiction, or district court, including a
  family district court, based on:
               (1)  a request for extension of time to effect a patient
  transfer for relief under Section 166.046(g); or
               (2)  an allegation that a physician or other health
  care professional, health care facility, or ethics or medical
  committee is violating or threatening to violate this chapter.
         (b)  The person filing a motion under Subsection (a) shall
  immediately serve a copy of the motion on the defendant.
         (c)  The court shall promptly set a time for a hearing on a
  motion filed under Subsection (a) and shall keep a record of all
  testimony and other oral proceedings in the action. The court shall
  rule on the motion and issue written findings of fact and
  conclusions of law not later than the fifth business day after the
  date the motion is filed with the court.
         (d)  The time for the hearing and the date by which the court
  must rule on the motion under Subsection (c) may be extended, for
  good cause shown, by the court.
         (e)  Any party may appeal the decision of the court under
  Subsection (c) to the court of appeals having jurisdiction over
  civil matters in the county in which the motion was filed by filing
  a notice of appeal with the clerk of the court that ruled on the
  motion not later than the first business day after the date the
  decision of the court was issued.
         (f)  On receipt of a notice of appeal under Subsection (e),
  the clerk of the court that ruled on the motion shall deliver a copy
  of the notice of appeal and record on appeal to the clerk of the
  court of appeals. On receipt of the notice and record, the clerk of
  the court of appeals shall place the appeal on the docket of the
  court, and the court of appeals shall promptly issue an expedited
  briefing schedule and set a time for a hearing.
         (g)  The court of appeals shall rule on an appeal under
  Subsection (f) not later than the fifth business day after the date
  the notice of appeal is filed with the court that ruled on the
  motion.
         (h)  The times for the filing of briefs, the hearing, and the
  date by which the court of appeals must rule on the appeal under
  Subsection (g) may be extended, for good cause shown, by the court
  of appeals.
         (i)  Any party may file a petition for review of the decision
  of the court of appeals under Subsection (g) with the clerk of the
  supreme court not later than the third business day after the date
  the decision of the court of appeals was issued. Other parties may
  file responses not later than the third business day after the date
  the petition for review was filed. The supreme court shall grant,
  deny, refuse, or dismiss the petition, without regard to whether a
  reply to any response has been filed, not later than the third
  business day after the date the response was due. If the supreme
  court grants the petition for review, the court shall exercise the
  court's sound discretion in determining how expeditiously to hear
  and decide the case.
         (j)  If a motion is filed under Subsection (a) and the
  dispute concerns whether life-sustaining treatment should be
  provided to the patient, life-sustaining treatment must be provided
  through midnight of the day by which a notice of appeal must be
  filed unless the court directs that the life-sustaining treatment
  be provided for a longer period. If a notice of appeal under
  Subsection (e) is filed, life-sustaining treatment must be provided
  through midnight of the day by which a petition for review to the
  supreme court must be filed, unless the court of appeals directs
  that the life-sustaining treatment be provided for a longer period.
  If a petition for review to the supreme court is filed under
  Subsection (i), life-sustaining treatment must be provided through
  midnight of the day on which the supreme court denies, refuses, or
  dismisses the petition or issues a ruling on the merits, unless the
  supreme court directs that the life-sustaining treatment be
  provided for a longer period.
         (k)  A filing fee or court cost may not be assessed for any
  proceeding in a trial or appellate court under this section.
         SECTION 6.  Section 166.051, Health and Safety Code, is
  amended to read as follows:
         Sec. 166.051.  LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED.
  This subchapter does not impair or supersede any legal right or
  responsibility a person may have to effect the withholding or
  withdrawal of life-sustaining treatment in a lawful manner,
  provided that if an attending physician or health care facility is
  unwilling to honor and comply with a patient's advance directive or
  a treatment decision to provide life-sustaining treatment for a
  reason permitted by Section 166.046(a-1) and not prohibited by
  Section 166.0455, life-sustaining treatment is required to be
  provided the patient, but only until a reasonable opportunity has
  been afforded for transfer of the patient to another physician or
  health care facility willing to comply with the advance directive
  or treatment decision.
         SECTION 7.  Sections 166.052(a) and (b), Health and Safety
  Code, are amended to read as follows:
         (a)  In cases in which the attending physician refuses to
  honor an advance directive or treatment decision requesting the
  provision of life-sustaining treatment, the statement required by
  Section 166.046(b)(3)(A) [166.046(b)(2)(A)] shall be in
  substantially the following form:
  When There Is A Disagreement About Medical Treatment: The
  Physician Recommends Against Life-Sustaining Treatment That You
  Wish To Continue
         You have been given this information because you have
  requested life-sustaining treatment,* which the attending
  physician believes is not appropriate. This information is being
  provided to help you understand state law, your rights, and the
  resources available to you in such circumstances. It outlines the
  process for resolving disagreements about treatment among
  patients, families, and physicians. It is based upon Section
  166.046 of the Texas Advance Directives Act, codified in Chapter
  166, [of the Texas] Health and Safety Code.
         When an attending physician refuses to comply with an advance
  directive or other request for life-sustaining treatment because of
  the physician's judgment that the treatment would be inappropriate,
  the case will be reviewed by an ethics or medical committee.
  Life-sustaining treatment will be provided through the review.
         You will receive notification of this review at least 48
  hours before a meeting of the committee related to your case. You
  are entitled to attend the meeting. With your agreement, the
  meeting may be held sooner than 48 hours, if possible.
         A physician or other health care professional, a health care
  facility, or an ethics or medical committee may not deny a patient
  life-sustaining treatment based on:
         1.  the lesser value the physician or professional,
  facility, or committee places on sustaining the life of an elderly,
  disabled, or terminally ill patient compared to the value of
  sustaining the life of a patient who is younger, not disabled, or
  not terminally ill; or
         2.  a disagreement between the physician or professional,
  facility, or committee and the patient, or the person authorized to
  make a treatment decision for the patient under Section 166.039,
  over the greater weight the patient or person places on sustaining
  the patient's life than the risk of disability.
         Life-sustaining treatment may be denied if the treatment is:
         1.  futile because the treatment is physiologically
  ineffective in achieving the specific intended benefit to the
  patient as intended by or on behalf of the patient; or
         2.  medically inappropriate because providing the treatment
  to the patient would clearly create a substantially greater risk of
  causing or hastening the death of the patient than would
  withholding or withdrawing it.
         You are entitled to receive a written explanation of the
  decision reached during the review process.
         If after this review process both the attending physician and
  the ethics or medical committee conclude that life-sustaining
  treatment is inappropriate and yet you continue to request such
  treatment, then the following procedure will occur:
         1.  The physician, with the help of the health care facility,
  will assist you in trying to find a physician and facility willing
  to provide the requested treatment.
         2.  You are being given a list of health care providers and
  referral groups that have volunteered their readiness to consider
  accepting transfer, or to assist in locating a provider willing to
  accept transfer, maintained by the Texas Health Care Information
  Council. You may wish to contact providers or referral groups on
  the list or others of your choice to get help in arranging a
  transfer.
         3.  The patient will continue to be given life-sustaining
  treatment until he or she can be transferred to a willing provider
  for up to 10 days from the time you were given the committee's
  written decision that life-sustaining treatment is not
  appropriate.
         4.  If a transfer can be arranged, the patient will be
  responsible for the costs of the transfer.
         5.  If a provider cannot be found willing to give the
  requested treatment within 10 days, life-sustaining treatment may
  be withdrawn unless a court of law has ruled otherwise [granted an
  extension].
         6.  You may ask the [appropriate district or county] court to
  extend the 10-day period if the court finds that there is a
  reasonable expectation that a physician or health care facility
  willing to provide life-sustaining treatment will be found if the
  extension is granted.
         7.  The law gives you the right to seek a court order to
  require a physician or other health care professional, health care
  facility, or ethics or medical committee to comply with your rights
  under the Texas Advance Directives Act if the physician or
  professional, facility, or committee is violating or threatening to
  violate a provision of that Act. You may wish to talk to legal
  counsel for further information about your right to seek a court
  order.
  *"Life-sustaining treatment" means treatment that, based on
  reasonable medical judgment, sustains the life of a patient and
  without which the patient will die. The term includes both
  life-sustaining medications and artificial life support, such as
  mechanical breathing machines, kidney dialysis treatment, and
  artificial nutrition and hydration. The term does not include the
  administration of pain management medication or the performance of
  a medical procedure considered to be necessary to provide comfort
  care, or any other medical care provided to alleviate a patient's
  pain.
         (b)  In cases in which the attending physician refuses to
  comply with an advance directive or treatment decision requesting
  the withholding or withdrawal of life-sustaining treatment, the
  statement required by Section 166.046(b)(3)(A) shall be in
  substantially the following form:
  When There Is A Disagreement About Medical Treatment: The
  Physician Recommends Life-Sustaining Treatment That You Wish To
  Stop
         You have been given this information because you have
  requested the withdrawal or withholding of life-sustaining
  treatment* and the attending physician refuses to comply with that
  request. The information is being provided to help you understand
  state law, your rights, and the resources available to you in such
  circumstances. It outlines the process for resolving disagreements
  about treatment among patients, families, and physicians. It is
  based upon Section 166.046 of the Texas Advance Directives Act,
  codified in Chapter 166, [of the Texas] Health and Safety Code.
         When an attending physician refuses to comply with an advance
  directive or other request for withdrawal or withholding of
  life-sustaining treatment for any reason, the case will be reviewed
  by an ethics or medical committee. Life-sustaining treatment will
  be provided through the review.
         You will receive notification of this review at least 48
  hours before a meeting of the committee related to your case. You
  are entitled to attend the meeting. With your agreement, the
  meeting may be held sooner than 48 hours, if possible.
         You are entitled to receive a written explanation of the
  decision reached during the review process.
         If you or the attending physician do not agree with the
  decision reached during the review process, and the attending
  physician still refuses to comply with your request to withhold or
  withdraw life-sustaining treatment, then the following procedure
  will occur:
         1.  The physician, with the help of the health care facility,
  will assist you in trying to find a physician and facility willing
  to withdraw or withhold the life-sustaining treatment.
         2.  You are being given a list of health care providers and
  referral groups that have volunteered their readiness to consider
  accepting transfer, or to assist in locating a provider willing to
  accept transfer, maintained by the Texas Health Care Information
  Council. You may wish to contact providers or referral groups on
  the list or others of your choice to get help in arranging a
  transfer.
         3.  The law gives you a right to seek a court order to require
  a physician or other health care professional, health care
  facility, or ethics or medical committee to comply with your rights
  under the Texas Advance Directives Act if the physician, facility,
  or committee is violating or threatening to violate a provision of
  that Act. You may wish to talk to legal counsel for further
  information about your right to seek a court order.
  *"Life-sustaining treatment" means treatment that, based on
  reasonable medical judgment, sustains the life of a patient and
  without which the patient will die. The term includes both
  life-sustaining medications and artificial life support, such as
  mechanical breathing machines, kidney dialysis treatment, and
  artificial nutrition and hydration. The term does not include the
  administration of pain management medication or the performance of
  a medical procedure considered to be necessary to provide comfort
  care, or any other medical care provided to alleviate a patient's
  pain.
         SECTION 8.  Section 166.158(c), Health and Safety Code, is
  amended to read as follows:
         (c)  A principal's health or residential care provider who
  finds it impossible to follow a directive by the agent because of a
  conflict with this subchapter or the medical power of attorney
  shall inform the agent as soon as is reasonably possible. The agent
  may select another attending physician. The procedures and
  limitations established under Sections 166.045, 166.0455, and
  166.046 apply if the agent's directive concerns providing,
  withholding, or withdrawing life-sustaining treatment.
         SECTION 9.  Section 166.166, Health and Safety Code, is
  amended to read as follows:
         Sec. 166.166.  OTHER RIGHTS OR RESPONSIBILITIES NOT
  AFFECTED. This subchapter does not limit or impair any legal right
  or responsibility that any person, including a physician or health
  or residential care provider, may have to make or implement health
  care decisions on behalf of a person, provided that if an attending
  physician or health care facility is unwilling to honor and comply
  with a patient's advance directive or a treatment decision to
  provide life-sustaining treatment for a reason permitted by Section
  166.046(a-1) and not prohibited by Section 166.0455,
  life-sustaining treatment is required to be provided the patient,
  but only until a reasonable opportunity has been afforded for
  transfer of the patient to another physician or health care
  facility willing to comply with the advance directive or treatment
  decision.
         SECTION 10.  Not later than December 1, 2015, the Supreme
  Court of Texas shall issue the rules and prescribe the forms
  necessary for the process established by Section 166.0465, Health
  and Safety Code, as added by this Act. The rules shall prescribe
  the method of service of the application under Section 166.0465,
  Health and Safety Code, and may require filing and service of
  notices, petitions, and briefs electronically to the extent the
  Supreme Court of Texas considers appropriate.
         SECTION 11.  The changes in law made by this Act apply only
  to a health care or treatment decision made on or after the
  effective date of this Act.
         SECTION 12.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2015.
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